Lino Chavez v. Mark Brnovich ( 2022 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LINO ALBERTO CHAVEZ, No. 21-15454
Petitioner-Appellee,
D.C. No.
v. 2:19-cv-05424-
DLR
MARK BRNOVICH, Attorney General;
DAVID SHINN, Director,
Respondents-Appellants. OPINION
Appeal from the United States District Court
for the District of Arizona
Douglas L. Rayes, District Judge, Presiding
Argued and Submitted March 18, 2022
Las Vegas, Nevada
Filed August 1, 2022
Before: Andrew J. Kleinfeld, D. Michael Fisher, * and
Mark J. Bennett, Circuit Judges.
Opinion by Judge Bennett
*
The Honorable D. Michael Fisher, United States Circuit Judge for
the U.S. Court of Appeals for the Third Circuit, sitting by designation.
2 CHAVEZ V. BRNOVICH
SUMMARY **
Habeas Corpus
The panel reversed the district court’s grant of
conditional habeas relief to Lino Alberto Chavez, an Arizona
prisoner who asserted that he was denied his constitutional
right to appellate counsel under Anders v. California, 386
U.S. 738 (1967), in his Arizona “of-right” post-conviction
relief (PCR) proceedings.
Chavez challenged his conviction and sentence through
the PCR proceeding because pleading defendants in
noncapital cases in Arizona are prohibited from taking a
direct appeal. The district court found that the Arizona Court
of Appeals had incorrectly determined that Anders did not
apply to Arizona’s of-right PCR proceedings. The district
court also determined, on de novo review, that Arizona’s
PCR procedure was deficient under Anders.
The panel first explained that it was clearly established
that Anders and its progeny apply to Arizona’s of-right PCR
proceedings.
Because the Arizona Court of Appeals’s decision can be
construed as finding Anders applicable and nothing clearly
suggests otherwise, and a federal habeas court must give the
state court of appeals the benefit of the doubt and presume
that it followed the law, the panel found that the Arizona
Court of Appeals correctly found Anders applies to of-right
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
CHAVEZ V. BRNOVICH 3
PCR proceedings. The panel therefore reversed the district
court’s contrary determination.
The panel held that the district court also erred in
reviewing de novo whether Arizona’s of-right PCR
procedure is constitutionally adequate under Anders, and
should have applied the required deference under the
Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA). Given the ambiguity in the court of appeals’s
decision, the panel wrote that the district court should have
(1) determined what arguments or theories could have
supported its rejection of Chavez’s argument that he had
been denied Anders protections, and (2) then given AEDPA
deference to those arguments. The panel wrote that in
denying relief, the Arizona Court of Appeals could have
determined that Chavez had not been denied Anders
protections because Arizona’s existing of-right PCR
procedure satisfied Anders and its progeny. Applying
AEDPA deference, the panel held that such a determination
would not be contrary to or an unreasonable application of
clearly established federal law. In so holding, the panel
noted that unlike the California procedure deemed deficient
in Anders, Arizona requires counsel to identify any issues
that could appear to be valid and does not permit counsel to
withdraw; and counsel remains in an advisory capacity until
the PCR court's final determination, and, in that capacity,
remains available to defendant and the PCR court to brief
viable issues.
4 CHAVEZ V. BRNOVICH
COUNSEL
Andrew Stuart Reilly (argued), Assistant Attorney General;
J.D. Nielsen, Habeas Unit Chief; Mark Brnovich, Attorney
General; Office of the Attorney General, Phoenix, Arizona;
for Respondents-Appellants.
Randal McDonald (argued), Law Office of Randal B.
McDonald PLLC, Phoenix, Arizona, for Petitioner-
Appellee.
OPINION
BENNETT, Circuit Judge:
Lino Alberto Chavez, an Arizona prisoner, pleaded
guilty to one count of second-degree murder and was
sentenced to sixteen years. Because pleading defendants in
noncapital cases in Arizona are prohibited from taking a
direct appeal, Chavez challenged his conviction and
sentence through an “of-right” post-conviction relief
(“PCR”) proceeding under Arizona law. After Chavez’s
appointed PCR counsel informed the PCR court that there
were no colorable claims for relief, PCR counsel remained
in an advisory capacity only and Chavez filed a pro se
petition. The PCR court denied relief. On appeal, Chavez
claimed that he had been denied his constitutional right to
appellate counsel under Anders v. California, 386 U.S. 738(1967). The Arizona Court of Appeals denied relief.
