Desposito v. Ryan et al

Filing 22

ORDER ACCEPTING REPORT AND RECOMMENDATION 20 and the Petition for Habeas Corpus is DISMISSED WITH PREJUDICE. The request for an evidentiary hearing at Docket 19 is DENIED. IT IS FURTHER ORDERED that a certificate of appealability will not be iss ued by this Court. Desposito has not made the requisite "substantial showing of the denial of a constitutional right" required by 28 U.S.C. §2253(c)(2). Any request for a certificate of appealability must be addressed to the Court of Appeals. (See document for further details). Signed by Judge Sharon L Gleason on 6/19/14. (LAD)

IN THE UNITED STATES DISTRICT COURT
DISTRICT OF ARIZONA

Thomas Walter Desposito,
Petitioner,
v.
Charles L. Ryan et al.,
Case No. 2:13-cv-00623-PHX-SLG (MHB)
Respondents.
ORDER DISMISSING PETITION FOR HABEAS CORPUS
Before the Court is the Petition for Writ of Habeas Corpus (“Petition”), filed
pursuant to 28 U.S.C. § 2254, by petitioner Thomas Walter Desposito. 1 On August 15,
2013, Respondents filed their response (“Limited Answer”). 2 On September 3, 2013,
Desposito filed a traverse. 3 Desposito also filed a request for an evidentiary hearing. 4
On December 20, 2013, Magistrate Judge Michelle H. Burns issued a Report and
Recommendation (“R&R”), recommending that the Petition be dismissed with prejudice,

1

Docket 1 (Pet.); Docket 3 (Supp. Br.). In some documents, Desposito has spelled his name
“D’Esposito.” The Court uses the spelling in the case caption and petition—Desposito.
2

Docket 15 (Limited Answer).

3

Docket 18 (Traverse).

4

Docket 19 (Request for Evid. Hr’g).

that the request for evidentiary hearing be denied, and that a certificate of appealability
be denied. 5 On January 2, 2014, Desposito filed objections to the R&R. 6
For the following reasons, the Court will accept the Magistrate Judge’s
recommendations, and accordingly will dismiss the Petition with prejudice, deny the
request for an evidentiary hearing, and deny a certificate of appealability.
FACTUAL AND PROCEDURAL BACKGROUND
On December 11, 2007, a jury in the Superior Court of Arizona convicted
Desposito of thirteen drug-related felonies. 7 He was sentenced to between 3.75 years
and 15.75 years on each of the various counts, all to be served concurrently. 8
Desposito filed a timely notice of appeal. 9

Desposito’s appointed appellate

counsel then advised the Arizona Court of Appeals that she was unable to discover any
arguable questions of law and requested that the court review the record. 10 Desposito
then filed a supplemental brief in propria persona raising two issues: (1) evidence
referencing his prior incarceration was improperly admitted under Arizona Rule of
Evidence 403; and (2) attorneys for the State were involved with jurors outside the
courtroom in violation of Arizona Rule of Criminal Procedure 19.4. 11 On August 11,
5

Docket 20 (R&R).

6

Docket 21 (R&R Objections).

7

Docket 15-1 at 25-27 (Ex. A: Superior Ct. of Ariz. Trial Minutes); Docket 15-1 at 39-51 (Ex. C:
Verdicts).
8

Docket 15-2 at 5-6 (Ex. E: Sentence of Imprisonment).

9

See Docket 15-2 at 12-13 (Ex. F: Notice of Appeal from Superior Ct.).

10

See Docket 15-2 at 16 (Ex. G: Ariz. Ct. of Appeals Order).

11

See Docket 15-2 at 18 (Ex. G: Ariz. Ct. of Appeals Order).

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2009, the Arizona Court of Appeals affirmed Desposito’s convictions, finding “no error
with respect to either of [Desposito]’s arguments.”12

The Arizona Supreme Court

denied Desposito’s petition for review. 13
On September 9, 2009, Desposito filed a timely Notice of Post-Conviction Relief
(“PCR”), as well as a Petition for PCR in the Superior Court of Arizona. 14 On the
standardized PCR form, Desposito checked a box asserting that he raised “[t]he
abridgement of any other right guaranteed by the constitution or laws of [Arizona], or the
constitution of the United States,” and more specifically asserted several grounds for
PCR relief, titled Affidavit Exhibits 1 through 4, which can be summarized as follows:
•

