NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 8 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
MICHAEL ISIDORO SANCHEZ, No. 21-15632
Petitioner-Appellee, D.C. No. 4:17-cv-00224-RM
v. MEMORANDUM* DAVID SHINN, Director of the Arizona Department of Corrections; ATTORNEY GENERAL FOR THE STATE OF ARIZONA,
Respondents-Appellants.
MICHAEL ISIDORO SANCHEZ, No. 21-16940
Petitioner-Appellant, D.C. No. 4:17-cv-00224-RM
v.
DAVID SHINN, Director, Director of the Arizona Department of Corrections; ATTORNEY GENERAL FOR THE STATE OF ARIZONA,
Respondents-Appellees.
Appeal from the United States District Court for the District of Arizona Rosemary Márquez, District Judge, Presiding
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Argued and Submitted April 18, 2023 Phoenix, Arizona
Before: OWENS and BADE, Circuit Judges, and BAKER,** International Trade Judge.
In this habeas action, David Shinn, in his capacity as the Director of the
Arizona Department of Corrections, timely appeals the district court’s order
holding that the state’s post-conviction relief (PCR) procedures for pleading
defendants are unconstitutional under Anders v. California, 386 U.S. 738 (1967).
Michael Sanchez timely cross-appeals the denial of his motion seeking immediate
release. We have jurisdiction under 28 U.S.C. §§ 1291 and 2253(a).
In state trial court, Sanchez pleaded guilty to one count of sexual contact
with a minor and one count of attempted sexual contact with a minor. The court
accepted his plea and sentenced him to prison accordingly. After his guilty plea
and conviction, Sanchez filed three separate PCR proceedings under Arizona Rule
of Criminal Procedure 32.4. In each of these proceedings, the court appointed
separate PCR counsel, and each appointed counsel found that there were no
colorable claims for relief and then remained in an advisory capacity only. In the
first and second PCR proceedings, Sanchez filed a pro se petition. The state trial
and appellate courts rejected his claims. In his third PCR proceeding, rather than
** The Honorable M. Miller Baker, Judge for the United States Court of International Trade, sitting by designation.
2 filing a pro se petition, Sanchez moved for appointment of new PCR counsel and
raised an Anders argument for the first time. He contended that his third PCR
proceeding violated Anders because Rule 32 did not require the post-conviction
court to independently review the record for error. The state trial court denied
relief.
On appeal, Sanchez reiterated his Anders challenge to his third PCR
proceeding. He additionally moved to supplement his petition for review and
argued that both his first and second PCR proceedings also violated Anders. The
state appellate court rejected his Anders challenge to his third PCR proceeding,
reasoning that it had previously “determined Anders review is not required for
pleading defendants” in State v. Chavez, 407 P.3d 85 (Ariz. Ct. App. 2017)
(Chavez I)). The court did not, however, expressly address his Anders challenge to
his first and second PCR proceedings.
Sanchez sought federal habeas relief in the district court, contending that the
state trial court did not comply with Anders in his first PCR proceeding. The
district court concluded that the Arizona appellate court erred in rejecting
Sanchez’s claim because of-right PCR petitions are the “functional equivalent of
first appeals as of right, a federal constitutional right to counsel exists during such
proceedings, and Anders safeguards are required.” The district court granted a
conditional writ ordering Sanchez’s release unless he was permitted to file a new
3 PCR proceeding. Sanchez moved to convert the conditional writ to an
unconditional writ on the theory that the state had a duty to initiate his PCR
proceeding. The district court denied his motion. Sanchez appealed the district
court’s order denying the motion to convert, and Shinn appealed the order granting
conditional habeas relief.
We review a district court’s grant or denial of a petition for writ of habeas
corpus de novo. Jones v. Taylor, 763 F.3d 1242, 1245 (9th Cir. 2014).
1. Shinn argues that Sanchez did not exhaust his Anders claim. But we
conclude that Sanchez exhausted that claim by presenting it to the Arizona Court
of Appeals, where he cited “federal or state case law”—Anders—“that engages in a
federal constitutional analysis.” Fields v. Waddington, 401 F.3d 1018, 1021 (9th
Cir. 2005).