Chavez sought habeas relief in federal court, reasserting
his Anders claim. The district court found that the Arizona
Court of Appeals had incorrectly determined that Anders did
not apply to Arizona’s of-right PCR proceedings. The
CHAVEZ V. BRNOVICH 5
district court also determined, on de novo review, that
Arizona’s of-right PCR procedure was deficient under
Anders and thus granted conditional habeas relief. Arizona
appeals.
We have jurisdiction under 28 U.S.C. §§ 1291 and
2253(a) and reverse. The district court erred in failing to
give the Arizona Court of Appeals the required deference
under the Antiterrorism and Effective Death Penalty Act of
1996 (AEDPA). Under AEDPA, the Arizona Court of
Appeals correctly determined that Anders applies to of-right
PCR proceedings, and it could have denied relief based on a
determination that Arizona’s procedure satisfied Anders.
Such a determination would not be contrary to or an
unreasonable application of Supreme Court precedent. We
therefore reverse the district court’s grant of habeas relief.
I
In 2011, Chavez’s co-defendant, Jose Solis-Apodaca,
tried to steal a laptop from Anita Munoz. Munoz pursued
Solis-Apodaca, who got into a getaway vehicle driven by
Chavez. Munoz grabbed the vehicle’s open window as it
drove away. Munoz fell or was pushed from the vehicle and
suffered skull fractures and internal bleeding. She never
regained consciousness and was removed from life support
about five days after the incident.
Chavez pleaded guilty to one count of second-degree
murder for Munoz’s death. The court sentenced him to
sixteen years. Because pleading defendants in noncapital
cases in Arizona have no right to a direct appeal, Chavez
challenged his conviction and sentence through an of-right
6 CHAVEZ V. BRNOVICH
PCR proceeding under Arizona Rule of Criminal Procedure
32. 1
A
The Arizona Legislature removed a pleading defendant’s
right to a direct appeal in noncapital cases in 1992. See 1992
Ariz. Sess. Laws ch. 184 (codified at Ariz. Rev. Stat. § 13-
4033(B)). But because the Arizona Constitution “guarantees
some form of appellate relief . . . [that] cannot be waived
merely by a plea or admission,” Wilson v. Ellis, 859 P.2d
744, 746 (Ariz. 1993) (en banc), pleading defendants can
seek appellate relief through an of-right PCR proceeding
under Rule 32. See Ariz. R. Crim. P. 32.1 (2013) (“Any
person who pled guilty or no contest . . . shall have the right
to file a post-conviction relief proceeding, and this
proceeding shall be known as a Rule 32 of-right
proceeding.”). 2 Indigent defendants seeking of-right post-
conviction relief are entitled to counsel, and the rules set
forth counsel’s obligations:
Upon the filing of a timely or first notice in a
Rule 32 proceeding, the presiding judge . . .
shall appoint counsel for the defendant within
1
Pleading defendants are now required to appeal under Rule 33.
The Arizona Supreme Court adopted Rule 33 in 2019. Ariz. Sup. Ct.
Order No. R-19-0012 (Aug. 29, 2019). Rule 33 applies “[i]n all actions
filed on or after January 1, 2020[,] and . . . [i]n all other actions pending
on January 1, 2020, except to the extent that the court in an affected
action determines that applying the rule . . . would be infeasible or work
an injustice, in which event the former rule . . . applies.” Id.2
Unless otherwise noted, all references to the Arizona Rules of
Criminal Procedure are to the version in effect in 2013 when Chavez
initiated his of-right PCR proceeding.
CHAVEZ V. BRNOVICH 7
15 days if requested and the defendant is
determined to be indigent. . . .
In a Rule 32 of-right proceeding, counsel
shall investigate the defendant’s case for any
and all colorable claims. If counsel
determines there are no colorable claims
which can be raised on the defendant’s
behalf, counsel shall file a notice advising the
court of this determination. Counsel’s role is
then limited to acting as advisory counsel
until the trial court’s final determination.
Upon receipt of the notice, the court shall
extend the time for filing a petition by the
defendant in propria persona.
Ariz. R. Crim. P. 32.4(c)(2). If counsel determines that there
are no colorable claims and petitioner decides to proceed pro
se, “counsel’s only function . . . is to assist the pro per
defendant should that defendant or the trial court discover a
viable issue that counsel had not previously considered or
when, in the interest of justice, appointment of counsel
seems necessary.” Lammie v. Barker, 915 P.2d 662, 663
(Ariz. 1996) (en banc).
