STEWART, DIRECTOR, ARIZONA DEPARTMENT OF CORRECTIONS v. SMITH

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856 OCTOBER TERM, 2001
Syllabus
STEWART, DIRECTOR, ARIZONA DEPARTMENT OF
CORRECTIONS v. SMITH
certiorari to the united states court of appeals for
the ninth circuit
No. 01–339. Decided June 28, 2002
Respondent filed a federal habeas petition, claiming, inter alia, ineffective
assistance of counsel. He had previously brought that claim in a state
petition for postconviction relief pursuant to Arizona Rule of Criminal
Procedure 32, but the County Superior Court found it waived under
Rule 32.2(a)(3) because he had not raised it in two previous Rule 32
petitions. The Federal District Court concluded that the state court’s
ruling barred federal habeas relief, but the Ninth Circuit reversed, find-
ing that the state procedural default was not independent of federal law
and thus did not bar federal review. This Court granted certiorari and
certified to the Arizona Supreme Court a question concerning Rule
32.2(a)(3)’s proper interpretation. The latter court responded that, at
the time of respondent’s state petition, the question whether an asserted
claim was of sufficient constitutional magnitude to require a knowing,
voluntary, and intelligent waiver for purposes of the Rule depended not
upon the merits of the particular claim but upon the particular right
alleged to have been violated.
Held: The District Court properly refused to review respondent’s
ineffective-assistance-of-counsel claim. The Arizona Supreme Court’s
reply makes clear that Rule 32.2(a)(3) only requires courts to categorize
a claim, not to evaluate the claim’s merits. When resolution of a state
procedural law question depends on a federal constitutional ruling, the
state-law prong of the court’s holding is not independent of federal law
and this Court’s direct review jurisdiction is not precluded. Ake v.
Oklahoma, 470 U. S. 68, 75. Assuming that the same standard governs
the scope of a district court’s power to grant federal habeas relief, Rule
32.2(a)(3) determinations are independent of federal law because they
do not depend upon a constitutional ruling on the merits. Although the
state court’s decision would not be independent of federal law if it rested
primarily on a ruling on the merits, the record here reveals no such
ruling.
241 F. 3d 1191, reversed and remanded.

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Per Curiam
Per Curiam.
At issue in this case is whether, when an Arizona Superior
Court denied respondent’s successive petition for state post-
conviction relief because respondent had failed to comply
with Arizona Rule of Criminal Procedure 32.2(a)(3) (West
2000), the state court’s ruling was independent of federal law.
The Court of Appeals for the Ninth Circuit thought not. We
granted certiorari and certified to the Arizona Supreme
Court a question concerning the proper interpretation of
Rule 32.2(a)(3). We have received a response and now re-
verse the Ninth Circuit’s decision.
I
Respondent, Robert Douglas Smith, was convicted in Ari-
zona in 1982 of first-degree murder, kidnaping, and sexual
assault. He was sentenced to death on the murder count
and to consecutive 21-year prison terms on the other counts.
After a series of unsuccessful petitions for state postconvic-
tion relief, respondent filed a federal petition for a writ of
habeas corpus under 28 U. S. C. §§ 2241 and 2254 in the
United States District Court for the District of Arizona.
The petition alleged, among other things, that respondent’s
Sixth Amendment right to counsel had been violated because
his trial counsel had provided ineffective assistance during
the sentencing phase of his trial.
Respondent had previously brought this ineffective-
assistance claim in a 1995 petition for state postconviction
relief pursuant to Ariz. Rule Crim. Proc. 32. The Pima
County Superior Court denied the claim, finding it waived
under Rule 32.2(a)(3) because respondent had failed to raise
it in two previous Rule 32 petitions. The state court re-
jected respondent’s contention that his procedural default
was excused because his appellate and Rule 32 attorneys suf-
fered from a conflict of interest between their responsibility

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858 STEWART v. SMITH
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toward respondent and their allegiance to the Public Defend-
er’s office, of which respondent’s trial counsel was also a
member.
The District Court relied on the Pima County Superior
Court’s procedural ruling on respondent’s ineffective-
assistance-of-trial-counsel claim to bar federal habeas relief.
Like the state court, the District Court rejected respond-
ent’s argument that his appellate and Rule 32 counsel suf-
fered from a conflict of interest which excused his procedural
default. The Court of Appeals for the Ninth Circuit re-
versed, finding that although the state court’s procedural de-
fault ruling was regularly followed and therefore adequate,
see 241 F. 3d 1191, 1195, n. 2 (2001) (citing Johnson v. Missis-
sippi, 486 U. S. 578, 587 (1988)), the ruling required consider-
ation of the merits of respondent’s claim and was therefore
not independent of federal law, see 241 F. 3d, at 1196–1197.
Rule 32.2(a)(3) applies different standards for waiver de-
pending on whether the claim asserted in a Rule 32 petition
is of “sufficient constitutional magnitude.” If it is, the rule
requires that the waiver be “knowin[g], voluntar[y] and in-
telligen[t],” not merely omitted from previous petitions.
Ariz. Rule Crim. Proc. 32.2(a)(3), comment (West 2000).
The Ninth Circuit opined that, at the time the state court
ruled on respondent’s ineffective-assistance claim, the deter-
mination of whether a claim is of sufficient magnitude re-
quired consideration of the merits of the claim. See 241
F. 3d, at 1197 (citing State v. French, 198 Ariz. 119, 121, 7
P. 3d 128, 130 (App. 2000); State v. Curtis, 185 Ariz. 112,
115, 912 P. 2d 1341, 1344 (App. 1995)). The Ninth Circuit
concluded that, under Ake v. Oklahoma, 470 U. S. 68, 75
(1985), the state court’s ruling did not bar federal review of
the merits of respondent’s claim. See 241 F. 3d, at 1196–
1197. We granted certiorari to review the Ninth Circuit’s
decision. 534 U. S. 157 (2001) (per curiam).