Affidavit Exhibit 1: Evidence obtained through surveillance and a
warrantless search of a vehicle was “a clear violation of the
defendant’s IV Amendment constitutional right.” 15

•

Affidavit Exhibit 2: Defendant’s trial counsel provided ineffective
assistance. For example, he advised Desposito not to testify and had
incorrect transcripts of telephone calls. 16

•

Affidavit Exhibit 3: The State presented the perjured testimony of
witness Donna Gribben at trial. 17

•

Affidavit Exhibit 4: The trial court denied Desposito “any other right
guaranteed by the constitution or the laws of this state or the

12

Docket 15-2 at 15-19 (Ex. G: Ariz. Ct. of Appeals Order).

13

See Docket 15-2 at 36-37 (Ex. J: Ariz. Ct. of Appeals Order and Mandate).

14

See Docket 15-2 at 21-23 (Ex. H: Notice of PCR); Docket 15-2 at 25-34 (Ex. I: Pet. for PCR).

15

Docket 15-2 at 29-30 (Ex. I: Pet. for PCR).

16

Docket 15-2 at 31, 34 (Ex. I: Pet. for PCR).

17

Docket 15-2 at 32 (Ex. I: Pet. for PCR).

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constitution of the United States,” including unconstitutionally denying
defense counsel’s request to recall witness Gribben. 18
On November 24, 2009, the Superior Court of Arizona appointed PCR counsel. 19 On
July 29, 2010, the appointed PCR counsel filed a Notice of Completion of PostConviction Review, which apprised the Court that she had reviewed the record and
concluded that she was “unable to find any claims for relief to raise in post-conviction
relief proceedings.” She requested an extension of time to permit Desposito to file a pro
per brief. 20
On August 30, 2010, the court received Desposito’s pro per brief on another
Petition for PCR form. 21 Again, Desposito checked boxes on the form petition that
asserted that he was eligible for relief because of the “introduction at trial of evidence
obtained by an unconstitutional search and seizure” and “[t]he abridgement of any other
right guaranteed by the constitution or laws of [Arizona], or the constitution of the United
States.” 22 Desposito’s brief raised two primary issues, which he summarized in his
concluding paragraphs as follows:
•

Issue 1: “Petitioner[’]s counsel was ineffective for failing to conduct a
reasonable pre-trial investigation. This violated the petitioner[’]s right to
counsel, as guaranteed by Amendments 6 & 14 to the U.S. Constitution.
See: Wiggins vs. Smith, 123 S.Ct. 2527 (2003).” 23

18

Docket 15-2 at 33 (Ex. I: Pet. for PCR).

19

Docket 15-2 at 39-40 (Ex. K: Rule 32 PCR Order).

20

Docket 15-2 at 42-44 (Ex. L: Notice of Completion of Post-Conviction Review by Counsel).

21

See Docket 15-2 at 46-63 (Ex. M: Pet. for PCR).

22

Docket 15-2 at 46-47 (Ex. M: Pet. for PCR).

23

Docket 15-2 at 56 ¶ 16 (Ex. M: Pet. for PCR).

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•

Issue 2: Petitioner’s counsel was ineffective by virtue of his post-trial criminal
conviction and admission to drug addiction. 24

The State responded to the motion and Desposito replied. 25 Both parties’ briefing cited
to state and federal cases.
On February 11, 2011, the Superior Court of Arizona entered an order
dismissing the petition, which concluded that the claim of ineffective assistance of
counsel should have been raised on direct appeal, rather than on PCR. 26

This

conclusion was erroneous, because under Arizona law, an ineffective assistance of
counsel claim cannot be raised until PCR proceedings, and not on direct appeal. 27 The
court also held that Desposito’s petition failed on the merits because “[t]he only specific
area that [Desposito] cites as an instance where counsel was ineffective was counsel’s
failure to investigate and file a motion to suppress as to wiretap evidence,” but
Desposito “provided no assertion or facts” to support such an argument. 28 The Superior
Court noted that “none of the counsel for the codefendants in the case filed a motion to
suppress” that same evidence. And the court found nothing in the record to indicate
that trial counsel’s drug use provided a basis for relief. The trial court’s decision cited

24

Docket 15-2 at 57-58 (Ex. M: Pet. for PCR).