B
Chavez began an of-right PCR proceeding in 2013, and
the court appointed PCR counsel. PCR counsel filed a two-
page Notice of Completion. The Notice of Completion
identified the materials reviewed by PCR counsel, stated that
PCR counsel was “unable to find any claims for relief to
8 CHAVEZ V. BRNOVICH
raise in post-conviction relief proceedings,” and requested
an extension for Chavez to file a pro se petition. 3
The Maricopa County Superior Court granted Chavez an
extension to file a pro se petition and ordered PCR counsel
to “remain in an advisory capacity for [Chavez] until a final
determination is made by the trial court regarding any post-
conviction relief proceeding.” Chavez filed a pro se Rule 32
PCR petition, which the Superior Court denied.
Chavez appealed, filing a pro se petition for review with
the Arizona Court of Appeals. His petition raised an Anders
claim—that “an of-right Rule 32 petitioner is . . . entitled to
a review of the record by the superior court for arguable
issues as required for direct appeals under Anders.” The
court of appeals ordered supplemental briefing on the Anders
claim given Pacheco v. Ryan, No. CV-15-02264-PHX-
DGC, 2016 WL 7407242 (D. Ariz. Dec. 22, 2016), which
was decided while Chavez’s petition for review was
pending. In Pacheco, the U.S. District Court for the District
of Arizona held that Anders protections applied to Rule 32
of-right proceedings under Supreme Court precedent. The
district court also accepted the magistrate judge’s finding
that Arizona’s of-right PCR procedure was deficient under
Anders because the State had failed to object to that finding.
Id. at *10.
Before the Arizona Court of Appeals, Chavez, the State,
the Arizona Attorney General as amici, and other amici filed
3
We presume that Chavez’s PCR counsel reviewed his case for any
colorable claims as required under Rule 32.4(c)(2), as Chavez does not
argue otherwise. Chavez’s PCR counsel attested that she reviewed the
following materials: Superior Court instruments and minute entries;
transcripts from Chavez’s settlement conference, plea hearing, and
sentencing hearing; Chavez’s trial file; and a letter from Chavez.
CHAVEZ V. BRNOVICH 9
supplemental briefs. All the supplemental briefs argued that
Anders applied to Rule 32 of-right PCR proceedings.
Although the State conceded that Anders applied, it argued
that Chavez had waived the Anders claim by failing to raise
it before the Superior Court.
The Arizona Court of Appeals granted review of the
petition but denied relief in a published opinion. State v.
Chavez, 407 P.3d 85 (Ariz. Ct. App. 2017). The court of
appeals rejected the Anders claim. It explained that, under
Arizona Supreme Court precedent and the Arizona Rules of
Criminal Procedure, “superior courts are not required to
conduct Anders review in a Rule 32 of-right petition.” Id.
at 91.
After the Arizona Supreme Court summarily denied
review, Chavez sought relief in federal district court.
C
Chavez filed a federal habeas petition under 28 U.S.C.
§ 2254. Given the ambiguity in the Arizona Court of
Appeals’s decision, the district court ordered the parties to
address at oral argument whether the Arizona Court of
Appeals decided that Anders protections apply to of-right
PCR proceedings, or that Arizona’s of-right PCR procedure
was adequate under Anders, or whether it decided both
issues.
The district court found that the court of appeals had
determined that Anders did not apply to of-right PCR
proceedings. Applying AEDPA, the district court found that
such determination was an unreasonable application of
Supreme Court precedent because of-right PCR proceedings
are the functional equivalent of a first appeal as of right, and
10 CHAVEZ V. BRNOVICH
the Supreme Court had “clearly established . . . that Anders
applies to a defendant’s first appeal as of right.”
The district court presumably determined that the court
of appeals had not decided whether Arizona’s existing
procedure was adequate under Anders, as it reviewed that
issue de novo. The district court rejected the State’s
argument that Chavez had received sufficient Anders
protections. It found that Arizona’s procedures were
deficient because they were “nearly identical to the
California procedures rejected in Anders.”
