STATE OF ARIZONA, Plaintiff/Respondent, v. JOHN MONTENEGRO CRUZ, Defendant/Petitioner.
No. CR-17-0567-PC
SUPREME COURT OF THE STATE OF ARIZONA
June 4, 2021
Appeal from the Superior Court in Pima County, The Honorable Joan L. Wagener, Judge, No. CR2003-1740, AFFIRMED
COUNSEL:
Mark Brnovich, Arizona Attorney General, Brunn (Beau) W. Roysden III, Solicitor General, Lacey Stover Gard, Chief Counsel, Jeffrey L. Sparks (argued), Assistant Attorney General, Capital Litigation Section, Phoenix, Attorneys for State of Arizona
John R. Mills, Phillips Black, Inc., Oakland, CA, Attorney for Amicus Curiae Phillips Black, Inc.
JUSTICE MONTGOMERY authored the opinion of the Court, in which CHIEF JUSTICE BRUTINEL, VICE CHIEF JUSTICE TIMMER, and JUSTICES BOLICK, LOPEZ, and BEENE joined.*
JUSTICE MONTGOMERY, opinion of the Court:
¶1 A defendant is generally precluded from seeking collateral review of a matter he could have raised during his direct appeal.
¶2 We hold that, because Lynch II was based on precedent well established at the time the defendant was convicted and sentenced, it was not a significant change in the law for purposes of permitting relief pursuant to
I. Factual and Procedural Background
¶3 In 2005, a jury convicted John Montenegro Cruz of first degree murder for the 2003 killing of Tucson Police Officer Patrick Hardesty and returned a verdict imposing a sentence of death. At the time of the murder, Officer Hardesty had contacted Cruz at an apartment complex and was trying to determine his identity as part of a hit-and-run investigation. Cruz said his identification was in his car, and Officer Hardesty took him to get it. At first, Cruz pretended to reach inside his car but then took off running. Officer Hardesty chased him while a second officer followed in his patrol car.
¶4 When the second officer caught up to Cruz, he saw Cruz throw a gun to the ground. Officer Hardesty‘s body was nearby. He had been shot five times. The handgun thrown by Cruz was a .38 caliber Taurus revolver with five expended cartridges. Forensic examiners concluded that the five bullets recovered from Officer Hardesty‘s body were from the same Taurus revolver, and these matched five unfired .38 cartridges that Cruz possessed at the time of his arrest.
¶5 This Court affirmed Cruz‘s conviction and sentence, State v. Cruz, 218 Ariz. 149, 171 ¶ 139 (2008), and the United States Supreme Court denied his petition for writ of certiorari, Cruz v. Arizona, 555 U.S. 1104 (2009). Cruz filed his first petition for post-conviction relief (“PCR“) in 2012, which the PCR court dismissed, and this Court denied review. In 2014, Cruz initiated federal habeas proceedings that are ongoing.
¶6 After the Supreme Court‘s decision in Lynch II, Cruz filed his present PCR petition. The PCR court denied it, finding that Lynch II did not represent a significant change in the law permitting relief. Nonetheless, the court concluded that even if Lynch II was a significant change in the law, it did not apply retroactively nor would it have probably changed Cruz‘s sentence.
¶7 We granted review to determine whether the Supreme Court‘s ruling in Lynch II amounted to a significant change in the law and, if so, whether that change applies retroactively and would probably overturn Cruz‘s sentence. Whether Lynch II is a significant change in the law is a recurring issue of statewide importance. We have jurisdiction pursuant to
II. Simmons and Arizona Cases
¶8 We summarized Simmons in Cruz‘s direct appeal:
In Simmons, a defendant charged with capital murder was ineligible for parole because of his previous convictions for violent offenses. Id. at 156. Because the state argued that the death penalty was appropriate based on Simmons’ propensity for future violence, Simmons asked the judge to inform the jury that a life sentence would mean life without parole. Id. at 158. The trial court refused to do so, and Simmons was sentenced to death. Id. at 159–60. The United States Supreme Court reversed, stating that “where the defendant‘s future dangerousness is at issue, and state law prohibits the defendant‘s release on parole, due process requires that the sentencing jury be informed that the defendant is parole ineligible.” Id. at 156; see also Shafer v. South Carolina, 532 U.S. 36 (2001) (affirming Simmons).
Cruz, 218 Ariz. at 160 ¶ 41 (emphasis added).
¶9 As there was “[n]o state law [that] would have prohibited Cruz‘s release on parole after serving twenty-five years, had he been given a life sentence,” this Court concluded that Cruz‘s situation was distinguishable from that of the defendant in Simmons. Id. ¶ 42 (citing
¶10 This distinction served as the basis for denying similar requests for relief until the Supreme Court‘s holding in Lynch II. See State v. Garcia, 224 Ariz. 1, 18 ¶ 77 (2010) (“[T]he trial court was not required to give an instruction on parole eligibility because, irrespective of any likelihood that he would die in prison, Garcia was not technically ineligible for parole.“); State v. Hargrave, 225 Ariz. 1, 14–15 ¶ 53 (2010) (“Unlike Simmons, Hargrave was eligible for release after twenty-five years, as the jury instruction correctly stated.“); State v. Chappell, 225 Ariz. 229, 240 ¶ 43 (2010) (finding that jury instruction “accurately described the statutory sentencing options” and thus did not mislead the jury (citing
due process violation where court declined to instruct the jury that Arizona law precluded defendant from being considered for parole after serving twenty-five years if sentenced to life in prison); State v. Lynch (Lynch I), 238 Ariz. 84, 103 ¶ 65 (2015), rev‘d Lynch II (stating that ”Simmons applies only to instances where, as a legal matter, there is no possibility of parole if the jury decides the appropriate sentence is life in prison” (quoting Ramdass v. Angelone, 530 U.S. 156, 169 (2000) (emphasis added))).