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II
Because we were uncertain about the proper interpreta-
tion of Rule 32.2(a)(3), we certified the following question to
the Arizona Supreme Court:
“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 know-
ing, 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)?” 534 U. S., at 159.
We received the following reply:
“We hold that at the time of respondent’s third Rule 32
petition in 1995, 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 Comment to 32.2(a)(3), depended
not upon the merits of the particular claim, but rather
merely upon the particular right alleged to have been
violated.” Stewart v. Smith, 202 Ariz. 446, 447, 46 P. 3d
1067, 1068 (2002) (en banc).
The Arizona Supreme Court’s reply makes clear that Rule
32.2(a)(3) does not require courts to evaluate the merits of
a particular claim, but only to categorize the claim. Accord-
ing to the Arizona Supreme Court, courts must evaluate
whether “at its core, [a] claim implicates a significant right
that requires a knowing, voluntary, and intelligent waiver.”
Id., at 450, 46 P. 3d, at 1071. Courts need not decide the

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merits of the claim, i. e., whether the right was actually vio-
lated. They need only identify what type of claim it is, and
there is no indication that this identification is based on an
interpretation of what federal law requires. See Delaware
v. Prouse, 440 U. S. 648, 652–653 (1979).
Our cases make clear that “when resolution of [a] state
procedural law question depends on a federal constitutional
ruling, the state-law prong of the court’s holding is not inde-
pendent of federal law, and our [direct review] jurisdiction is
not precluded.” Ake, supra, at 75. Even assuming that the
same standard governs the scope of a district court’s power
to grant federal habeas relief as governs this Court’s juris-
diction to review a state-court judgment on direct review,
see Coleman v. Thompson, 501 U. S. 722, 729–732, 741 (1991),
Rule 32.2(a)(3) determinations are independent of federal law
because they do not depend upon a federal constitutional
ruling on the merits. The District Court properly refused
to review respondent’s ineffective-assistance-of-trial-counsel
claim. The Ninth Circuit erred in holding otherwise.
Even though Rule 32.2(a)(3) does not require a federal con-
stitutional ruling on the merits, if the state court’s decision
rested primarily on a ruling on the merits nevertheless, its
decision would not be independent of federal law. The
Ninth Circuit interpreted the state court’s order rejecting
respondent’s ineffective-assistance-of-trial-counsel claim as
possibly resting on a ruling on the merits of the claim. The
record, however, reveals no such ruling.
The state court did not even reach the merits of respond-
ent’s ineffective-assistance-of-trial-counsel claim, finding it
waived because respondent had failed to raise it in prior peti-
tions for postconviction relief. As an excuse, respondent as-
serted that his prior appellate and Rule 32 counsel, who were
members of the Arizona Public Defender’s office, had refused
to file the claim because his trial counsel was also a member
of the Public Defender’s office. The state court did not find
this excuse sufficient to overcome respondent’s procedural

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default. See App. H to Pet. for Cert. The state court ex-
plained that, because deputies in the Public Defender’s office
represent their clients and not their office, respondent’s ap-
pellate lawyers would never have allowed “a colorable claim
for ineffective assistance of counsel” to go unstated. Id.,
at 2. The Ninth Circuit read the reference to a “colorable
claim” as a conclusion that respondent’s claim that his trial
counsel had rendered ineffective assistance lacked merit,
that is, as a comment on the merits of respondent’s underly-
ing claim. 241 F. 3d, at 1197. In context, however, it is
clear that the reference to “colorable claim” was used only
as a rhetorical device for emphasizing the lack of any conflict
of interest that might excuse respondent’s waiver.
Because the state court’s determination that respondent
waived his ineffective-assistance-of-counsel claim under
Ariz. Rule Crim. Proc. 32.2(a)(3) did not require an examina-
tion of the merits of that claim, it was independent of federal
law. We voice no opinion on whether respondent has pro-
vided valid cause to overcome his procedural default in state
court. The Ninth Circuit’s judgment is reversed, and the
case is remanded for further proceedings consistent with
this opinion.
So ordered.