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UNITED STATES DISTRICT COURT

DISTRICT OF ARIZONA

Isidro Pacheco,

Petitioner

-vsCharles L. Ryan, et al.,

Respondents.

CV-15-2264-PHX-DGC (JFM)

Report & Recommendation 

on Petition for Writ of Habeas Corpus

I. MATTER UNDER CONSIDERATION

Petitioner, presently incarcerated in the Arizona State Prison Complex at 

Kingman, Arizona, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 

2254 on November 9, 2015 (Doc. 1). On February 26, 2016 Respondents filed their 

Response (Doc. 12). Petitioner did not file a reply, and the time to do so expired. The 

Court then ordered supplemental briefing, and on July 13, 2016, Respondents filed their 

Supplemental Answer (Doc. 16). Petitioner filed his Supplemental Reply on August 16, 

2016.

The Petitioner's Petition is now ripe for consideration. Accordingly, the 

undersigned makes the following proposed findings of fact, report, and recommendation 

pursuant to Rule 8(b), Rules Governing Section 2254 Cases, Rule 72(b), Federal Rules 

of Civil Procedure, 28 U.S.C. § 636(b) and Rule 72.2(a)(2), Local Rules of Civil 

Procedure. 

II. RELEVANT FACTUAL & PROCEDURAL BACKGROUND

A. FACTUAL BACKGROUND

As reported in the Presentence Investigation, Petitioner was living with his 

employer and family in the summer of 2012. The employer’s stepdaughter (who was 6 

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at the time) had been watching television in the living room and was sleeping on the 

couch. She awoke to find Petitioner fondling and digitally penetrating her vagina while 

he sat on the floor. This occurred on two occasions. The victim related the incidents to a 

seven year old cousin, her brother overheard, and one year later related it to the parents, 

who contacted police. Petitioner was located living with the employer’s parents, and 

agreed to meet with investigating detectives there. When they arrived, he did not have 

access to the house, and agreed to be interviewed at the Sheriff’s Department. After 

initialing denying any misconduct, Petitioner admitted fondling the victim on one 

occasion on the living room couch while they watched movies. (Exhibit B, Presentence 

Report at 1-2.) (Exhibits to the Answer, Doc. 12, are referenced herein as “Exhibit 

___.”) 

B. PROCEEDINGS AT TRIAL

On August 28, 2013, Petitioner was indicted in Pinal County Superior Court on

counts of child molestation and sexual conduct with a minor, relating to the first incident, 

and similar charges relating to the second incident. (Exhibit A, Indictment.) The state 

disclosed police reports and CDs of the interviews with Petitioner, the victim, and other 

witnesses. (Exhibit C, Supplemental Disclosure.) Petitioner was appointed counsel from 

the Pinal County Public Defender’s Office.

Eventually, Petitioner entered into a written plea agreement wherein he agreed to 

plead to amended charges of child molestation, and two counts of attempted sexual 

conduct with a minor. The agreement provided for a stipulated sentence of no more than 

the presumptive 17 years on the child molestation charge, and lifetime probation on the 

remaining counts. (Exhibit D, R.T. 7/1/14 at 6-7.)1 

Petitioner appeared on July 1, 2014 with counsel Paula Cook, and entered guilty 

pleas to the amended charges. (Id. at 11-12.) Counsel provided a factual basis for the 

 

1 No copy of the plea agreement has been provided.

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child molestation charge, and the court asked Petitioner if he had committed the acts 

described. Petitioner initially responded “No, sir. That’s wrong.” (Id. at 13-14.) After a 

recess to confer with counsel, Petitioner again pled guilty, counsel again provided the 

factual basis, and Petitioner agreed that he committed the described act. (Id. at 14-16.) 

Petitioner then proceeded to plead guilty to the charges of attempted sexual conduct, 

counsel described the factual basis, and Petitioner admitted committing the described 

acts. (Id. at 16-19.) The trial court found the pleas knowing and voluntary, and accepted 

the pleas. (Id. at 19-20.)

A presentence report (Exhibit B) was prepared, recommending the agreed upon 

sentences. Petitioner appeared for sentencing on August 5, 2014 with counsel David 

Wilkinson, because counsel Cook had an emergency. Petitioner requested a continuance 

so counsel Cook could appear. The state and victim’s mother objected. The court 

denied the continuance. (Exhibit E, R.T. 8/5/14 at 1-6.) Counsel argued for the 

minimum of 10 years, asserting support from family in Mexico but arguing their inability 

to appear, Petitioner’s steady employment, contrition, and admission. (Id. at 7.) The 

victim’s mother asked for the maximum. The prosecution requested the agreed upon 17 

years. (Id. at 7-10.) When called upon, Petitioner responded:

THE DEFENDANT: That I was forced to sign that plea 

and if I didn’t do it, I would be forced to go to trial. That’s what I 

was told.

THE COURT: Is there anything else you would like to say, 

sir?

THE DEFENDANT: No.

(Id. at 12-13.) Petitioner was sentenced to 17 years, the maximum allowed under the 

plea agreement. (Id. at 13-14.) The court noted that the presentence investigation 

erroneously reported the 17 year sentence as only requiring service of 85%, but that the 

court had advised Petitioner that it was a flat time sentence. (Id. at 14.) 

C. PROCEEDINGS ON DIRECT APPEAL

Petitioner did not file a direct appeal. (Petition, Doc. 1 at 2.)

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Moreover, as a pleading defendant, Petitioner had no right to file a direct appeal. 

See Ariz. Rev. Stat. § 13-4033(B); Ariz.R.Crim.P. 17.1(e); and Montgomery v. Sheldon, 

181 Ariz. 256, 258, 889 P.2d 614, 616 (1995).

D. PROCEEDINGS ON POST-CONVICTION RELIEF

On October 20, 2014 (76 days after sentencing), Petitioner filed a Notice of PostConviction Relief (Exhibit F). Counsel was appointed, who eventually filed a Notice of 

No Colorable Claim (Exhibit G) evidencing an inability to find an issue for review, and 

requesting leave for Petitioner to file a pro se petition. The sole request in the notice was 

that Petitioner be allowed to file a pro se petition for post conviction relief.

On February 27, 2015, Petitioner filed his pro per Petition for Post-Conviction 

Relief (Exhibit H). Petitioner argued that his plea was involuntary because trial counsel 

was ineffective under Strickland by failing to do a pre-trial investigation or otherwise 

prepare a defense. (Id. at 10-11.) Petitioner argued that trial counsel failed to 

investigate: (1) bias of the victim’s family based on financial disputes; (2) Petitioner 

being in Mexico between June and August of 2012. (Id. at 11.) Petitioner also argued 

that counsel failed to challenge the admissibility of Petitioner’s confession. (Id. at 12-

14.) And, Petitioner argued that counsel failed to present mitigation evidence at 

sentencing. (Id. at 15-19.) Finally, Petitioner argued that the trial court committed 

sentencing error. (Id. at 19-24.) The trial court summarily denied the petition, 

referencing the State’s response, and finding:

THE COURT HEREBY FINDS that all matters contained in the 

Petition for Post Conviction Relief are precluded as having been 

previously ruled upon or untimely filed or the Petition lacks 

sufficient basis in law and fact to warrant further proceedings herein 

and no useful purpose would be served by further proceedings...

(Exhibit I, Order 5/22/15.)

Petitioner then filed a Petition for Review (Exhibit J) arguing that the trial court 

erred by issuing a “format letter” denial, by finding he had failed to assert colorable 

claims, and (because his of-right PCR proceeding was the equivalent of a direct appeal) 

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by failing to review the record for “fundamental error” under Anders v. California, 386 

U.S. 738 (1967), after counsel failed to raise any claims. (Id. at 8-11.) 

On October 13, 2015, the Arizona Court of Appeals issued its Memorandum 

Decision (Exhibit K). (See Exhibit L, Mandate.) The courted granted review but denied 

relief. The court rejected the arguments regarding the findings of no colorable claims 

(Exhibit K at ¶ 3), review for error (id. at ¶ 4), and the references to preclusion and 

untimeliness in the trial court’s denial (id. at ¶ 5). The court further considered 

Petitioner’s factual assertions that “he was forced to plead guilty because of counsel’s 

deficient performance.” (Id. at ¶ 6.) The court rejected those contentions, concluding: 

Pacheco fails to explain what additional pretrial investigation 

counsel should have undertaken or how he was prejudiced by that 

deficient performance. Nor does he provide support for his belief 

that a motion to suppress his confession would have been successful 

or explain why counsel was deficient for failing to file such a 

motion. And, although he argues trial counsel was " 'more familiar' 

"with his case than the attorney who represented him at sentencing, 

he does not identify or describe the mitigating evidence she would 

have offered had the trial court continued the sentencing hearing 

rather than proceeding with substitute counsel, nor does he explain 

what the "dozens of letters [he would have had] sent from Mexico 

asking the court to give [him] a mitigated sentence" would have 

said. Additionally, although the plea agreement stated the sentence 

for child molestation would be between ten and seventeen years, 

and Pacheco told the court at the change-of-plea hearing that no one 

had promised him anything in exchange for pleading guilty, he 

nonetheless argues trial counsel "assured him that he had a good 

chance of receiving a ten year sentence." To the extent Pacheco 

asserts "[t]he only reason [he] signed the plea was because [his 

attorney] told [him] that [he] had a 'good chance' of getting the 10 

year sentence," the transcript from the change-of-plea hearing 

simply does not support his argument. 

(Id. at ¶ 7.) The court also concluded that it was not required on review of the PCR 

proceeding, to conduct a review of the record for “fundamental error.” (Id. at ¶ 4.) 

Petitioner did not seek further review, and on November 30, 2015, the Arizona 

Court of Appeals issued its Mandate (Exhibit L). 

E. PRESENT FEDERAL HABEAS PROCEEDINGS

Petition - Petitioner commenced the current case by filing his Petition for Writ of 

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Habeas Corpus pursuant to 28 U.S.C. § 2254 on November 9, 2015 (Doc. 1). 

Petitioner’s Petition asserts the following four grounds for relief:

1. Trial counsel was ineffective for failing to investigate and mount a 

defense.

2. Trial counsel was ineffective for failing to challenge the admissibility of 

Petitioner’s confession based upon his will having been overborne by 

police conduct, i.e. that he was told he could leave if he confessed.

3. Trial counsel was ineffective for failing to investigate and present 

mitigation evidence at sentencing.

4. Petitioner was entitled under Anders to a review of the record for 

“fundamental error” by the trial court because his PCR proceeding was the 

equivalent of direct appeal. 

Response - On February 26, 2016, Respondents filed their Response (“Answer”) 

(Doc. 12). Respondents argue the Ground 4 is not a cognizable claim, Grounds 1 and 2 

were waived by Petitioner’s guilty plea, and Ground 3 is without merit.

Reply – The Court’s service Order filed November 30, 2015 provided: “Petitioner 

may file a reply within 30 days from the date of service of the answer.” (Doc. 5 at 3.) 

That time has passed, and Petitioner has not filed a reply.

Supplements – On June 13, 2016, the Court observed that Respondents had not 

addressed Petitioner’s claim in Ground 4 that the court had failed to conduct a review of 

the record pursuant to Anders. Respondents were directed to supplement their brief to 

address the claims, and Petitioner was granted leave to reply to the supplemental answer. 

(Order 6/13/16, Doc. 14.)

On July 13, 2016, Respondents filed their Supplemental Answer (Doc. 16), 

arguing that: (1) no Anders claim had been raised in the Petition, and it was thus waived; 

(2) no Anders claim had been raised in the trial court, and thus such a claim had been 

waived, and is procedurally defaulted; and (3) Anders procedures do not apply to an 

Arizona of-right PCR proceeding. Respondents concede that an Anders violation is 

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structural error requiring reversal without a showing of prejudice, and would require a 

grant of relief subject to a new Rule 32 proceeding consistent with Anders. 

On August 16, 2016, Petitioner filed his “Reply to Supplemental Answer” (herein 

“Supplemental Reply”) (Doc. 18) arguing that: (1) Arizona Rule of Criminal Procedure 

Rule 32.6 requires Anders review; (2) no such review was conducted; and (3) Petitioner 

was prejudiced because he was sentenced to an enhanced sentence without the necessary 

showing or admissions, and without a jury determination on the enhancement.

The Court’s Order to supplement provided: “Because the time for a reply to the 

original Answer (Doc 12) has expired, Petitioner will be limited to addressing the 

arguments in the supplemental answer.” (Order 6/13/16, Doc. 14 at 2.) Accordingly, to 

the extent that Petitioner addresses the merits of Ground 1, 2 and 3 in his Supplemental 

Reply, those arguments are disregarded as untimely.

III. APPLICATION OF LAW TO FACTS

A. GROUND 1 – INEFECTIVENESS RE INVESTIGATION

1. Parties Arguments

In Ground 1, Petitioner argues that trial counsel was ineffective for failing to 

investigate and mount a defense based upon: (a) the victim’s bias based on financial 

disputes between Petitioner and the victim’s father; (b) the victim’s delay in reporting, 

doing so only because she was upset about Petitioner moving in with other family; (c) 

Petitioner was in Mexico on the relevant dates; and (d) failure to interview the victim, 

her father, or Petitioner’s alibi witnesses. (Petition, Doc. 1 at 6, et seq.)

Respondents argue that this claim was waived by Petitioner’s guilty plea, citing 

Tollett v. Henderson, 411 U.S. 258, 267 (1973). Respondents acknowledge, however 

that Petitioner has not waived arguments that a failure to investigate rendered counsel’s 

advice on the guilty plea deficient. (Answer, Doc. 12 at 9-10.) Respondents then argue 

the merits of the claim, asserting that Petitioner has failed to allege that further 

investigation would have altered counsel’s advice, only that it would have altered 

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Petitioner’s decision. Respondents further argue that any claim that further investigation 

would have improved Petitioner’s plea bargaining position was waived by the plea. 

Respondents argue that Petitioner’s allegations show that counsel’s advice was focused 

on the potential sentence at trial, not the chances of success. Respondents further argue 

that Petitioner’s allegations show that counsel was aware of the purported defenses.

2. Waiver by Guilty Plea

Respondents argue that Ground 1 was waived by Petitioner’s guilty plea.

Some constitutional rights are automatically waived by entering an unconditional 

guilty plea. Such rights include, among others, the right to a jury trial, the right to 

confront one's accusers, and the right to invoke the privilege against self-incrimination, 

McCarthy v. United States, 394 U.S. 459, 466 (1969), as well as the right to challenge 

constitutional defects which occur before entry of the plea. United States v. Broce, 488 

U.S. 563, 573-74 (1989). A guilty plea breaks the chain of events that proceeded it in 

the criminal process. Tollett v. Henderson, 411 U.S. 258, 267 (1973). Once a defendant 

enters a valid guilty plea, he can no longer raise a claim of violation of constitutional 

rights that arose prior to the plea. Id. at 267; United States v. Benson, 579 F.2d 508, 510 

(9th Cir. 1978).

However, “[w]here, as here, a defendant is represented by counsel during the plea 

process and enters his plea upon the advice of counsel, the voluntariness of the plea 

depends on whether counsel's advice ‘was within the range of competence demanded of 

attorneys in criminal cases.’” Hill v. Lockhart, 474 U.S. 52, 56 (1985) (quoting McMann 

v. Richardson, 397 U.S. 759, 771 (1970)). “As we explained in [Tollett], a defendant 

who pleads guilty upon the advice of counsel ‘may only attack the voluntary and 

intelligent character of the guilty plea by showing that the advice he received from 

counsel was not within the standards set forth in McMann.’” Id. But see United States 

v. Garcia-Valenzuela, 232 F.3d 1003, 1005 (9th Cir. 2000) (detailing other exceptions to 

the waiver implicit in a guilty plea, including claims of vindictive prosecution, double 

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jeopardy, defective indictment, vague statute, selective prosecution, judicial 

disqualification). 

To the extent that Petitioner’s Ground 1 is intended to assert failings of trial 

counsel which did not impact his advice to Petitioner on his guilty plea, those claims 

were waived by Petitioner guilty plea. So, to the extent that Petitioner simply claims that 

trial counsel failed to mount various defenses, his claim is waived.

On the other hand, to the extent that Petitioner asserts claims in Ground 1 that trial 

counsel failed to investigate various defenses, and thus his advice to Petitioner to plead 

guilty was defective and rendered Petitioner’s guilty plea unknowing and thus 

involuntary, it is not waived by Petitioner’s guilty plea, and must be addressed on the 

merits.

3. Standard for Habeas Claims

Standard Applicable on Habeas - While the purpose of a federal habeas 

proceeding is to search for violations of federal law, in the context of a prisoner “in 

custody pursuant to the judgment a State court,” 28 U.S.C. § 2254(d) and (e), not every 

error justifies relief. 

