FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

LINO ALBERTO CHAVEZ,

Petitioner-Appellee,

v.

MARK BRNOVICH, Attorney General; 

DAVID SHINN, Director,

Respondents-Appellants.

No. 21-15454

D.C. No.

2:19-cv-05424-

DLR

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 PetitionerAppellee.

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 postconviction 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 twopage 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 postconviction 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-PHXDGC, 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 ofright 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 caseby-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.