The district court also considered whether Chavez’s
Anders claim was subject to procedural default for failure to
raise the precise claim before the state courts. The State
argued that Chavez’s claim before the Arizona Court of
Appeals was limited to only whether Anders required a PCR
court to review the record for fundamental error. Chavez
countered that his Anders claim also included the broader
claim whether he had been “improperly denied the
protections of Anders.” The district court agreed with
Chavez and rejected the State’s procedural default
argument. 4
The district court conditionally granted the petition,
ordering that Chavez “be released unless within 90 days of
[its] Order, [Chavez] is permitted to file a new of-right Rule
33 PCR proceeding, including the filing of either a merits
brief by counsel or a substantive brief consistent with
Anders.” The State timely appeals.
4
The State does not challenge the district court’s rejection of its
procedural default argument.
CHAVEZ V. BRNOVICH 11
II
We review a district court’s grant of habeas relief de
novo. 5 Jones v. Davis, 8 F.4th 1027, 1035 (9th Cir. 2021).
Our review is governed by AEDPA, as Chavez filed his
habeas petition in 2019. See id. Under AEDPA, as relevant
here, we are barred from granting relief unless the state court
decision “was contrary to, or involved an unreasonable
application of, clearly established Federal law, as
determined by the Supreme Court of the United States.”
28 U.S.C. § 2254(d)(1).
III
The State challenges the district court’s decision on two
grounds. First, it argues that the district court erred in
determining that the Arizona Court of Appeals found Anders
inapplicable to Arizona’s of-right PCR proceedings.
Second, the State claims that the district court erred in
reviewing de novo whether Arizona’s of-right PCR
procedure is constitutionally adequate under Anders and its
progeny. According to the State, the court of appeals
decided that question in denying the Anders claim. Thus, the
district court should have applied AEDPA deference, and
5
We reject Chavez’s argument that the district court’s determination
that Arizona’s of-right PCR procedure is nearly identical to the
procedure rejected in Anders is a factual determination subject to clear
error review. The district court’s determination was not the resolution
of a factual dispute; it was a mixed question of law and fact subject to de
novo review. See Pullman-Standard v. Swint, 456 U.S. 273, 289 n.19
(1982) (describing mixed questions of law and fact as “questions in
which the historical facts are admitted or established, the rule of law is
undisputed, and the issue is . . . whether the rule of law as applied to the
established facts is or is not violated”); Lujan v. Garcia, 734 F.3d 917,
923 (9th Cir. 2013) (mixed questions of law and fact are reviewed de
novo).
12 CHAVEZ V. BRNOVICH
under AEDPA, the court of appeals’s determination was not
contrary to or an unreasonable application of Supreme Court
precedent.
We agree with the State on both issues. Because it is
relevant to our consideration of both issues, we first address
whether it was clearly established that Anders and its
progeny apply to Arizona’s of-right PCR proceedings. 6
A
In Anders, the Court reviewed California’s procedure
which allowed appellate counsel to withdraw upon filing a
conclusory “no merit” letter, allowed the defendant to file a
pro se appellate brief, and permitted the appellate court to
affirm after reviewing the record and finding no error.
386 U.S. at 739–40. The Court held that the procedure did
“not comport with fair procedure and lack[ed] that equality
that is required by the Fourteenth Amendment.” Id. at 741.
The Court then outlined procedures that would protect a
defendant’s constitutional right to appellate counsel:
[I]f counsel finds his case to be wholly
frivolous, after a conscientious examination
of it, he should so advise the court and request
permission to withdraw. That request must,
however, be accompanied by a brief referring
to anything in the record that might arguably
support the appeal. A copy of counsel’s brief
should be furnished the indigent and time
6
Although the parties agree that it was clearly established that
Anders applies to of-right PCR proceedings, we must independently
consider the issue. See Amado v. Gonzalez, 758 F.3d 1119, 1133 n.9 (9th
Cir. 2014) (“[The court has] the obligation to apply the correct [AEDPA]
standard, for the issue is non-waivable.”).
CHAVEZ V. BRNOVICH 13
allowed him to raise any points that he
chooses; the court—not counsel—then
proceeds, after a full examination of all the
proceedings, to decide whether the case is
wholly frivolous. If it so finds it may grant
counsel’s request to withdraw and dismiss
the appeal insofar as federal requirements are
concerned, or proceed to a decision on the
merits, if state law so requires. On the other
hand, if it finds any of the legal points
arguable on their merits (and therefore not
frivolous) it must, prior to decision, afford the
indigent the assistance of counsel to argue the
appeal.