Errors of Law - “[A] federal habeas court may not issue the writ simply because 

that court concludes in its independent judgment that the state-court decision applied [the 

law] incorrectly.” Woodford v. Visciotti, 537 U. S. 19, 24– 25 (2002) (per curiam). To 

justify habeas relief, a state court’s decision must be “contrary to, or an unreasonable 

application of, clearly established Federal law, as determined by the Supreme Court of 

the United States” before relief may be granted. 28 U.S.C. §2254(d)(1).

Errors of Fact - Federal courts are further authorized to grant habeas relief in 

cases where the state-court decision “was based on an unreasonable determination of the 

facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 

2254(d)(2). "Or, to put it conversely, a federal court may not second-guess a state court's 

fact-finding process unless, after review of the state-court record, it determines that the 

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state court was not merely wrong, but actually unreasonable." Taylor v. Maddox, 366 

F.3d 992, 999 (9th Cir. 2004). 

Moreover, a state prisoner is not free to attempt to retry his case in the federal 

courts by presenting new evidence. There is a well-established presumption of 

correctness of state court findings of fact. This presumption has been codified at 28 

U.S.C. § 2254(e)(1), which states that "a determination of a factual issue made by a State 

court shall be presumed to be correct" and the petitioner has the burden of proof to rebut 

the presumption by "clear and convincing evidence." 

Applicable Decisions – In evaluating state court decisions, the federal habeas 

court looks through summary opinions to the last reasoned decision. Robinson v. 

Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004). 

No Decision on the Merits – The limitations of 28 U.S.C. § 2254(d) only apply 

where a claim has been “adjudicated on the merits in State court.” Thus, where a 

petitioner has raised a federal claim to the state courts, but they have not addressed it on 

its merits, then the federal habeas court must address the claim de novo, and the 

restrictive standards of review in § 2254(d) do not apply. Johnson v. Williams, 133 S.Ct. 

1088, 1091-92 (2013). See id. (adopting a rebuttable presumption that a federal claim 

rejected by a state court without being expressly addressed was adjudicated on the 

merits).

4. Standard for Ineffective Assistance

Applicable Standard on Ineffective Assistance Claims – Generally, claims of 

ineffective assistance of counsel are analyzed pursuant to Strickland v. Washington, 466 

U.S. 668 (1984). In order to prevail on such a claim, Petitioner must show: (1) deficient 

performance - counsel’s representation fell below the objective standard for 

reasonableness; and (2) prejudice - there is a reasonable probability that, but for 

counsel’s unprofessional errors, the result of the proceeding would have been different. 

Id. at 687-88. Although the petitioner must prove both elements, a court may reject his 

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claim upon finding either that counsel's performance was reasonable or that the claimed 

error was not prejudicial. Id. at 697.

There is a strong presumption counsel’s conduct falls within the wide range of 

reasonable professional assistance and that, under the circumstances, the challenged 

action might be considered sound trial strategy. U.S. v. Quinterro-Barraza, 78 F.3d 

1344, 1348 (9th Cir. 1995), cert. denied, 519 U.S. 848 (1996); U.S. v. Molina, 934 F.2d 

1440, 1447 (9th Cir. 1991). The court should “presume that the attorneys made 

reasonable judgments and decline to second guess strategic choices.” U.S. v. Pregler, 

233 F.3d 1005, 1009 (7th Cir. 2000).

An objective standard applies to proving such deficient performance, and requires 

a petitioner to demonstrate that counsel’s actions were “outside the wide range of 

professionally competent assistance, and that the deficient performance prejudiced the 

defense.” United States v. Houtcens, 926 F.2d 824, 828 (9th Cir. 1991) (quoting 

Strickland, 466 U.S. at 687-90). The reasonableness of counsel’s actions is judged 

from counsel’s perspective at the time of the alleged error in light of all the 

circumstances. Kimmelman v. Morrison, 477 U.S. 365, 381 (1986); Strickland, 466 U.S. 

at 689. 

In the context of a pleading defendant, prejudice is ordinarily shown by evidence 

that had Petitioner been properly advised by trial counsel, he would have rejected the 

plea agreement and proceeded to trial. Hill, 474 U.S. at 58-59; Strickland, 466 U.S. at 

694. The Court must assess the circumstances surrounding the case to determine if the 

petitioner's allegation that he would have proceeded to trial is plausible. See United 

States v. Keller, 902 F.2d 1391, 1394-95 (9th Cir. 1990)(petitioner failed to show 

prejudice because he entered plea as alternative to long trial, possible conviction on more 

serious charges and a longer sentence; additional information about parole eligibility was 

unlikely to affect his decision).

In the particular context of attacks on the voluntariness of a guilty plea, “where 

the alleged error of counsel is a failure to investigate or discover potentially exculpatory 

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evidence, the determination whether the error ‘prejudiced’ the defendant by causing him 

to plead guilty rather than go to trial will depend on the likelihood that discovery of the 

evidence would have led counsel to change his recommendation as to the plea. This 

assessment, in turn, will depend in large part on a prediction whether the evidence likely 

would have changed the outcome of a trial.” Hill v. Lockhart, 474 U.S. 52, 59 (1985).

5. Application to Facts

Petitioner references four separate failures of trial counsel in investigating and 

advising him: (a) the bias of the victim and her family based on financial disputes 

between Petitioner and the victim’s father; (b) the victim’s delay in reporting, doing so 

only because she was upset about Petitioner moving in with another family; (c) 

Petitioner was in Mexico on the relevant dates; and (d) failure to interview the victim, 

her father, or Petitioner’s alibi witnesses. 

In presenting his claim to the Arizona Court of Appeals, Petitioner argued: (a) the 

victim’s bias (Exhibit J, PFR at 5); (b) the delay in reporting (id.); and (c) Petitioner’s 

absence to Mexico (id.). He did not argue that counsel failed to interview the witnesses, 

but only argued generically that counsel “refused to do pretrial preparation or 

investigate.” (Id.).

The Arizona Court of Appeals observed:

Although not technically presented as "arguments" on review, 

Pacheco nonetheless seems to "argue," as he did below, that he was 

forced to plead guilty because of counsel's deficient performance, 

asserting his attorneys failed to conduct pretrial investigation or 

"mount a defense" for his case or to challenge the voluntariness of 

his confession to police, and that counsel failed to present mitigating 

evidence at sentencing. As such, we briefly address these claims.

(Exhibit K, Mem. Dec. at ¶ 6.) The Court disposed of the investigation claims by 

concluding: “Pacheco fails to explain what additional pretrial investigation counsel 

should have undertaken or how he was prejudiced by that deficient performance.” (Id. at 

¶ 7.) 

Petitioner must show that this conclusion was contrary to or an unreasonable 

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application of federal law, or based upon an unreasonable determination of the facts. 28 

U.S.C. § 2254(d). Petitioner makes no explicit arguments to show either.

Indeed, Petitioner continues to fail to show what additional investigation should 

have been conducted or what would have resulted, or why it would have altered 

counsel’s advice to Petitioner. 

a. Victim’s Bias

With regard to the victim’s bias, Petitioner does not suggest that he was unaware 

of the relevant facts at the time he entered his guilty plea, e.g. the financial disputes with 

the father, etc. Nor does he suggest what investigation should have been conducted. At 

best, he complains that counsel did not interview the victim, or her parents. 

Under Arizona law, counsel had no right to interview the victim prior to trial. See 

Ariz. Const. Art. 2, § 2.1(5). Petitioner proffers no reason why, given the age of the 

victim, and the strong feelings of the victim’s mother against Petitioner, to expect that 

efforts by counsel to interview the victim would have been successful. 

Further, Petitioner proffers nothing to suggest that counsel was unaware of the 

facts Petitioner suggests would have resulted from such interviews. "A claim of failure 

to interview a witness may sound impressive in the abstract, but it cannot establish 

ineffective assistance when the person's account is otherwise fairly known to defense 

counsel." United States v. Decoster, 624 F.2d 196, 209 (D.C.Cir.1976) (en banc), as 

quoted in Eggleston v. United States, 798 F.2d 374, 376 (9th Cir.1986). 

Finally, a petitioner may not simply speculate about what a witness’ testimony, 

but must adduce evidence to show what it would have been. Grisby v. Blodgett, 130 

F.3d 365, 373 (9th Cir. 1997). “[E]vidence about the testimony of a putative witness 

must generally be presented in the form of actual testimony by the witness or on 

affidavit. A defendant cannot simply state that the testimony would have been favorable; 

self-serving speculation will not sustain an ineffective assistance claim.” U.S. v. Ashimi, 

932 F.2d 643, 650 (7th Cir. 1991). Petitioner proffers nothing to show that these 

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witnesses would have actually supported his assertions of bias.

b. Delay in Reporting

Similarly, Petitioner fails to support his claim about the victim’s belated reporting 

resulting from Petitioner moving in with another family. He fails to identify the 

evidence to be developed, how it would have been developed, or to show affidavits or 

testimony from any purported witnesses. Moreover, the delay and Petitioner’s residence 

were apparent from the indictment and police reports. 

Further, it is unclear how explaining the victim’s delay would have benefitted 

Petitioner at trial. 

c. Absence to Mexico

Petitioner fails to support his claim concerning his absence to Mexico by showing 

what evidence counsel could have discovered with more investigation. Rather, he leaves 

this Court to speculate, just as he did the state court. Cursory allegations that are purely 

speculative cannot support a claim of ineffective assistance of counsel. Shah v. United 

States, 878 F.2d 1156, 1161 (9th Cir.), cert. denied, 493 U.S. 869 (1989). Thus, a 

defendant cannot satisfy the Strickland standard by "vague and conclusory allegations 

that some unspecified and speculative testimony might have established his defense." 

Zettlemoyer v. Fulcomer, 923 F.2d 284, 298 (3d Cir.), cert. denied, 502 U.S. 902 (1991). 

d. Failure to Interview Witnesses.

Finally, Petitioner argues that counsel failed to interview the victim, her father, or 

Petitioner’s alibi witnesses. Petitioner suggests no alibi witnesses, but again leaves this 

Court to speculate, just as he did the state court. Petitioner again fails to show that an 

interview of victims would have been possible, or that favorable testimony would have 

resulted.

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6. Summary re Ground 1

Petitioner’s Ground 1 was waived by his guilty plea to the extent that it does not 

assert a failure to investigate resulted in deficient advice on the plea. Petitioner fails to 

support his claims of failure to investigate with anything more than conclusory 

allegations that additional investigation should have been undertaken in various areas. 

Accordingly, the undersigned can find no merits to the claims, and cannot find that the 

state court’s decision was legally or factually flawed. Accordingly, Ground 1 must be 

denied.

B. GROUND 2 – INEFFECTIVENESS RE CONFESSION 

1. Parties Arguments

In Ground 2, Petitioner argues that trial counsel was ineffective for failing to 

challenge the admissibility of Petitioner’s confession based upon his will having been 

overborne by police conduct, i.e. that he was told he could leave if he confessed. 

Petitioner argues that counsel failed to investigate such a motion by watching the videos 

of the confession. (Petition, Doc. 1 at 7, et seq.) 

Respondents argue that a claim based on failure to file a motion to suppress is 

waived by a guilty plea. Respondents further argue “Petitioner does not claim counsel’s 

failure to file a motion to suppress affected her advice to plea guilty.” (Answer, Doc. 12 

at 13.)

2. Waiver by Plea

Petitioner’s claim is simply that trial counsel failed to investigate and pursue a 

defense. He makes no claim that such failures impacted counsel’s advice on the plea, or 

rendered Petitioner’s plea involuntary.

Accordingly, this claim was waived by Petitioner’s guilty plea, and must be 

denied. 

/ /

/ /

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C. GROUND 3 – INEFFECTIVENESS RE MITIGATION

In his Ground 3, Petitioner argues that trial counsel was ineffective for failing to 

investigate and present mitigation evidence at sentencing. Petitioner complains that 

substitute counsel appeared, a continuance was denied, and no mitigation was presented. 

He argues that available mitigation evidence included: (1) his completion of alcohol 

treatment after receiving a DUI as a sign he could be rehabilitated; (2) the financial stress 

suffered by Petitioner at the time and resulting depression; (3) the allegations were 

limited to touching and did not include penetration, making 10 years an appropriate 

sentence; and (4) no effort was made to secure the presence of or letters from family and 

friends from Mexico. Additionally, he argues that counsel misrepresented his chances of 

obtaining a mitigated sentence. (Petition, Doc. 1 at 8, et seq.) 

Respondents argue that Ground 3 is without merit. The undersigned finds 

Respondents’ arguments persuasive.

1. Substitute Counsel

Respondents argue that the Arizona Court of Appeals reasonably rejected his 

claims regarding substitute counsel, given counsel’s right to enlist associates, and that 

the substitute counsel demonstrated knowledge about Petitioner’s case. (Answer, Doc. 

12 at 15, et seq.) Indeed, Petitioner fails to point to any particular matters about which 

primary counsel had better knowledge which would have been relevant at sentencing. 

And, substitute counsel did argue, albeit tersely, for mitigation on the basis of 

Petitioner’s employment record, support in Mexico, the flat time nature of the sentence, 

and Petitioner’s remorse and confession. (Exhibit E, R.T. 8/5/14 at 7.)

2. Representations of Counsel re Mitigation

Respondents argue the state court reasonably rejected any claim concerning 

representations about obtaining a minimum sentence, because only a gross 

mischaracterization of the likely outcome is cognizable, and counsel in any event only 

correctly represented that Petitioner was entitled to argue for the minimum. (Answer, 

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Doc. 12 at 17, et seq.) 

Indeed, in U.S. vs. Michlin, 34 F.3d 896 (9th Cir. 1994) the Ninth Circuit 

recognized that the court has “held that ‘an erroneous prediction by defense attorney 

concerning sentencing does not entitle a defendant to challenge his guilty plea,’ although 

an exception might be made in a case of ‘gross mischaracterization of the likely 

outcome.’” Michlin, 34 F.3d at 899 (citations omitted). In Iaea vs. Sunn, 800 F.2d 

861(9th Cir. 1986) defense counsel represented to the defendant that a guilty plea would 

give him a chance to receive probation. That advice was defective because of mandatory 

minimum sentences which resulted in his receiving life sentences. The court found that 

such a gross mischaracterization (probation v. life sentences) established defective 

performance by counsel and remanded the case for a determination on the prejudice 

component of the ineffective assistance claim. Id. at 865-66. See also Doganiere v. 

United States, 914 F.2d 165, 168 (9th Cir. 1990), cert. denied, 499 U.S. 940 (1991)(no 

ineffectiveness where actual sentence was three years longer than attorney predicted). In 

contrast, in Womack v. Del Papa, 487 F.3d 998 (9th Cir. 2007), counsel had predicted a 

sentence upon pleading guilty of 30 to 40 years, and instead the defendant received eight 

life terms without parole. The Ninth Circuit distinguished Iaea, and found the plea 

nonetheless voluntary. 

Thus, to the extent that Petitioner simply complains about a seven year difference 

between the sentence counsel led him to hope for, and the sentence he received, that 

would not constitute a gross mischaracterization. 

To the extent that Petitioner complains that the misrepresentation was that 

mitigation would be presented, for the reasons discussed above and hereinafter, 

Petitioner fails to show it was not presented.

Respondents further argue that the state court reasonably concluded that 

Petitioner’s assertions about being promised a lesser sentence were untrue, given his 

representations at the change of plea and at sentencing about why he was agreeing to 

plead. (Answer, Doc. 12 at 18.) At the change of plea, Petitioner denied such 

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inducements:

THE COURT: Has anybody made any promises to you 

other than the promise contained in your plea agreement in order to 

get you to waive your legal rights and plead guilty today? 

THE DEFENDANT: No.

(Exhibit D, R.T. 7/1/14 at 6.) At sentencing, the only objection raised by Petitioner was 

about being forced to choose between the plea and trial:

THE COURT: All right. Mr. Pacheco, you have the right to 

be heard before your sentence is imposed. You do not have to say 

anything, sir, on your behalf if you do not want to, but if you want 

to be heard, now is the time. 

THE DEFENDANT: That I was forced to sign that plea and 

if I didn't do it, I would be forced to go to trial. That's what I was 

told. 

THE COURT: Is there anything else you would like to say, 

sir? 

THE DEFENDANT: No.

(Exhibit E, R.T. 8/5/14 at 12-13.)

