Page:Cruz v. Arizona (2023).pdf/8

Rh basis”; and (3) “Life imprisonment with a possibility of parole or release from imprisonment” after 25 years. App. 94. The reference to parole was plainly wrong. See Lynch, 578 U. S., at 615 (the only “release” available under Arizona law is executive clemency, not parole). The judge further instructed the jury that its only choice was whether or not to sentence Cruz to death; if the jury did not vote for death, the judge would then choose between the two remaining possible sentences. The jury sentenced Cruz to death.

Three jurors, unprompted by Cruz, issued a press release the next day. The jurors explained that this had been a “gut-wrenching decision” and that “[t]here was not one person on the jury who did not cry.” App. 144. They reported that they would rather have voted for life without the possibility of parole, but that they were not given that option. A fourth juror later stated in a declaration: “If I could have voted for a life sentence without parole, I would have voted for that option.” Id., at 269.

Cruz thereafter moved for a new trial, arguing that the instructions did not give the jury “an accurate and complete understanding of the consequences of a non-death verdict.” Id., at 137. The trial judge denied the motion. He concluded, erroneously, that the jury had been “correctly instructed on the law,” and found it “entirely speculative” whether Cruz would be considered for parole after 25 years. Id., at 169–170.

On direct appeal, Cruz again pressed his Simmons claim. The Arizona Supreme Court rejected it. Repeating the same legal error made by the trial court, the court reasoned that Simmons was distinguishable because “[n]o state law would have prohibited Cruz’s release on parole after serving twenty-five years.” Cruz, 218 Ariz., at 207, 181 P. 3d, at 160.

Having raised his Simmons claim on direct review, Cruz was precluded from raising it again in his initial state postconviction petition. See Ariz. Rule Crim. Proc. 32.2(a)(2).