STEWART, DIRECTOR, ARIZONA DEPARTMENT OF CORRECTIONS v. SMITH

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157 OCTOBER TERM, 2001
Per Curiam
STEWART, DIRECTOR, ARIZONA DEPARTMENT OF
CORRECTIONS v. SMITH
on petition for writ of certiorari to the united
states court of appeals for the ninth circuit
No. 01–339. Decided December 12, 2001
Respondent filed a federal habeas petition, claiming ineffective assistance
of both his trial and appellate counsel. He had previously brought
these claims in a state petition for postconviction relief pursuant to Ari-
zona Rule of Criminal Procedure 32, but the County Superior Court
found them waived under Rule 32.2(a)(3) because he had not raised them
in two previous Rule 32 petitions. The Federal District Court found
that this ruling barred respondent’s federal habeas claim. In reversing,
the Ninth Circuit held that the state procedural default was not inde-
pendent of federal law and thus did not bar federal review. It reasoned
that Rule 32.2(a)(3) applies a different waiver standard depending on
whether the claim asserted was of sufficient constitutional magnitude,
and that the determination whether a claim is of such magnitude re-
quired, at the time of the Superior Court’s ruling, consideration of the
claim’s merits.
Held: In order to determine whether the Ninth Circuit properly inter-
preted Arizona law concerning Rule 32.2(a)(3), this Court certifies to
the Arizona Supreme Court the following question: At the time of re-
spondent’s third Rule 32 petition, did the question whether an asserted
claim was of sufficient constitutional magnitude to require a knowing,
voluntary, and intelligent waiver under Rule 32.2(a)(3) depend upon the
particular claim’s merits or merely upon the particular right alleged to
have been violated? The state court’s answer will help determine the
proper state-law predicate for this Court’s determination of the federal
constitutional questions presented here. Judgment and further pro-
ceedings in this case are reserved pending receipt of the Arizona Su-
preme Court’s response.
Certiorari granted; question certified. Reported below: 241 F. 3d 1191.
Per Curiam.
Respondent Robert Douglas Smith was convicted in 1982
of first-degree murder, kidnaping, and sexual assault. He
was sentenced to death on the murder count, and consecu-

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158 STEWART v. SMITH
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tive 21-year prison terms for the other counts. After a se-
ries of unsuccessful petitions for state postconviction re-
lief, respondent filed a federal petition for a writ of habeas
corpus under 28 U. S. C. § 2254 (1994 ed. and Supp. V) in the
United States District Court for the District of Arizona.
The petition alleged that his trial and appellate counsel were
ineffective for failing to challenge various trial errors. Re-
spondent had previously brought these ineffective-assistance
claims in 1995 in a petition for state postconviction relief pur-
suant to Arizona Rule of Criminal Procedure 32 (West 2000).
The Pima County Superior Court denied his claims, finding
them waived under Arizona Rule 32.2(a)(3) because respond-
ent failed to raise them in his previous two Rule 32 petitions.
In doing so, it rejected as “outrageous” respondent’s argu-
ment that his failure to raise these claims was also due to
ineffective assistance—in particular, that his prior appellate
and Rule 32 counsel, who are members of the Arizona Pub-
lic Defender’s office, refused to file ineffective-assistance-of-
counsel claims because his trial counsel was also a member
of the Public Defender’s office. App. D to Pet. for Cert. 1.
On federal habeas, the United States District Court held
respondent’s claims barred by the Pima County Superior
Court’s procedural ruling. The court rejected respondent’s
allegations that a conflict between his appellate and Rule 32
counsel’s responsibility toward respondent and their alle-
giance to the Public Defender’s office was cause for his pro-
cedural default in state court. The Court of Appeals for the
Ninth Circuit reversed, holding that the state procedural
default was not independent of federal law and thus did not
bar federal review of the merits of respondent’s claim, 241
F. 3d 1191, 1196 (2001) (citing Ake v. Oklahoma, 470 U. S. 68,
75 (1985)). It reasoned that Arizona Rule 32.2(a)(3) applies
a different standard for waiver depending on whether the
claim asserted in a Rule 32 petition was of “sufficient consti-
tutional magnitude,” Ariz. Rule Crim. Proc. 32.2(a)(3), com-
ment (West 2000), and that determination whether a claim is

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159 Cite as: 534 U. S. 157 (2001)
Per Curiam
of sufficient magnitude required, at the time the Superior
Court ruled on respondent’s ineffective-assistance claims,
consideration of the merits of the claim, 241 F. 3d, at 1197
(citing State v. French, 198 Ariz. 119, 121–122, 7 P. 3d 128,
130–131 (App. 2000); State v. Curtis, 185 Ariz. 112, 115, 912
P. 2d 1341, 1344 (App. 1995)).
We hereby grant certiorari to review the Ninth Circuit
Court of Appeals’ determination that the Pima County Su-
perior Court’s procedural ruling was not independent of
the merits of respondent’s claims of ineffective assistance
of trial and appellate counsel under the Sixth Amendment.*
In order to determine whether the District Court may re-
view these claims, we first must know whether the Court
of Appeals properly interpreted Arizona law concerning
Rule 32.2(a)(3). Therefore, we certify the following ques-
tion to the Arizona Supreme Court pursuant to that court’s
rule concerning Certification of Questions of Law from Fed-
eral and Tribal Courts (Ariz. Sup. Ct. Rule 27 (West 2000)):
At the time of respondent’s third Rule 32 petition in
1995, did the question whether an asserted claim was
of “sufficient constitutional magnitude” to require a
knowing, voluntary, and intelligent waiver for purposes
of Rule 32.2(a)(3), see Ariz. Rule Crim. Proc. 32.2(a)(3),
comment (West 2000), depend upon the merits of the
particular claim, see State v. French, 198 Ariz. 119, 121–
122, 7 P. 3d 128, 130–131 (App. 2000); State v. Curtis, 185
Ariz. App. 112, 115, 912 P. 2d 1341, 1344 (1995), or merely
upon the particular right alleged to have been violated,
see State v. Espinosa, 200 Ariz. 503, 505, 29 P. 3d 278,
280 (App. 2001)?
We respectfully request that the Arizona Supreme Court
accept our certification petition. That court’s answer to this
*We also grant respondent’s motion for leave to proceed in forma pau-
peris and the motion of the Criminal Justice Legal Foundation for leave
to file a brief as amicus curiae.

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160 STEWART v. SMITH
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question will help determine the proper state-law predicate
for our determination of the federal constitutional questions
raised in this case.
The Clerk of this Court is directed to transmit to the Su-
preme Court of Arizona an original and six certified copies
of this opinion, the briefs and records filed in this Court in
this case, and a list of the counsel appearing in this matter
along with their addresses and telephone numbers, pursu-
ant to Ariz. Sup. Ct. Rules 27(a)(3)(c) and (a)(4) (West 2000).
Judgment and further proceedings in this case are reserved
pending our receipt of a response from the Supreme Court
of Arizona.
It is so ordered.