NOTICE: NOT FOR OFFICIAL PUBLICATION.

UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL

AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

STATE OF ARIZONA, Respondent,

v.

DAVID JEROME WILLIAMS, Petitioner.

No. 1 CA-CR 16-0219 PRPC

Petition for Review from the Superior Court in Maricopa County

No. CR2014-146093-001

The Honorable Alfred M. Fenzel, Judge

REVIEW GRANTED; RELIEF DENIED

COUNSEL

Maricopa County Attorney’s Office, Phoenix

By Diane Meloche

Counsel for Respondent

David Jerome Williams, San Luis

Petitioner

MEMORANDUM DECISION

Presiding Judge James P. Beene delivered the decision of the Court, in 

which Judge Randall M. Howe and Judge Kent E. Cattani joined.

FILED 10-3-2017
STATE v. WILLIAMS

Decision of the Court

2

B E E N E, Judge:

¶1 David Jerome Williams (“Williams”) petitions this court for 

review from the dismissal of his petition for post-conviction relief, filed 

pursuant to Arizona Rule of Criminal Procedure (“Rule”) 32. We have 

considered the petition for review and, for the reasons stated, grant review 

but deny relief.

¶2 Police officers responded to a call regarding a shooting in a 

residential neighborhood. A witness informed the officers that Williams 

fired shots into the ground near an apartment building before fleeing the 

scene with the weapon. The officers were aware Williams could not 

lawfully possess firearms because he had several prior felony convictions 

and his civil rights had not been restored. The officers subsequently 

obtained a search warrant, and upon searching Williams’ residence, 

discovered 4 grams of heroin and 24 grams of methamphetamine in a desk. 

After he was informed of his Miranda1 rights, Williams admitted during a 

police interview that “he was selling the heroin and methamphetamine” 

found in his home.

¶3 Williams subsequently pled guilty to one count of possession 

of dangerous drugs for sale, a Class 2 felony, and he acknowledged a prior 

conviction for the same offense. The superior court imposed a 12-year 

prison term, and Williams filed a timely notice of post-conviction relief.

After reviewing the record and other materials, including correspondence 

from Williams, appointed counsel could not find any claims for relief.

¶4 Williams proceeded pro per and filed a petition for postconviction relief, raising a claim of ineffective assistance of counsel (“IAC”) 

based on trial counsel’s failure to “hold a defensive interview” and to seek 

suppression of the drugs discovered during the search of Williams’ home. 

According to Williams, the search violated his Fourth Amendment rights 

because the warrant only mentioned items connected with the shooting and 

the associated crimes of aggravated assault, discharge of a firearm at a 

residential structure, assisting a criminal street gang, and misconduct 

involving weapons, but not illicit drugs. Thus, Williams insisted a motion 

to suppress the drugs would have succeeded and provided him more 

leverage for him during the plea negotiation process, resulting in a lesser 

sentence. The State responded to the petition, Williams replied, and the 

court summarily denied relief. This timely petition for review followed.

 

1 Miranda v. Arizona, 384 U.S. 436 (1966).
STATE v. WILLIAMS

Decision of the Court

3

¶5 Williams argues the superior court erred in not conducting an 

evidentiary hearing because he presented a colorable IAC claim. Without 

citing to relevant authority, Williams summarily asserts that counsel’s 

failure to file a motion to suppress “the meth” was “deficient 

[representation] on its face.” “Clearly,” Williams continues, “had counsel . 

. . moved to challenge the warrant and seizure of the methamphetamines, 

the results would have been different.”

¶6 Absent an abuse of discretion or error of law, we will not 

disturb the trial court’s ruling on a petition for post-conviction relief. State 

v. Gutierrez, 229 Ariz. 573, 577, ¶ 19 (2012). “We may affirm on any basis 

supported by the record.” State v. Robinson, 153 Ariz. 191, 199 (1987).

¶7 Summary dismissal of a petition for post-conviction relief is 

appropriate “[i]f the court . . . determines that no . . . claim presents a 

material issue of fact or law which would entitle the defendant to relief 

under this rule and that no purpose would be served by any further 

proceedings.” Ariz. R. Crim. P. 32.6(c). To be entitled to an evidentiary 

hearing, a petitioner must present a colorable claim. State v. Krum, 183 Ariz. 

288, 292 (1995). A colorable claim is one that, if the allegations are true, 

would probably have changed the outcome. State v. Amaral, 239 Ariz. 217, 

220, ¶ 11 (2016). In determining whether a claim is colorable, the allegations 

are viewed in light of the entire record. State v. Lemieux, 137 Ariz. 143, 146 

(App. 1983). To state a colorable claim of ineffective assistance of counsel, 

a defendant must show that counsel’s performance fell below objectively 

reasonable standards. Strickland v. Washington, 466 U.S. 668, 687–88 (1984).

¶8 The superior court did not err by summarily dismissing the 

petition for post-conviction relief because Williams failed to establish that 

counsel’s failure to seek suppression of the drugs fell below objectively 

reasonable standards. Referring to a well-known exception to the warrant 

requirement, Williams asserts the drugs were not in “plain sight” because 

they were found “in a closed desk drawer of [his] study.” However, as the 

United States Supreme Court has said:

A lawful search of fixed premises generally extends to the 

entire area in which the object of the search may be found and 

is not limited by the possibility that separate acts of entry or 

opening may be required to complete the search. Thus, a 

warrant that authorizes an officer to search a home for illegal 

weapons also provides authority to open closets, chests, 

drawers, and containers in which the weapon might be found.
STATE v. WILLIAMS

Decision of the Court

4

United States v. Ross, 456 U.S. 798, 820–21 (1982) (footnote omitted).

¶9 Here, the search warrant affidavit lists several items that 

could reasonably be found in a desk drawer. Thus, consistent with Ross, 

officers conducting the search of Williams’ residence were authorized to 

search the desk’s drawers and seize the drugs discovered there. See State v. 

DeCamp, 197 Ariz. 36, 39, ¶ 14 (App. 1999) (“[A]s long as the lawenforcement officers are authorized to be where they are, they may seize 

any item in plain view if its evidentiary value is at once apparent.”).

¶10 Williams cites no facts that suggest the seized drugs were not 

in plain view once officers opened the desk drawer or that the drugs’ 

evidentiary value was not apparent at that moment. Further, he cites no 

authority for the proposition that police officers conducting a search 

pursuant to a warrant violate the Fourth Amendment’s prohibition against 

unreasonable property seizures if they discover and seize evidence of a 

crime that is not the basis of the investigation that gave rise to the warrant. 

Absent such facts and authority, Williams’ trial counsel could reasonably 

conclude that a motion to suppress would not succeed. See James v. Borg, 24 

F.3d 20, 27 (9th Cir. 1994) (“Counsel’s failure to make a futile motion does 

not constitute ineffective assistance of counsel.”). Williams presents no 

authority supporting a contrary conclusion. Accordingly, Williams failed 

to raise a colorable IAC claim, and the superior court was entitled to 

summarily dismiss the Rule 32 proceeding.

¶11 We therefore grant review but deny relief.