IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

STATE OF ARIZONA, Respondent, 

v.

LINO ALBERTO CHAVEZ, Petitioner. 

No. 1 CA-CR 15-0482 PRPC 

Petition for Review from the Superior Court in Maricopa County

No. CR2012-005785-001 

The Honorable Bruce R. Cohen, Judge

REVIEW GRANTED, RELIEF DENIED

COUNSEL

Maricopa County Attorney’s Office, Phoenix

By Robert E. Prather

Counsel for Respondent 

Janelle A. McEachern Attorney at Law, Chandler

By Janelle A. McEachern

Counsel for Petitioner

Arizona Attorney General’s Office, Phoenix

By Terry M. Crist

Counsel for Amicus Curiae Arizona Attorney General’s Office

FILED 11-16-2017
2 

Arizona Attorneys for Criminal Justice, Tucson

By David J. Euchner

Co-Counsel for Amicus Curiae Arizona Attorneys for Criminal Justice

Federal Public Defender’s Office, Phoenix

By Keith James Hilzendeger (argued)

Co-Counsel for Amicus Curiae Arizona Attorneys for Criminal Justice

OPINION

Judge Paul J. McMurdie delivered the opinion of the Court, in which Judge 

Jon W. Thompson joined. Presiding Judge Kent E. Cattani concurred in the 

result and offered a concurring opinion.

M c M U R D I E, Judge:

¶1 Lino Alberto Chavez petitions this court to review the 

dismissal of his petition for post-conviction relief of-right. We grant review 

but deny relief, holding an of-right Rule 32 petitioner is not entitled to a 

review of the record by the superior court for arguable issues as required 

for direct appeals under Anders v. California, 386 U.S. 738 (1967), and State 

v. Leon, 104 Ariz. 297 (1969).1 

FACTS AND PROCEDURAL BACKGROUND

¶2 In January 2012, Chavez was indicted on one count of first 

degree murder, a Class 1 dangerous felony, one count of robbery, a Class 4 

felony, and one count of trafficking in stolen property, a Class 3 felony. The 

State alleged that Chavez drove the vehicle in which he and his codefendant 

fled after the codefendant stole a laptop computer. The victim died from 

injuries she sustained when she attempted to hang on to Chavez’s vehicle 

as it sped away. Chavez pled guilty to one count of second degree murder, 

 

1 Chavez raises other issues that do not meet the criteria for 

publication. See Ariz. R. Sup. Ct. 111(b); ARCAP 28(b). We address those 

issues in a separate, contemporaneously filed memorandum decision. See

Ariz. R. Sup. Ct. 111(h); Bobrow v. Bobrow, 241 Ariz. 592, 594, ¶ 2, n.3 (App. 

2017). 
STATE v. CHAVEZ

Opinion of the Court

3 

a Class 1 dangerous felony, and the superior court sentenced him to a 

presumptive term of 16 years’ imprisonment. 

¶3 Chavez filed a timely notice of post-conviction relief (“PCR”) 

and his appointed Rule 32 counsel filed a notice of completion. Chavez then 

filed a pro se petition for post-conviction relief, which the superior court 

summarily denied. This timely petition for review followed. 

¶4 In Pacheco v. Ryan, the United States District Court for the 

District of Arizona granted a petition for writ of habeas corpus filed after 

this court denied relief to a defendant seeking an Anders type of review after 

pleading guilty to child molestation in superior court. 

CV-15-02264-PHX-DGC, 2016 WL 7407242, *10 (D. Ariz. Dec. 22, 2016).2 In 

that case, the defendant, Pacheco, entered into a written plea agreement and 

therefore had no right to a direct appeal under Arizona law. Id. at *1. After 

sentencing, Pacheco was appointed counsel in a PCR proceeding, who 

notified the court, after reviewing the record, that there were no arguable 

issues. Pacheco subsequently filed a pro se petition for post-conviction relief

in superior court. Id. at *1–2. The superior court summarily denied his 

petition, and Pacheco filed a petition for review in this court arguing the 

superior court erred by not reviewing the record for “fundamental error” 

in accordance with Anders. Id. at *2. This court granted review but denied 

relief stating the court was not required to review Pacheco’s petition for 

fundamental error. Id.; State v. Pacheco, 2 CA-CR 2015-0240-PR, 2015 WL 

5945442, at *1, ¶ 4 (Ariz. App. Jan. 1, 2015) (mem. decision). The district 

court found that “Petitioner’s rights under Anders were violated by the 

failure of the trial court to independently review the record for 

non-frivolous issues for review,” and granted the petition, ordering 

Pacheco released unless the superior court conducted an independent 

review of the record consistent with Anders within 90 days. Id. at *2, *10.

