Mendoza v. USA

Filing 2

ORDER: (1) DISMISSING PETITIONER'S MOTION UNDER 28 U.S.C. § 2255 TO VACATE, SET ASIDE, OR CORRECT SENTENCE BY A PERSON IN A FEDERAL CUSTODY; AND (2) DENYING A CERTIFICATE OF APPEALABILITY re 1 . Signed by JUDGE J. MICHAEL SEABRIGHT on 5/3 0/13. (gls, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
JOHN MENDOZA,

)
)
Petitioner,
)
)
vs.
)
)
UNITED STATES OF AMERICA,
)
)
Respondent.
)
)
_______________________________ )

CIV. NO. 12-00566 JMS/BMK
CR NO. 08-00303-01 JMS
ORDER: (1) DISMISSING
PETITIONER’S MOTION UNDER
28 U.S.C. § 2255 TO VACATE, SET
ASIDE, OR CORRECT SENTENCE
BY A PERSON IN A FEDERAL
CUSTODY; AND (2) DENYING A
CERTIFICATE OF
APPEALABILITY

ORDER: (1) DISMISSING PETITIONER’S MOTION UNDER 28 U.S.C.
§ 2255 TO VACATE, SET ASIDE, OR CORRECT SENTENCE BY A
PERSON IN A FEDERAL CUSTODY; AND (2) DENYING A
CERTIFICATE OF APPEALABILITY
I. INTRODUCTION
Currently before the court is Petitioner John Mendoza’s (“Mendoza”)
Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a
Person in Federal Custody (“§ 2255 Motion”). Doc. No. 479.1 A jury found
Mendoza guilty on all twenty-two counts of a Third Superseding Indictment
(“TSI”) alleging an elaborate mortgage fraud scheme. Mendoza challenges his
conviction on various grounds, including ineffective assistance of counsel. For the
following reasons, the court DENIES Mendoza’s § 2255 Motion and DENIES a

1

All references to Document Numbers refer to those in Crim. No. 08-00303-01 JMS.

certificate of appealability.
II. BACKGROUND
A.

Procedural Background
On October 21, 2009, a grand jury in the District of Hawaii returned

the TSI against Mendoza and Ira Altwegg.2 Doc. No. 258. The TSI charged
Mendoza with twenty-two counts for: conspiracy (one count), mail fraud (two
counts), wire fraud (eight counts), making false statements on loan applications to
financial institutions (two counts), and money laundering (six counts) in violation
of 18 U.S.C. §§ 371, 1341, 1343, 1014, and 1957, and for willfully failing to file
federal income tax returns for calendar years 2004, 2005, and 2006 (three counts)
in violation of 26 U.S.C. § 7203.
On January 20, 2010, trial began as to Mendoza. Doc. No. 235. On
February 10, 2010, after a seven-day trial, the jury found Mendoza guilty of all
counts. Doc. No. 343. The court subsequently sentenced Mendoza to a term of
imprisonment of 72 months, restitution of $881,514.98, special monetary
assessments totaling $1,875.00, and a term of supervised release of five years.
Doc. No. 406. Judgment entered on July 30, 2010. Doc. No. 413. The Ninth
2

Prior Indictments also charged Albert Alimoot, Antonio Alcantara, Jr., and Evan
Koizumi with various offenses stemming from this mortgage fraud scheme. All other
Defendants pled guilty to the counts against them, and provided testimony on behalf of the
United States at Mendoza’s trial.
2

Circuit Court of Appeals subsequently affirmed the judgment. See United States v.
Mendoza, No. 10-10375 (9th Cir. Oct. 18, 2011) (memo.), Doc. No. 452.
On October 18, 2012, Mendoza filed his § 2255 Motion asserting,
among other things, that his counsel William Domingo (“Domingo”) provided
ineffective assistance of counsel. Doc. No. 479. On October 30, 2012, the court
entered an order finding that Mendoza waived his attorney-client privilege as to the
issues raised in the § 2255 Motion. Doc. No. 483. The government filed an
Opposition to the § 2255 Motion on December 26, 2012, Doc. No. 485, and
Mendoza filed a Reply on February 4, 2013. Doc. No. 488.
On February 23, 2013, the court entered an Order Requiring a Status
Conference to Discuss Supplemental Briefing and Possible Appointment of
Counsel. Doc. No. 491. The February 23, 2013 Order explained the need for
supplemental briefing on Mendoza’s argument that Domingo provided ineffective
assistance of counsel by failing to present evidence supporting the theory of
defense that Mendoza did not engage in mortgage fraud, and raising the question
whether Mendoza would prefer counsel to address the court’s questions. During a
March 18, 2013 status conference, Mendoza informed the court that he did not
want court-appointed counsel. See Doc. No. 494. The government filed its
Supplemental Memorandum on April 17, 2013, Doc. No. 495, and Mendoza filed
3