25

See Docket 15-3 at 2-19 (Ex. N: State’s Resp. to Def.’s Pet. for PCR); Docket 15-3 at 21-31
(Ex. O: Pet’r Reply to State’s Resp. on Pet. for PCR).
26

Docket 15-3 at 33-34 (Ex. P: Superior Ct. of Ariz. Minute Entry).

27

See Docket 15-4 at 44-45 (Ex. BB: Order re: Pet. for Review).

28

Docket 15-3 at 33-34 (Ex. P: Superior Ct. of Ariz. Minute Entry).

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neither federal nor Arizona cases, only Arizona Rules of Criminal Procedure. 29
Desposito moved for reconsideration, which the court denied. 30
On April 25, 2011, Desposito filed a petition for review of the trial court’s denial of
the PCR petition with the Arizona Court of Appeals. 31 The petition asserted that the trial
court erred by finding that Desposito was adequately represented at trial “even though”
his trial counsel was disbarred, suffered from drug addiction and clinical depression,
and had failed to file a “standard motion to suppress.” The petition referenced the Rule
32 briefing that Desposito had filed with the trial court and stated “[t]he court has all the
Rule 32 Post-Conviction Relief briefs and arguments, please find it in your hearts to
grant a review.” 32 The petition did not make any further legal argument.
Desposito then filed a motion with the trial court seeking leave to file an amended
PCR petition with that court and stay the proceedings in the appellate courts. The
Superior Court denied the motion because it lacked authority over the appellate
courts. 33 Desposito also filed a motion with the Arizona Supreme Court seeking to stay
the appeal. The motion asserted:
[T]o properly exhaust a habeas claim you must federalize and mention or
preserve the claim in the intermediate state court of appeal and then in the
29

See Docket 15-3 at 33-34 (Ex. P: Superior Ct. of Ariz. Minute Entry).

30

Docket 15-3 at 36-42 (Ex. Q: Mot. to Recons. Rule 32 PCR); Docket 15-3 at 44 (Ex. R:
Superior Ct. of Ariz. Minute Entry).
31

Docket 15-3 at 46-51 (Ex. S: Pet. for Review of Rule 32 PCR).

32

Docket 15-3 at 48 (Ex. S: Pet. for Review of Rule 32 PCR).

33

Docket 15-4 at 2-12 (Ex. T: Mot. for Leave of the Superior Ct. to File an Am. Appeal While
Appeal is Stayed in Supreme Ct.); Docket 15-4 at 14 (Ex. U: Superior Ct. of Ariz. Minute Entry).
Desposito’s motion cites two federal cases discussing confrontation rights. See Docket 15-4 at
7 (citing Davis v. Alaska, 415 U.S. 308 (1974); Washington v. Texas, 388 U.S. 14 (1967)).

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state[’]s highest appellate court, for complete exhaustion. The petitioner is
trying not to wind up in federal court with a petition that has been
determined to contain an unexhausted claim. 34
On May 17, 2011, the Supreme Court denied the motion because Desposito’s petition
for review was then pending before the Arizona Court of Appeals. 35 On or about June
10, 2011, the Arizona Supreme Court forwarded the motion and its order to the Arizona
Court of Appeals. 36 On June 14, 2011, the Court of Appeals denied the “Request for
Stay and Abeyance” because Desposito had “timely filed a petition for review” that was
then pending in the Court of Appeals and Desposito had failed to demonstrate sufficient
cause for a stay. 37 On June 21, 2011, Desposito filed an objection to the Court of
Appeals’ order on motion to stay, which the court treated as a motion for
reconsideration and denied. 38
On February 26, 2013, the Arizona Court of Appeals entered an order denying
Desposito’s petition for review. 39 The court held that “[t]he trial court erred when it
found the ineffective assistance of counsel claims were precluded because the claims
could have been raised on direct appeal”; instead, those claims cannot be raised until
PCR proceedings. But the court also concluded on the merits that the PCR petition

34

Docket 15-4 at 16-31 (Ex. V: Mot. for Leave of the Supreme Ct. to Stay the Appeal Until
Exhaustion of all Constitutional Claims in the Inferior State Ct. or (Stay and Abeyance)).
35

Docket 15-4 at 33 (Ex. W: Ariz. Supreme Ct. Order).

36

See Docket 15-4 at 35 (Ex. X: Ariz. Supreme Ct. Order).

37

Docket 15-4 at 37 (Ex. Y: Ct. of Appeals Order).

