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Desposito v. Ryan

United States District Court, D. Arizona

June 20, 2014

Thomas Walter Desposito, Petitioner,
Charles L. Ryan et al., Respondents.


SHARON L. GLEASON, District Judge.

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, 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.


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, 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 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 Post Conviction 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]
• 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 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 ...

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