his Supplemental Memorandum on May 21, 2013. Doc. No. 498.
B.

Factual Background
This mortgage fraud case stems from transactions involving two

properties owned by Socorro Kovach and Rosemary Dano, respectively. As
asserted by the government, Mendoza induced these individuals facing foreclosure
to sell their properties by promising them that they could remain in their homes
while at the same time receiving a portion of the proceeds from the transaction.
Mendoza then paid third parties to act as “straw purchasers,” i.e., individuals who
are willing to purchase a property without any intent to occupy the property or
exercise any true ownership rights. Mendoza promised these straw purchasers that
they were participating in an investment strategy where, although they would take
out loans on the properties, they would make no mortgage payments (instead,
Mendoza asserted he would pay the mortgages). In turn, Mendoza received the
bulk of the loan proceeds, and subsequently had straw purchasers enter into
additional loan agreements to obtain additional equity from these property. Both
these properties ultimately ended in foreclosure.
The sum result of these transactions was that the lenders were forced
to sell the homes at a loss compared to the loans issued, homeowners lost their
homes, the straw purchasers suffered harm to their credit, and Mendoza obtained
4

substantial income from obtaining the loan proceeds, for which he failed to file tax
returns. At trial, the alleged co-conspirators -- mortgage brokers Paula Galacgac
and Ira Altwegg, and straw purchasers Albert Alimoot and Evan Koizumi, testified
against Mendoza after pleading guilty of the charges against them. As material to
the § 2255 Motion, the evidence presented by the government regarding these
transactions is as follows:
1.

The Mokapu Property
In 1987, Socorro Kovach and her husband purchased real property

located at 1309 Mokapu Boulevard, Kailua, Hawaii (the “Mokapu Property”).
Doc. No. 424, Trial Tr. at 49. In 2003, the Kovaches separated and Socorro
Kovach began having trouble making her payments, which ultimately resulted in
Kovach’s mortgage lender, Beneficial of Hawaii, Inc., foreclosing on the Mokapu
Property. Id. at 13-14, 49-50. At the subsequent auction, Beneficial was the high
bidder. Id. at 13-14.
In October 2003, Beneficial began taking steps to sell the property, in
which Kovach and her son, Alvin Pineda, were still living. Id. Kovach therefore
sought help from Paula Galacgac, a mortgage broker. Galacgac testified that she
introduced Kovach to Mendoza, who said he was a pastor for a Pentecostal church
and helped people get out of financial debt. Id. at 126-28. Mendoza proposed that
5

he would (1) purchase the Mokapu Property from Beneficial for $400,000 through
a third party, (2) pay the mortgage and allow Kovach to continue to live on the
property, and (3) help Kovach with her bills and start a business with her so that
she would be financially set for the rest of her life. Id. at 128-29.
As for the third party who would actually purchase the Mokapu
Property, Galacgac introduced Mendoza to Albert Alimoot, who was interested in
purchasing a home. Id. at 130. Alimoot, a born again Christian, believed that
Mendoza was a “Godly man” who helped people save their homes. Doc. No. 425,
Trial Tr. at 36-37, 42. Alimoot testified that Mendoza told him that Alimoot could
be an investor on the Mokapu Property by applying for the mortgage loan and
taking title in his name. Id. at 36-39. Mendoza explained that he would hold the
loan proceeds in his account, from which he would make monthly payments on the
mortgage, and that Alimoot would receive $5,000 for signing the loan documents.
Id. at 36. Alimoot understood that the Kovaches would eventually be able to buy
back their home, and Alimoot would benefit by improving his credit score and
helping a family save their home from foreclosure. Id.
Before having Alimoot qualify for a loan, Mendoza opened an escrow
account for the sale of the Mokapu Property identifying the buyer as “John
Mendoza and/or his assignee.” Doc. No. 424, Trial Tr. at 133-34; Gov’t Trial Ex.
6