38

Docket 15-4 at 39 (Ex. Z: Objection to Ct. of Appeals Order); Docket 15-4 at 42 (Ex. AA: Ct.
of Appeals Order).
39

Docket 15-4 at 44-45 (Ex. BB: Order re: Pet. for Review).

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would have been properly denied “because the claims were not colorable.” The court
specifically rejected the ineffective assistance of counsel claim based upon defense
counsel’s drug use because Desposito had failed to demonstrate that he was deprived
of his right to effective assistance of counsel due to the drug use. The court also
rejected Desposito’s claim based upon counsel’s failure to file a motion to suppress
because Desposito “did not show that a motion to suppress likely would have been
granted.” 40 The decision cites Arizona law only; it cites no federal law.
Shortly thereafter, on March 27, 2013, Desposito filed the instant Petition raising
three grounds for federal habeas relief: (1) ineffective assistance of trial counsel
because counsel “fail[ed] to conduct a reasonable pre-trial investigation” in violation of
Desposito’s Sixth and Fourteenth Amendment rights; 41 (2) use of illegally obtained
evidence in violation of Desposito’s Fourth Amendment rights; 42 and (3) restriction of
defense counsel’s ability to cross-examine a key prosecution witness at trial in violation
of Desposito’s Fifth Amendment rights and Davis v. Alaska. 43
Respondents filed a Limited Answer, asserting that the Petition was untimely
under the Anti-Terrorism and Effective Death Penalty Act (“AEDPA”). Respondents
also asserted that Desposito had failed to exhaust these federal claims in the state

40

Docket 15-4 at 44-45 (Ex. BB: Order re: Pet. for Review).

41

Docket 1 at 7 (Pet.).

42

Docket 1 at 6 (Pet.).

43

Docket 1 at 8 (Pet.) (citing Davis v. Alaska, 415 U.S. 308 (1974)).

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courts, and that because those claims would now be time barred in Arizona state court,
they are procedurally defaulted. 44 Desposito filed a traverse. 45
The Magistrate Judge issued an R&R concluding as follows:
Petitioner’s habeas claims are procedurally defaulted.
The record
demonstrates that [Desposito] failed to fairly present his habeas claims on
direct appeal or collateral review. Rather, [Desposito]’s claims are
presented for the first time on federal plenary review. Consequently,
these claims are not exhausted because they were not fully and fairly
presented to state courts. . . . [Desposito]’s failure to fairly present
Grounds One through Three [of the Petition] has resulted in procedural
default because [Desposito] is now barred from returning to the state
courts.” 46
The R&R further concludes that Desposito had “not established that any exception to
procedural default applies.” The R&R considers only the claims raised in Desposito’s
August 2010 PCR petition. It finds that the claims raised in Desposito’s September
2009 PCR petition were not included in his August 2010 PCR petition and thus
Desposito had not exhausted them. 47
The R&R also recommends that the Court deny Desposito’s request for an
evidentiary hearing and a certificate of appealability.
Desposito filed objections to the R&R requesting that all of his claims be
reviewed. 48 His specific objections can be summarized as follows:
44

Docket 15 (Limited Answer).

45

Docket 18 (Traverse).

46

Docket 20 at 10-11 (R&R) (internal citation omitted).

47

Docket 20 at 11, n.4 (R&R) (citing Swoopes v. Sublett, 196 F.3d 1008, 1010 (9th Cir. 1999)).
Swoopes affirmed a district court conclusion that claims raised in a Rule 32 petition and
appealed to the Arizona Court of Appeals need not be appealed to the Arizona Supreme Court
in non-capital and non-life sentences. Id. at 1009.

48

Docket 21 at 2 (R&R Objections).

