OCTOBER TERM, 2001
Per Curiam
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 Arizona 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 independent 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 required, 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 interpreted Arizona law concerning Rule 32.2(a)(3), this Court certifies to the Arizona Supreme Court the following question: At the time of respondent'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 proceedings in this case are reserved pending receipt of the Arizona Supreme 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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