Id. at 744.
In Smith v. Robbins, 528 U.S. 259 (2000), the Court
clarified that “the Anders procedure is merely one method of
satisfying the requirements of the Constitution for indigent
criminal appeals.” Id. at 276. “[T]he States are free to adopt
different procedures, so long as those procedures adequately
safeguard a defendant’s right to appellate counsel.” Id. at
265. A state’s procedure is constitutionally adequate “so
long as it reasonably ensures that an indigent’s appeal will
be resolved in a way that is related to the merit of that
appeal.” Id. at 276–77.
The Supreme Court has made clear that the trigger for
Anders protections is “a previously established
constitutional right to counsel.” Pennsylvania v. Finley,
481 U.S. 551, 555 (1987). When a state provides appellate
review of criminal convictions, the constitutional “right to
appointed counsel extends to the first appeal of right.” Id.;
see Halbert v. Michigan, 545 U.S. 605, 610 (2005) (“[T]he
14 CHAVEZ V. BRNOVICH
Due Process and Equal Protection Clauses require the
appointment of counsel for defendants, convicted on their
pleas, who seek access to first-tier review in the Michigan
Court of Appeals.”); Penson v. Ohio, 488 U.S. 75, 79 (1988)
(“Approximately a quarter of a century ago, in Douglas v.
California, 372 U.S. 353 (1963), [the] Court recognized that
the Fourteenth Amendment guarantees a criminal appellant
the right to counsel on a first appeal as of right.” (parallel
citation omitted)).
Arizona replaced direct appeals with an of-right PCR
proceeding for pleading defendants in noncapital cases.
Thus, “a Rule 32 proceeding is the only means available [to
such pleading defendants] exercising the[ir] constitutional
right to appellate review.” Montgomery v. Sheldon, 889 P.2d
614, 616 (Ariz. 1995) (en banc), superseded by statute as
stated in State v. Smith, 910 P.2d 1, 4 (Ariz. 1996) (en banc);
see also Summers v. Schriro, 481 F.3d 710, 715–16 (9th Cir.
2007) (“Arizona courts have repeatedly characterized Rule
32 of-right proceedings as the functional equivalent of direct
appeals . . . .”). Pleading defendants in noncapital cases
therefore have a constitutional right to counsel in of-right
PCR proceedings—their first appeal of right. See Finley,
481 U.S. at 555. And because they have a constitutional
right to counsel, they also have the accompanying right to
Anders protections. See id. (“Anders established a
prophylactic framework that is relevant when, and only
when, a litigant has a previously established constitutional
right to counsel.”). Thus, it was clearly established that
Anders and its progeny apply to Arizona’s of-right PCR
proceedings.
B
The State challenges the district court’s determination
that the Arizona Court of Appeals found Anders inapplicable
CHAVEZ V. BRNOVICH 15
to of-right PCR proceedings. Resolving this issue requires
us to interpret the court of appeals’s decision, which, as the
district court pointed out, lacks clarity. Our interpretation is
guided by the presumption “that state courts know and
follow the law,” and accordingly, their decisions must be
“given the benefit of the doubt.” Woodford v. Visciotti,
537 U.S. 19, 24 (2002) (per curiam). Thus, if we can read
the decision as finding Anders applies to of-right PCR
proceedings, we must do so. See Mann v. Ryan, 828 F.3d
1143, 1158 (9th Cir. 2016) (en banc) (“Under AEDPA,
because we can read the decision to comport with clearly
established federal law, we must do so.”).
The court of appeals decision does not explicitly state
whether Anders applies to of-right PCR proceedings. See
generally Chavez, 407 P.3d 85. The court of appeals held
that PCR courts need not conduct an “Anders-type review”
or “Anders review.” Id. at 90, 91. But it is unclear if the
court used those terms to refer to Anders generally or as
shorthand for the one aspect of the Anders procedure that
Chavez focused on—an independent review of the record by
the PCR court for arguable issues. Thus, the court of
appeals’s decision can be interpreted two ways: either
(1) Anders is inapplicable or (2) Anders applies, but PCR
courts do not have to review the record for arguable issues.