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1. Desposito objects to the R&R’s recommendation to deny a certificate of
appealability. 49
2. Desposito reasserts that the trial court’s actions which “kept the lead witness
from being cross-examined for impeachment purposes” were unconstitutional.
3. Desposito reasserts that his trial counsel was ineffective because he “was a
methamphetamine user that was clinically depressed,” which resulted in his
failure to cross-examine a witness or file a motion to suppress evidence that
was seized through an illegal search and seizure. 50 Desposito notes that the
Superior Court of Arizona found relevant to its ineffective assistance analysis
that Desposito’s co-defendants never filed a motion to suppress. Desposito
asserts that the fact that the other attorneys elected not to file motions to
suppress is not instructive because “they all pleaded out” and “a motion to
suppress is only used in a trial setting.” 51
4. Desposito asserts that he “fairly presented his claims to the state according[]
to the best of his ability,” particularly given that “all Arizona State Prisons have
removed all legal books and or reference materials from all the prisons.” 52
STANDARD OF REVIEW
Under 28 U.S.C. § 636(b)(1), a court “may accept, reject, or modify, in whole or
in part, the findings or recommendations made by the magistrate judge.” 53 However, a
court must only “make a de novo determination of those portions of the [magistrate
judge’s] report or specified proposed findings or recommendations to which objection is
made.” 54 A court may issue a certificate of appealability “only if the applicant has made
a substantial showing of the denial of a constitutional right.” 55

49

Docket 21 at 3 (R&R Objections).

50

Docket 21 at 4-5 (R&R Objections).

51

Docket 21 at 5 (R&R Objections).

52

Docket 21 at 6 (R&R Objections).

53

28 U.S.C. § 636(b)(1).

54

Id.; see also Thomas v. Arn, 474 U.S. 140, 150 (1985) (“It does not appear that Congress
intended to require district court review of a magistrate’s factual or legal conclusions, under a de
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DISCUSSION
I. Desposito’s Objections.
The Petition raises three grounds for federal habeas relief. The R&R concludes
that each claim was unexhausted and is now procedurally defaulted. 56 Read broadly,
Desposito’s objections encompass the entirety of the Magistrate Judge’s R&R.
A. All of Desposito’s claims have been procedurally defaulted.
Desposito’s first claim alleges ineffective assistance of trial counsel. His second
and third claims—alleging that the trial court permitted consideration of illegally obtained
evidence and that defense counsel failed to cross-examine a key witness—appear to be
closely related to the claim of ineffective assistance of counsel.
1. Legal Standards Concerning Exhaustion and Procedural Default.
A state prisoner must exhaust his remedies in state court before petitioning the
federal court for a writ of habeas corpus. 57 The exhaustion requirement is a rule of

novo or any other standard, when neither party objects to those findings.”); United States v.
Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (“Neither the Constitution nor the statute
requires a district judge to review, de novo, findings and recommendations that the parties
themselves accept as correct.”).
55

28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 484 (2000).

56

Docket 20 at 10-11 (R&R). Respondents’ Limited Answer asserts that Desposito’s petition is
untimely under AEDPA’s one-year statute of limitations. Docket 15 at 8-11 (Limited Answer); 28
U.S.C. § 2244(d)(1)(A). Desposito does not respond to this argument, and the R&R does not
address it. On June 14, 2011, in the course of denying Desposito’s “Request for Stay and
Abeyance,” the Arizona Court of Appeals stated that Desposito had “timely filed a petition for
review in th[e]” Arizona Court of Appeals. Docket 15-4 at 37 (Ex. Y: Ct. of Appeals Order).
Since the state court specifically informed Desposito that his petition was timely filed, the Court
will consider AEDPA to have been effectively tolled. Cf. Evans v. Chavis, 546 U.S. 189, 198
(2006) (addressing California’s “reasonable time” deadline for filing a habeas petition, and
holding “[i]n the absence of . . . clear indication that a particular request for appellate review was
timely or untimely, the Circuit must itself examine the delay in each case and determine what
the state courts would have held in respect to timeliness”).
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comity that “reduces friction between the state and federal court systems by avoiding
the unseemliness of a federal district court’s overturning a state court conviction without
the state courts having had an opportunity to correct the constitutional violation in the
first instance.” 58
“Proper exhaustion requires a petitioner to have ‘fairly presented’ to the state
courts the exact federal claim he raises on habeas by describing the operative facts and
federal legal theory upon which the claim is based.” 59 To make a fair presentation, a
petitioner must plead his federal claims with considerable specificity to the state
courts. 60

A federal claim is not exhausted merely because its factual basis was

presented to the state courts on state law grounds—that is, a “mere similarity between a
claim of state and federal error is insufficient to establish exhaustion.” 61 Thus, even if a
claim would have been decided based on the same considerations under state or
federal law, a petitioner must still explicitly present the federal claim to the state court. 62

57

28 U.S.C. § 2254(b)(1) and (c).

58

O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999) (internal quotation, citation, and brackets
omitted).
59

Docket 20 at 6 (R&R) (citing Picard v. Connor, 404 U.S. 270, 275-78 (1971)).