Finally, Respondents argue Petitioner cannot show prejudice because it is unlikely 

he would have decided to proceed to trial in face of the substantially longer sentence if 

convicted at trial, and his acknowledgement that he was subject to a potential sentence of 

17 years. (Answer, Doc. 12 at 18, et seq.) The foregoing allocution at sentencing 

demonstrates Petitioner’s reasoning for accepting the plea. As explained by the court at

the change of plea, if Petitioner had proceeded to trial on the amended counts, he faced 

the potential of consecutive sentences of 24, 15, and 15 years, a total of 54 years in 

prison. (Exhibit D, R.T. 7/1/14 at 8-9.) Given Petitioner’s age of 59 at the time (Exhibit 

B, Presentence Report at 4), that would have been an effective life sentence. With a ten 

or seventeen year sentence, Petitioner had some likelihood of being released. Moreover, 

Petitioner’s own version is that he was, at best, promised an opportunity for a mitigated 

sentence. The difference between a possible 10 (with presumptive 17) rather than a 

possible 54, versus just a presumptive 17 and possible 54 is not so great as to suggest 

that Petitioner would have proceeded to trial if counsel had advised the latter to be the 

choice.

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3. Friends and Family Support

Respondents further argue that counsel was not deficient for failing to pursue 

appearances from his family, and that counsel’s efforts to obtain letters were 

unsuccessful. Respondents further argue that Petitioner fails to show that such letters 

were available by providing them to the state court in his PCR proceeding. (Answer, 

Doc. 12 at 19, et seq.) The undersigned finds the latter argument persuasive. Petitioner 

leaves this Court to presume that some unidentified family or friends would have been 

willing to make some unidentified positive comments to the Court. For example, 

Petitioner could have presented affidavits from friends or family members, detailing that 

they would have provided positive responses had they been asked by trial counsel. 

Petitioner fails to carry his burden of providing evidence of specific mitigating 

statements that would have been available had counsel pursued them.

4. Alcohol Treatment

Respondents argue that the failure to address the alcohol treatment could have 

been a reasonable tactical decision given Petitioner’s refusal to discuss his alcoholism 

with the presentence report writer, the potential of negative inferences from such 

evidence, and the potential that the court would fail to see a link in rehabilitation 

between alcohol abuse and molestation of a child. (Answer, Doc. 12 at 20.) The 

Presentence Report reflected: 

• Based on the advice of his attorney, he did not answer questions 

related to illegal drug use/abuse

• He has a misdemeanor conviction for possession of drug

paraphernalia

(Exhibit B at 3.) The report also reflected: “He has a prior felony conviction for DUI, 

and two misdemeanor convictions for DUI.” (Id. at 4.) Thus, while raising alcohol 

treatment might suggest to some extent that Petitioner was capable of rehabilitation, the 

fact that he had three DUIs could suggest to the sentencing court that Petitioner’s 

rehabilitation would come only after repeated offenses. Given the seriousness of the 

instant offenses, any indication that Petitioner was slow at rehabilitation could have been 

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reasonably seen by counsel as detrimental. Under these circumstances, counsel could 

have made a reasonable tactical decision that raising the alcohol issue was not beneficial. 

See Morris v. California, 966 F.2d 448, 456-457 (9th Cir. 1991), cert. denied, 113 S. Ct. 

96 (1992) (“We need not determine the actual explanation for trial counsel's failure to 

object, so long as his failure to do so falls within the range of reasonable 

representation.”).

5. Depression and Financial Concerns

Respondents argue that the report to the presentence investigator that Petitioner 

suffered no mental health issues countered the argument that the offense resulted from 

depression. (Answer, Doc. 12 at 20.) The Presentence Report described Petitioner’s 

depression: “He is experiencing some situational depression because of this case; 

however, he does not have a history of mental health problem.” (Exhibit B at 3.) Thus, 

the only support in the record for Petitioner’s depression is post-arrest depression, which 

would proffer no substantial basis for mitigation. Few are the defendants facing 

substantial prison terms who do not suffer such situational depression. Petitioner now 

argues that he was suffering depression at the time of the offenses “due to his inability to 

meet his financial obligations to his family in Mexico.” (Petition, Doc. 1 at 8-8A.) 

Perhaps evidence of depression that rose to a more significant level might provide some 

mitigation. See e.g. Cooper v. Sec'y, Dept. of Corr., 646 F.3d 1328, 1346 (11th Cir. 

2011) (mitigation available form “history of depression and suicidal gestures” when 

coupled with history of physical abuse, mental retardation, and domination by codefendants). But Petitioner proffers nothing more than an unadorned claim of situational 

depression resulting from financial issues. Trial counsel could have made a reasonable 

tactical decision that financial woes were a poor justification for molesting a six year old, 

and would instead suggest that Petitioner would be likely to reoffend if so trite a 

circumstance was a trigger.

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6. No Penetration

Respondents properly argue that counsel could have made a reasonable tactical 

decision that arguing that the offense was only fondling and not penetration was 

insensitive to the victim and her family, and unlikely to have positive results with the 

judge. (Answer, Doc. 12 at 20.) Moreover, while the particular conduct underlying the 

count on which Petitioner was sentenced to prison was limited to “touching,” (Exhibit D, 

R.T. 7/1/14 at 16), the factual basis of the other counts included “attempting to digitally 

penetrate” (id. at 17-19). An Arizona sentencing judge is entitled to consider other 

conduct (including subsequent conduct) in choosing between authorized sentences. See 

e.g. State v. Schneider, 148 Ariz. 441, 449, 715 P.2d 297, 305 (App. 1985) (considering 

“misconduct committed by appellant while the trial was pending”). Thus counsel could 

have reasonably concluded that attempting to rely on the lack of penetration would not 

have been beneficial to Petitioner, and could have opened the door to highlighting the 

other conduct.

7. Summary re Ground 3

Based upon the foregoing, the undersigned concludes that Petitioner has failed to 

establish that trial counsel was ineffective with regard to mitigation. Accordingly, 

Ground 3 must be denied.

D. GROUND 4 – RIGHT TO ANDERS REVIEW

1. Nature of the Claim

In initially directing a response to the Petition, the Court summarized Ground 4 as 

“apparently alleging that the state trial court employed the wrong standard of review 

during his previous Rule 32 proceeding.” (Order 11/30/15 at 2.) Upon review, and in 

light of the record, the undersigned has construed Ground 4 as arguing more particularly 

that after PCR counsel filed a Notice of No Claim, Petitioner was entitled under Anders

to a review of the record for “fundamental error” by the trial court because his PCR 

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proceeding was the equivalent of direct appeal. (Petition, Doc. 1 at 21, et seq.) 

Respondents argue that the undersigned has wrongly construed the claim, and that 

the claim instead simply challenges the format of the trial court’s summary ruling, that 

such a claim is simply an attack on post-conviction relief procedures, and thus is a matter 

of state law and not cognizable on habeas review. (Answer, Doc. 12 at 8; Supplemental 

Answer, Doc. 16 at 2-4.) Respondents concede that Petitioner cited Anders (in his 

instant Petition, and in the state courts), but argue that he did so only “to support his 

claim that the trial court erred by not better explaining its reasoning on the record, not 

that the court and defense counsel should have independently reviewed the record before 

allowing him to proceed pro se.”

2

 (Supp. Ans., Doc. 16 at 3.) Respondents rely, in part 

upon the fact that no prior court (including this Court in the service order) have 

discerned a true Anders claim. (Id.)

Petitioner’s Language – Respondents concede that this Court is mandated to 

apply a liberal construction to the pro se petition. (Supp. Ans. Doc. 16 at 2 (citing Nardi 

v. Stewart, 354 F.3d 1134, 1140 n.4 (9th Cir. 2004)).) But this Court need apply very 

little liberality to find an Anders claim within the four corners of the Petition. The 

Petition states:

GROUND FOUR: Are pleading defendants entitled to 

review for fundamental error by the trial court on a first as-right 

Rule 32?

* * *

On May 23, 2016, the trial court issued its ruling on 

Petitioner’s Rule 32 which was a blanket denial in the form of a 

“format letter.” Because of this Petitioner argued to the court of 

appeals that said ruling does not adequately explain or identify the 

reasons why the Rule 32 petition was denied. 

 

2

To the extent that Petitioner’s claim can be understood to simply be an objection to the 

taciturn opinion of the trial court, it would be without merit. Petitioner points to no 

authority requiring a PCR court, or even an appellate court, to explicitly state its reasons 

for rejecting a claim. See Mathilde Cohen, When Judges Have Reasons Not to Give 

Reasons: A Comparative Law Approach, 72 Wash. & Lee L. Rev. 483, 532 (2015). See 

also Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991) (“sometimes the members of the 

court issuing an unexplained order will not themselves have agreed upon its rationale, so 

that the basis of the decision is not merely undiscoverable but nonexistent”). Cf. 

Harrington v. Richter, 562 U.S. 86, 98 (2011) (finding summary state court decision 

sufficient for purposes of applying 28 U.S.C. § 2254(d)). 

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The reason Petitioner believes that he is entitled to review for 

fundmental [sic] error by the trial court and have each of his pro se 

issues specifically addressed is because his post-conviction 

proceeding was equivalent to a direct appeal. State v. Pruett, 188 

Ariz. 128 (App. 1996). On direct appeal when appointed counsel 

cannot find any arguable issues counsel must file an Anders brief. 

The court must then search the record for fundamental error and 

specifically address all issues a defendant raises pro se. 

Hence, Petitioner submits that pleading defendants are 

entitled to the same Fourteenth Amendment protection as nonpleading defendants on direct review.

(Petition, Doc. 1 at 9 (emphasis in original).) 

To be sure, Petitioner complains about the format of the trial court’s denial. But, 

his plain language also challenges the trial court’s failure to search the record for error

under Anders. 

Respondents assert that Petitioner does not argue “that the trial court should have 

independently searched the record for error.” (Supp. Ans. Doc. 16 at 2.) But Petitioner 

explicitly argues he was “entitled to review for fundmental [sic] error by the trial court” 

and that the court was required to “search the record for fundamental error and 

specifically address all issues a defendant raises pro se.” (Petition, Doc, 1 at 9.) 

Petitioner’s references to “fundamental error” may seem incongruous with a call 

for an application of Anders, which placed no limit on the nature of error to be 

addressed. Rather, Anders simply directed that upon counsel filing a brief proposing no 

basis for appeal that the appellate court then “proceeds, after a full examination of all the 

proceedings, to decide whether the case is wholly frivolous.” Anders, 386 U.S. at 744. 

But, in Arizona, the appellate courts have regularly couched their Anders’ searches of the 

record in terms of a review for “fundamental error.” 

This liturgy appears to have its roots in State v. Fuller, 143 Ariz. 571, 575, 694 

P.2d 1185, 1189 (1985), where the Arizona Supreme Court appears to have combined

Anders review with a statutory mandate for the Arizona appellate courts to “to search the 

entire record in a criminal appeal for fundamental error.” State v. Taylor, 187 Ariz. 567, 

571, 931 P.2d 1077, 1081 (App. 1996), corrected (Apr. 10, 1996) (citing Ariz. Rev. Stat. 

§ 13-4035, repealed, 1995 Ariz.Sess.Laws Ch. 198, § 1).) In Fuller the Arizona 

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Supreme Court stated:

Pursuant to A.R.S. § 13–4035, we have searched the entire record 

for fundamental error, and we have found none. Pursuant to Anders 

v. California, supra, and State v. Leon, supra, we have searched the 

entire record relating to appellant's conviction in CR–123302 for 

fundamental error, and we have found none.

Fuller, 143 Ariz. at 575, 694 P.2d at 1189. In State v. Mann, 188 Ariz. 220, 934 P.2d 

784 (1997), the Arizona Supreme Court observed the repeal of the mandate for 

fundamental error review under § 13-4035 and explained: 

The practice arose in the days of the territorial government, when 

most defendants did not have a lawyer, nor were lawyers required or 

always appointed by the courts. See Ariz.Pen.Code 1901, § 1059; 

see also Ariz.Pen.Code 1901, §§ 1024 and 1025. Thus, appeals and 

such post-conviction relief as was available were options out of 

reach for most defendants. When a case was appealed, therefore, 

fundamental error review served a vital role in protecting the 

defendant's constitutional rights. Today, almost all of our counties 

have a public defender. In addition, we now have a panoply of 

mandatory protections-appointment of counsel for trial and appeal, 

readily available appeals, Anders briefs, post-conviction relief 

procedures, and direct appeals and post-conviction review in death 

penalty cases. 

Mann, 188 Ariz. at 231, 934 P.2d at 795. 

Of course, even after the repeal of § 13-4035, “fundamental error” remains in 

some contexts an appropriate standard of review in Arizona for some claims. In his 

concurrence in Mann, Justice Martone concurred in the decision to stop “sua sponte

fundamental error review,” but explained the continued vitality of the fundamental error 

standard in other areas: 

I use the term sua sponte fundamental error review to distinguish it 

from two separate but related doctrines. Sua sponte fundamental 

error review was imposed solely by A.R.S. § 13-4035 and required 

us to read every item in the record with an eye towards looking for 

fundamental error. The statute having been repealed, we no longer 

do this. This is not to be confused with two other doctrines 

unaffected by the repeal of the statute. First, in criminal cases, we 

continue to review claims of error actually made on appeal but 

which were unpreserved at the trial level by a fundamental error 

standard. Second, if in the process of examining issues presented by 

way of appeal we stumble across fundamental error, then we have 

the discretion to address it. 

Mann, 188 Ariz. at 232 n. 1, 934 P.2d at 796 n. 1 (Martone, J., concurring). See also 

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Taylor, 187 Ariz. at 571, 931 P.2d at 1081 (after defendant’s counsel filed a non-Anders

brief raising claims on appeal, applying fundamental error review to an additional basis 

for relief which was not raised by the parties). 

Nonetheless, despite the repeal of § 13-4035, the liturgy established in Fuller

remains in use, applying the terminology of “fundamental error” to review under Anders. 

For example in a 2013 unpublished decision, the Arizona Court of Appeals reported:

Pursuant to our obligation under Anders, we have searched the 

record for fundamental, reversible error and found none save the 

sentencing error discussed above. See State v. Fuller, 143 Ariz. 571, 

575, 694 P.2d 1185, 1189 (1985) (interpreting Anders to require 

appellate court to search record for fundamental error). 

State v. Holness, 2013 WL 144270, at *2 (Ariz. App. Div. 2, Jan. 14, 2013). See also

State v. Varelas, 2013 WL 3771571, at *1 (Ariz. App. Div. 2, July 16, 2013), State v. 

Ridener, 2016 WL 4193960, at *1 (Ariz. App. Div. 1, Aug. 9, 2016) (Swann, P.J., 

Winthrop, J., Kessler, J.) (“This is an appeal under Anders v. California...We have

reviewed the record for fundamental error.”).

In contrast, the Arizona Court of Appeals appears to have sometimes recognized 

the distinction and occasionally altered the practice. 

Chandler's counsel has filed a brief in accordance with Smith v. 

Robbins, 528 U.S. 259 (2000); Anders v. California, 386 U.S. 738 

(1967); and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), 

stating he has searched the record on appeal and found no arguable 

question of law. His counsel therefore requests we review the record 

for fundamental error. See State v. Clark, 196 Ariz. 530, 537, ¶ 

30, 2 P.3d 89, 96 (App. 1999) (stating this court reviews the entire 

record for reversible error). 

* * *

We have reviewed the entire record for reversible error and find 

none.

State v. Chandler, 2016 WL 4435592, at *1 (Ariz. App. Div. 1, Aug. 23, 2016) (Swann, 

P.J., Winthrop, J., Kessler, J.) (emphasis added). See also In Re Cheyenne H., 2015 WL 

9306550, at *1 (Ariz. App. Div. 1, Dec. 22, 2015) (“counsel filed a brief in accordance 

with Anders ...asking this court to search the record for fundamental error. We have 

reviewed the entire record for reversible error and find none.”) (emphasis added). 

Thus it is not surprising, and not misleading, that Petitioner would utilize the term 

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“fundamental error” in seeking review under Anders. 

Failure to Challenge Counsel’s Brief - Respondents argue that Petitioner did not 

argue that counsel should have filed an Anders brief. (Supp. Ans., Doc. 16 at 2.) 

Presumably Respondents refer to the procedure established in Anders that in addition to 

permitting a pro se brief, counsel’s argument-less brief “be accompanied by a brief 

referring to anything in the record that might arguably support the appeal” and to request 

review by the court. Anders, 386 U.S. at 744. However, the fact that Petitioner did not 

attack one deviation from Anders (counsel’s failings) does not mean he did not mount 

another (the court’s failings). 

Moreover, the essence of the Anders requirement is the enforcement of the 

constitutional right to counsel in a first of-right appeal. Rather than simply allowing 

appointed counsel to functionally abandon the representation (as counsel did in this 

case), it requires counsel to provide a summary of the pertinent parts of the case and 

addressing any non-frivolous claims, and then requires the court to undertake an 

independent review of the record. See Penson v. Ohio, 488 U.S. 75, 81–82 (1988). 

Where counsel fails to meet his obligations under Anders, the appellate court commits 

independent error in permitting counsel to abandon the representation without filing a 

merits brief, even if the court were to proceed to conduct a review of the record. 