Part of the court’s decision supports the second
interpretation. The court of appeals stated that defendants in
of-right PCR proceedings have a constitutional right to
counsel. Id. at 89 (“Arizona has granted defendants in of-
right post-conviction proceedings the right to counsel, and
the federal constitution guarantees defendants counsel in
such proceedings . . . .” (citations omitted)). That statement
could be construed as an implicit acknowledgment that
Anders applies because Supreme Court precedent (which we
16 CHAVEZ V. BRNOVICH
must presume the court of appeals followed) clearly
established that Anders applies when there is a constitutional
right to counsel. See Finley, 481 U.S. at 555.
And we see nothing in the decision that plainly shows
the court found Anders inapplicable. Chavez points to the
court’s statements that there is no requirement for PCR
courts to perform an “Anders-type review” or “Anders
review.” But as we explained, those statements are
ambiguous and could be interpreted different ways.
In short, the decision can be construed as finding Anders
applicable and nothing clearly suggests otherwise. Because
we must give the court of appeals the benefit of the doubt
and presume that it followed the law, Woodford, 537 U.S. at
24, we must and do find that the Arizona Court of Appeals
correctly found Anders applies to of-right PCR proceedings.
We reverse the district court’s contrary determination.
C
The district court also erred in reviewing de novo
whether Arizona’s of-right PCR procedure is
constitutionally adequate under Anders. The district court
should have applied AEDPA deference. Applying AEDPA,
the Arizona Court of Appeals’s determination was not
contrary to or an unreasonable application of clearly
established law.
1
Chavez presented two arguments to the Arizona Court of
Appeals in support of his Anders claim: (1) the PCR court
needed to review the record for arguable issues under
Anders, and (2) more generally, he had been denied Anders
protections. The court of appeals explained why it rejected
CHAVEZ V. BRNOVICH 17
the first argument. It found that Arizona Supreme Court
precedent and the applicable rules precluded the argument
that PCR courts must review the record for arguable issues.
Chavez, 407 P.3d at 89, 90–91. 7
The court, however, failed to explain why it rejected the
broader argument that Chavez had been denied Anders
protections. As Chavez has conceded, the argument was
presented to the Arizona Court of Appeals, and nothing in its
decision unambiguously shows that it declined to consider
the argument or somehow avoided reaching it. 8 Indeed, after
determining that Anders applied, the court had to first reject
the argument that Chavez had been denied Anders
protections before it could deny relief. Thus, because the
court ultimately denied relief, we know that it rejected
Chavez’s argument that he had been denied Anders
protections. But the court’s reasons are unclear.
7
We need not separately analyze this reason for the Arizona Court
of Appeals’s rejection of the Anders claim given our holding below that
the court could have properly rejected the Anders claim by finding that
Chavez had received adequate protections because Arizona’s of-right
PCR procedure satisfied Anders and its progeny.
8
Chavez’s only contention is that, because the court of appeals
determined Anders was inapplicable, it never decided whether he had
been denied Anders protections. His argument is unavailing, as we have
determined that the court of appeals found Anders applied. Chavez
makes no argument that the court overlooked his argument. Even if he
had, it would have been unavailing, given that we must give the state
court the benefit of the doubt, Woodford, 537 U.S. at 24, and parts of its
decision could suggest that it considered the argument and ultimately
rejected it by denying relief. See, e.g., Chavez, 407 P.3d at 89 (discussing
the relevant federal standards for determining whether a state’s
procedure is constitutionally adequate under Anders); id. at 88 (noting
that it was “[i]mportant[]” that counsel does not withdraw from
representing the defendant under Arizona’s procedure).
18 CHAVEZ V. BRNOVICH
In an analogous circumstance, where the state court’s
reasons for rejecting a claim were unclear, we elected to treat
the state court’s determination as if it were unaccompanied
by reasons and applied the standard in Harrington v. Richter,
562 U.S. 86 (2011). See Cannedy v. Adams, 706 F.3d 1148,
1162 n.7 (9th Cir. 2013) (“Because the state court of appeal’s
reasons for rejecting Petitioner’s claim of prejudice are
unclear, we have elected to treat the state court’s prejudice
determination as if it were unaccompanied by an
explanation. Accordingly, we apply the stringent standard
imposed by Richter and ask whether there is ‘any reasonable
argument’ that Petitioner was not prejudiced by counsel’s
deficient performance.” (quoting Richter, 562 U.S. at 105)).
Given the ambiguity in the court of appeals’s decision,
the district court should have followed our approach in
Cannedy by first “determin[ing] what arguments or theories
. . . could have supported” the court of appeals’s rejection of
Chavez’s argument that he had been denied Anders
protections, and then giving AEDPA deference to those
arguments. Richter, 562 U.S. at 102.
