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Noel Velasco Felix v. Ryan

United States District Court, D. Arizona

December 2, 2015

Noel Velasco Felix, Petitioner,
v.
Charles Ryan, et al., Respondents.

REPORT AND RECOMMENDATION

JOHN Z. BOYLE, Magistrate Judge.

TO THE HONORABLE DOUGLAS L. RAYES, UNITED STATES DISTRICT JUDGE:

Petitioner Noel Velasco Felix has filed a pro se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (Doc. 1.)

I. SUMMARY OF CONCLUSION

Petitioner's complaint regarding the use of warrantless GPS tracking devices in 2005 and 2006 is meritless. Warrantless GPS tracking was authorized under then-existing Ninth Circuit precedent. The mandate of United States v. Jones is not retroactive, and also would not merit suppression because law enforcement reasonably relied on existing law. Petitioner's claim that Arizona courts violated an Arizona rule of procedure is not cognizable on habeas review. Petitioner's supplemental arguments do not merit relief. Therefore, the Court will recommend the Petition be denied and dismissed with prejudice.

II. BACKGROUND

a. Facts and Pretrial Proceedings

In 2005, law enforcement began an investigation of a drug-trafficking organization operating in Arizona. (Doc. 19-9, Ex. N at 61.)[1] In 2006, detectives obtained permission from Maricopa County Superior Court Judge Brian Ishikawa to intercept communications between members of the organization. ( Id. ) Detectives also placed, without court authorization, GPS locating devices on vehicles associated with the organization. (Doc. 12-3 at 25-29; Doc. 20-8, Ex. GG at 55-56.) As a result of surveillance, seizures, and interceptions, detectives determined the organization was transporting more than 100 pounds of methamphetamine and substantial quantities of cash. (Doc. 19-9, Ex. N at 61-67.) Petitioner was identified as a significant member of the conspiracy. ( Id. )

On June 2, 2006, Petitioner was arrested on drug-related charges. On June 6, 2006, the State filed a direct complaint, in CR XXXX-XXXX, charging Petitioner with six offenses. (Doc. 17-4, Ex. C at 93.) On June 7, 2006, an indictment issued charging Petitioner with the same six offenses. (Doc. 17-4, Ex. D at 106.)

On August 17, 2006, Petitioner was charged in a separate, 417-count indictment (CR XXXX-XXXX). (Doc. 17-1, Ex. A at 12-139.) Petitioner's indictment in the previous case (CR XXXX-XXXX) was subsequently dismissed on August 31, 2006. (Doc. 17-4, Ex. F at 124.) On July 16, 2007, the trial court denied a joint motion to suppress the wiretaps obtained during the investigation. (Doc. 17-4, Ex. K at 226.)

b. Procedural History

i. Trial and Sentencing

On February 1, 2008, Petitioner and two codefendants jointly waived their rights to a jury trial. (Doc. 17-4, Ex. L at 230-43.) The "trial court convicted Felix of conspiracy, illegally conducting an enterprise, use of wire communication in a drug related transaction, misconduct involving weapons, two counts of possession of drug paraphernalia, two counts of possession of methamphetamine for sale, four counts of money laundering and five counts of transportation for sale, sale or transfer of methamphetamine." State v. Velasco-Felix, No. 1 CA-CR 12-0408 PRPC, 2014 WL 1232425, at *1 (Ariz.Ct.App. March 25, 2014). Petitioner was sentenced to an aggregate term of 20 years' imprisonment. ( Id. )

ii. Direct Appeal

Petitioner took a timely direct appeal of his convictions and sentences. (Doc. 19-10, Ex. R at 121.) Petitioner alleged that (1) the trial court erred by failing to grant a Franks ( v. Delaware, 438 U.S. 154 (1978)) hearing on a motion to suppress the wiretap (Doc. 19-10, Ex. R at 141), and (2) the trial court erred in finding necessity for the wiretap (Doc. 19-10, Ex. R at 152). On August 5, 2010, the Arizona Court of Appeals affirmed Petitioner's convictions and sentences in a 17-page memorandum decision. (Doc. 19-11, Ex. U at 108.) Petitioner did not seek review of the Arizona Court of Appeals' decisions by the Arizona Supreme Court. The order and mandate issued on October 19, 2010. (Doc. 19-11, Ex. V at 126.)