The Ohio Court of Appeals erred in two respects in granting 

counsel's motion for leave to withdraw. First, the motion should 

have been denied because counsel's “Certification of Meritless 

Appeal” failed to draw attention to “anything in the record that 

might arguably support the appeal.”...Moreover, the Court of 

Appeals should not have acted on the motion to withdraw before it 

made its own examination of the record to determine whether 

counsel's evaluation of the case was sound.” 

Penson, 488 U.S. at 81–83. 

Prior Constructions - The undersigned also concludes that the construction made 

herein is not precluded by prior findings of this Court or the state courts.

Ordinarily the presiding district judge’s description of claims when directing a 

habeas response is treated by the undersigned magistrate judge as a binding finding. 

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Here, however, the Court’s characterization of the claim in its service order was 

equivocal, concluding only that the ground “apparently alleg[ed]...the wrong standard of 

review.” (Order 11/30/15 at 2.) 

Moreover, while more specific than a simple allegation of a “wrong standard of 

review,” the finding of an Anders claim is not inconsistent with the Court’s service order. 

Anders is a standard of review, to the extent that it calls for an appellate court facing an 

appointed counsel’s failure to find an issue for review to conduct an independent review 

of the record for potential claims for relief. While not a standard for resolving an 

individual substantive claim, Anders does set a procedural standard for review of an 

appeal in the unique circumstances that it addresses. Thus, this Court’s general 

description of the claim in the service Order does not preclude the specific construction 

finding an Anders claim.

Further, whatever persuasive power there might be to the state courts’ 

characterizations of Petitioner’s claims, the Arizona Court of Appeals recognized and 

addressed Petitioner’s call for an independent review for error by a court.

Petitioner’s Petition for Review posited three bases for review. The first was the 

trial court’s issuance of a “blanket denial in the form of a ‘format letter.’” (Exhibit J, 

PFR at 8-9.) The second was “to determine if a new definition of a colorable claim has 

been created.” (Id. at 10.) The third was based on Anders. 

The third and final reason this court should accept review is 

because this case involves a pleading defendant on collateral review 

and he should be given the same constitutional protections as a nonpleading defendant on direct review.

When appointed counsel cannot find any meritorious issues 

to raise on direct appeal counsel must file an Anders brief and ask 

the court to search the record for fundamental error. The court must 

then search the record for fundamental error and specifically address 

any issues that the defendant raises in pro se. Defendant contends 

that he is entitled to the same protections as a non-pleading 

defendant because his post-conviction proceedings are equivalent to 

a direct appeal. State v. Pruett, 185 Ariz. 128 (Ariz. App. 1996). 

Instead the trial court issued an order in the form of a format

letter and never specifically addressed any of Defendant’s claims, 

which were not “precluded” as the order suggests; therefore, 

Defendant was not afforded a proper appeal under the Fourteenth 

Amendment. Hence this court must now accept review and address

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each of Defendant’s four claims. 

(Id. at 10-11.) 

It might be argued that Petitioner’s closing reference to the failure to address the 

claims explicitly raised by Petitioner was intended as a limitation on the extent of his 

claim. But the Arizona Court of Appeals did not so read this claim. Rather, that court 

saw the claim as asking for an independent review by the court for fundamental error: 

In a related argument, Pacheco argues that, as a pleading defendant 

filing an of-right Rule 32 petition, he is entitled to fundamental error 

review. However, Pacheco is not entitled to fundamental error 

review by this court. See State v. Smith, 184 Ariz. 456. 459. 910 

P.2d 1. 4 (1996) (appellate court not required to conduct 

fundamental error review in deciding whether to grant review of 

denial of pleading defendant's petition for post-conviction relief).

(Exhibit K, Mem. Dec. at ¶ 4 (emphasis in original).)

Smith, which the Arizona Court of Appeals cited, reviewed the appropriate 

process when a pleading defendant files an of-right PCR petition and counsel finds no 

issue for review. The Smith court summarized:

As in constitutionally guaranteed direct appeals by non-pleading 

defendants, should counsel be unable to proceed, he or she must so 

notify the court and the client. See State v. Shattuck, 140 Ariz. 582, 

585, 684 P.2d 154, 156 (1984). ...After counsel or the pro per 

defendant submits the post-conviction petition to the court and the 

trial court makes its required review and disposition, counsel's 

obligations are at an end. See Shattuck, 140 Ariz. at 585, 684 P.2d 

at 156. Following the trial court's disposition, counsel need only 

inform the defendant of the status and defendant's future options, 

unless counsel's review, or that of the trial court, reveals an issue 

appropriate for submission to the court of appeals.

Smith, 184 Ariz. at 459, 910 P.2d at 4. Smith went on to hold that once the review by the 

trial court was complete, the defendant was not entitled to a second Anders review by the 

Arizona Court of Appeals. “A pleading defendant is entitled to petition for review 

pursuant to Rule 32.9, but the grant or denial of review is discretionary for the court of 

appeals, which, subsequent to the repeal of A.R.S. § 13-4035, need not review for 

fundamental error when considering whether to grant or deny review.” State v. Smith, 

184 Ariz. 456, 460, 910 P.2d 1, 5 (1996).

Similarly, Shattuck, on which Smith relied, addressed in the context of a direct 

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appeal whether Anders review was required by the Arizona Supreme Court when it 

reviewed a lower appellate decision applying Anders, and concluded it was not. The 

Shattuck Court quoted the comments to the rule providing for petitions for review by the 

Arizona Supreme Court, which provided:

Once the defendant has been given the appeal to which he has a 

right, state remedies have been exhausted. The defendant, of course, 

may petition for review pro per. We will consider the grounds set 

forth in such petitions, but will not search the record for error. We 

do not read Anders to require that procedure at every level of the 

appellate process.

Shattuck, 140 Ariz. at 585, 684 P.2d at 157 (quoting Ariz. R. Crim. Proc. 31.19, 

Comments). The Shattuck court held: 

Since we are not required to accept petitions for review in Anders

type cases, we do not invite them. The system is strained to the 

point that we cannot afford the luxury of repeated review of trivia or 

issues of small merit. The time available to prosecutors, defenders, 

judicial staff and judges must be devoted to issues of substance.

Id

Thus, the Arizona Court of Appeals recognized Petitioner’s call for Anders review 

for error, but resolved it by looking the law governing review by that reviewing appellate 

court, not the trial court who was the original appellate court. Thus, the Arizona Court of 

Appeals recognized that Petitioner’s claims extended beyond an attack on the format of 

the trial court’s denial, and was a call for a court’s independent review for error. 

2. Waiver on Habeas

Respondents argue that Petitioner waived any Anders claim by not raising it in his 

habeas petition. 

Petitioner, although continuing the terminology of fundamental error review, 

clearly adopts in his Supplemental Reply the construction of this Ground as asserting a 

failure to conduct the required review under Anders. (See Supplemental Reply, Doc. 18 

at 1-2.) While reaffirming of this Court’s construction, certainly raising the claim in that 

reply would not be sufficient.

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A Traverse is not the proper pleading to raise additional grounds for 

relief. In order for the State to be properly advised of additional 

claims, they should be presented in an amended petition or, as 

ordered in this case, in a statement of additional grounds. Then the 

State can answer and the action can proceed...Habeas claims that 

are not raised before the district court in the petition are not 

cognizable on appeal.

Cacoperdo v. Demosthenes, 37 F.3d 504, 507 (9th Cir. 1994)

However, because the undersigned finds that Petitioner properly raised his Anders

argument in his Petition, there is no waiver. And by allowing supplementation, the 

Court has allowed Respondents ample opportunity to answer the claim.

3. Exhaustion and Procedural Default

a. Parties’ Arguments

Respondents argue that this claim was not properly exhausted, and is now 

procedurally defaulted, because he did not present his Anders claim to the trial court, and 

thus did not invoke a complete round of review, and did not fairly present the claim to 

the appellate court. (Supp. Ans., Doc. 16 at 5-6.) Respondents also argue that 

Petitioner’s utilization of the term “fundamental error review” was not fair presentation 

because of the special meaning of such terms under Arizona law. (Id. at 6.) 

Petitioner replies that a demand for Anders review by the trial court was 

superfluous, given the requirement under the Arizona Rules of Criminal Procedure that 

the trial court “make a final adjudication of all the petitioner’s claims - - those lurking in 

the background as well as those specified.” Ariz. R. Crim. Proc. 32.6, Comment. 

Petitioner further argues that the ineffective assistance of PCR counsel, his limited 

knowledge of English and dependence on other inmates, constitutes cause for his failure 

to properly exhaust any claims. (Doc. 18.) 

b. Exhaustion Requirement

Generally, a federal court has authority to review a state prisoner’s claims only if 

available state remedies have been exhausted. Duckworth v. Serrano, 454 U.S. 1, 3 

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(1981) (per curiam). The exhaustion doctrine, first developed in case law, has been 

codified at 28 U.S.C. § 2254(b) and (c). When seeking habeas relief, the burden is on 

the petitioner to show that he has properly exhausted each claim. Cartwright v. Cupp, 

650 F.2d 1103, 1104 (9th Cir. 1981)(per curiam), cert. denied, 455 U.S. 1023 (1982).

(1). Actual Consideration 

A state court's actual consideration of a claim satisfies exhaustion. See Sandstrom 

v. Butterworth, 738 F.2d 1200, 1206 (11th Cir.1984) ("[t]here is no better evidence of 

exhaustion than a state court's actual consideration of the relevant constitutional issue"); 

see also Walton v. Caspari, 916 F.2d 1352, 1356-57 (8th Cir.1990) (state court's sua 

sponte consideration of an issue satisfies exhaustion). 

Moreover, where a petitioner presents a claim and the state court disposes of it on 

the false belief that it was previously rejected it on the merits, the claim should be 

deemed exhausted. See Cone v. Bell, 129 S.Ct. 1769 (2009).

(2). Fair Presentation

On the other hand, actual consideration of the claim is not required. “All 

exhaustion requires is that the state courts have the opportunity to remedy an error, not 

that they actually took advantage of the opportunity.” Scott v. Schriro, 567 F.3d 573, 

583 (9th Cir. 2009). Thus, even without a claim actually being considered by the state

courts, a habeas petitioner may exhaust his state remedies by fairly presenting his claim 

to the state courts. “A petitioner fairly and fully presents a claim to the state court for 

purposes of satisfying the exhaustion requirement if he presents the claim: (1) to the 

proper forum, (2) through the proper vehicle, and (3) by providing the proper factual and 

legal basis for the claim.” Insyxiengmay v. Morgan, 403 F.3d 657, 668 (9th Cir. 2005).

Proper Forum - “In cases not carrying a life sentence or the death penalty, 

‘claims of Arizona state prisoners are exhausted for purposes of federal habeas once the 

Arizona Court of Appeals has ruled on them.’” Castillo v. McFadden, 399 F.3d 993, 998 

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(9th Cir. 2005)(quoting Swoopes v. Sublett, 196 F.3d 1008, 1010 (9th Cir. 1999)).

However, that does not mean that presentation to the Arizona Court of Appeals, is 

always sufficient for a fair presentation. “Whether a claim is exhausted through a direct 

appellate procedure, a post-conviction procedure, or both, the claim should be raised at 

all appellate stages afforded under state law as of right by that procedure.” Casey v. 

Moore, 386 F.3d 896, 916 (9th Cir. 2004) (quoting Liebman & Hertz, Federal Habeas 

Corpus Practice and Procedure, § 23.3b (4th ed. 1998)). Thus, “where the claim has 

been presented for the first and only time in a procedural context in which its merits will 

not be considered unless ‘there are special and important reasons therefor’ . . . [r]aising 

the claim in such a fashion does not, for the relevant purpose, constitute ‘fair 

presentation.’” Castille v. Peoples, 489 U.S. 346, 351 (1989). Therefore, where a 

petitioner “raised his federal constitutional claims for the first and only time to the state's 

highest court on discretionary review, he did not fairly present them.” Casey, 386 F.3d 

at 918.

However, failure to present to the trial court ordinarily does not prevent 

exhaustion; all that is required is presentation "at all appellate stages." Casey, 386 F.3d 

at 916 (emphasis added). “If the petitioner fails to raise a federal claim at trial (or if the 

claim was not cognizable at all or did not arise until after trial), the petitioner satisfies the 

exhaustion requirement by raising the claim on appeal, on a motion for rehearing of the 

appeal, or even in a delayed appeal.” Liebman & Hertz, Federal Habeas Corpus 

Practice and Procedure, § 23.3b (5th ed. 2001). Still, the failure to present to the trial 

court might prevent habeas review if it results in the appellate court applying a 

procedural bar which qualifies as an "independent and adequate state ground".

Proper Vehicle - Ordinarily, “to exhaust one's state court remedies in Arizona, a 

petitioner must first raise the claim in a direct appeal or collaterally attack his conviction 

in a petition for post-conviction relief pursuant to Rule 32.” Roettgen v. Copeland, 33 

F.3d 36, 38 (9th Cir. 1994). Only one of these avenues of relief must be exhausted 

before bringing a habeas petition in federal court. This is true even where alternative 

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avenues of reviewing constitutional issues are still available in state court. Brown v. 

Easter, 68 F.3d 1209, 1211 (9th Cir. 1995); Turner v. Compoy, 827 F.2d 526, 528 (9th 

Cir. 1987), cert. denied, 489 U.S. 1059 (1989). 

Factual Basis – A petitioner must have fairly presented the operative facts of his 

federal claim to the state courts as part of the same claim. A petitioner may not broaden 

the scope of a constitutional claim in the federal courts by asserting additional operative 

facts that have not yet been fairly presented to the state courts. Expanded claims not 

presented in the highest state court are not considered in a federal habeas petition. 

Brown v. Easter, 68 F.3d 1209 (9th Cir. 1995); see also, Pappageorge v. Sumner, 688 

F.2d 1294 (9th Cir. 1982), cert. denied, 459 U.S. 1219 (1983). And, while new factual 

allegations do not ordinarily render a claim unexhausted, a petitioner may not 

"fundamentally alter the legal claim already considered by the state courts." Vasquez v. 

Hillery, 474 U.S. 254, 260 (1986). See also Chacon v. Wood, 36 F.3d 1459, 1468 (9th 

Cir.1994).

Legal Basis - Failure to alert the state court to the constitutional nature of the 

claim will amount to failure to exhaust state remedies. Duncan v. Henry, 513 U.S. 364, 

366 (1995). While the petitioner need not recite “book and verse on the federal 

constitution,” Picard v. Connor, 404 U.S. 270, 277-78 (1971) (quoting Daugherty v. 

Gladden, 257 F.2d 750, 758 (9th Cir. 1958)), it is not enough that all the facts necessary 

to support the federal claim were before the state courts or that a “somewhat similar state 

law claim was made.” Anderson v. Harless, 459 U.S. 4, 6 (1982)(per curiam). “[T]he 

petitioner must make the federal basis of the claim explicit either by specifying particular 

provisions of the federal Constitution or statutes, or by citing to federal case law,” 

Insyxiengmay v. Morgan, 403 F.3d 657, 668 (9th Cir. 2005), or by “a citation to a state 

case analyzing [the] federal constitutional issue." Peterson v. Lampert, 319 F.3d 1153, 

1158 (9th Cir. 2003). But a drive-by-citation of a state case applying federal and state 

law is not sufficient. 

For a federal issue to be presented by the citation of a state decision 

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dealing with both state and federal issues relevant to the claim, the 

citation must be accompanied by some clear indication that the case 

involves federal issues. Where, as here, the citation to the state case 

has no signal in the text of the brief that the petitioner raises federal 

claims or relies on state law cases that resolve federal issues, the 

federal claim is not fairly presented. 

Casey v. Moore, 386 F.3d 896, 912 n. 13 (9th Cir. 2004). 

Proper Mode - "[O]rdinarily a state prisoner does not 'fairly present' a claim to a 

state court if that court must read beyond a petition or a brief (or a similar document) that 

does not alert it to the presence of a federal claim in order to find material, such as a 

lower court opinion in the case, that does so." Baldwin v. Reese, 541 U.S. 27, 32 (2004). 

The Arizona habeas petitioner "must have presented his federal, constitutional issue 

before the Arizona Court of Appeals within the four corners of his appellate briefing." 

Castillo v. McFadden, 399 F.3d 993, 1000 (9th Cir. 2005). But see Insyxiengmay v. 

Morgan, 403 F.3d 657, 668-669 (9th Cir. 2005) (arguments set out in appendix attached 

to petition and incorporated by reference were fairly presented).

c. Procedural Default

Ordinarily, unexhausted claims are dismissed without prejudice. Johnson v. 