2
In denying relief, the Arizona Court of Appeals could
have determined that Chavez had not been denied Anders
protections because Arizona’s existing of-right PCR
procedure satisfied Anders and its progeny. Such a
determination would not be contrary to or an unreasonable
application of clearly established federal law.
As relevant here, a decision is contrary to clearly
established federal law if it “reaches a result different than
that reached by the Supreme Court on materially
indistinguishable facts.” Murray v. Schriro, 882 F.3d 778,
801 (9th Cir. 2018) (emphasis added). Chavez argues that
CHAVEZ V. BRNOVICH 19
the procedure rejected in Anders is “virtually identical” to
Arizona’s of-right PCR procedure, and therefore, the court
of appeals’s determination was contrary to Supreme Court
precedent. But Arizona’s of-right PCR procedure differs in
material ways from the procedure rejected in Anders.
In Anders, it was significant that, under California’s
procedure, neither counsel nor the court had to determine
whether the appeal was frivolous or lacked arguable issues;
instead, California required only a determination that the
defendant was unlikely to prevail on appeal. See Smith,
528 U.S. at 279–80. Another significant problem was that
counsel was allowed to withdraw, leaving the court to decide
the appeal without counsel. See id. at 280. These key
defects, along with other problems, rendered California’s
procedure in Anders constitutionally inadequate.
Arizona’s of-right PCR procedure does not suffer from
the same defects. Arizona requires counsel to determine
whether there are any “colorable claims.” Ariz. R. Crim. P.
32.4(c)(2); Colorable, Black’s Law Dictionary (11th ed.
2019) (defining “colorable” as “appearing to be true, valid,
or right”). Thus, unlike the procedure in Anders, Arizona
requires counsel to identify any issues that could appear to
be valid. Arizona also does not permit counsel to withdraw.
Counsel remains in an advisory capacity until the PCR
court’s final determination, and, in that capacity, counsel
remains available to defendant and the PCR court to brief
viable issues. See Ariz. R. Crim. P. 32.4(c)(2); Lammie,
915 P.2d at 663. These differences make Anders materially
distinguishable. For that reason, the Arizona Court of
Appeals’s rejection of the Anders claim was not contrary to
clearly established federal law.
Turning to the “unreasonable application” inquiry, our
review is highly deferential. Under AEDPA’s
20 CHAVEZ V. BRNOVICH
“unreasonable application” clause, “the state court decision
[must] be more than incorrect or erroneous”; it “must be
objectively unreasonable.” Lockyer v. Andrade, 538 U.S.
63, 75 (2003). To conclude that the state court decision was
objectively unreasonable, we must find that “no fairminded
jurist could agree with the state court’s” decision. Davis v.
Ayala, 576 U.S. 257, 277 (2015). The state court decision
must be “so lacking in justification that there was an error
well understood and comprehended in existing law beyond
any possibility for fairminded disagreement.” Richter,
562 U.S. at 103. In addition, we must give the court of
appeals’s determination even “more leeway,” Yarborough v.
Alvarado, 541 U.S. 652, 664 (2004), because the applicable
rule announced in Smith is very general. See Smith, 528 U.S.
at 276–77 (“A State’s procedure provides [constitutionally
adequate appellate] review so long as it reasonably ensures
that an indigent’s appeal will be resolved in a way that is
related to the merit of that appeal.”); id. at 265 (“States are
free to adopt different procedures, so long as those
procedures adequately safeguard a defendant’s right to
appellate counsel.”); id. at 273 (“States [have] wide
discretion, subject to the minimum requirements of the
Fourteenth Amendment, to experiment with solutions to
difficult problems of policy.”). “The more general the rule,
the more leeway courts have in reaching outcomes in case-
by-case determinations.” Yarborough, 541 U.S. at 664.
Viewing the Arizona Court of Appeals’s decision
through this extremely deferential lens, we cannot conclude
that its decision was an unreasonable application of clearly
established federal law. Under Smith, fairminded jurists
could disagree over whether Arizona’s of-right PCR
procedure satisfies Anders and its progeny.
CHAVEZ V. BRNOVICH 21
In Smith, the Supreme Court made clear that states need
not adopt any specific procedures to satisfy Anders.