60

See Rose v. Palmateer, 395 F.3d 1108, 1111 (9th Cir. 2005).

61

Docket 20 at 6 (R&R) (quoting Shumway v. Payne, 223 F.3d 982, 987 (9th Cir. 2000)).

62

See Docket 20 at 6 (citing Lyons v. Crawford, 232 F.3d 666, 668 (9th Cir. 2000), amended by
247 F.3d 904 (9th Cir. 2001)). See also Serpa v. Ryan, No. CV-13-00890-PHX-NVW (JFM),
2014 WL 217821, at *9 (D. Ariz. Jan. 21, 2014) (“Arizona right to effective counsel is not
equivalent to the federal right.”); McClure v. Tucker, No. CV-05-2132-PCT-JAT (JI), 2006 WL
4468894, at *6 (D. Ariz. July 17, 2006) (Although “Arizona’s standards for ineffective assistance
of counsel parallel those adopted by the U.S. Supreme Court in Strickland v. Washington, 446
U.S. 668 (1984) . . . the burden of proving that the state and federal claims are identical is on
the habeas petitioner . . . and Petitioner offers nothing to show that the Arizona Courts have

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“[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.” 63
This full and fair presentation of the federal claim and the applicable facts must
be given throughout one full state process, including to the highest required state
court. 64

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.” 65 The petitioner is not required to raise the claim on both direct appeal and through
a petition for PCR. And “in cases not carrying a life sentence or the death penalty,
review need not be sought before the Arizona Supreme Court in order to exhaust state
remedies”—but a petitioner must fairly present his claims to the Arizona Court of
Appeals. 66
Courts generally dismiss without prejudice unexhausted claims or stay the
federal action to permit exhaustion, 67 but where “a federal constitutional claim can no
longer be raised because of a failure to follow the prescribed procedure for presenting

found a state ineffective assistance claim to be identical to a federal ineffective assistance
claim”).
63

Baldwin v. Reese, 541 U.S. 27, 32 (2004).

64

O’Sullivan, 526 U.S. 845-58.

65

Roettgen v. Copeland, 33 F.3d 36, 38 (9th Cir. 1994).

66

See Swoopes, 196 F.3d at 1010.

67

Cf. Rhines v. Weber, 544 U.S. 269 (2005).

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such an issue, . . . the claim is procedurally barred and the petition must be denied.”68
This dismissal would be with prejudice.

Arizona Rule of Criminal Procedure 32.4

requires that petitions for PCR (other than those filed “of-right”) be filed, with limited
exceptions, “within ninety days after the entry of judgment and sentence or within thirty
days after the issuance of the order and mandate in the direct appeal, whichever is the
later.” 69
2. Application of Legal Standards Concerning Exhaustion.
As explained in the R&R, because of the exhaustion doctrine, the federal court is
to only address the federal claims that were raised before both the Superior Court of
Arizona and the Arizona Court of Appeals.
As discussed supra, in Desposito’s August 2010 PCR Petition—his pro per
brief—he checked the box on the form petition that alleged violations including
“introduction at trial of evidence obtained by an unconstitutional search and seizure” and
“[t]he abridgement of any other right guaranteed by the constitution or laws of [Arizona],
or the constitution of the United States.” 70 More specifically, Desposito’s pro per brief to
the trial court asserted that he had suffered violations of the Sixth and Fourteenth
Amendments of the U.S. Constitution and cited Wiggins vs. Smith, 123 S.Ct. 2527
(2003) and other federal ineffective assistance of counsel cases. 71 Desposito’s trial
court brief also asserted, citing Arizona’s definition of unprofessional conduct, that his
68

Johnson v. Lewis, 929 F.2d 460, 463 (9th Cir. 1991).

69

See Serpa, 2014 WL 217821, at *7-8 (analyzing law and exceptions to Rule 32.4).

70

Docket 15-2 at 46-47 (Ex. M: Pet. for PCR).

71

Docket 15-2 at 56 ¶ 16 (Ex. M: Pet. for PCR).