¶11 Referring to its opinions in Ramdass, Shafer, and Kelly v. South Carolina, 534 U.S. 246 (2002), the Supreme Court in Lynch II rejected the distinctions this Court had drawn between the defendant in Simmons and similarly situated capital defendants in Arizona cases. Lynch II, 136 S. Ct. at 1819. The Supreme Court explicitly noted that Simmons “rejected the argument that the possibility of clemency diminishes a capital defendant‘s right to inform a jury of his parole ineligibility.” Id. Likewise, the Supreme Court stated that its “precedents also foreclose[d] [the] argument” that a future legislature could provide for parole as a basis for not adhering to Simmons. Id. at 1820.
III. Lynch II and Cruz‘s PCR
A.
¶12 We review a court‘s ruling on a PCR petition for an abuse of discretion,
¶13 A significant change in the law pursuant to
¶14 In 1990, the Supreme Court definitively stated in Walton v. Arizona that “[a]ny argument that the Constitution requires that a jury impose the sentence of death or make the findings prerequisite to
imposition of such a sentence has been soundly rejected by prior decisions of this Court.” Walton v. Arizona, 497 U.S. 639, 647 (1990) overruled by Ring v. Arizona, 536 U.S. 584 (2002) (quoting Clemons v. Mississippi, 494 U.S. 738, 745 (1990)). For twelve years after, no defendant facing a capital sentence could argue otherwise. However, the Supreme Court expressly rejected Walton in Ring, concluding that the
¶15 In Valencia, this Court considered the summary denial of PCR petitions raising constitutional challenges to natural life sentences for juveniles convicted of murder based on the holdings of Miller v. Alabama, 567 U.S. 460 (2012), and Montgomery v. Louisiana, 577 U.S. 190 (2016), as revised (Jan. 27, 2016). 241 Ariz. at 207 ¶ 1. At the time the defendants were sentenced for murders committed when they were juveniles, the legislature had abolished parole. Id. at 208 ¶ 11. The defendants were thus essentially sentenced to life without the possibility of parole. Id. However, in Miller the Supreme Court ruled “that the
¶16 In stark contrast, Lynch II did not declare any change in the law representing a clear break from the past. As acknowledged in Cruz‘s petition to this Court, “[t]he Supreme Court‘s Lynch decision was dictated by its earlier decision in Simmons v. South Carolina, 512 U.S. 154 (1994).” And Cruz even cited Simmons
Appellant argued below he was entitled to present to the jury the mitigating factor that there was no possibility he would ever be released from prison. See Simmons v. South Carolina, 512 U.S. 154, 114 S. Ct. 2187, 129 L. Ed. 2d 133 (1994) [due process requires the sentencing jury be instructed a capital defendant will not be eligible for parole].
¶17 Thus, the law relied upon by the Supreme Court in Lynch II—Simmons—was clearly established at the time of Cruz‘s trial, sentencing, and direct appeal, despite the misapplication of that law by Arizona courts. Consequently, Lynch II does not represent a significant change in the law for purposes of
B.
¶18 Cruz contends otherwise, arguing that Lynch II is nonetheless a transformative event for purposes of
¶19 Escalante-Orozco simply acknowledged that “[t]his Court has repeatedly held that even when a defendant‘s future dangerousness is at issue, the type of instruction given by the trial court here does not violate Simmons because future release is possible.” 241 Ariz. at 284–85 ¶ 117. Regarding Lynch II, all Escalante-Orozco noted was that the Supreme Court had rejected the holding of Lynch I. Id. There was no
The [Supreme] Court determined that the possibilities of clemency or a future statute authorizing parole ‘[do not]
diminish[] a capital defendant‘s right to inform a jury of his parole ineligibility.’ And use of the word ‘release,’ while correct under Arizona law, still gives the defendant a right to inform the jury of his parole ineligibility.
Id. (quoting Lynch II, 136 S. Ct. at 1819).
¶20 Moreover, State v. Shrum rejected a similar argument. 220 Ariz. at 119–20 ¶¶ 19–20. Shrum pled guilty to two amended counts of attempted sexual conduct with a minor under the age of twelve, each alleged to be a dangerous crime against a child (“DCAC“), which required imposition of a greater term of imprisonment than would otherwise have been permitted. Id. at 116–17 ¶ 3.
¶21 In a successive PCR petition seeking relief pursuant to
¶22 Shrum argued that the interpretation of
IV. Conclusion
¶23 Because Lynch II is not a significant change in the law, Cruz is not entitled to relief under