Lewis, 929 F.2d 460, 463 (9th Cir. 1991). However, where a petitioner has failed to 

properly exhaust his available administrative or judicial remedies, and those remedies are 

now no longer available because of some procedural bar, the petitioner has "procedurally 

defaulted" and is generally barred from seeking habeas relief. Dismissal with prejudice 

of a procedurally defaulted habeas claim is generally proper absent a “miscarriage of 

justice” which would excuse the default. Reed v. Ross, 468 U.S. 1, 11 (1984).

d. Procedural Bar on Independent and Adequate State Grounds

Related to the concept of procedural default is the principle of barring claims 

actually disposed of by the state courts on state grounds. “[A]bsent showings of ‘cause’ 

and ‘prejudice,’ federal habeas relief will be unavailable when (1) ‘a state court [has] 

declined to address a prisoner's federal claims because the prisoner had failed to meet a 

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state procedural requirement,’ and (2) ‘the state judgment rests on independent and 

adequate state procedural grounds.’ ” Walker v. Martin, 562 U.S. 307, 316 (2011).

In Bennett v. Mueller, 322 F.3d 573 (9th Cir.2003), the Ninth Circuit addressed 

the burden of proving the independence and adequacy of a state procedural bar.

Once the state has adequately pled the existence of an independent 

and adequate state procedural ground as an affirmative defense, the 

burden to place that defense in issue shifts to the petitioner. The 

petitioner may satisfy this burden by asserting specific factual 

allegations that demonstrate the inadequacy of the state procedure, 

including citation to authority demonstrating inconsistent 

application of the rule. Once having done so, however, the ultimate 

burden is the state's. 

Id. at 584-585. 

e. Application to Petitioner’s Claims

(1). Actual Consideration

Here, the Arizona Court of Appeals actually considered Petitioner’s Anders

argument. 

Petitioner’s argument was that the trial court had acted improperly in failing to 

proceed under Anders. As relief, Petitioner requested that the Court of Appeals perform 

the review. (Exhibit J, PFR at 10-11.) The Arizona Court of Appeals took up that issue, 

applying the language of “fundamental error review.” (Exhibit K, Mem. Dec. at ¶ 4 

(“Pacheco argues that, as a pleading defendant filing an of-right Rule 32 petition, he is 

entitled to fundamental error review”).) 

Nonetheless, rather than finding error in the trial court’s failure to conduct Anders

review and remanding for proper review, the court of appeals focused on its own lack of 

responsibility to undertake such review, concluding that “Pacheco is not entitled to 

fundamental error review by this court.” The court supported its conclusion by citing to 

State v. Smith, 184 Ariz. 456, 459, 910 P.2d 1, 4 (1996). As discussed herein above in 

Section III(D)(1), Smith was an Anders case concluding that a second review for error 

was not necessary when the case proceeded to the Arizona Court of Appeals. 

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This side step by the Arizona Court of Appeals is understandable for two reasons. 

First, because Petitioner’s request for relief in the form of review by the Court of 

Appeals (rather than remand for review by the trial court) was legally flawed. 

Nonetheless, that request for relief did not vitiate his plainly asserted error of lack of

such review by the trial court.

Second, in Smith, the majority appeared to mandate an Anders review by the trial 

court in an of-right PCR. 

After counsel or the pro per defendant submits the post-conviction 

petition to the court and the trial court makes its required review and 

disposition, counsel's obligations are at an end. Following the trial 

court's disposition, counsel need only inform the defendant of the 

status and defendant's future options, unless counsel's review, or 

that of the trial court, reveals an issue appropriate for submission to 

the court of appeals

Smith, 184 Ariz. at 459 (emphasis added). But as noted by then Justice Martone, the 

majority’s approach was incongruent with a prior disclaimer of Anders review in the trial 

court:

So we are still left with uncertainty. A Rule 32 proceeding in the 

trial court is a constitutionally required form of appellate review, but 

neither that court, nor the court of appeals, need perform a 

fundamental error review. If, as the majority says, “the trial court 

performs the initial appellate review providing the only appeal as of 

constitutional right from the plea or admission,” but the trial court 

need not perform a review even where constitutionally required 

under Anders, then the majority is properly evolving toward an 

understanding that a Rule 32 proceeding, wherever located, is not a 

constitutionally required form of appellate review for pleading 

defendants. 

Smith, 184 Ariz. at 461 (citations omitted) (Martone, J., dissenting). Justice Martone’s 

reference to uncertainty was directed to the then recent decision of the Arizona Supreme 

Court in Wilson v. Ellis, 176 Ariz. 121, 859 P.2d 744 (1993), where the justice had 

argued in dissent that even an of-right PCR proceeding should not be considered an 

appeal. But, in Wilson, the majority of the court had opined: “Contrary to the intimations 

of the dissent [Justice Martone], we are not commanding, nor do we want, trial courts to 

conduct Anders-type reviews in PCRs.” Id. at 124, 859 P.2d at 747. 

In light of that philosophical confusion, but the Arizona Supreme Court’s clear 

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mandate, it is not surprising that the Arizona Court of Appeals identified Petitioner’s 

claim and actually considered it, but resolved it by focusing on that court’s own review 

rather than the trial court’s review. 

(2). Fair Presentation

Even if the Arizona Court of Appeals had not actually considered Petitioner’s 

Anders claim, Petitioner fairly presented that claim in his Petition for Review.

(a). Reference to Fundamental Error

Respondents argue that Petitioner’s did not fairly present his Anders claim 

because he utilized the language of “fundamental error,” a term of art referencing state 

law review, not review under Anders. This argument is unpersuasive given the practice 

of the Arizona courts of couching their Anders review in terms of “fundamental error.” 

(See infra Section III(D)(1) Nature of the Claim (discussing application of term 

fundamental error in Anders review).) 

(b). Failure to Argue to Trial court

Respondents also argue that Petitioner’s presentation of the claim to the Arizona 

Court of Appeals was not fair because he had not raised the claim in the trial court. 

It is true that Petitioner did not assert to the trial court the right to an Anders

review of his case. (See Exhibit G, Notice of No Claim; and Exhibit H PCR Petition.) 

Thus, this matter was raised for the first time to a reviewing appellate court, the Arizona 

Court of Appeals. 

Of course, ordinarily presentation to the trial court is not necessary to a fair 

presentation, although such failure may result in a procedural bar being applied. That 

principle does not apply, however, in the context of an Arizona of-right PCR petition, 

where the Superior Court does not function as a trial court, but as an appellate court. See 

State v. Smith, 184 Ariz. 456, 458, 910 P.2d 1, 3 (1996) (“the trial court provides the 

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pleading defendant a form of post-conviction appellate review via motion under Rule 

32”). 

Skilling levels of appellate review is ordinarily not fair presentation. Where a 

petitioner “raised his federal constitutional claims for the first and only time to the state's 

highest court on discretionary review, he did not fairly present them.” Casey, 386 F.3d 

at 918. 

Academic treatment accords: The leading treatise on federal habeas 

corpus states, “Generally, a petitioner satisfies the exhaustion 

requirement if he properly pursues a claim (1) throughout the entire 

direct appellate process of the state, or (2) throughout one entire 

judicial postconviction process available in the state.” Liebman & 

Hertz, Federal Habeas Corpus Practice and Procedure, § 23.3b 

(4th ed. 1998) (emphasis added). “Whether a claim is exhausted 

through a direct appellate procedure, a postconviction procedure, or 

both, the claim should be raised at all appellate stages afforded 

under state law as of right by that procedure.” Id. (citing Castille v. 

Peoples, 489 U.S. 346, 351, 109 S.Ct. 1056, 103 L.Ed.2d 380 

(1989)).

Casey, 386 F.3d at 916. 

And in this instance, review by the Arizona Court of Appeals in PCR proceedings 

is discretionary. “The appellate court may, in its discretion, grant review.” Ariz. R. 

Crim. Proc. 32.9(f). Moreover, that court “ordinarily do[es] not consider issues on 

review that have not been considered and decided by the trial court; this is particularly 

true when we are reviewing a court's decision to grant or deny post-conviction relief 

under Rule 32.” State v. Vera, 235 Ariz. 571, 573, ¶ 8, 334 P.3d 754, 756 (App. 2014), 

cert. denied, 136 S. Ct. 121 (2015).

But, an argument under Anders is not, in the sense used in Casey or Vera, a claim. 

Anders does not, by itself, govern the conduct of trial or establish the validity or 

invalidity of a conviction or sentence. Rather, Anders functions as a procedural standard 

of review to be applied by the appellate court (in this case the trial court in an of-right 

PCR proceeding) when appointed counsel has been unable to find a claim for review. 

In that context, faulting Petitioner for not asking for application of Anders makes 

no more sense than expecting Petitioner to have made request that the trial court not 

reject his claims on the basis of his race, in order to preserve a challenge to an order 

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doing just that. Respondents point to no authority requiring such a request as a predicate 

for subsequently raising an Anders claim. The undersigned has found none.

To the contrary, Arizona’s requirement for presentation of matters to the trial 

court has a recognized exception when presentation was procedurally impractical. For

example, in State v. Vermuele, 226 Ariz. 399, 402, ¶ 9, 249 P.3d 1099, 1102 (App. 

2011), the court observed that the defendant “had no clear procedural opportunity to 

challenge the rendition of sentence before it became final. Because a defendant cannot 

forfeit an opportunity that the defendant does not have, her failure to challenge the 

sentence at the sentencing hearing cannot be fairly characterized as a forfeiture or 

waiver.” See also Cruz v. Garcia, 240 Ariz. 234, ¶ 10 (App. 2016) (claim based on 

findings first made in custody order not required to be raised in trial court).

And in the particular context of review of in a PCR proceeding, Arizona has 

eliminated it’s requirement for motions for rehearing in the trial court as a prerequisite 

to review by the Arizona Court of Appeals. The Rule now provides: “The filing of a 

motion for rehearing in the trial court is not a prerequisite to the filing of a petition for 

review pursuant to paragraph (c) of this rule.” Ariz. R. Crim. Proc. 32.9(a). 

In Barrett v. Acevedo, 143 F.3d 449 (8th Cir. 1998), rev’d on other grounds, 169 

F.3d 1155 (8th Cir. 1999) (en banc), the Eighth Circuit similarly recognized that 

presentation at every level is not required for exhaustion when the claim arose in the 

omitted level’s ruling.

We reverse on the exhaustion issue because Barrett, by raising the 

constitutional violation in his petition for rehearing to the Supreme 

Court of Iowa, fairly presented his claim. Obviously this was his 

first opportunity to raise the issue in state court because the alleged 

constitutional error did not occur until the Supreme Court of Iowa 

ruled. We believe that raising the issue at that point was sufficient. 

See II J. Liebman & R. Hertz, Federal Habeas Corpus Practice and 

Procedure § 23.3b, at 669 (2d ed. 1994) (“If the petitioner fails to 

raise a federal claim at trial (or if the claim was not cognizable at or 

did not arise until after trial), the petitioner satisfies the exhaustion 

requirement by raising the claim ... on a motion for rehearing of the 

appeal.”); see also Herndon v. Georgia, 295 U.S. 441, 444, 55 S.Ct. 

794, 795, 79 L.Ed. 1530 (1935) (“There is no doubt that the federal 

claim was timely if the ruling of the state court could not have been 

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anticipated and a petition for rehearing presented the first 

opportunity for raising it.”)

Id. at 462.

So too here, Petitioner’s challenge to the trial court’s failure to fulfill its 

obligations under Anders did not occur until the trial court ruled. Consequently, 

Petitioner’s failure to raise the matter in the trial court did not preclude its fair 

presentation to the Arizona Court of Appeals.

(3). No Procedural Bar Applied

Nor is there any basis to conclude that the Arizona Court of Appeals actually 

applied such a waiver rule to Petitioner’s Anders claim. The Arizona Court of Appeals 

did not explicitly apply such a rule, but instead addressed the merits of the claim, albeit 

by applying the rule applicable to review on a second-level of appeal. 

No mention was made by the Arizona Court of Appeals of Petitioner’s failure to 

raise the argument in the trial court. The only procedural rules discussed by the Arizona 

Court of Appeals were the preclusion and timeliness rules for PCR petitions (Exhibit K, 

Mem. Dec. at ¶ 5), and the contention that Petitioner had not adequately argued claims 

regarding counsel’s deficient performance (id. at ¶ 6). The latter was not applied to 

Petitioner’s Anders argument, and could not be deemed to have been applied 

inferentially in light of Petitioner’s explicit arguments on Anders. The former 

discussion, rather than the demonstrating the application of the preclusion or 

untimeliness rules, was an implicit acknowledgement that no preclusion or untimeliness 

defense applied (which it would not in a timely, first, of-right PCR proceeding), but that 

the trial court had nonetheless reached the “right result” in its alternative decision on the 

merits, and thus reversal was not required. (Id.) 

“When a federal claim has been presented to a state court and the state court has

denied relief, it may be presumed that the state court adjudicated the claim on the merits 

in the absence of any indication or state-law procedural principles to the contrary.” 

Harrington v. Richter, 562 U.S. 86, 99 (2011). Thus, the habeas court must “rely on the 

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‘presumption of a merits determination when it is unclear whether a decision appearing 

to rest on federal grounds was decided on another basis.’ ” Runningeagle v. Ryan, 686 

F.3d 758, 769 (9th Cir. 2012) (quoting Richter). Thus, to the extent that there might be 

some reason to suggest the Arizona court rejected the claim on procedural grounds, it 

would at best be unclear, and the presumption would require that this Court treat the 

decision as one on the merits. 

f. Summary Re Exhaustion

Based upon the foregoing, the undersigned concludes that Petitioner properly 

exhausted his state remedies as to his Anders claim in Ground 4, both through actual 

consideration by the Arizona Court of Appeals, and by fair presentation to that court.

4. Merits of Anders Claim

In the Supplemental Answer (Doc. 16), Respondents argue that Petitioner’s 

Anders claim is without merit because Anders applies only to direct appeals, and not to 

discretionary post-conviction collateral attacks, citing Pennsylvania v. Finley, 481 U.S. 

551, 554 (1987). Respondents concede that an Arizona of-right PCR proceeding is for 

some purposes the equivalent of direct appeal, but argue that the Arizona courts have 

consistently refused to extend Anders to such proceedings. Respondents argue that 

practical distinctions call for different treatment, referencing the limited record available 

because of the guilty plea underlying most of-right PCR proceedings, and the waiver of 

most claims as a result of the guilty plea. As a result, Respondents argue “there is little 

to be gained by extending Anders procedures” to these defendants. Respondents further 

argue that requiring PCR counsel to advise the court of matters outside the record would 

risk invasion of counsel’s duties to his client of loyalty and confidentiality. Respondents 

further argue that the Anders procedure is prophylactic, not mandatory, and Arizona’s 

procedure under Ariz. R. Crim. Proc. 32.4(c)(2) is adequate and was complied with in 

this case. 

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In addition to arguing the merits of various substantive claims, Petitioner replies

that Arizona Rule of Criminal Procedure 32.6(c) incorporates an Anders type of review 

into PCR proceedings, any failure to exhaust his state remedies was caused by 

ineffective assistance of counsel, Petitioner’s limited knowledge of English and inability 

to read or write English, and dependence upon other inmates for assistance. (Supp. 

Reply, Doc. 18.) 

a. Decision of Arizona Court

This Court must undertake a de novo review of Petitioner’s Anders claim, 

regardless whether this claim is deemed actually considered on the merits by the Arizona 

Court of Appeals, or merely deemed fairly presented.

(1). Contrary To Supreme Court Law

The undersigned finds that the Arizona Court of Appeals resolved Petitioner’s 

Anders claim on the merits. Accordingly, as discussed supra in Section III(A)(3), this 

Court may generally grant relief only if that decision was “contrary to or an unreasonable 

application of” Supreme Court law. 28 U.S.C. § 2254(d).

A state court's “use of the wrong legal rule or framework do constitute error 

under the ‘contrary to’ prong of § 2254(d)(1).” Frantz v. Hazey, 533 F.3d 724, 734 (9th 

Cir.2008) (en banc)).

The Arizona Court of Appeals focused narrowly upon whether it was required to 

conduct its own Anders review, and failed to apply the appropriate standard of 

determining whether such review was required in the first-level, of right review, i.e. that 

in the trial court.3 As a result, the court’s decision was “contrary to” the law as adopted 

 

3 At least arguably, the appellate court was not required to conduct such review, because 

Anders only applies to first tier of-right review. And review in a PCR proceeding by the 

Arizona Court of Appeals is neither first tier (the trial court is the first tier), nor of-right, 

the review by such court being plainly discretionary. See Ariz. R. Crim. Proc. 32.9(f) 

(“appellate court may, in its discretion, grant review”). But, as discussed hereinafter, the 

same is not true of the trial court’s first-level, of-right review.

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in Finley and Halbert regarding first level review. 

Of course, because the Arizona court focused on the wrong level of review, it 

reached no conclusions contrary to those reached herein. It simply applied the wrong 

standard, and having done so, (as discussed infra) wrongly concluded that Anders had 

not been violated.

Of course, that legal error only opens the door to relief under 28 U.S.C. § 2254(d). 