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counsel was ineffective due to counsel’s post-trial criminal conviction and admission to
drug addiction. 72

The State’s response to the petition filed in the Superior Court

analyzed both state and federal law. 73 Although the Superior Court’s decision cites
neither state nor federal case law, 74 Desposito adequately raised a federal claim before
the Superior Court alleging ineffective assistance of counsel and violations of his Fourth
Amendment right against unreasonable search and seizure.
In April 2011, Desposito filed a petition for review of the trial court’s denial of the
PCR petition with the Arizona Court of Appeals. 75

This petition again asserted

ineffective assistance of counsel, but does not raise a federal claim of ineffective
assistance of counsel. The petition cites no case law whatsoever. Rather, Desposito’s
April 2011 petition to the Arizona Court of Appeals simply referenced his trial court
briefing, stating that “[t]he court has all the Rule 32 Post-Conviction Relief briefs and
arguments, please find it in your hearts to grant review.” 76 Desposito’s reference to his
trial court briefing was inadequate to alert the Arizona Court of Appeals of his intention
to bring a federal ineffective assistance of counsel claim. 77 A reference to lower court
briefing does not fairly present the federal claim and alert the Arizona Court of Appeals

72

Docket 15-2 at 57-58 (Ex. M: Pet. for PCR) (citing Ariz. Sup. Ct. R.31 (a)(2)(E)).

73

See Docket 15-3 at 2-19 (Ex. N: State’s Resp. to Def.’s Pet. for PCR).

74

See Docket 15-3 at 33-34 (Ex. P: Superior Ct. of Ariz. Minute Entry).

75

Docket 15-3 at 46 (Ex. S: Pet. for Review of Rule 32 PCR).

76

Docket 15-3 at 46 (Ex. S: Pet. for Review of Rule 32 PCR).

77

See Baldwin, 541 U.S. at 32; Lyons, 232 F.3d at 668; Picard, 404 U.S. at 275-78; Shumway,
223 F.3d at 987; Rose, 395 F.3d at 1111; Serpa, 2014 WL 217821, at *9; McClure, 2006 WL
4468894, at *6;.
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to the presence of a federal claim. The Arizona Court of Appeals is not required nor
expected to search the record in this manner. 78

Desposito also noted a desire to

exhaust his federal claims in his motion to stay that he filed in the Arizona Supreme
Court. 79 And while the Supreme Court motion may have been forwarded to the Court of
Appeals, the Court of Appeals is also not required to consider a forwarded motion to
stay to search for federal claims. 80 Accordingly, Desposito failed to adequately exhaust
his federal claim for ineffective assistance of counsel in the state court. And the Court
accepts the R&R’s recommendation that “[a]lthough a procedural default may be
overcome upon a showing of cause and prejudice or a fundamental miscarriage of
justice, . . . [Desposito] has not established that any exception to procedural default
applies.”81
Desposito’s federal ineffective assistance of counsel claim cannot now be
pursued in the Arizona state courts because it is untimely.

Accordingly, this Court

accepts the R&R’s recommendation that Desposito’s federal claim for ineffective
assistance of counsel—which is his first habeas claim in this Court, but also underlies
his second and third claims—is procedurally defaulted. 82

78

Baldwin v. Reese, 541 U.S. 27, 32 (2004).

79

Docket 15-4 at 16-19 (Ex. V: Mot. for Leave of the Supreme Ct. to Stay the Appeal Until
Exhaustion of all Constitutional Claims in the Inferior State Ct. or (Stay and Abeyance)).
80

See Docket 15-4 at 35 (Ex. X: Ariz. Supreme Ct. Order); cf. Baldwin, 541 U.S. at 32.

81

Docket 20 at 11 (R&R).

82

See Ariz. R. Crim. P. 32.9(c) (providing deadlines for petition for review); Docket 1 at 6-8
(Pet.).

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B. Desposito had the opportunity to litigate his allegations of a Fourth
Amendment violation in state court.
Desposito’s second claim in his habeas Petition asserts that, at trial, the
government relied upon evidence illegally obtained in violation of his Fourth Amendment
rights. In Desposito’s PCR petition to the Superior Court of Arizona and his petition for
review to the Arizona Court of Appeals, he raises counsel’s failure to file a motion to
suppress. 83 And the Court of Appeals addressed defense counsel’s failure to file a
motion to suppress in its PCR decision, explaining that Desposito failed to demonstrate
that a motion to suppress likely would have been granted. 84
Unlike other federal claims, a state prisoner only has a single opportunity to raise
an alleged violation of Fourth Amendment claims: “If the state has provided a state
prisoner an opportunity for full and fair litigation of his Fourth Amendment claim, [the
federal courts] cannot grant federal habeas relief on the Fourth Amendment issue.”85
Desposito’s allegation of a Fourth Amendment violation was litigated in the Arizona
courts, and this Court cannot grant habeas relief on this claim.
C. Desposito’s assertion that he “fairly presented his claims to the state
according[] to the best of his ability” given his lack of access to legal
materials does not rectify his failure to exhaust his federal claims.
Desposito also objects to the R&R by asserting that he presented his claims “to
the best of his ability” particularly given that “all Arizona State Prisons have removed all