528 U.S. at 275–76. The Court also announced a new rule
to determine whether a state’s procedure satisfies Anders: a
procedure is sufficient “so long as it reasonably ensures that
an indigent’s appeal will be resolved in a way that is related
to the merit of that appeal.” Id. at 276–77. In deciding
whether California’s new procedure met this standard, the
Smith Court compared California’s new procedure to
procedures it had found inadequate. Id. at 279–81.
The Court identified four deficiencies that had supported
its prior rejection of procedures: (1) neither counsel nor the
court had to determine whether the appeal was frivolous or
lacked arguable issues; (2) counsel was allowed to withdraw
before the court decided the appeal, and the court was
allowed to decide the appeal without counsel even if it found
arguable issues; (3) counsel provided only a “bare
conclusion” that he had reviewed the trial transcript and that
the appeal had no merit; and (4) there was only one tier of
review, either by the judge or counsel. Id. The Court found
that California’s new procedure “far exceed[ed] those
procedures that [it] ha[d] found invalid,” as it did not suffer
from any of those deficiencies. Id. at 281. The Court
ultimately held that California’s new procedure “reasonably
ensure[d] that an indigent’s appeal will be resolved in a way
that is related to the merit of that appeal.” Id. at 278–79.
Under Smith, a fairminded jurist could conclude that
Arizona’s of-right PCR procedure reasonably ensures that
the appeal will be resolved on the merits. Arizona’s
procedure suffers from two of the deficiencies identified in
Smith—counsel files a “bare conclusion,” and there is only
one tier of review by counsel to identify any colorable issues.
But Smith held that states need not adopt any specific
22 CHAVEZ V. BRNOVICH
procedures, so the deficiencies are not fatal. Id. at 275–76.
Arizona’s procedure is better than those the Court has
rejected in two material respects: Arizona requires counsel
to identify any valid claims and counsel may not withdraw
but must remain available to brief any viable issues. See
Ariz. R. Crim. P. 32.4(c)(2). These protections help to
ensure that an appeal will be resolved on the merits. 9
A judge could also reasonably conclude that such
procedures, although not as robust as those upheld by the
Court, are sufficient given the differences between of-right
PCR proceedings and appeals from trials. “The record in
non-capital plea cases is typically short and uncomplicated,”
and “there is less likelihood of error when a defendant
voluntarily pleads guilty.” Montgomery v. Sheldon,
893 P.2d 1281, 1282 n.1, 1283 (Ariz. 1995) (en banc),
superseded by statute as stated in Smith, 910 P.2d at 4; see
also Chavez, 407 P.3d at 90 (noting that in of-right PCR
proceedings the record is “necessarily truncated because of
the guilty plea” and that pleading defendants waive several
rights by pleading guilty).
At the very least, then, Arizona’s procedure falls
somewhere in the gray area between those the Court has
found adequate and those it has found invalid. And of-right
PCR proceedings present circumstances which could
reasonably justify a departure from the procedures found
adequate by the Court. For these reasons, it is “not beyond
9
The issue before us—whether under Smith, a fairminded jurist
could reasonably conclude that Arizona’s of-right PCR procedure as a
whole reasonably ensures that the appeal will be resolved on the merits—
does not require us to determine the minimum actions appellate counsel
must take to satisfy Anders. Thus, nothing in our opinion should be
construed as a determination that PCR counsel’s actions here alone could
satisfy Anders and its progeny.
CHAVEZ V. BRNOVICH 23
the realm of possibility that a fairminded jurist could
conclude,” Woods v. Etherton, 578 U.S. 113, 118 (2016),
that Arizona’s procedure reasonably ensures that an of-right
PCR proceeding will be resolved on the merits. Even if this
were a close issue, the considerable leeway we must give the
state court would compel us to reach the same result. See
Yarborough, 541 U.S. at 664. We therefore hold that the
Arizona Court of Appeals did not unreasonably apply clearly
established federal law, as it could have reasonably
determined that Arizona’s of-right PCR procedure satisfied
Anders and its progeny.
IV
The district court erred in determining that the Arizona
Court of Appeals found Anders inapplicable to of-right PCR
proceedings, and in reviewing de novo whether Arizona’s
procedure satisfied Anders. Giving the Arizona Court of
Appeals the proper AEDPA deference, its determination was
not contrary to or an unreasonable application of Supreme
Court precedent. We therefore reverse the district court’s
grant of conditional habeas relief.
REVERSED.