The district court held Anders protections applied to Rule 32 of-right 

proceedings because, under Pennsylvania v. Finely, 481 U.S. 551, 554 (1987), 

 

2 While we consider the opinions of the lower federal courts regarding 

the interpretation of the Constitution, such authority is not controlling on 

Arizona courts. State v. Montano, 206 Ariz. 296, 297, n.1 (2003) (“We are not 

bound by the Ninth Circuit’s interpretation of what the Constitution 

requires.”); State v. Vickers, 159 Ariz. 532, 543, n.2 (1989) (declining to follow 

a Ninth Circuit decision which held Arizona’s death penalty statute 

unconstitutional because that decision rested on “grounds on which 

different courts may reasonably hold different views of what the 

Constitution requires”); State v. Swoopes, 216 Ariz. 390, 401 (App. 2007). 
STATE v. CHAVEZ

Opinion of the Court

4 

“Anders requirements extend to any case in which a constitutional right to 

counsel exists.” Id. at *8. The court reasoned that because defendants in Rule 

32 of-right proceedings have a federal constitutional right to counsel, 

Anders protections must apply to them. Id. While the district court noted

Anders procedures can be independently developed by states, it found 

Arizona’s current procedure did not adequately comply with those 

protections. Id. at *8, *10. 

¶5 Chavez, like Pacheco, requested that this court review the 

record for “fundamental error.” Recognizing the recurring issue raised by

the district court’s order in Pacheco, this court requested briefing on the 

issue from Chavez’s appointed counsel and from the State, as well as from 

Amici Curiae with interest in our current Rule 32 procedure. We have 

jurisdiction to review this petition pursuant to Arizona Rule of Criminal 

Procedure 32.9(c). 

DISCUSSION

A Criminal Defendant Is Not Entitled to Sua Sponte Review 

for Arguable Issues Under Anders in an Of-Right Petition 

for Post-Conviction Relief. 

¶6 Chavez claims, based on Pacheco, that an Anders-type review 

is constitutionally required when a pleading defendant files an of-right
STATE v. CHAVEZ

Opinion of the Court

5 

petition for post-conviction relief.3 Thus, we address whether the superior 

court had a sua sponte obligation to review for arguable issues under Anders

and Leon, and whether this court is similarly required to conduct such 

review. Because the claim is that the obligation under Anders requires sua 

sponte review by the superior court, Chavez did not waive the issue under

Rule 32.2(a)(3) by failing to raise the claim in the superior court. See United 

States v. Dreyer, 705 F.3d 951, 960–61 (9th Cir. 2013) (when there is a genuine 

doubt about a defendant’s competency, regardless of objection, it arises to 

reversible plain error because of the court’s independent duty to establish 

competency); State v. Schossow, 145 Ariz. 504, 508 (1985) (failure of defense 

counsel to object to competency of witnesses under the age of ten did not 

waive argument because error was fundamental and prejudicial based on 

trial court’s duty to sua sponte inquire about the competency of child 

witnesses). However, the better practice, to avoid waiver, is always to ask 

the superior court to correct its alleged errors in the first instance. 

1. Arizona’s Elimination of the Conventional Direct Appeal for 

Criminal Defendants Who Plead Guilty. 

¶7 The Arizona Constitution guarantees criminal defendants the 

right to an appeal. Ariz. Const. art. 2, § 24. In 1992, to reduce the burden on 

appellate courts, the legislature amended Arizona Revised Statutes 

(“A.R.S.”) section 13-4033(B) to state: “In noncapital cases a defendant may 

not appeal from a judgment or sentence that is entered pursuant to a plea 

 

3 Although Chavez phrased his claim for independent review 

required by Anders as “fundamental error” review, it is important to note 

Anders required courts to independently review the record to confirm 

counsel’s finding that an appeal is “frivolous.” Smith v. Robbins, 528 U.S. 