It does not establish that Plaintiff’s claim has merit. 

The Arizona court having applied the wrong standard, this Court reviews the 

matter de novo to decide whether Petitioner’s claim has merit, i.e. whether his rights 

under Anders were violated. 

To identify a § 2254(d)(1) “contrary to” error, we analyze the 

court's actual reasoning, to the extent that the Supreme Court has 

dictated how a state court's reasoning should proceed. Identification 

of such an error is not the end of a federal habeas court's analysis, 

however, unless that identification necessarily means that the state 

court's determination of the ultimate constitutional or legal question 

is also wrong. Instead, pursuant to § 2254(a) and pre-AEDPA 

standards of review, we must also evaluate de novo the petitioner's 

constitutional claims, without limiting ourselves to the reasoning of 

the state court.

Frantz, 533 F.3d at 739. 

(2). No Merits Decision

Alternatively, it might be argued (contrary to the conclusion reached herein) that 

the Arizona Court of Appeals did not take up Petitioner’s argument regarding his right to 

Anders review by the trial court, and instead only decided the issue (not raised by 

Petitioner) that he was entitled to Anders review by the Arizona Court of Appeals. In 

that instance, Petitioner’s Anders claim regarding trial court review (although still fairly 

presented) was not addressed on the merits. 

The limitations of 28 U.S.C. § 2254(d) only apply to a “claim that was 

adjudicated on the merits in State court proceedings.” In the absence of the limitations 

of § 2254(d), this habeas court resolves constitutional issues de novo. Frantz, 533 F.3d 

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at 735-736. 

b. Applicability of Anders

The right to Anders review “was based on the underlying constitutional right to 

appointed counsel,” Finley, 481 U.S. at 554, and “established a prophylactic framework 

that is relevant when, and only when, a litigant has a previously established 

constitutional right to counsel.” Id. at 555. 

In three other cases in the District of Arizona, the courts have concluded that an 

Arizona pleading defendant has a federal constitutional right to counsel in an of-right 

PCR proceeding. See Walker v. Ryan, 2015 WL 10575864, at *5 (D. Ariz. Oct. 21, 2015) 

report and recommendation adopted, CV-15-00072-PHX-ROS(BSB), 2016 WL 1268487 

(D. Ariz. Mar. 31, 2016); Ree v. Ryan, CV-13-00746-TUC-RM(LAB), 2015 WL 

3889360, at *1 (D. Ariz. June 23, 2015); and White v. Ryan, CV-15-2482-PHX-JJT, 

2016 WL 4650002, at *14 (D. Ariz. May 2, 2016), report and recommendation adopted, 

CV-15-02482-PHX-JJT, 2016 WL 4592083 (D. Ariz. Sept. 2, 2016). 

Indeed, the Arizona Court of Appeals has previously held that there is a federal 

constitutional right to counsel in Arizona’s of right PCR proceedings:

In Arizona, though, a defendant in a non-capital case who pleads 

guilty or no contest waives his right to a direct appeal. Rule 32 thus 

becomes “the only means available for exercising [his] 

constitutional right to appellate review.” Therefore, a pleading 

defendant such as Pruett is constitutionally entitled to the effective 

assistance of counsel on his first petition for post-conviction relief, 

the counterpart of a direct appeal. 

State v. Pruett, 185 Ariz. 128, 130–31, 912 P.2d 1357, 1359–60 (App. 1995) (citations 

omitted) (citing Finley and other U.S. Supreme Court decisions regarding the federal 

right to counsel). See Summers v. Schriro, 481 F.3d 710, 716 (9th Cir. 2007) (quoting 

Pruett). Cf. State v. Krum, 183 Ariz. 288, 295 and n.5, 903 P.2d 596, 603 and n.5 (1995)

(concluding “there is no federal constitutional right to effective counsel in a PCR 

proceeding” in a PCR proceeding “at least when a defendant is entitled to a direct 

appeal”). 

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Respondents principally reply on Finley for their contention that Petitioner did not 

have a constitutional right to counsel in his PCR proceeding. 4 In Finley, the Court 

declined to apply Anders to a Pennsylvania post-conviction relief proceeding. The Court 

recognized that “the right to appointed counsel extends to the first appeal of right, and no 

further,” and not to “discretionary appeals,” whether “on direct review” or on 

“postconviction review.” 481 U.S. at 555.5The Court clarified that it was only a 

constitutional right to counsel, and not some other right (e.g. under state law), which 

triggered Anders. Id. at 556. And, the Court declined to extend the constitutional right 

to counsel to PCR proceedings, finding that they “are not part of the criminal proceeding 

itself, are civil in nature, and normally occur only after failure to receive relief on direct 

review. Id. at 557. 

Thus Finley was based upon the absence of a right to counsel in the Pennsylvania 

post-conviction proceeding, which it found because the proceeding: (1) was not “ofright” but discretionary; (2) was not a first appeal, but after direct review; and (3) was 

not part of the criminal proceeding, but a separate civil proceeding. 

Here, however, Petitioner’s PCR proceeding was: (1) of-right; (2) a first level 

review; and (3) a direct appeal within the criminal proceeding, not a collateral, civil 

proceeding. 

(1). “Of Right”

Respondents follow in the steps of the Arizona Court of Appeals and argue that 

 

4

In Martinez v. Ryan, 132 S.Ct. 1309 (2012), the Court noted that it had not yet 

recognized a right to counsel in post-conviction relief proceedings that constituted a 

defendant’s first opportunity to bring a challenge of ineffective assistance of PCR 

counsel, but noted that because such a post conviction proceeding was the prisoner’s one 

and only appeal on such a claim “this may justify an exception to the constitutional rule 

that there is no right to counsel in collateral proceedings.” 132 S. Ct. at 1315. While 

suggesting an in road on Finley in addition to that adopted in Halbert, Martinez did not 

involve an of-right PCR proceeding deemed under state law to be the equivalent of direct 

appeal. Accordingly, the Court’s equivocation in Martinez does not control this case.

5

In Murray v. Giarratano, 492 U.S. 1, 7 (1989), the Court reaffirmed Finley,and 

declined to find an exception for cases involving the death penalty. 

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Petitioner had no rights under Anders because review by the Arizona Court of Appeals 

was discretionary. (Supp. Ans., Doc. 16 at 10.) But Petitioner’s claim is and was that 

he was entitled to such review in the trial court. 

Respondents make no contention that Petitioner’s right to review by the trial court 

was not “of right.” Indeed, the Arizona Courts have concluded that such review is 

mandated by and satisfies the Arizona Constitution’s guarantee of an appeal. 

Arizona's constitution guarantees that every criminal defendant 

“shall have ... the right to appeal in all cases.” Ariz. Const. art. 2, § 

24...Rule 32 incorporates this appeal right: “Any person who pled 

guilty ... shall have the right to file a post-conviction relief 

proceeding, and this proceeding shall be known as a Rule 32 ofright proceeding.” Ariz. R.Crim. P. 32.1. Thus, even though this 

matter is a post-conviction relief proceeding, by virtue of Article 2, 

Section 24 of the Arizona Constitution, as interpreted by

Montgomery, it is the functional equivalent of a direct appeal.

State v. Ward, 211 Ariz. 158, 161–62, ¶ 9, 118 P.3d 1122, 1125–26 (App. 2005) See 

also Montgomery v. Sheldon, 181 Ariz. 256, 259–60, 889 P.2d 614, 617–18, op. supp., 

182 Ariz. 118, 893 P.2d 1281 (1995).

6

 

(2). First Level

Moreover, unlike the defendant in Finley ̧ Petitioner and other pleading Arizona 

defendants, have no prior right to appeal. See Ariz. Rev. Stat. § 13-4033(B); 

Ariz.R.Crim.P. 17.1(e); and Montgomery v. Sheldon, 181 Ariz. 256, 258, 889 P.2d 614, 

616 (1995). Like the defendant in Halbert v. Michigan, 545 U.S. 605 (2005) (finding 

constitutional right to counsel in application for leave to file discretionary appeal), the 

Arizona pleading defendant’s of-right PCR petition is “the first, and likely the only, 

direct review the defendant's conviction and sentence will receive.” Id. at 619. 

 

6

The Arizona Rules of Criminal Procedure also classify a pleading defendant’s timely, 

first PCR proceeding as an “of right” proceeding. Ariz. R. Crim. Proc. 32.1. But this 

does not appear to alter the discretion of the trial court to address the claims or the 

petition, see Ariz. R. Crim. Proc. 32.6(c) (mandating review of claims in all PCR 

petitions), merely to mandate appointment of counsel, see Ariz. R. Crim. Proc. 32.4(c)(2) 

(appointment of counsel for of-right proceedings). Therefore, under the bare language of 

the Arizona Rules of Criminal Procedure, at least in the trial court all Arizona PCR 

petitions are arguably of right, and not discretionary. 

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Arizona’s “of right” PCR proceedings are intentionally in lieu of direct review, and are 

not a defendant’s second bite at review, but his first bite, and his review in the trial court 

is his only non-discretionary bite.

(3). Appellate in Nature

Finally, the Finley court relied upon the determination that the post conviction 

proceeding in that case was not appellate in nature, but a collateral attack on the 

conviction. 

While Petitioner’s of-right proceeding is denominated a post conviction 

proceeding, it is the function of the proceeding not its nomenclature which controls. In 

Halbert v. Michigan, 545 U.S. 605 (2005), the Supreme Court “signal[ed] that some nontraditional state review procedures are forms of direct rather than collateral review,” 

which the Ninth Circuit concluded “casts doubt on the validity of our assumption in Isley

[v. Arizona Department of Corrections, 383 F.3d 1054 (9th Cir.2004)’” that “a Rule 32 

of-right proceeding is a form of collateral review under § 2244(d)(2).” Summers v. 

Schriro, 481 F.3d 710, 713, 712 (9th Cir. 2007). Indeed, in White v. Ryan, CV-15-2482-

PHX-JJT, 2016 WL 4650002, at *14 (D. Ariz. May 2, 2016), report and 

recommendation adopted, CV-15-02482-PHX-JJT, 2016 WL 4592083 (D. Ariz. Sept. 2, 

2016), where the Court found a constitutional right to counsel in an Arizona of-right 

PCR proceeding, the respondents (the same as Respondents herein), argued that 

Martinez v. Ryan, 132 S.Ct. 1309 (2012) did not apply because: “Petitioner’s of-right 

PCR proceedings were not collateral in nature rather, they were the functional equivalent 

of a direct appeal.” CV-15-02482-PHX-JJT, Limited Answer, Doc. 7 at 11, n.10. 

“[T]he Supreme Court held in [Halbert]...that a first-tier ‘of-right’ review 

procedure available to a plea-convicted Michigan defendant in lieu of a conventional 

direct appeal is a form of ‘direct review’ to which a constitutional right to counsel 

attaches.” Summers, 481 F.3d at 713. Like Arizona, Michigan had precluded pleading 

defendants from filing a direct appeal as a matter of right. Michigan erected a system 

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that required pleading defendants to first file pro se an application for leave to appeal, 

which applications were uniformly rejected because of “’lack of merit in the grounds 

presented.’” Id. at 612. The Court equated that application for leave to appeal to a 

direct appeal based on two factors: (1) the consideration of the merits of the claims in the 

leave process; and (2) that indigent defendants were ill equipped to represent themselves 

in the process. Id. at 617. The Court contrasted discretionary appeals where the exercise 

of discretion was founded upon “the general importance of the questions presented,” and 

not just the “merits of the particular defendant’s claims.” Id. at 619. The Court observed 

that the application “was the first, and likely only, direct review the defendant’s 

conviction and sentence will receive” when the defendant was “disarmed.” Id.

Thus, the Court has recognized that regardless of the nomenclature applied to a 

state review process, if it functionally constitutes a first level of appellate review, 

counsel is constitutionally required. 

Similarly, here, Petitioner’s of-right PCR proceeding is the equivalent of a direct 

appeal. In Summers, the Ninth Circuit recognized that Arizona’s of-right PCR 

proceeding is to be treated as direct appeal for purposes of triggering the habeas statute 

of limitations. 481 F.3d at 713. The Arizona courts have treated it as a direct appeal for 

purposes of satisfying the mandate of the Arizona Constitution that defendants be 

afforded a right of direct appeal. See Ward, 211 Ariz. at 161–62, ¶ 9, 118 P.3d at 1125–

26; Montgomery, 181 Ariz. at 259–60, 889 P.2d at 617–18.

Moreover, post-conviction proceedings are generally considered to be a separate 

civil case, “collateral” to the criminal case. That was the basis for the distinction in 

Finley. But in Arizona, the post-conviction relief case is neither collateral nor civil, but 

is a continuation of the original criminal case. Arizona Rule of Criminal Procedure 32.3 

provides:

This [post conviction relief] proceeding is part of the original 

criminal action and not a separate action. It displaces and 

incorporates all trial court post-trial remedies except post-trial 

motions and habeas corpus. 

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Ariz. R. Crim. P. 32.3. The comments to that Rule echo that characterization:

This section provides that all Rule 32 proceedings, regardless of the 

grounds presented and their past characterizations, are to be treated 

as criminal actions. The characterization of the proceeding as 

criminal assures compensation for appointed counsel and the 

applicability of criminal standards for admissibility of evidence at 

an evidentiary hearing except as otherwise provided.

Ariz. R. Crim. P. 32.3, Comment. Further, it generally is assigned to the sentencing 

judge. 

The proceeding shall be assigned to the sentencing judge where 

possible. If it appears that the sentencing judge's testimony will be 

relevant, that judge shall transfer the case to another judge.

Ariz. R. Crim. P. 32.4(e). Even the filings in an Arizona PCR reflect that it is not 

collateral. “The notice shall bear the caption of the original criminal action or actions to 

which it pertains.” Ariz. R. Crim. P. 32.4(a).

Further, the service of the PCR notice is directed, at least in part, to the 

prosecuting attorney. Ariz. R. Crim. Proc. 32.4(a). A response is mandated from the 

“state”, and the applicable Rule is denominated “Prosecutor’s Response”. Ariz. R. Crim. 

Proc. 32.6(a). 

Respondents argue that nonetheless the Arizona Courts “do not consider of-right 

PCR proceedings to be direct appeals in all cases,” and thus have refused to extend 

Anders to them, citing State v. McFord, 609 P.2d 1077, 1080 (Ariz. App. 1980) and State 

v. Thompson, 679 P.2d 575, 577 (Ariz. App. 1984). (Supp. Ans., Doc. 16 at 10.) 

However, both of these cases were decided before the 1992 changes eliminating any 

direct appeal for pleading defendants. See Crane McClennen, Eliminating Appeals from 

Guilty Pleas; Making the Process More Efficient, 29-NOV Ariz. Att'y, 15 (1992). As 

such, these courts could not have been contemplating the effect of the subsequent 

decision in Montgomery v. Sheldon, 181 Ariz. 256, 889 P.2d 614 (1995). 

In McFord, the Arizona Court of Appeals held that a motion for rehearing asking 

for plenary review under Anders did not meet the requirement necessary for appellate 

review under the previous state requirement to first seek rehearing. In the course of so 

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doing, the court opined: 

Additionally, we are of the opinion that Anders v. California and 

State v. Leon were not intended to apply to rule 32 petitions for 

post-conviction relief with the exception of petitions filed in 

accordance with rule 32.1(f), 17 A.R.S., Rules of Criminal 

Procedure. In Anders, the Supreme Court was concerned with the 

duty of court-appointed counsel to prosecute and appeal from a 

criminal conviction. The decision in Anders was bottomed on the 

proposition that a criminal defendant has a constitutional right to 

full appellate review; however, there is no constitutional right to 

post-conviction review. We do note that rule 32.1(f) provides for a 

delayed appeal, and that this provision of the rule does preserve “the 

defendant's right to a general review of the record for fundamental 

error where his failure to file a timely appeal was not his fault.” 

125 Ariz. at 380, 609 P.2d at 1080. Because such a procedure did not then exist,

McFord did not involve an of-right PCR petition, but “petitioner's fourth and fifth 

petitions for post-conviction relief.” 125 Ariz. at 378, 609 P.2d at 1078. Even still, the 

McFord court observed that there was at least one exception (Rule 32.1(f) where the 

PCR proceeding began to function as an appeal (e.g. seeking to file a delayed appeal) 

where Anders could apply.

In Montgomery, the Arizona Supreme Court observed that “[a] Rule 32 

proceeding followed by appellate review, however, is similar to a direct appeal for an 

Arizona defendant who pleads guilty.” 181 Ariz. at 260, 889 P.2d at 618. And, the court 

conceded that “[a]lthough the defendant may raise fewer issues in a PCR proceeding 

than in a direct appeal, under art. 2, § 24 the right to present those issues for judicial 

review when appointed counsel declines to do so should be the same.” Id. However, 

based upon Finley, the court found no need to apply Anders because “Anders was based 

on a defendant's Fourteenth Amendment right to counsel in a first appeal and that there is 

no such right in state PCR proceedings.” Id. But, since Montgomery, Halbert has taught 

us that Finley was an analysis based on function and not form.

