Chavez v. Brnovich
| Decision Date | 01 August 2022 |
| Docket Number | 21-15454 |
| Citation | 42 F.4th 1091 |
| Parties | Lino Alberto CHAVEZ, Petitioner-Appellee, v. Mark BRNOVICH, Attorney General; David Shinn, Director, Respondents-Appellants. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Andrew Stuart Reilly (argued), Assistant Attorney General; J.D. Nielsen, Habeas Unit Chief; Mark Brnovich, Attorney General; Office of the Attorney General, Phoenix, Arizona; for Respondents-Appellants.
Randal McDonald (argued), Law Office of Randal B. McDonald PLLC, Phoenix, Arizona, for Petitioner-Appellee.
Before: Andrew J. Kleinfeld, D. Michael Fisher,* and Mark J. Bennett, Circuit Judges.
Lino Alberto Chavez, an Arizona prisoner, pleaded guilty to one count of second-degree murder and was sentenced to sixteen years. Because pleading defendants in noncapital cases in Arizona are prohibited from taking a direct appeal, Chavez challenged his conviction and sentence through an "of-right" post-conviction relief ("PCR") proceeding under Arizona law. After Chavez's appointed PCR counsel informed the PCR court that there were no colorable claims for relief, PCR counsel remained in an advisory capacity only and Chavez filed a pro se petition. The PCR court denied relief. On appeal, Chavez claimed that he had been denied his constitutional right to appellate counsel under Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). The Arizona Court of Appeals denied relief.
Chavez sought habeas relief in federal court, reasserting his Anders claim. The district court found that the Arizona Court of Appeals had incorrectly determined that Anders did not apply to Arizona's of-right PCR proceedings. The district court also determined, on de novo review, that Arizona's of-right PCR procedure was deficient under Anders and thus granted conditional habeas relief. Arizona appeals.
We have jurisdiction under 28 U.S.C. §§ 1291 and 2253(a) and reverse. The district court erred in failing to give the Arizona Court of Appeals the required deference under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Under AEDPA, the Arizona Court of Appeals correctly determined that Anders applies to of-right PCR proceedings, and it could have denied relief based on a determination that Arizona's procedure satisfied Anders. Such a determination would not be contrary to or an unreasonable application of Supreme Court precedent. We therefore reverse the district court's grant of habeas relief.
In 2011, Chavez's co-defendant, Jose Solis-Apodaca, tried to steal a laptop from Anita Munoz. Munoz pursued Solis-Apodaca, who got into a getaway vehicle driven by Chavez. Munoz grabbed the vehicle's open window as it drove away. Munoz fell or was pushed from the vehicle and suffered skull fractures
and internal bleeding. She never regained consciousness and was removed from life support about five days after the incident.
Chavez pleaded guilty to one count of second-degree murder for Munoz's death. The court sentenced him to sixteen years. Because pleading defendants in noncapital cases in Arizona have no right to a direct appeal, Chavez challenged his conviction and sentence through an of-right PCR proceeding under Arizona Rule of Criminal Procedure 32.1
The Arizona Legislature removed a pleading defendant's right to a direct appeal in noncapital cases in 1992. See 1992 Ariz. Sess. Laws ch. 184 (codified at Ariz. Rev. Stat. § 13-4033(B) ). But because the Arizona Constitution "guarantees some form of appellate relief ... [that] cannot be waived merely by a plea or admission," Wilson v. Ellis , 176 Ariz. 121, 859 P.2d 744, 746 (1993) (en banc), pleading defendants can seek appellate relief through an of-right PCR proceeding under Rule 32. See Ariz. R. Crim. P. 32.1 (2013) ().2 Indigent defendants seeking of-right post-conviction relief are entitled to counsel, and the rules set forth counsel's obligations:
Ariz. R. Crim. P. 32.4(c)(2). If counsel determines that there are no colorable claims and petitioner decides to proceed pro se, "counsel's only function ... is to assist the pro per defendant should that defendant or the trial court discover a viable issue that counsel had not previously considered or when, in the interest of justice, appointment of counsel seems necessary." Lammie v. Barker , 185 Ariz. 263, 915 P.2d 662, 663 (1996) (en banc).
