UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

LINO ALBERTO CHAVEZ, No. 21-15454 Petitioner-Appellee, D.C. No. v. 2:19-cv-05424- DLR MARK BRNOVICH, Attorney General; DAVID SHINN, Director, Respondents-Appellants. OPINION

Appeal from the United States District Court for the District of Arizona Douglas L. Rayes, District Judge, Presiding

Argued and Submitted March 18, 2022 Las Vegas, Nevada

Filed August 1, 2022

Before: Andrew J. Kleinfeld, D. Michael Fisher, * and Mark J. Bennett, Circuit Judges.

Opinion by Judge Bennett

* The Honorable D. Michael Fisher, United States Circuit Judge for the U.S. Court of Appeals for the Third Circuit, sitting by designation. 2 CHAVEZ V. BRNOVICH

SUMMARY **

Habeas Corpus

The panel reversed the district court’s grant of conditional habeas relief to Lino Alberto Chavez, an Arizona prisoner who asserted that he was denied his constitutional right to appellate counsel under Anders v. California, 386 U.S. 738 (1967), in his Arizona “of-right” post-conviction relief (PCR) proceedings.

Chavez challenged his conviction and sentence through the PCR proceeding because pleading defendants in noncapital cases in Arizona are prohibited from taking a direct appeal. The district court found that the Arizona Court of Appeals had incorrectly determined that Anders did not apply to Arizona’s of-right PCR proceedings. The district court also determined, on de novo review, that Arizona’s PCR procedure was deficient under Anders.

The panel first explained that it was clearly established that Anders and its progeny apply to Arizona’s of-right PCR proceedings.

Because the Arizona Court of Appeals’s decision can be construed as finding Anders applicable and nothing clearly suggests otherwise, and a federal habeas court must give the state court of appeals the benefit of the doubt and presume that it followed the law, the panel found that the Arizona Court of Appeals correctly found Anders applies to of-right

** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. CHAVEZ V. BRNOVICH 3 PCR proceedings. The panel therefore reversed the district court’s contrary determination.

The panel held that the district court also erred in reviewing de novo whether Arizona’s of-right PCR procedure is constitutionally adequate under Anders, and should have applied the required deference under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Given the ambiguity in the court of appeals’s decision, the panel wrote that the district court should have (1) determined what arguments or theories could have supported its rejection of Chavez’s argument that he had been denied Anders protections, and (2) then given AEDPA deference to those arguments. The panel wrote that in denying relief, the Arizona Court of Appeals could have determined that Chavez had not been denied Anders protections because Arizona’s existing of-right PCR procedure satisfied Anders and its progeny. Applying AEDPA deference, the panel held that such a determination would not be contrary to or an unreasonable application of clearly established federal law. In so holding, the panel noted that unlike the California procedure deemed deficient in Anders, Arizona requires counsel to identify any issues that could appear to be valid and does not permit counsel to withdraw; and counsel remains in an advisory capacity until the PCR court's final determinatio