Thus, based upon the recognition in Halbert that the nature of the proceeding, and 

not simply its denomination, determines whether there is a right of counsel, and that all 

of the factors on which Finley distinguished traditional post-conviction proceedings do 

not apply to Arizona’s of-right PCR proceeding, the undersigned must conclude that 

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there is a federal constitutional right to counsel in such proceedings, and that Anders’ 

equal rights protections also apply. See McConville, Protecting the Right to Effective 

Assistance of Capital Postconviction Counsel: The Scope of the Constitutional 

Obligation to Monitor Counsel Performance, 66 U. Pitt. L. Rev. 521, 536 et seq. (2005)

(discussing Anders as a way of insuring meaningful counsel in PCR proceedings). 

(4). Practical Considerations

Respondents argue that this Court should look to the practical difficulties of 

applying Anders in the context of a Rule 32 of-right proceeding. Respondents point to: 

(a) the limited record (because the premise is a guilty plea); (b) the ability to introduce 

new evidence in a PCR proceeding, versus the “closed record” in a traditional direct 

appeal; (c) the related need for PCR counsel to conduct investigations beyond the record 

and difficulty of the court evaluating those efforts; (d) the waiver of claims associated 

with a guilty plea; and (e) the potential ethical concerns (e.g. confidentiality) of PCR 

counsel advising the Court on ineffective assistance claims.

Assuming arguendo that such practical considerations could exempt a proceeding 

from application of Anders, the considerations presented here are not persuasive.

(a). “Limited” Record

Respondents argue that an Anders style review is inappropriate in of-right PCR 

proceedings because they generally only occur in instances of guilty pleas, and thus there 

is a limited record available for the PCR court to review. As discussed hereinafter, that 

is not necessarily the case given the opportunity for appointed counsel to investigate 

and/or expand the record (both before and after the Anders brief). 

Moreover, nothing in Anders suggests that an expansive record is a prerequisite 

for review. That the record is limited and thus the required review limited may be 

fortuitous for the reviewing court, does not justify denying the pleading defendant the 

kind of assurance of equal protection mandated by Anders. 

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Moreover, the need for consideration of matters outside the record demonstrates 

the deficiency in Arizona’s procedure under Rule 32.4(c), which calls for nothing more 

from PCR counsel than a notice that no “colorable” claim has been found. 

Nor does Anders make any exception for pleading defendants. Nor have 

Respondents pointed to any other cases excepting pleading defendants from Anders in 

those jurisdictions where now and in the past defendants have retained a right of appeal. 

Indeed, the nature of a conviction by plea suggests that Anders review is all the 

more appropriate. The smaller record makes the burden of Anders lighter, and the 

absence of a trial arguably heightens the need for competent review given the potential 

that a defendant has been convicted as a result of bad representation rather than on the 

basis of actual evidence. 

(b). Not “Closed” Record 

Respondents argue that appeals lend themselves to an Anders style review by the 

appellate court because they presume a closed record, while post-conviction relief 

proceedings permit additions to the record. But Anders, decided in 1967, was spawned 

in an era when ineffective assistance claims (which regularly require an expanded 

record) were regularly addressed on appeal. See e.g. State v. Guerrero, 159 Ariz. 568, 

569, 769 P.2d 1014, 1015 (1989) (first suggesting ineffective assistance claims be raised 

in PCR rather than on direct appeal). Indeed, by 1974, some seven years after Anders, 

only three states, Colorado, Alaska, and Arizona, had adopted post conviction relief 

proceedings. See Criminal Procedure: Constitutionality of Colorado Post-Conviction 

Remedies Statute Allowing Retroactive Relief Under Changed Legal Standards People v. 

Herrera, 46 U. Colo. L. Rev. 311, 312 (1974). Such claims could be addressed by a 

limited remand for an evidentiary hearing. See e.g. State v. Zuck, 134 Ariz. 509, 516, 

658 P.2d 162, 169 (1982) (remanding from direct appeal for evidentiary hearing on 

claim of ineffective assistance of counsel). See also LaFave, et al., 3 Crim. Proc. § 

11.7(e) (4th ed.) (discussing remand to supplement record on ineffectiveness claims). 

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Moreover, the Anders procedure is not limited to review by the appellate court. It 

is a two part process, consisting of a review and reporting by appointed counsel in a 

“brief referring to anything in the record that might arguably support the appeal,” 

Anders, 386 U.S. at 744, followed by review by the court.

(c). Evaluation of Investigation

Respondents argue that Anders should not apply because of the obligation of 

counsel to investigate matters outside the record, and the difficulty of the court 

evaluating the sufficiency of that investigation. But, as discussed supra, Anders was 

decided in a pre-PCR world, where claims such as ineffective assistance of counsel, etc. 

required investigation outside the formal court record even though only raisable on direct 

appeal.

Moreover, the court’s review under Anders is not intended as a guarantee that 

every possible claim will be identified. Rather, Anders is an attempt to assure that an 

indigent defendant has representation that approximates that of retained counsel. “This 

procedure will assure penniless defendants the same rights and opportunities on appeal—

as nearly as is practicable—as are enjoyed by those persons who are in a similar situation 

but who are able to afford the retention of private counsel.” Anders, 386 U.S. at 745. 

Even retained counsel (like appointed counsel) is not tasked to leave no stone unturned, 

but only to provide a reasonably competent investigation. See Strickland, 466 U.S. at 

690 (“wide range of professionally competent assistance”). 

Finally, even in traditional direct appeal settings, the court is to some extent 

dependent upon the work of the appointed appellate counsel. “Counsel's summary of the 

case's procedural and factual history, with citations of the record, both ensures that a 

trained legal eye has searched the record for arguable issues and assists the reviewing 

court in its own evaluation of the case.” Smith v. Robbins, 528 U.S. at 281. 

/ /

/ /

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(d). Waiver of Claims

Respondents argue that Anders should not apply to Arizona’s of right proceedings 

because it only applies to pleading defendants who have necessarily waived many of 

their rights and potential claims. But Respondents point to no exception to Anders ever 

granted for cases of pleading defendants in jurisdictions where their cases are heard on 

direct appeal. 

Moreover, the limited claims available indicates a lighter burden for both PCR 

counsel filing an Anders brief, and the PCR court in reviewing for error, hardly a 

justification for denying any review. 

And, the limited claims available suggests an even greater importance in assuring 

that the pleading defendant’s rights were protected at trial and on review. See McCoy v. 

Court of Appeals of Wisconsin, Dist. 1, 486 U.S. 429, 442 (1988) (“the Anders brief is 

designed to assure the court that the indigent defendant's constitutional rights have not 

been violated”). 

(e). Ethical Concerns

Finally, Respondents worry that mandating full Anders briefing and review by the 

PCR court will necessarily impede upon the defendant’s rights to counsel by requiring 

the disclosure of confidences revealed by trial counsel to PCR counsel. Respondents cite 

no authority as support for their contention that this should excuse compliance with 

Anders. (Supp. Ans. Doc.16 at 12.) 

The undersigned has similarly found no authority addressing this contention.

However, in McCoy v. Court of Appeals of Wisconsin, Dist. 1, 486 U.S. 429 

(1988), the Court addressed similar ethical concerns under a Wisconsin procedure 

requiring that counsel filing an Anders brief not only reference any potential claims, but 

also include “a discussion of why the issue lacks merit.” Id. at 430. The Court 

addressed concerns that doing so put appellate counsel in the role of amicus curiae, 

rather than fulfilling his ethical obligation to advocate for his client. The Court saw no 

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contradiction:

If an attorney can advise the court of his or her conclusion that an

appeal is frivolous without impairment of the client's fundamental 

rights, it must follow that no constitutional deprivation occurs when 

the attorney explains the basis for that conclusion. A supported 

conclusion that the appeal is frivolous does not implicate Sixth or 

Fourteenth Amendment concerns to any greater extent than does a 

bald conclusion.

Id. at 443. “Every advocate has essentially the same professional responsibility whether 

he or she accepted a retainer from a paying client or an appointment from a court.” Id. at 

438.

Moreover, in Smith, the Court explicitly acknowledged the potential ethical 

concerns inherent in Anders. “One of the most consistent criticisms, one with which we 

wrestled in McCoy, is that Anders is in some tension both with counsel's ethical duty as 

an officer of the court (which requires him not to present frivolous arguments) and also 

with his duty to further his client's interests (which might not permit counsel to 

characterize his client's claims as frivolous).” 528 U.S. at 281–82. Nonetheless, the 

Court continued to enforce the requirement for some effort to address the equal 

protection concerns on which Anders was based, albeit not strict compliance with the 

Anders procedure.. 

Similarly, here there is no ethical violation necessitated. The burden imposed 

under the procedure advocated in Anders is for counsel to file “a brief referring to 

anything in the record that might arguably support the appeal.” 386 U.S. at 744. In 

performing that function, counsel is not mandated to report all of his findings, and 

certainly not that he do so verbatim. And nothing in Anders suggests that counsel must 

ignore either the interests or wishes of his client in presenting issues or facts supporting 

the appeal. Certainly, counsel is not mandated to act as an advocate for the prosecution, 

even under the procedure in McCoy. 

Accordingly, if the investigation revealed detrimental, confidential information 

from trial counsel, or if Petitioner simply did not wish the confidential information 

disclosed, nothing in Anders mandates that counsel nonetheless disclose the information. 

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To the extent that there might be overlap between a claim a client wishes to raise or that 

counsel believes should be raised and some detrimental confidential information, 

appellate counsel would remain free to consult with the defendant about his options in 

proceeding. And those discussions, as with all court representation, properly would 

include addressing counsel’s duties of candor to the court. And nothing in Anders 

would prevent a withdrawal on ethical grounds by an attorney who could not meet his 

duty of candor on claims that the defendant wished to have counsel raise.

(5). Summary re Applicability of Anders

Having concluded that there was a federal constitutional right to counsel in 

Petitioner’s of-right PCR proceedings, and in the absence of any authorized exception, 

the undersigned must also conclude that such right requires compliance with Anders, if 

not by explicit compliance with the process adopted in Anders, then at least through 

some similarly prophylactic process that assures equal protection of indigent pleading 

defendants. 

c. Violation of Anders

Respondents argue that even if Anders applies, the process outlined under Arizona 

Rule of Criminal Procedure 32.4 and followed in this case, meets the requirements under 

Anders. Respondents rely primarily on Smith v. Robbins, 528 U.S. 259, 265 (2000), 

where the Supreme Court explained, “[t]he 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.”

(1). Anders Procedure not Mandatory

In Smith v. Robbins, the Supreme Court reiterated that the prophylactic 

procedures outlined in Anders were not an exclusive means to remedy the equal 

protection concerns that arise when appointed counsel fails to identify an issue for 

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review. “In [Finley], we explained that the Anders procedure is not ‘an independent 

constitutional command,’ but rather is just ‘a prophylactic framework’ that we 

established to vindicate the constitutional right to appellate counsel.” Smith, 528 U.S. at 

273. 

Thus, in Smith, the Court approved a process adopted in California in People v. 

Wende, 25 Cal.3d 436, 441–442, 158 Cal.Rptr. 839, 600 P.2d 1071, 1074–1075 (1979)

which did not mandate a brief by counsel as specified in Anders: 

counsel, upon concluding that an appeal would be frivolous, files a 

brief with the appellate court that summarizes the procedural and 

factual history of the case, with citations of the record. He also 

attests that he has reviewed the record, explained his evaluation of 

the case to his client, provided the client with a copy of the brief, 

and informed the client of his right to file a pro se supplemental 

brief. He further requests that the court independently examine the 

record for arguable issues. Unlike under the Anders procedure, 

counsel following Wende neither explicitly states that his review has 

led him to conclude that an appeal would be frivolous (although that 

is considered implicit) nor requests leave to withdraw. Instead, he is 

silent on the merits of the case and expresses his availability to brief 

any issues on which the court might desire briefing.

Smith, 528 U.S. at 265 (citations omitted). Thereafter, the burden shifted to the appellate 

court:

The appellate court, upon receiving a “Wende brief,” must “conduct 

a review of the entire record,” regardless of whether the defendant 

has filed a pro se brief...If the appellate court, after its review of the 

record pursuant to Wende, also finds the appeal to be frivolous, it 

may affirm. If, however, it finds an arguable (i.e., nonfrivolous) 

issue, it orders briefing on that issue. 

Smith, 528 U.S. at 265–66 (citations omitted). 

(2). Evaluation of Alternative Procedures

The Smith Court went on to outline what was sufficient to “adequately safeguard 

a defendant's right to appellate counsel,” and to “reasonably ensure[] that an indigent's 

appeal will be resolved in a way that is related to the merit of that appeal.” 528 U.S. at 

278–79. The Court focused on five factors: (a) a criteria of frivolity; (b) counsel was 

provided until the appeal was deemed frivolous by the court; (c) the determination that 

the appeal was frivolous by counsel and the court; (d) counsel did not file a bare “no 

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merits” notice; and (e) review was not provided by the trial judge. See Duggan and 

Moeller, Make Way for the ABA: Smith v. Robbins Clears A Path for Anders 

Alternatives, 3 J. App. Prac. & Process 65, 91–92 (2001). 

As discussed hereafter, the procedure mandated by Arizona Rule of Criminal 

Procedure 32.4(c) and followed in Petitioner’s case does not meet those requirements.

(a). Criteria of Frivolity

First, the Court observed that the procedure in Anders, unlike the Wende 

procedure, “did not require either counsel or the court to determine that the appeal was 

frivolous; instead, the procedure required only that they determine that the defendant was 

unlikely to prevail on appeal.” Smith, 528 U.S. at 279.

Here, the procedure under Rule 32.4(c) mandates that counsel make a finding of 

frivolity, albeit in the language of “colorable claim”:

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). In Arizona, a “colorable claim is ‘one that, if the 

allegations are true, might have changed the outcome.’ ” State v. Bennett, 213 Ariz. 562, 

567, ¶ 21, 146 P.3d 63, 68 (2006) (quoting State v. Runningeagle, 176 Ariz. 59, 63, 859 

P.2d 169, 173 (1993)) (applying the Runningeagle definition to find a right to an 

evidentiary hearing under Ariz. R. Crim. Proc. 32.8). Assuming arguendo that a claim 

that is not colorable is frivolous, Rule 32.4(c)(2) requires a finding of frivolity by 

counsel. 

However, in evaluating a no-colorable claim notice and a subsequent pro per 

petition, the Arizona courts do not apply a standard of finding that the appeal (or the 

proceeding) is frivolous, after conducting their own review of the record. Instead, the 

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PCR courts simply address whatever claims have been raised by the defendant or his 

counsel.

That is not to say, however, that an Anders-like review for 

fundamental error is required whenever a defendant exercises the 

right to file a PCR petition. We reject that idea, as we have before. 

Wilson [v. Ellis, 176 Ariz. 121, 124, 859 P.2d 744, 7474 (1993)] 

(“[We] are not commanding, nor do we want, trial courts to conduct 

i-type reviews in PCRs.”); State v. Shattuck, 140 Ariz. 582, 585, 684 

P.2d 154, 157 (1984) (noting that Anders does not require 

fundamental error review at every level of the appellate process). To 

the contrary, we hold only that if counsel refuses to proceed, a 

pleading defendant has a right under Ariz. Const. art. 2, § 24 to file 

a pro se PCR petition. Trial courts should treat such petitions like 

any other and may, if appropriate, summarily dismiss them under 

Ariz.R.Crim.P. 32.6(c).

Montgomery, 181 Ariz. at 260, 889 P.2d at 618. 

Accordingly, the Arizona procedure does not require any determination by the 

court on the frivolity of the proceeding, only on the actual claims raised. 

Moreover, if the Arizona court might actually independently search the record 

under Anders, to the extent that it would only do so by searching for “fundamental 

error,” the review would not be sufficient. Anders and Smith call for a search for any 

non-frivolous claim, not just “fundamental error.” 

(b). Court and Counsel Determination 

Smith also made clear that an evaluation of the record is required of both the court 

and counsel. “Wende, by contrast, requires both counsel and the court to find the appeal 

to be lacking in arguable issues, which is to say, frivolous.” Smith, 528 U.S. at 279–80. 

Under the Arizona procedure, the PCR court has no mandate to review the record in 

search of claims not raised by either counsel or Petitioner. Montgomery, 181 Ariz. at 

260, 889 P.2d at 618. Accordingly, at best the PCR court makes a determination that the 

claims actually raised are frivolous, but not that there are no claims which could be 

raised to support the petition. 

