The Inadequate “Adequate State Law Ground” Doctrine

Posted in: Constitutional Law

Last week, in Cruz v. Arizona, a 5-4 U.S. Supreme Court delivered a rare victory to a capital defendant. The high Court determined that the Arizona Supreme Court’s ground for denying relief to John Montenegro Cruz was not an adequate basis for blocking federal review. That decision is correct, but as I shall explain below after describing the somewhat twisted path Cruz’s case took, it exposes an inadequacy in the standard for viewing the “adequacy” of state law grounds for denying federal judicial intervention.

Cruz’s Complicated Case

An Arizona jury found Cruz guilty of murdering a police officer. The trial judge instructed the jurors that they could sentence Cruz to death but that if they did not, he would either serve a life sentence without ever becoming eligible for parole or he could be eligible for parole after twenty-five years. The judge told the jurors that he, the judge, would decide which kind of prison sentence Cruz would receive if they opted against the death penalty. Not wishing for Cruz ever to see the light of day again, the jurors felt that they had no choice but to sentence him to death—a decision three jurors later described as “gut-wrenching.” If they could have been assured that the only alternative to a death sentence would be life without parole (LWOP), the jury would have spared Cruz’s life.

The jurors should have been given that assurance because the judge’s instruction was erroneous. Under Arizona law, there was no possibility of parole. It was already clear at the time of Cruz’s trial that his jury was entitled to know that the only alternative to a death sentence was LWOP. That was the holding of the U.S. Supreme Court in Simmons v. South Carolina, decided over a decade before Cruz committed his crime. In Simmons, as in Cruz’s case, the state had argued that the possibility of clemency, commutation, or a legislative change meant that no sentence other than death would guarantee the defendant’s permanent incapacitation. Nonetheless, the Court concluded that in light of the relevance of future dangerousness to the choice of sentence, Simmons was entitled to have his jury informed that LWOP was the alternative to death.

So why didn’t the trial judge in Cruz’s case apply Simmons? He was following the lead of the Arizona Supreme Court, which had held in a series of cases that ostensible differences from the South Carolina sentencing scheme in Simmons made the precedent inapplicable to Arizona. However, in 2016, after Cruz was sentenced, the U.S. Supreme Court ruled in Lynch v. Arizona that the Arizona Supreme Court was in error: there are no relevant distinctions between the state law of South Carolina and Arizona.

Accordingly, Cruz went back to state court seeking a resentencing in light of Lynch. Because he had already completed his appeals and had unsuccessfully filed a previous petition for “postconviction” relief (sometimes called state habeas corpus), he needed to show that he was not simply renewing claims he had previously made or should have made earlier. Cruz apparently satisfied that higher threshold. An Arizona rule of criminal procedure allows otherwise barred postconviction claims if “there has been a significant change in the law that, if applicable to the defendant’s case, would probably overturn the defendant’s judgment or sentence.”

Nonetheless, the Arizona courts once again rebuffed Cruz. The Arizona Supreme Court held that Lynch was not “a significant change in the law” in light of the fact that it merely reaffirmed what had already been established in Simmons. At most Lynch affected “a significant change in the application of the law,” the Arizona Supreme Court said (emphasis in original). It was that ruling that the U.S. Supreme Court reversed last week.

The Independent and Adequate State Law Ground Doctrine

Hold on. Why did the U.S. Supreme Court need to opine about the Arizona Supreme Court’s interpretation of a state rule of criminal procedure? Cruz was sentenced in clear violation of Simmons, which applied the Due Process Clause of the Fourteenth Amendment. Why couldn’t the U.S. Supreme Court simply rule that Cruz’s right to due process was violated and thus that he was entitled to a new sentencing hearing in which the jury is correctly instructed about the law? The short answer is the so-called independent-and-adequate-state-law doctrine.

Under the Constitution’s Article III, federal courts (including the Supreme Court) can only hear live “cases” or “controversies.” As the precedents construe those terms, they bar the courts from deciding questions that make no difference to the outcome of a case. That includes cases in which a party seeks review of a state court judgment that rests on an independent and adequate state law ground. What’s that? I can best illustrate with a couple of examples.

Suppose that a district attorney in New York State charges Derrick with burglary. The crucial evidence against Derrick consists of burglar’s tools and stolen goods the police found when they searched his apartment. Derrick moves to suppress that evidence on the ground that the search violated his rights under both the federal Fourth Amendment (made applicable to the states because the Fourteenth Amendment’s Due Process Clause incorporates it) and Article I, Section 12 of the New York State Constitution. The trial judge rejects the objection and admits the evidence. Derrick is convicted and sentenced but eventually the New York Court of Appeals (the state’s highest court) reverses his conviction. It holds that the search was unlawful after all. The New York Court of Appeals holds that the search violated Derrick’s rights under both the federal and state constitutions.