259, 279 (2000). This is different than fundamental error review under 

Arizona law. See State v. Henderson, 210 Ariz. 561, 567, ¶ 19 (2005). For direct 

appeal cases, Arizona courts have sometimes referred to Anders review as 

a review for fundamental error. See, e.g., State v. Flores, 227 Ariz. 509, 512, 

¶ 12 (App. 2011). In other direct appeal cases, appellate courts have denied 

relief after determining that there were no non-frivolous or arguable issues 

requiring additional briefing. See, e.g., State v. Thompson, 229 Ariz. 43, 44–45, 

¶¶ 1, 4 (App. 2012). Regardless of the nomenclature, Arizona courts have 

been appropriately reviewing for arguable issues on direct appeal as 

required by Anders. See Penson v. Ohio, 488 U.S. 75, 81 (1988) (reversible error 

committed if reviewing court finds arguable issues but fails to have counsel 

present such claims); Anders, 386 U.S. at 744 (if arguable issues are found, 

court “must, prior to decision,” have those issues presented by counsel).
STATE v. CHAVEZ

Opinion of the Court

6 

agreement or an admission to a probation violation.” In conjunction with 

this change, the Arizona Supreme Court amended several rules of 

procedure to make clear that, “[b]y pleading guilty or no contest in a 

noncapital case, a defendant waives the right to have the appellate courts 

review the proceedings by way of direct appeal, and may seek review only 

by filing a petition for post-conviction relief pursuant to Rule 32 . . . .” Ariz. 

R. Crim. P. 17.1(e); see Ariz. R. Crim. P. 17.2(e), 32.1. 

¶8 Although pleading defendants waive a direct appeal, the 

Arizona Supreme Court held that such defendants can nonetheless file a 

petition for post-conviction relief challenging the judgment and sentence. 

Wilson v. Ellis, 176 Ariz. 121, 123 (1993) (“It was precisely because of art. 2, 

§ 24 that this court expressly left open the avenue of appellate review by 

PCR in lieu of direct appeal when it amended the rules with respect to cases 

involving [pleas].”). The filing of a post-conviction relief petition by a 

pleading defendant became known as an “of-right” petition. Ariz. R. Crim. 

P. 32.1. The Arizona Supreme Court also amended Rule 32 to require the 

appointment of counsel for indigent defendants seeking “of-right” 

post-conviction relief. Ariz. R. Crim. P. 32.4(c)(2). Under the rule, if counsel 

“determines there are no colorable claims which can be raised,” counsel 

must notify the court by way of what is known as a Montgomery notice. Id.; 

Montgomery v. Sheldon, 181 Ariz. 256, 260 (Montgomery I); op sup., 182 Ariz. 

118, 119 (Montgomery II) (1995), overruled by State v. Smith, 184 Ariz. 456 

(1996) (a pleading defendant does not have a right to appointed counsel in 

a review from denial of post-conviction relief proceeding).4 The court must 

then allow the defendant the opportunity to file a pro se petition. Ariz. R. 

Crim. P. 32.4(c)(2). Importantly, counsel does not withdraw from 

representing the defendant at this stage, but rather “[c]ounsel’s role is then 

limited to acting as advisory counsel until the trial court’s final 

determination.” Id. After following this procedure, the court may either 

 

4 Montgomery II was overruled in part because the legislature repealed 

former A.R.S. § 13-4035, which required the appellate courts to review for 

fundamental error when considering a criminal matter. Smith, 184 Ariz. at 

459; 1995 Ariz. Sess. Laws, ch. 198, § 1 (1st Reg. Sess.). 
STATE v. CHAVEZ

Opinion of the Court

7 

dismiss the petition by summary disposition or set a hearing on the claims 

presented in the pro se petition. Ariz. R. Crim. P. 32.6(c).5

2. The Arizona Supreme Court Has Determined That the Superior 

Courts are Not Required to Review Of-Right Petitions for

Post-Conviction Relief for Arguable Issues. 

¶9 The United States Supreme Court established the Anders

procedure to ensure substantial equality and fair process when defense 

counsel concludes that a client’s appeal is “wholly frivolous.” Anders, 386 

U.S. at 744; see also Penson v. Ohio, 488 U.S. at 82–83. In such cases, counsel 

should advise the appellate court of this conclusion and request permission 

to withdraw along with providing a brief referring to portions of the record 

that “might arguably support the appeal.” Anders, 386 U.S. at 744. The 

defendant must be afforded an opportunity to raise any points of error in a 

pro se filing. Id. Thereafter, to ensure the defendant’s Sixth Amendment 

right to counsel, the court must (1) satisfy itself that counsel diligently and 

thoroughly searched the record for any arguable claim on appeal, and (2) 

determine whether counsel correctly concluded that the case is wholly 

frivolous. McCoy v. Court of Appeals of Wis., 486 U.S. 429, 442 (1988). If the 

court agrees with counsel’s determination, it may grant the withdrawal 

request and either dismiss the appeal or, if state law requires, decide the 

case on the merits. Anders, 386 U.S. at 744. If the court “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. The Arizona Supreme Court later adopted this procedure for 

direct appeals in Leon. 104 Ariz. at 299.