Shinn further argues that Sanchez’s Anders claim is procedurally defaulted
because the state appellate court concluded that “Sanchez has not identified any
claim raisable in this untimely and successive proceeding.” Because the state court
did not expressly base its Anders holding on a procedural rule, we construe it “as
acting on the merits of [the] claim.” Chambers v. McDaniel, 549 F.3d 1191, 1197
(9th Cir. 2008); see also Harris v. Reed, 489 U.S. 255, 263 (1989) (highlighting
that a state court must “clearly and expressly state that its judgment rests on a state
4 procedural bar”) (cleaned up). Thus, there is no procedural bar to our reaching
Sanchez’s Anders claim.
2. Although the state appellate court did not expressly address Sanchez’s
Anders claim as it applied to his first and second PCR proceedings and instead
limited its discussion to his Anders challenge to his third PCR proceeding, we
“presume that the [former] claim was adjudicated on the merits.” Johnson v.
Williams, 568 U.S. 289, 301 (2013). Although “that presumption can in some
limited circumstances be rebutted,” id., we do not think it has been rebutted here.
Sanchez presented two similar Anders claims to the state appellate court, and “[t]he
possibility that the [state appellate court] had simply overlooked [Sanchez’s other
Anders claims]” was not raised by either party. Id. at 306. Moreover, “the fact that
[Sanchez’s three Anders] claims are so similar makes it unlikely that the [state
appellate court] decided one while overlooking the other[s].” Id. at 305.
3. The district court erred in concluding that the state appellate court ruled
that Anders does not apply in PCR proceedings. The state appellate court followed
Chavez I, which we held “correctly found Anders applies to of-right PCR
proceedings.” Chavez v. Brnovich, 42 F.4th 1091, 1099 (9th Cir. 2022) (Chavez II).
The district court further erred in not giving the required deference to the
state appellate court decision under the Antiterrorism and Effective Death Penalty
Act of 1996. See 28 U.S.C. § 2254
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 8 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
MICHAEL ISIDORO SANCHEZ, No. 21-15632
Petitioner-Appellee, D.C. No. 4:17-cv-00224-RM
v. MEMORANDUM* DAVID SHINN, Director of the Arizona Department of Corrections; ATTORNEY GENERAL FOR THE STATE OF ARIZONA,
Respondents-Appellants.
MICHAEL ISIDORO SANCHEZ, No. 21-16940
Petitioner-Appellant, D.C. No. 4:17-cv-00224-RM
v.
DAVID SHINN, Director, Director of the Arizona Department of Corrections; ATTORNEY GENERAL FOR THE STATE OF ARIZONA,
Respondents-Appellees.
Appeal from the United States District Court for the District of Arizona Rosemary Márquez, District Judge, Presiding
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Argued and Submitted April 18, 2023 Phoenix, Arizona
Before: OWENS and BADE, Circuit Judges, and BAKER,** International Trade Judge.
In this habeas action, David Shinn, in his capacity as the Director of the
Arizona Department of Corrections, timely appeals the district court’s order
holding that the state’s post-conviction relief (PCR) procedures for pleading
defendants are unconstitutional under Anders v. California, 386 U.S. 738 (1967).
Michael Sanchez timely cross-appeals the denial of his motion seeking immediate
release. We have jurisdiction under 28 U.S.C. §§ 1291 and 2253(a).
In state trial court, Sanchez pleaded guilty to one count of sexual contact
with a minor and one count of attempted sexual contact with a minor. The court
accepted his plea and sentenced him to prison accordingly. After his guilty plea
and conviction, Sanchez filed three separate PCR proceedings under Arizona Rule
of Criminal Procedure 32.4. In each of these proceedings, the court appointed
separate PCR counsel, and each appointed counsel found that there were no
colorable claims for relief and then remained in an advisory capacity only. In the
first and second PCR proceedings, Sanchez filed a pro se petition. The state trial
and appellate courts rejected his claims. In his third PCR proceeding, rather than
** The Honorable M. Miller Baker, Judge for the United States Court of International Trade, sitting by designation.
2 filing a pro se petition, Sanchez moved for appointment of new PCR counsel and
raised an Anders argument for the first time. He contended that his third PCR
proceeding violated Anders because Rule 32 did not require the post-conviction
court to independently review the record for error. The state trial court denied
relief.
On appeal, Sanchez reiterated his Anders challenge to his third PCR
proceeding. He additionally moved to supplement his petition for review and
argued that both his first and second PCR proceedings also violated Anders. The
state appellate court rejected his Anders challenge to his third PCR proceeding,
reasoning that it had previously “determined Anders review is not required for
pleading defendants” in State v. Chavez, 407 P.3d 85 (Ariz. Ct. App. 2017)
(Chavez I)). The court did not, however, expressly address his Anders challenge to
his first and second PCR proceedings.