Can the state obtain review by the U.S. Supreme Court? No. Although the Court has jurisdiction to correct erroneous rulings of state courts on questions of federal law, it can do so only in cases in which the correction would make a difference to the outcome. Here it would not. Even if the U.S. Supreme Court rules that the search did not violate Derrick’s federal Fourth Amendment rights, the evidence is still inadmissible because the search violated Derrick’s state constitutional rights. True, the New York Constitution’s search-and-seizure provision is (as relevant here) worded identically to the federal Fourth Amendment, but the New York Court of Appeals, as the final arbiter of the meaning of New York State law, is free to construe (and has construed) the state constitutional provision to provide greater protection than the U.S. Supreme Court construes the Fourth Amendment to provide. Because the ruling on the state constitutional claim supports the result reached by the New York Court of Appeals independently of federal law, the U.S. Supreme Court cannot review its federal Fourth Amendment ruling.

That’s independence. What about adequacy? Suppose a case similar to Derrick’s but involving a different defendant, Daniel. Daniel’s trial lawyer objects to the introduction of evidence obtained by the search of his apartment; the evidence is admitted; and Daniel is convicted. On appeal, Daniel’s lawyer renews the Fourth Amendment objection but the appeals court rejects it because the lawyer filed the appellate brief in the wrong font and by the time the lawyer receives notice, it is too late to correct the error. What happens now if Daniel’s attorney seeks review in the Supreme Court? The failure to comply with the font rule is independent of the federal Fourth Amendment claim, but the courts will also inquire whether it is an “adequate” basis for sacrificing a federal right. Here, the state court’s sticklerism regarding a fairly inconsequential matter (the font) could be held inadequate, thus allowing the Supreme Court to decide the merits of the Fourth Amendment objection.

Adequacy in the Cruz Case

The Supreme Court very rarely says that an independent state law ground for a decision is inadequate in the way that the font rule is inadequate because, unsurprisingly, few state court procedural rules are that petty. For the most part, if a state court holds that a party waived a federal right by failing to comply with a reasonable procedural rule, that waiver will be deemed independent and adequate.

Cruz falls into yet another category of exceptions to adequacy—where a state court claims to be following a procedural rule but there is good reason to believe that there is no such rule; rather, the state court is manipulating (or lying about) state procedural rules in order to defeat federal rights. That’s essentially what Justice Sonia Sotomayor’s majority opinion in Cruz says happened: the Arizona Supreme Court’s distinction between post-conviction relief that is allowed when there is a significant change in the law but not when there is only a change in the application of the law is “entirely new and in conflict with prior Arizona case law.” In short, the changed-law/changed-application-of-law distinction was made up by the Arizona Supreme Court simply to deny Cruz and similarly situated litigants their federal due process rights under Simmons.

The good news is that Cruz will now have a sentencing hearing that complies with the Constitution. The bad news is that he almost did not. Four Justices dissented in Cruz. Writing for herself and three colleagues, Justice Amy Coney Barrett said that the Arizona Supreme Court’s distinction did not contradict prior Arizona law because no previous case had presented the question “whether a ‘significant change’ occurs when an intervening decision reaffirms existing law, but rectifies an erroneous application of that law.” Thus, the dissenters said that the case did not fit within the “novelty prong” of inadequate state law grounds.

Who had the better of the argument in the U.S. Supreme Court: the majority or the dissent? It shouldn’t matter. Even if the dissenters are right—that is, even if the Arizona Supreme Court’s construction of the procedural rule contradicts no prior state court precedent—the rule as construed by the Arizona Supreme Court is highly unreasonable. It disallows state post-conviction relief based on a concededly meritorious federal constitutional claim simply because Cruz had the bad fortune to be sentenced during a period after the Arizona courts were flagrantly violating Simmons but before the U.S. Supreme Court took note of those violations in Lynch. The Arizona Supreme Court’s narrow construction of “significant change” is akin to rejecting a meritorious federal claim based on the lawyer’s use of the wrong font.

To be sure, Justice Sotomayor’s majority opinion states the test for adequacy as turning only on whether the state procedure in question is “firmly established and regularly followed.” However, older cases also recognize that in rare circumstances even a firmly established and regularly followed state court procedure can be inadequate to support a state court judgment if it unreasonably forfeits a litigant’s constitutional rights.

Accordingly, Cruz was rightly decided by the Supreme Court but could have been based on a simpler and more fundamental principle than the one on which the majority relied: petty sticklerism should not be permitted to undercut important substantive rights, especially in matters of life and death.

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