c. Petition for State Post-Conviction Relief

In September 2010, Petitioner filed a notice of post-conviction relief, pursuant to Rule 32 of the Arizona Rules of Criminal Procedure. (Doc. 20-5, Ex. X.) On or before October 31, 2011, Petitioner's attorney filed a notice of completion of post-conviction review of the record and requested an extension of time to allow Petitioner to file a pro se post-conviction relief (PCR) petition. (Doc. 20-5, Ex. Y.) On or about December 19, 2011, Petitioner filed a PCR petition. (Doc. 20-5, Ex. Z.) Petitioner alleged that (1) the evidence against Petitioner should have been suppressed because law enforcement violated the Fourth Amendment when they placed warrantless GPS tracking devices on vehicles, (2) the State violated Rule 4.1(b) of the Arizona Rules of Criminal Procedure and the Fourth Amendment by failing to file a direct complaint within 48 hours of Petitioner's initial appearance, and (3) the trial court violated Rule 6.1(a) and 6.1(b) of the Arizona Rules of Criminal Procedure, and the Sixth and Fourteenth Amendments, by failing to appoint Petitioner counsel within 48 hours of his initial appearance. ( Id. ) On June 19, 2012, the trial court denied relief on every ground. (Doc. 20-8, Ex. GG.)

d. PCR Appeal

On August 20, 2012, Petitioner filed a petition for review with the Arizona Court of Appeals. (Doc. 20-8, Ex. HH.) Petitioner asserted that (1) the trial court erred when it precluded his "fruit of the poisonous tree" argument (Doc. 20-8, Ex. HH at 65), (2) counsel were ineffective in failing to raise his "fruit of the poisonous tree" argument ( Id. at 66), (3) the trial judge erred by failing to grant relief under his "fruit of the poisonous tree argument" ( Id. ), (4) the trial judge erred regarding Petitioner's GPS tracking argument ( Id. at 67), and (5) the trial court abused its discretion when it ruled against these four arguments ( Id. ). Petitioner did not appeal on the ground of a Rule 4.1 violation. On March 25, 2014, the Arizona Court of Appeals denied relief, finding the following:

Felix argues his trial, appellate, and post-conviction relief counsel were all ineffective when they failed to raise any issue regarding the State's warrantless use of Global-Positioning-System ("GPS") devices to track vehicles operated by Felix's accomplices. He further argues that the United States Supreme Court's decision in State v. Jones constitutes a significant change in the law that not only entitles him to relief in and of itself, but further supports his claims of ineffective assistance. In Jones, the Supreme Court held the government installation of a GPS device on a vehicle for the purpose of monitoring the vehicle's movements constitutes a "search" that ordinarily requires a warrant. See United States v. Jones, 132 S.Ct. 945, 949-50 (2012)....
We deny relief. First, Felix failed to present a colorable claim that counsels' representation fell below an objectively reasonable standard, or that any action or inaction on the part of counsel prejudiced him. Felix committed the offenses in 2005 and 2006. His trial took place in 2008, and we affirmed his convictions in 2010. His post-conviction relief counsel reviewed his case in 2011. The Supreme Court decided Jones in 2012. Felix cites no authority prior to the Jones decision that would have required the trial court to suppress evidence obtained through the warrantless use of GPS tracking. Therefore, counsel had no basis to raise any issue regarding the use of GPS devices. Counsels' failure to predict that the Supreme Court would subsequently hold that GPS tracking could only be obtained through a warrant did not fall below objectively reasonable standards.

Velasco-Felix, 2014 WL 1232425, at *1. Petitioner did not seek review of this opinion. On May 12, 2014, the Arizona Court of Appeals issued its order and mandate. (Doc. 1 at 12.)

III. PETITIONER'S HABEAS PETITION

On August 13, 2014, Petitioner filed the instant, timely habeas petition. Petitioner submits three grounds in the petition.

a. Standard of Review

The writ of habeas corpus affords relief to persons in custody pursuant to the judgment of a state court in violation of the Constitution, laws, or treaties of the United States. 28 U.S.C. §§ 2241(c)(3), 2254(a). Petitions for Habeas Corpus are governed by the ...


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