¶10 After Anders, the United States Supreme Court has reviewed 

several state procedures and, on a case by case basis, decided whether those 

procedures met the federal constitutional standard. See, e.g., Smith v. 

Robbins, 528 U.S. at 265 (“The procedure we sketched in Anders is a 

prophylactic one; the States are free to adopt different procedures, so long 

as those procedures adequately safeguard a defendant’s right to appellate 

counsel.”); McCoy, 486 U.S. at 444 (upholding Wisconsin’s procedure); 

Penson v. Ohio, 488 U.S. at 81–82 (finding Ohio’s procedure inadequate). If

 

5 Chavez’s PCR counsel complied with Arizona practice by filing a 

detailed Montgomery notice which included the list of documents she 

reviewed and an explanation that she was unable to find any claims for 

relief. The superior court did not release counsel until after dismissing the 

issues raised in the pro se petition. Chavez’s superior court PCR counsel has 

not been involved in the briefing of the issues on review.
STATE v. CHAVEZ

Opinion of the Court

8 

a state procedure “afford[s] adequate and effective appellate review to 

indigent defendants” by ensuring “an indigent’s appeal will be resolved in 

a way that is related to the merit of that appeal,” the federal constitutional 

requirements are met. Robbins, 528 U.S. at 276–77. 

¶11 Chavez contends, echoing the Pacheco order, that because 

defendants who have pled guilty in Arizona have a right to counsel in 

post-conviction relief proceedings, they should also have a right to have the 

superior court review the record under Andersto determine if their petitions 

for post-conviction relief are truly frivolous. 

¶12 While the District Court in Pacheco found a defendant who 

had pled guilty at trial was entitled to have the superior court 

independently review the record under Anders in a Rule 32 petition because 

he had a right to counsel during that proceeding, Pacheco, 2016 WL 7407242 

at *8, the Arizona Supreme Court, and this court, have held that no 

Anders-type review is required in Rule 32 proceedings. Compare Graves v. 

McEwen, 731 F.3d 876, 880–81 (9th Cir. 2013) (Ninth Circuit Rule 4-1 

requires appointed counsel in 28 U.S.C. § 2254 proceedings to file an Anders

brief), with Smith, 184 Ariz. at 459, and Wilson v. Ellis, 176 Ariz. at 124 (“[W]e 

are not commanding, nor do we want, trial courts to conduct Anders-type 

reviews in PCRs.”), and State v. Thompson, 139 Ariz. at 554, and State v. 

McFord, 125 Ariz. 377, 380 (App. 1980). Additionally, nothing in Arizona 

Rule of Criminal Procedure 32 requires the superior court or this court to 

conduct an Anders review of a defendant’s case. Ariz. R. Crim. P. 32.6(c).6

¶13 While Arizona has granted defendants in of-right

post-conviction proceedings the right to counsel, State v. Pruett, 185 Ariz. 

128, 131 (App. 1995), and the federal constitution guarantees defendants 

counsel in such proceedings, Halbert v. Michigan, 545 U.S. 605, 610 (2005), 

our supreme court has found no requirement that such state-created 

post-conviction review be subject to Anders review. See Smith, 184 Ariz. at 

460; see also Pennsylvania v. Finley, 481 U.S. 551, 556 (1987) (“[W]e reject [the] 

argument that the Anders procedures should be applied to a state-created 

right to counsel on postconviction review just because they are applied to 

the right to counsel on first appeal that this Court established . . . .”); 

 

6 While Chavez argues both the superior court and this court should 

review his record for error, because this court’s review of petitions for 

post-conviction relief is discretionary, Smith, 184 Ariz. at 459, there is 

accordingly no right to an Anders-type review in this court of the dismissal 

of an of-right PCR proceeding. See Pennsylvania v. Finley, 481 U.S. at 556. 
STATE v. CHAVEZ

Opinion of the Court

9 

Fitzgerald v. Superior Court (State), 402 P.3d 442, 448, ¶ 17 (2017) (“[T]he right 

to PCR counsel under § 13-4041(B) does not also create or include ‘a 

“statutory right” to competence.’”). 