102. On March 23, 2004, Mendoza and Alimoot signed an agreement purporting
to have Alimoot sell to “Storehouse Financial Corporation or assignee” (one of
Mendoza’s companies) the Mokapu Property for $400,000. Gov’t Trial Ex. 103.
In other words, this agreement purported to transfer the Mokapu Property from
Alimoot to Storehouse Financial, while Alimoot remained obligated on the loan.
According to Alimoot, he did not read this document in depth, and Mendoza
represented to him that this agreement simply ensured that Mendoza “had control
over the property.” Doc. No. 425, Trial Tr. at 53.
Galacgac determined that Alimoot was not qualified for the proposed
mortgage loan, and in response Mendoza instructed her to find another loan
program. Doc. No. 424, Trial Tr. at 132-33. Galacgac therefore proposed a stated
income loan offering one hundred percent financing and requiring owner
occupancy. Id. at 133. Although Galacgac and Mendoza knew that Alimoot
would not be living in the Mokapu Property, Mendoza told her to “do what it
takes” to qualify Alimoot for the loan. Id. As a result, Alimoot, with Galacgac’s
assistance, submitted a Uniform Residential Loan Application to Mortgage Ability
for two loans to cover the $400,000 purchase price -- one for $320,000, and the
second for $80,000. Id. at 135-37; Gov’t Trial Exs. 104, 105. Both loans asserted
that the Mokapu Property would be Alimoot’s primary residence.
7

On April 8, 2004, Alimoot’s loans were funded by wire transfers in
the amounts of $318,090.27 and $79,187.88. Gov’t Trial Exs. 2, 2A, 3, 3A, 4;
Doc. No. 429, Trial Tr. at 26-27, 30-31. Upon closing, the Kovaches were issued a
check for $49,063.38 for their equity in the property. Gov’t Trial Exs. 116, 116A.
Mendoza drove Kovach to her credit union, where she deposited the check and had
issued (1) a check to Mendoza for $28,300, (2) a check to Alimoot for $5,000, and
(3) a check to Marcella Skaggs for $5,100 to pay off a debt Kovach owed Skaggs.
Gov’t Trial Ex. 116B. Mendoza told Kovach that he would invest the $28,300 for
Kovach. Doc. No. 424, Trial Tr. at 57.3
The next month (May 2004), Mendoza asked Galacgac to refinance
Alimoot’s mortgage loans to obtain the remaining equity on the Mokapu Property
so that Mendoza could improve the property and help Kovach travel to the
Philippines and work on her business. Doc. No. 424, Trial Tr. at 140. On July 15,
2004, Galacgac and Alimoot signed a loan application for $498,750 (i.e., $98,750
more than the previous loans). Gov’t Trial Ex. 126; Doc. No. 424, Trial Tr. at 14143. The loan falsely stated that the Mokapu Property would be Alimoot’s primary
residence, and also falsely inflated his monthly income from $7,100 to $11,000.
3

Kovach testified that after church members questioned this transaction, Kovach
complained to Mendoza, who promised Kovach $10,000. Doc. No. 424, Trial Tr. at 58-59.
Instead, Mendoza gave Kovach $3,000 and a ride to the airport (Kovach was planning to spend
time in the Philippines). Id. at 59.
8

