State v. Felix ( 2014 )

NOTICE: NOT FOR PUBLICATION.
UNDER ARIZ. R. SUP. CT. 111(c), THIS DECISION DOES NOT CREATE LEGAL PRECEDENT
AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
STATE OF ARIZONA, Respondent,
v.
NOEL VELASCO FELIX, Petitioner.
No. 1 CA-CR 12-0408 PRPC
FILED 3-25-2014
Petition for Review from the Superior Court in Maricopa County
No. CR2006-008681-028
The Honorable Roger E. Brodman, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Maricopa County Attorney’s Office, Phoenix
By Diane Meloche
Counsel for Respondent
Noel Velasco Felix, Douglas
Petitioner Pro Se
MEMORANDUM DECISION
Presiding Judge Patricia A. Orozco delivered the decision of the Court, in
which Judge Lawrence F. Winthrop and Judge Kenton D. Jones joined.
STATE v. FELIX
Decision of the Court
O R O Z C O, Judge:
¶1 Noel Velasco Felix (Felix) petitions this court for review
from the dismissal of his petition for post-conviction relief. We have
considered the petition for review and, for the reasons stated below, we
grant review but deny relief.
¶2 A 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. The court sentenced Felix
to an aggregate term of twenty years' imprisonment, and we affirmed his
convictions and sentences on direct appeal in State v. Velasco-Felix, 1 CA-
CR 08-0208 (Ariz. App. Aug. 5, 2010). Felix subsequently filed a pro se
petition for post-conviction relief after his counsel found no colorable
claims. The trial court summarily dismissed the petition and Felix now
seeks review.
¶3 Felix properly presents two issues for review. 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).
¶4 To state a colorable claim of ineffective assistance of counsel,
a defendant must show that counsel's performance fell below objectively
reasonable standards and that the deficient performance prejudiced the
defendant. Strickland v. Washington, 466 U.S. 668, 687 (1984). To show
prejudice, a defendant must show that there is a "reasonable probability
that, but for counsel's unprofessional errors, the result of the proceeding
would have been different." Id. at 694.
¶5 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
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STATE v. FELIX
Decision of the Court
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.
¶6 Second, even if Jones applied to this case, Felix would not be
entitled to any relief. Felix concedes that the State used GPS devices in
this case only to track the vehicles of his accomplices. Felix does not allege
the State used GPS devices to track any vehicle he owned, operated or
had a right of access to, nor any vehicle in which he otherwise had any
reasonable expectation of privacy. A defendant who has no ownership
interest in a vehicle, no right of access to the vehicle, is not an operator of
the vehicle and was not present when the vehicle was searched has no
reasonable expectation of privacy in the vehicle and cannot challenge a
search of that vehicle. See, e.g., State v. Olson, 134 Ariz. 114, 117, 654 P.2d
48, 51 (App. 1982).
¶7 While the petition for review presents additional issues,
Felix did not raise those issues in the petition for post-conviction relief he
filed below. A petition for review may not present issues not first
presented to the trial court. See State v. Bortz, 169 Ariz. 575, 577, 821 P.2d
236, 238 (App. 1991); see also Ariz. R. Crim. P. 32.9(c)(1)(ii).
¶8 For the above reasons, we grant review and deny relief.
:MJT
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