¶14 Beyond theses authorities, the practicalities of the matter 

demonstrate the fallacy in Chavez’s contentions. Chavez argues that, 

because a defendant who goes to trial receives Anders review on direct 

appeal, a defendant who pleads guilty should receive the same protections 

in an of-right Rule 32 proceeding. But that argument ignores the significant 

difference between a trial—where a record is created for review—and a plea 

proceeding, where the proceedings (and record) are necessarily truncated 

because of the guilty plea. A defendant who pleads guilty waives the right 

to assert on review all non-jurisdictional defenses, including deprivations 

of constitutional rights. Tollett v. Henderson, 411 U.S. 258, 267 (1973) (“a 

guilty plea represents a break in the chain of events which has preceded it 

in the criminal process”; when a criminal defendant, on advice of counsel, 

“has solemnly admitted in open court that he is guilty of [a charged 

offense], he may not thereafter raise independent claims relating to 

deprivation of constitutional rights” that antedated the plea). The rights a 

defendant waives by pleading guilty include the right to a preliminary 

hearing, the right to a jury trial, the right to cross-examine witnesses and 

present evidence, the right to remain silent, and the right to a direct appeal. 

See Halbert, 545 U.S. at 637, 642 (Thomas, J., dissenting) (“Legal rights, even 

constitutional ones, are presumptively waivable.”). And because a pleading 

defendant waives those rights, there is no need to create in the first instance 

in the trial court a record relating to possible appellate claims—other than 

for issues relating to the voluntariness of the guilty plea.

¶15 Unlike the direct appeal, where the appellate court has access 

to the same record that appellate counsel reviews for error, the 

post-conviction proceeding is one in which counsel can raise issues that are 

not apparent from the court record. Generally, to prevail on a PCR claim, 

counsel must investigate beyond the court record and present that evidence 

to the superior court. For example, if PCR counsel raises an ineffective 

assistance of counsel claim for failing to properly advise the defendant 

about the plea agreement, PCR counsel must present evidence developed 

outside the court record. But such an ineffective assistance of counsel claim 

cannot be made without undertaking an investigation into extra-record 

information. In contrast, when reviewing for the limited issues that can 

arise in an of-right proceeding, superior courts do not undertake an 

extra-judicial record investigation necessary to search for arguable issues. 

Indeed, the necessity for an extra-judicial record was part of the reasoning 

behind the elimination of direct appeals in plea agreement cases and the 
STATE v. CHAVEZ

Opinion of the Court

10 

change in the Arizona Rules of Criminal Procedure. See Charles R. Krull, 

Eliminating Appeals from Guilty Pleas, ARIZONA ATTORNEY, Oct. 1992, at 35; 

Crane McClennen, Eliminating Appeals from Guilty Pleas: Making the Process 

More Efficient, ARIZONA ATTORNEY, Nov. 1992, at 16. Because the superior 

court is not able to undertake an extra-record investigation, the court is 

simply not situated to undertake an Anders-type review in a PCR 

proceeding.

¶16 Additionally, the sheer volume of post-conviction of-right

petitions in the superior court bolsters our current procedure as well. There 

were more than 3000 petitions for post-conviction relief pending in superior 

court at the end of fiscal year 2016. Arizona Supreme Court, Superior Court 

Case Activity Fiscal Year 2016, available at 

http://www.azcourts.gov/Portals/39/2016DR/SuperiorCourt.pdf#page

=3. To require the superior court to conduct Anders-type reviews of the 

record in all these cases would only further burden our already taxed state

court system, especially when “the number of meritorious cases is 

‘infinitesimally small.’” Davila v. Davis, 137 S.Ct. 2058, 2070 (2017) (rejecting 

a proposed rule that “would likely generate high systemic costs and low 

systemic benefits”).

¶17 As the Amici have recognized in their briefing, without 

further guidance from either the Arizona Supreme Court or the United 

States Supreme Court, we will continue to follow our state’s established 

procedure. See State v. Smyers, 207 Ariz. 314, 318, ¶ 15, n.4 (2004) (“The 

courts of this state are bound by the decisions of [the Arizona Supreme 

Court] and do not have the authority to modify or disregard this court’s 

rulings.”). Currently, that procedure does not require the superior court to 

review of-right petitions for post-conviction relief for arguable issues in 

accordance with Anders. 

CONCLUSION

¶18 In accordance with the Arizona Supreme Court’s decisions 

and our current Arizona Rules of Criminal Procedure, we hold that the 

superior courts are not required to conduct Anders review in a Rule 32 ofright petition. Accordingly, we grant review but deny relief.