Gov’t Trial Ex. 126; Doc. No. 424, Trial Tr. at 141-43.
When the loan funded, Alimoot received two checks for $36,558.20
and $34,955.71 (issued on June 5, 2004, and August 23, 2004, respectively),
representing the equity obtained through refinancing. Gov’t Trial Exs. 26, 27,
Doc. No. 425, Trial Tr. at 71. As he did with Kovach, Mendoza drove Alimoot to
a bank, where Alimoot signed the checks over to Grace International, another one
of Mendoza’s companies. Doc. No. 425, Trial Tr. at 45-46.
Alimoot testified that Mendoza made seventeen payments on this
mortgage loan (which called for monthly payments of $3,398.97), id. at 87, Gov’t
Trial Ex. 129, and evidence presented to the jury suggests that Mendoza made at
least one payment totaling $2,772.56 on Alimoot’s mortgage loan funded on April
8, 2004. Gov’t Trial Exs. 123-123A. Alimoot nonetheless testified that at some
point, he began receiving calls from the lender that he was late on his mortgage
payments. Id. at 46. When Alimoot confronted Mendoza, Mendoza promised to
have Alvin Pineda, Kovach’s son, replace Alimoot on the loans. Id. at 47. When
Mendoza failed to take steps for Pineda to take out a loan, Alimoot obtained
assistance from Galacgac, who prepared a loan application falsely stating Pineda’s
income. Id. at 47-48; Doc. No. 424, Trial Tr. at 149-50. In October 2005, Pineda’s
loan in the amount of $680,000 was approved. Doc. No. 424, Trial Tr. at 149-50.
9

When Mendoza learned of this transaction, his company Storehouse
Financial sued Alimoot, Pineda, and Galacgac. The basis of the lawsuit was the
agreement that Mendoza had Alimoot sign prior to the first loan transaction,
purporting to transfer Alimoot’s interest in the Mokapu Property to Storehouse
Financial. Mendoza’s civil action claimed that Storehouse Financial was entitled
to title to the Mokapu Property, the proceeds received from the sale to Pineda, and
damages. Doc. No. 424, Trial Tr. at 153-55; Gov’t Trial Ex. 1H (Complaint).
Pineda was unable to pay the mortgage loan and was ultimately
evicted from the Mokapu Property. Doc. No. 424, Trial Tr. at 28-29. In January
2010, Litton Loan Servicing sold the property for $446,500. Id. at 30-31.
The financial result of these transactions is that Kovach lost her equity
in the Mokapu Property (approximately $190,599),4 and Litton Loan Servicing
sold the Mokapu Property at a $233,500 loss (Pineda’s $680,000 loan minus the
$446,500 sale price).5 In comparison, Mendoza obtained $28,300 from Alimoot’s
first loan, and $71,415 from Alimoot’s second loan.

4

At sentencing, the court factored in the Kovaches’ ability to stay in the property to
award restitution in the amount of $158,613.
5

Given that Mendoza was not involved in the Alimoot/Pineda transaction, at sentencing
the court determined that Mendoza should not be held responsible for this loss because it was not
reasonably foreseeable to him.
10

2.

The 16th Avenue Property
In January 2005, Rosemary Dano and her daughter, Tricia, sought to

refinance the mortgage on their home at 1434 16th Avenue in Kaimuki, Hawaii
(the “16th Avenue Property”) to avoid foreclosure. Doc. No. 424, Trial Tr. at 15556. The Danos met with Antonio Alcantara, Jr. and Galacgac, who introduced the
Danos to Mendoza. Id. at 156. Mendoza represented that he invested with
Christian families who needed help. Doc. No. 490-2, Tricia Dano Depo. Tr. at 1213.
It was Tricia Dano’s understanding that the Danos and Mendoza
would take out a loan together, the Danos would pay rent to Mendoza to improve
their credit, and Mendoza would make mortgage payments. Id. at 10-13. As a
result, on February 16, 2005, the Danos signed a contract to sell the 16th Avenue
Property to “Grace International Corporation and/or Assignee(s)” for $710,000.
Gov’t Trial Ex. 143.
In the meantime, Galacgac introduced Mendoza to Evan Koizumi, a
potential investor in this transaction. Doc. No. 425, Trial Tr. at 106. Koizumi
understood that Mendoza was a “church man” and/or “holy man” who made
mortgage investments. Id. at 106-07. Mendoza offered that Koizumi could take
over the mortgage for one or two years of someone who is in danger of losing their
11