Chavez began an of-right PCR proceeding in 2013, and the court appointed PCR counsel. PCR counsel filed a two-page Notice of Completion. The Notice of Completion identified the materials reviewed by PCR counsel, stated that PCR counsel was "unable to find any claims for relief to raise in post-conviction relief proceedings," and requested an extension for Chavez to file a pro se petition.3
The Maricopa County Superior Court granted Chavez an extension to file a pro se petition and ordered PCR counsel to "remain in an advisory capacity for [Chavez] until a final determination is made by the trial court regarding any post-conviction relief proceeding." Chavez filed a pro se Rule 32 PCR petition, which the Superior Court denied.
Chavez appealed, filing a pro se petition for review with the Arizona Court of Appeals. His petition raised an Anders claim—that "an of-right Rule 32 petitioner is ... entitled to a review of the record by the superior court for arguable issues as required for direct appeals under Anders. " The court of appeals ordered supplemental briefing on the Anders claim given Pacheco v. Ryan , No. CV-15-02264-PHX-DGC, 2016 WL 7407242 (D. Ariz. Dec. 22, 2016), which was decided while Chavez's petition for review was pending. In Pacheco , the U.S. District Court for the District of Arizona held that Anders protections applied to Rule 32 of-right proceedings under Supreme Court precedent. The district court also accepted the magistrate judge's finding that Arizona's of-right PCR procedure was deficient under Anders because the State had failed to object to that finding. Id. at *10.
Before the Arizona Court of Appeals, Chavez, the State, the Arizona Attorney General as amici, and other amici filed supplemental briefs. All the supplemental briefs argued that Anders applied to Rule 32 of-right PCR proceedings. Although the State conceded that Anders applied, it argued that Chavez had waived the Anders claim by failing to raise it before the Superior Court.
The Arizona Court of Appeals granted review of the petition but denied relief in a published opinion. State v. Chavez , 243 Ariz. 313, 407 P.3d 85 (Ct. App. 2017). The court of appeals rejected the Anders claim. It explained that, under Arizona Supreme Court precedent and the Arizona Rules of Criminal Procedure, "superior courts are not required to conduct Anders review in a Rule 32 of-right petition." Id. at 91.
After the Arizona Supreme Court summarily denied review, Chavez sought relief in federal district court.
Chavez filed a federal habeas petition under 28 U.S.C. § 2254. Given the ambiguity in the Arizona Court of Appeals's decision, the district court ordered the parties to address at oral argument whether the Arizona Court of Appeals decided that Anders protections apply to of-right PCR proceedings, or that Arizona's of-right PCR procedure was adequate under Anders , or whether it decided both issues.
The district court found that the court of appeals had determined that Anders did not apply to of-right PCR proceedings. Applying AEDPA, the district court found that such determination was an unreasonable application of Supreme Court precedent because of-right PCR proceedings are the functional equivalent of a first appeal as of right, and the Supreme Court had "clearly established ... that Anders applies to a defendant's first appeal as of right."
The district court presumably determined that the court of appeals had not decided whether Arizona's existing procedure was adequate under Anders , as it reviewed that issue de novo. The district court rejected the State's argument that Chavez had received sufficient Anders protections. It found that Arizona's procedures were deficient because they were "nearly identical to the California procedures rejected in Anders. "
The district court also considered whether Chavez's Anders claim was subject to procedural default for failure to raise the precise claim before the state courts. The State argued that Chavez's claim before the Arizona Court of Appeals was limited to only whether Anders required a PCR court to review the record for fundamental error. Chavez countered that his Anders claim also included the broader claim whether he had been "improperly denied the protections of Anders. " The district court agreed with Chavez and rejected the State's procedural default argument.4
The district court conditionally granted the petition, ordering that Chavez "be released unless within 90 days of [its] Order, [Chavez] is permitted to file a new of-right Rule 33 PCR proceeding, including the filing of either a merits brief by counsel or a substantive brief consistent with Anders. " The State timely appeals.
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