Sanchez sought federal habeas relief in the district court, contending that the
state trial court did not comply with Anders in his first PCR proceeding. The
district court concluded that the Arizona appellate court erred in rejecting
Sanchez’s claim because of-right PCR petitions are the “functional equivalent of
first appeals as of right, a federal constitutional right to counsel exists during such
proceedings, and Anders safeguards are required.” The district court granted a
conditional writ ordering Sanchez’s release unless he was permitted to file a new
3 PCR proceeding. Sanchez moved to convert the conditional writ to an
unconditional writ on the theory that the state had a duty to initiate his PCR
proceeding. The district court denied his motion. Sanchez appealed the district
court’s order denying the motion to convert, and Shinn appealed the order granting
conditional habeas relief.
We review a district court’s grant or denial of a petition for writ of habeas
corpus de novo. Jones v. Taylor, 763 F.3d 1242, 1245 (9th Cir. 2014).
1. Shinn argues that Sanchez did not exhaust his Anders claim. But we
conclude that Sanchez exhausted that claim by presenting it to the Arizona Court
of Appeals, where he cited “federal or state case law”—Anders—“that engages in a
federal constitutional analysis.” Fields v. Waddington, 401 F.3d 1018, 1021 (9th
Cir. 2005).
Shinn further argues that Sanchez’s Anders claim is procedurally defaulted
because the state appellate court concluded that “Sanchez has not identified any
claim raisable in this untimely and successive proceeding.” Because the state court
did not expressly base its Anders holding on a procedural rule, we construe it “as
acting on the merits of [the] claim.” Chambers v. McDaniel, 549 F.3d 1191, 1197
(9th Cir. 2008); see also Harris v. Reed, 489 U.S. 255, 263 (1989) (highlighting
that a state court must “clearly and expressly state that its judgment rests on a state
4 procedural bar”) (cleaned up). Thus, there is no procedural bar to our reaching
Sanchez’s Anders claim.
2. Although the state appellate court did not expressly address Sanchez’s
Anders claim as it applied to his first and second PCR proceedings and instead
limited its discussion to his Anders challenge to his third PCR proceeding, we
“presume that the [former] claim was adjudicated on the merits.” Johnson v.
Williams, 568 U.S. 289, 301 (2013). Although “that presumption can in some
limited circumstances be rebutted,” id., we do not think it has been rebutted here.
Sanchez presented two similar Anders claims to the state appellate court, and “[t]he
possibility that the [state appellate court] had simply overlooked [Sanchez’s other
Anders claims]” was not raised by either party. Id. at 306. Moreover, “the fact that
[Sanchez’s three Anders] claims are so similar makes it unlikely that the [state
appellate court] decided one while overlooking the other[s].” Id. at 305.
3. The district court erred in concluding that the state appellate court ruled
that Anders does not apply in PCR proceedings. The state appellate court followed
Chavez I, which we held “correctly found Anders applies to of-right PCR
proceedings.” Chavez v. Brnovich, 42 F.4th 1091, 1099 (9th Cir. 2022) (Chavez II).
The district court further erred in not giving the required deference to the
state appellate court decision under the Antiterrorism and Effective Death Penalty
Act of 1996. See 28 U.S.C. § 2254(d)(1) (providing that habeas relief may not be
5 granted to applicants detained under state law unless the state court’s merits
determination “resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as determined by the
Supreme Court of the United States . . . .”). In Chavez II, the defendant similarly
brought an Anders claim after filing a Rule 32 PCR petition. We held that Chavez I
“did not unreasonably apply clearly established federal law, as it could have
reasonably determined that Arizona’s of-right PCR procedure satisfied Anders and
its progeny.” 42 F.4th at 1103. Because the state appellate court here followed
Chavez I, we follow Chavez II and hold that the state appellate court could have
reasonably determined that “Arizona’s of-right PCR procedure satisfied Anders
and its progeny.” Id.
For these reasons, we reverse the district court’s grant of conditional habeas
relief. We also dismiss Sanchez’s cross-appeal as moot.1
In No. 21-15632, REVERSED. In No. 21-16940, DISMISSED as MOOT.
1 We grant Sanchez’s motion (Dkt. No. 24) to take judicial notice of amendments related to Rule 32, and we deny Shinn’s motion (Dkt. No. 34-1) to supplement the record as moot.