home, and then sell it back to the family when they got back on their feet. Id. at
108. Koizumi would receive $5,000 for allowing Mendoza to use his name on the
loan, and Mendoza would make payments on the mortgage. Id. at 108-10.
Mendoza instructed Galacgac that the deal using Koizumi on the 16th
Avenue Property was to be “structured the same way as with Alimoot,” and to
make sure that no down payment was needed. Doc. No. 424, Trial Tr. at 158-59.
Mendoza also instructed Galacgac that even though the loan application would
need to state that Koizumi would live at the 16th Avenue Property, the Danos
would continue to live there. Id. at 159. As a result, Galacgac prepared Koizumi’s
loan application for the full $710,000 purchase price, overstating his income and
falsely stating that he would occupy the house. Id. at 149-50, Gov’t Trial Ex. 149.
The loan was approved, and on April 4, 2005, Finance America made
a wire transfer of $716,055.51 to Hawaii Escrow & Title, Inc. Gov’t Trial Ex. 5.
After paying off the Danos’ mortgage and costs, the Danos received $100,000 and
Grace International received $140,970.18.6 Gov’t Trial Ex. 157. Mendoza
explained that Grace International was receiving this money so that he could
maintain the mortgage payments and invest the Danos’ funds for them. Doc. No.

6

Some of the proceeds were also used to pay a $9,022.36 lien against Koizumi for
unpaid child support. Gov’t Trial Ex. 157; Doc No. 425, Trial Tr. at 159-160. As a result,
Mendoza did not pay Koizumi the promised $5,000. Doc. No. 425, Trial Tr. at 113.
12

424, Trial Tr. at 164. Koizumi testified that Mendoza made monthly payments of
$5,140.61 for “over a year” on the mortgage loan. Doc. No. 425, Trial Tr. at 141.
Several months after the transaction, Mendoza asked Koizumi to sign
additional loan documents to sell the 16th Avenue Property back to the Danos for
$1,006,000. Gov’t Trial Ex. 166; Doc. No. 425, Trial Tr. at 115. Koizumi felt
uncomfortable with the transaction given that it was unclear how the Danos would
be able to afford this additional amount when they could not afford their original
mortgage. Doc. No. 425, Trial Tr. at 115-16. Around this same time, Koizumi
began receiving calls from the lender seeking late payments. Id. at 116. When
Koizumi confronted Mendoza, Mendoza stated that refinancing the mortgage loan
would help with the payments. Id.
When the Danos did not qualify for a mortgage loan, see Doc. No.
428, Trial Tr. at 17-19, Mendoza approached Laura Cristo to purchase the 16th
Avenue Property. Mendoza knew Cristo from patronizing her restaurant, and told
Cristo that he was a minister who did outreach for the poor and also made his
money in the foreclosure business. Id. at 115-16. Mendoza told Cristo that she
could sign “legal” documents which would allow the Danos to keep their house.
Id. at 118-19. Cristo would receive $5,000, and then in “about six months” the
Danos would be able to get the property back in their name. Id.
13

Cristo agreed to this arrangement and Koizumi, Mendoza’s company
Grace International, and Cristo proceeded to enter into a series of transactions for
Cristo to purchase the 16th Avenue Property. First, on August 2, 2005, Cristo
agreed to purchase the 16th Avenue Property from Grace International for
$937,500. Gov’t Trial Ex. 171. Second, on November 17, 2005, Grace
International agreed to purchase the property from Koizumi for $750,577.83.
Gov’t Trial Ex. 172. On December 13, 2005, Grace International and Cristo
signed an agreement making Cristo the assignee of Grace International’s rights to
purchase the 16th Avenue Property from Koizumi, and providing that Grace
International would pay Cristo $5,000. Gov’t Trial Ex. 176. The agreement
further provided that Cristo would take title and sign a deed to Grace International,
which would make the mortgage payments. Id.
Mendoza worked with mortgage broker Ira Altwegg to obtain a loan
for Cristo. Id. at 20-21. After Altwegg objected that the proposed stated income
loan would not be approved on an investment property and that Cristo’s income
was insufficient, Mendoza instructed Altwegg to do an owner-occupied transaction
and to increase Cristo’s income. Id. at 23-24, 46. On December 19, 2005, Cristo
signed two loan applications for $750,000 and $187,500 respectively, which both
falsely stated her income and that she would occupy the property as her primary
14