It is true that Arizona Rule of Criminal Procedure 32.6(c) appears to mandate a 

review of the entire record to identify unraised claims. The Rule requires: “On 

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reviewing the petition, response, reply, files and records, and disregarding defects of 

form, the court shall identify all claims that are procedurally precluded...” Even more 

directly, the comments to the Rule espouse: “Section (c)...instructs the court to make a 

final adjudication of all the petitioner's claims--those lurking in the background as well 

as those specified.” Ariz. R. Crim. Proc. 32.6, Comment. However, the mandate of the 

Arizona Supreme Court in Montgomery makes clear that no such review is to be afforded 

when a notice of no colorable claims is filed. Moreover, Respondents explicitly argue 

that no such review should be required. “And in the Rule 32 context, requiring the court

to conduct an independent review of an incomplete trial record containing no reviewable 

issues would be futile and counterproductive.” (Supp. Ans., Doc. 16 at 14.) 

In the absence of such a determination by the court, the indigent defendant 

remains subject to the disparity between retained counsel (who is externally motivated to 

identify and pursue potential claims) and appointed counsel.

(c). Counsel Provided Until Deemed Frivolous

Smith observed that Anders and its progeny have required that counsel remain an 

advocate until the court determined that the appeal was frivolous. “[T]he [invalidated]

Penson procedure permitted a basic violation of the Douglas right to have counsel until a 

case is determined to be frivolous and to receive a merits brief for a nonfrivolous 

appeal.” Smith, 528 U.S. at 280. 

It is true that here counsel continued in an “advisory” capacity. But Anders did 

not seek to preserve merely the right to an advisor, but to an advocate. “The 

constitutional requirement of substantial equality and fair process can only be attained 

where counsel acts in the role of an active advocate in behalf of his client.” Anders, 386 

U.S. at 744. 

Respondents argue that an independent review by the PCR court is not required, 

because PCR counsel remained in an advisory capacity. (Supp. Ans. Doc. 16 at 14.) 

However, the record provided does not indicate that counsel remained in such a capacity. 

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The Notice of No Colorable Claim requested that the court “allow Petitioner to proceed 

pro se.” (Exhibit G, Not. No Claim at 1.) Respondents have not provided the trial 

court’s order, if any, on that notice. In Petitioner’s words, counsel “withdrew.” (Exhibit 

H, PCR Pet. at 8.) The trial court’s dismissal order made no recognition that Petitioner 

remained represented, and instead forwarded its decision directly to Petitioner and not 

counsel. (Exhibit I, Order 5/22/15.) 

Even if it is assumed counsel remained in an advisory capacity, such capacity 

does not avoid Anders concerns. 

It is true that in Smith, California’s Wende procedure did not require or permit 

counsel to withdraw, but directed he remain “availab[le] to brief any issues on which the 

court might desire briefing.” Smith, 528 U.S. at 265. It is also true that the Smith Court 

noted this as a basis for upholding the procedure. But in doing so, the Court 

simultaneously observed that the state court had been mandated to conduct its own 

review of the record and order additional briefing in claims were discerned. “Under 

Wende...violations do not occur, both because counsel does not move to withdraw and 

because the court orders briefing if it finds arguable issues.” Smith, 528 U.S. at 280. 

Here, however, the Arizona courts are not mandated to conduct such a review. 

Thus, the fact that counsel remains in an advisory capacity is of limited benefit. At best, 

it insures some level of assistance to the defendant in presenting claims he discerns on 

his own. But it does nothing to avoid the risk that claims which have escaped both 

counsel and the pro se petitioner will be reviewed. It leaves the of-right PCR petitioner 

with “only one tier of review.” Smith, 528 U.S. at 281.

Moreover, as noted above, Anders seeks to protect the right to advocacy, not mere 

representation. The Fifth Circuit has observed:

that counsel did not formally withdraw does not appear to be a 

significant distinction that would change the analysis from the 

presumed prejudice of Penson to a harmless error standard. Lofton 

may have been formally represented by counsel, but the failure to 

raise any grounds for appeal was the equivalent of his attorney's 

withdrawal.

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Lofton v. Whitley, 905 F.2d 885, 888 (5th Cir. 1990). 

Respondents make no suggestion that in an “advisory capacity” counsel was 

required to continue to function in the role of an advocate, or that counsel provided any 

meaningful assistance to Petitioner in identifying or presenting his claims. In 

Petitioner’s words, counsel “withdrew,” and “Petitioner, who is a Mexican-national and 

speaks no English is now forced to proceed in pro se, without the benefit of counsel, and 

must rely upon the assistance of other inames because the ADC no longer has law 

libraries.” (Exhibit H, PCR Pet. at 8.) 

(d). Substantive Brief by Counsel

Smith also observed that California’s procedure in Wende, unlike that in Anders, 

required more than “a one-paragraph letter from counsel stating only his ‘bare 

conclusion’ that the appeal had no merit.” Smith, 528 U.S. at 280–81. Rather, the 

Wende procedure required that counsel file “a brief...that summarizes the procedural and 

factual history of the case, with citations of the record... attests that he has reviewed the 

record, explained his evaluation of the case to his client, provided the client with a copy 

of the brief, and informed the client of his right to file a pro se supplemental brief...[and]

further requests that the court independently examine the record for arguable issues.”

Id. at 265. Doing so “both ensures that a trained legal eye has searched the record for 

arguable issues and assists the reviewing court in its own evaluation of the case.” Id. at 

281.

In contrast, under Rule 32.4(c), counsel need only “file a notice advising the 

court” of his determination that “there are no colorable claims which can be raised on the 

defendant's behalf.” That requirement provides no assurance that counsel has actually 

reviewed the record, nor does it assist the court in conducting its own evaluation, nor 

does it request review of the record by the court to identify issues counsel may have 

missed. 

Here, PCR counsel went beyond the strict mandates of Rule 32.4(c) and provided 

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a summary (albeit an extraordinarily succinct one) of at least the rudimentary factual 

history of the case, and that she had reviewed at least portions of the record (i.e. the 

court’s “master file,” transcripts of the plea and sentencing, and client correspondence). 

(Exhibit G.) However, there is no indication that PCR counsel reviewed police records, 

prosecution disclosures, trial counsel’s file, presentence reports, Petitioner’s confession 

transcript, or other records which would have provided information central to the most 

significant issues for review of a guilty plea: e.g. the quality of counsel’s advice to the 

defendant about the plea, the investigation supporting that advice, and the propriety of 

the sentence issued. 

Moreover, despite the fact that Petitioner had claims he wished to raise, as 

evidenced by his pro per petition, counsel offered the court no information on those 

claims. Instead she simply opined: “There are no viable issues.”7 (Exhibit G, Notice at 

6.) While explicitly addressing the defendant’s proffered claims was not required of 

counsel under the Wende procedure in Smith, 528 U.S. at 265, or in Anders, 386 U.S. at 

744, both cases called for counsel to at least provide the supporting information. “That 

request [to withdraw] must, however, be accompanied by a brief referring to anything in 

the record that might arguably support the appeal.” Anders, 386 U.S. at 744. Counsel 

“summarizes the procedural and factual history of the case, with citations of the record.” 

Smith, 528 U.S. at 265. The absence of any information in counsel’s Notice of No 

Colorable Claim which would have been relevant to Petitioner’s claims of ineffective 

assistance of counsel or sentencing error highlights the extent to which Petitioner was 

left without counsel. 

Rather than being assured by counsel’s report here, a court conducting its own 

review might have suspected that counsel’s review was far too limited to depend upon 

her assessment that there were no non-frivolous issues for review in deciding to proceed 

 

7

In the preface of the Notice, counsel asserted “no colorable claims.” (Exhibit G, at 1.) 

Because it does not make a difference, the undersigned presumes that counsel’s 

deviation to referencing “viable” claims was not an intentional deviation from the 

“frivolous” standard required under Anders and Smith, but a misstatement.

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without benefit of briefing from counsel. 

(e). Determination by Other than Trial Judge

Finally, the Smith court found California’s Wende procedure sufficient because it 

provided for at least two tiers of review, while other disapproved procedures provided 

“only one tier of review—by the trial judge in Eskridge (who understandably had little 

incentive to find any error warranting an appeal) and by the public defender in Lane.” 

Smith, 528 U.S. at 281. 

Under the Wende procedure, not only did the defendant have the services of his 

appointed counsel, but “[t]he appellate court, upon receiving a ‘Wende brief,’ must 

‘conduct a review of the entire record,’ regardless of whether the defendant has filed a 

pro se brief,” and search for any “arguable (i.e., nonfrivolous) issue.” Smith, 528 U.S. at 

265-266. 

In contrast, Arizona requires no such second review. And none was conducted 

here. Instead, the trial court concluded only that the “matters contained in the Petition”

filed pro per by Petitioner were precluded or untimely, and without merit. (Exhibit I, 

Order 5/22/15.) Similarly, no review was undertaken by the Arizona Court of Appeals, 

which explicitly denied any obligation to do so. (Exhibit K, Mem. Dec. at ¶ 4.)

(3). Conclusion re Violation

Based upon the foregoing, the undersigned concludes 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.

d. No Prejudice Need Be Shown

In ordering supplemental briefing on the Anders issue, the undersigned directed 

Respondents to address whether prejudice had to be shown to obtain relief. Respondents 

replied: “The Supreme Court has noted that because a violation of Anders leaves a 

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defendant completely without counsel, the error is structural and cannot be reviewed 

under a prejudice or harmless error analysis. [Penson] v. Ohio, 488 U.S. 75, 88–89 

(1988).” (Supp. Ans. Doc. 16 at 15 n. 2.) Indeed, the Court in Smith reaffirmed the 

presumption of prejudice standard in Penson, but declined to apply it because the 

defendant in Smith had “received appellate counsel who has complied with a valid state 

procedure for determining whether the defendant's appeal is frivolous, and the State has 

not at any time left the defendant without counsel on appeal.” Smith, 528 U.S. at 286. 

Thus, Robbins was to be required on remand to show prejudice from counsel’s failure to 

find an issue for appeal. 

Here, however, Petitioner has not had the benefit of a state procedure which 

passes muster under Anders or Smith, and thus prejudice must be presumed. 

5. Appropriate Relief

Petitioner asks as relief on his petition that his plea be revoked and a new trial and 

resentencing be required. (Petition, Doc. 1 at “11”.) 

In response to the Court’s Order directing supplemental briefing on the Anders

issue, Respondents argue that “the appropriate remedy would be to grant the Petition for 

the superior court to conduct a new Rule 32 PCR proceeding consistent with Anders.” 

(Supp. Ans., Doc. 16 at 15, n. 2.) 

In reply, Petitioner seeks either an invalidation of his conviction or sentence, or “a 

conditional grant of the writ so the state can conduct a new Rule 32 proceeding.” 

Section 2243 of the Judicial Code provides that the habeas court “dispose of the 

matter as law and justice require.” 28 U.S.C. § 2243. “If the constitutional error tainted 

some proceeding other than the guilt-innocence trial and resulting conviction (for 

example, the plea hearing, penalty trial, or appeal), the appropriate relief may be an order 

that the state either release the prisoner or give her a second chance to utilize or invoke 

the tainted procedure.” Hertz & Liebman, Federal Habeas Corpus Pract. & Proced. § 

33.4. 

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Thus, ordinarily, the proper remedy for the constructive denial of counsel on 

appeal is not a vacating of the judgment, but a remand for compliance with Anders. See 

e.g. Evitts v. Lucey, 469 U.S. 387, 390 (1985) (based on ineffective assistance of 

appellate counsel, affirming habeas writ ordering release conditioned on reinstatement of 

appeal); Penson, 488 U.S. at 89 (remanding on appeal for proceedings consistent with 

holding); United States v. Griffy, 895 F.2d 561, 563 (9th Cir. 1990) (in direct appeal, 

requiring Anders briefing by appellate counsel). 

Under the circumstances of this case, the undersigned finds that “law and justice” 

call for the issuance of the writ directing the release of Petitioner, unless Petitioner is 

granted a new of-right Rule 32 PCR proceeding, including the filing of either a merits 

brief by counsel or a substantive brief consistent with Anders, and in the event of the 

latter, an independent review of the record for non-frivolous error by the trial court. 

E. SUMMARY

Based upon the foregoing, the undersigned concludes that Petitioner’s: Ground 

1 (ineffectiveness re investigation) was either waived by his guilty plea or is conclusory 

and without merit; Ground 2 (ineffectiveness re confession) was waived by his guilty 

plea; and Ground 3 (ineffectiveness re mitigation) is without merit. However, the 

undersigned concludes that relief must be granted on Ground 4 (Anders review). 

IV. CERTIFICATE OF APPEALABILITY

Ruling Required - Rule 11(a), Rules Governing Section 2254 Cases, requires 

that in habeas cases the “district court must issue or deny a certificate of appealability 

when it enters a final order adverse to the applicant.” Such certificates are required in 

cases concerning detention arising “out of process issued by a State court”, or in a 

proceeding under 28 U.S.C. § 2255 attacking a federal criminal judgment or sentence. 28 

U.S.C. § 2253(c)(1). 

Here, the Petition is brought pursuant to 28 U.S.C. § 2254, and challenges 

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detention pursuant to a State court judgment. The recommendations if accepted will 

result in portions of Petitioner’s Petition being resolved adversely to Petitioner. 

Accordingly, a decision on a certificate of appealability is required. 

Applicable Standards - The standard for issuing a certificate of appealability 

(“COA”) is whether the applicant has “made a substantial showing of the denial of a 

constitutional right.” 28 U.S.C. § 2253(c)(2). “Where a district court has rejected the 

constitutional claims on the merits, the showing required to satisfy § 2253(c) is 

straightforward: The petitioner must demonstrate that reasonable jurists would find the 

district court’s assessment of the constitutional claims debatable or wrong.” Slack v. 

McDaniel, 529 U.S. 473, 484 (2000). “When the district court denies a habeas petition 

on procedural grounds without reaching the prisoner’s underlying constitutional claim, a 

COA should issue when the prisoner shows, at least, that jurists of reason would find it 

debatable whether the petition states a valid claim of the denial of a constitutional right 

and that jurists of reason would find it debatable whether the district court was correct in 

its procedural ruling.” Id.

Standard Not Met - Assuming the recommendations herein are followed in the 

district court’s judgment in denying or dismissing Grounds 1 through 3, that decision 

will be in part on procedural grounds, and in part on the merits. Under the reasoning set 

forth herein, jurists of reason would not find it debatable whether the district court was 

correct in its procedural ruling, and jurists of reason would not find the district court’s 

assessment of the constitutional claims addressed on their merits was debatable or 

wrong. 

Accordingly, to the extent that the Court adopts this Report & Recommendation 

as to Grounds 1 through 3 of the Petition, a certificate of appealability should be denied.

/ /

/ /

/ /

/ /

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V. RECOMMENDATION

IT IS THEREFORE RECOMMENDED that Grounds 1, 2 and 3 of the 

Petitioner's Petition for Writ of Habeas Corpus, filed November 9, 2015 (Doc. 1) be 

DENIED.

IT IS FURTHER RECOMMENDED that Ground 4 of the Petitioner's Petition 

for Writ of Habeas Corpus, filed November 9, 2015 (Doc. 1) be CONDITIONALLY

GRANTED, and that Petitioner be ordered released unless within 90 days of the Court’s 

Order, Petitioner is permitted to file a new of-right Rule 32 PCR proceeding, including 

the filing of either a merits brief by counsel or a substantive brief consistent with Anders 

v. California, 386 U.S. 738 (1967), and in the event of the latter, an independent review 

of the record for non-frivolous error by the trial court consistent with Anders. 

IT IS FURTHER RECOMMENDED that, to the extent the foregoing findings 

and recommendations with regard to Grounds 1, 2 and 3 are adopted in the District 

Court’s order, a Certificate of Appealability be DENIED.

VI. EFFECT OF RECOMMENDATION

This recommendation is not an order that is immediately appealable to the Ninth 

Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules 

of Appellate Procedure, should not be filed until entry of the district court's judgment. 

However, pursuant to Rule 72(b), Federal Rules of Civil Procedure, the parties 

shall have fourteen (14) days from the date of service of a copy of this recommendation 

within which to file specific written objections with the Court. See also Rule 8(b), Rules 

Governing Section 2254 Proceedings. Thereafter, the parties have fourteen (14) days 

within which to file a response to the objections. Failure to timely file objections to any 

findings or recommendations of the Magistrate Judge will be considered a waiver of a 

party's right to de novo consideration of the issues, see United States v. Reyna-Tapia, 

328 F.3d 1114, 1121 (9th Cir. 2003)(en banc), and will constitute a waiver of a party's 

right to appellate review of the findings of fact in an order or judgment entered pursuant 

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to the recommendation of the Magistrate Judge, Robbins v. Carey, 481 F.3d 1143, 1146-

47 (9th Cir. 2007). 

Dated: September 23, 2016

15-2264r RR 16 06 07 on HC.docx

James F. Metcalf

United States Magistrate Judge

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