83

See Docket 15-2 at 50 (Ex. M: Pet. for PCR); Docket 15-3 at 48 (Ex. S: Pet. for Review of
Rule 32 PCR).

84

Docket 15-4 at 44-45 (Ex. BB: Order re: Pet. for Review).

85

Moormann v. Schriro, 426 F.3d 1044, 1053 (9th Cir. 2005) (citing Stone v. Powell, 428 U.S.
465, 494 (1976)).
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legal books and or reference materials from all the prisons.”86 The Court acknowledges
the difficulties that may be faced by Desposito as a pro se prisoner. And it is clear to
the Court that Desposito dedicated substantial time and effort to his filings.
And yet the United States Supreme Court has “held that the denial of access to a
law library cannot provide a basis for a pro se petitioner’s habeas relief because no
Supreme Court case clearly establishes a pro se petitioner’s constitutional right to law
library access.” 87 Thus, even if Desposito had limited access to a law library, this does
not excuse his failure to exhaust his claims in state court proceedings.
D. The Court will deny a certificate of appealability.
Desposito objects to the R&R, asserting that he has made a “substantial showing
of the denial of a constitutional right,” as required by 28 U.S.C. §2253(c)(2), and that
“reasonable jurists would find the district courts assessments of the constitutional claims
‘debatable or wrong.’” 88 He further asserts that “[w]hen a District Court denies a habeas
petition on procedural grounds without reaching the prisoner’s underlying constitutional
claim, a [certificate of appealability] should be issued.”
There is no rule that requires a court to issue a certificate of appealability where it
denies a habeas petition on procedural grounds. Rather, a court may grant a certificate
of appealability only if the applicant has made “a substantial showing of the denial of a
constitutional right”—that is, a showing that “reasonable jurists could debate whether . .
86

Docket 21 (R&R Objections).

87

Mendoza v. Carey, 449 F.3d 1065, 1069 (9th Cir. 2005) (citing Kane v. Espitia, 546 U.S. 9, 9
(2005)); see also Mays v. Hedgpeth, No. 11-cv-9881-RGK, 2014 WL 794326 (C.D. Cal. Jan. 13,
2014) (analyzing Kane and recent precedent).
88

Docket 21 at 3 (R&R Objections) (quoting Slack, 529 U.S. at 484).

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. the petition should have been resolved in a different manner or that the issues
presented were adequate to deserve encouragement to proceed further.” 89 Desposito
has not made that “substantial showing.”
E. The Court will deny an evidentiary hearing.
The Court accepts the R&R’s recommendation that there are “no disputed issues
of fact warranting an evidentiary hearing.” 90

Accordingly, the Court will deny Mr.

Desposito’s request for an evidentiary hearing.
CONCLUSION
For the foregoing reasons, IT IS HEREBY ORDERED that:
1. The Magistrate Judge’s Recommendation filed December 20, 2013 at
Docket 20 is ACCEPTED for the reasons set forth herein, and the
Petition for Habeas Corpus is DISMISSED WITH PREJUDICE.
2. The request for an evidentiary hearing at Docket 19 is DENIED.
IT IS FURTHER ORDERED that a certificate of appealability will not be issued by
this Court. 91 Desposito has not made the requisite “substantial showing of the denial of
a constitutional right” required by 28 U.S.C. §2253(c)(2). Any request for a certificate of
appealability must be addressed to the Court of Appeals. 92
DATED this 19th day of June 2014.
/s/ Sharon L. Gleason
United States District Judge

89

Slack, 529 U.S. at 484 (internal quotation marks and citations omitted).

90

Docket 20 at 11 (R&R).

91

28 U.S.C. § 2253(c)(2); Slack, 529 U.S. at 484.

92

Fed. R. App. P. 22(b).

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