C A T T A N I, J., specially concurring:

¶19 I agree that under controlling Arizona Supreme Court 

authority and our current Rules of Criminal Procedure, Chavez is not 

entitled to the relief he requests. I write separately, however, to express my 

view that there are compelling reasons for the Arizona Supreme Court to 
STATE v. CHAVEZ

Opinion of the Court

11 

consider modifying the procedural rules to provide for a limited Anderstype review in Rule 32 of-right proceedings for pleading defendants that is 

similar to the review currently provided on appeal for non-pleading 

defendants.

¶20 I recognize that there are significant differences between the 

scope of review available following a guilty plea and that available 

following a trial. As the Opinion notes, a pleading defendant waives all 

non-jurisdictional defects—even constitutional claims—relating to issues 

underlying the conviction. Moreover, the record created in plea 

proceedings is necessarily more truncated than that developed during trial 

proceedings. Nevertheless, certain claims—for example, those relating to 

the voluntariness of the plea and to the sentence imposed—are not waived 

by pleading guilty, and the truncated record is sufficient to enable review 

of those types of claims. And because a pleading defendant in a noncapital 

case may not appeal and is instead limited to a Rule 32 of-right proceeding, 

the protections provided by an Anders procedure on appeal—in which a 

court reviews the appellate record for non-frivolous issues after being 

advised that counsel has not found any, see State v. Leon, 104 Ariz. at 299—

should arguably be applied as to viable issues in the of-right proceeding. 

¶21 The Opinion notes the large number of cases that are resolved 

through plea proceedings and the burden on the superior court that will 

result from Anders-type review in those cases. Although I agree that 

proposed procedures that generate significant systemic costs with low 

systemic benefits should not be lightly undertaken, in my view, a carefully 

tailored Anders-type procedure providing limited review of record-based, 

non-waived claims should be provided by the superior court in of-right 

post-conviction proceedings to ensure that pleading defendants are given 

the same type of review of non-waived claims that non-pleading 

defendants receive on appeal.7

 

7 The Opinion notes—and I agree—that Anders-type review of 

ineffective assistance of counsel claims is not feasible given that such claims 

generally rely on an investigation beyond the judicial record. In the 

hopefully rare case in which post-conviction counsel fails to identify and 

develop a viable claim of ineffective assistance of plea counsel, such a claim 

must be developed through a subsequent Rule 32 claim of ineffective 

assistance of appellate (here, post-conviction) counsel, rather than through

an Anders-type review. And the same can be said for any other claim that 

requires evidentiary development beyond the judicial record. Such claims 

are necessarily beyond the scope of an Anders-type review.
STATE v. CHAVEZ

Opinion of the Court

12 

¶22 Furthermore, as detailed in the Opinion, in Pacheco v. Ryan, 

the United States District Court for the District of Arizona ruled that the 

United States Constitution requires the type of review Chavez seeks in this 

case. The State apparently did not appeal the Pacheco decision and agrees 

with Chavez and Amici that Anders-type review should be provided in ofright post-conviction proceedings. Thus, assuming federal courts continue 

to apply the rule set forth in Pacheco, unless Arizona institutes an Anderstype review in Rule 32 of-right proceedings, those courts will presumably 

continue to order the state court to conduct such an Anders-type review 

following federal habeas proceedings under 18 U.S.C. § 2254, often years 

after a defendant’s conviction becomes final in state court. Given these 

circumstances, failing to incorporate Anders-type review in Rule 32 of-right 

proceedings in the first instance simply delays the requested review. 

¶23 The State has proffered a proposed rule to provide for 

Anders-type review in Rule 32 of-right proceedings. And Amici in support 

of Chavez note that several other jurisdictions provide such review 

following plea proceedings, and that appellate courts in some of those 

jurisdictions have published checklists for counsel to follow when filing an 

Anders-type brief. I would adopt such a checklist, along with a requirement 

that post-conviction counsel’s briefing detail the work done in assessing 

whether there are viable claims for relief, as procedures to help to ensure 

compliance with counsel’s obligations to the client and the court. And given 

the general agreement by the parties and Amici that Anders-type review 

should be provided in Rule 32 of-right proceedings, I would seek further 

input from them, as well as others interested in the criminal justice system, 

to craft procedures to ensure meaningful review of non-waived claims in 

Rule 32 of-right proceedings.