residence. Id. at 45-46; Gov’t Trial Exs. 178-79.
On December 21, 2005, the loans funded via two wire transfers of
$753,367.57 and $186,626.03. Gov’t Trial Exs. 6-7. After paying off Koizumi’s
mortgage, Grace International received $140,501.18. Gov’t Trial Ex. 29.
Mendoza then purchased cashier’s checks in the amounts of $8,000 for the Danos
and $13,400 for Cristo. Gov’t Trial Exs. 29A-29B. Mendoza subsequently paid a
total of $20,634.04 on the mortgage loan. Gov’t Trial Ex. 194.7
In April 2006, Mendoza convinced Cristo to refinance the property.
To that end, Altwegg prepared two loan applications for a total of $1,050,000.
Gov’t Trial Exs. 200-201. Like the previous applications, they overstated Cristo’s
income and falsely represented that she would occupy the home. Id. The
applications further falsely asserted that Cristo had $123,000 in a First Hawaiian
Bank account. Id. Option One approved the loans, and on May 8, 2006, wire
transfers were made in the amounts of $210,465.50 and $846,825.81. Gov’t Trial
Exs. 8-9. As a result of this refinancing, Grace International received $51,237.67.
Gov’t Trial Exs. 210-11.

7

Government’s Trial Exhibit 194 includes Western Union checks sent to Fremont
Investment & Loan, and identifies the sender as “Cristo Dano Grace International.” Although
the checks do not identify that the monies came from Mendoza, Cristo testified that Mendoza
showed her a few of these checks to verify that he was paying the mortgage. Doc. No. 428, Trial
Tr. at 154.
15

After this refinancing (the third on the 16th Avenue Property in
thirteen months), Cristo began receiving calls advising that her mortgage payments
were late. Doc. No. 428, Trial Tr. at 134. Cristo left messages on Mendoza’s
answering machine, and in response Cristo received a June 26, 2006 letter from
attorney James Sattler, who stated that he represented Grace International. Gov’t
Trial Ex. 213. Sattler’s letter referenced one of Cristo’s voice mail messages to
Mendoza in which she stated that she would not release the 16th Avenue Property
to Mendoza. Sattler asserted that Cristo misunderstood her legal rights given the
December 13, 2005 agreement she signed with Grace International. Sattler further
represented that although Mendoza had obtained cashier’s checks to make the
mortgage payments, Mendoza would not deliver them based on Sattler’s advice.
Id. According to Sattler, Grace International would make no more payments
unless Cristo complied with her obligations, and that her personal credit was at
risk. Id.
On April 9, 2007, Sattler contacted Cristo once more to notify her that
Litton Loan Servicing was threatening foreclosure, and to seek her authorization
for Mendoza to speak with Litton Loan Servicing. Gov’t Trial Ex. 213A.
Although Cristo provided her authorization, Mendoza made no payments. See
Gov’t Trial Ex. 213B. As a result, Option One foreclosed on the 16th Avenue
16

Property, sustaining a loss of $210,000 by writing off the second of Cristo’s loans
on November 21, 2007. Doc. No. 429, Trial Tr. at 139-40.
The financial result of these transactions is that the Danos lost their
equity in the 16th Avenue Property (approximately $533,190.83),8 Option One
(now Sand Canyon Corporation) suffered a $210,000 loss by writing off Cristo’s
loan for this amount, while Mendoza and his related companies received
$140,970.18 from the transaction with Koizumi, $140,501.18 from Cristo’s first
loan transaction, and $51,237.67 from Cristo’s second transaction.
III. STANDARD OF REVIEW
The court’s review of Mendoza’s Motion is governed by 28 U.S.C.
§ 2255(a):
A prisoner in custody under sentence of a court
established by Act of Congress claiming the right to be
released upon the ground that the sentence was imposed
in violation of the Constitution or laws of the United
States, or that the court was without jurisdiction to
impose such sentence, or that the sentence was in excess
of the maximum authorized by law, or is otherwise
subject to collateral attack, may move the court which
imposed the sentence to vacate, set aside or correct the
sentence.
A court should hold an evidentiary hearing on a § 2255 motion
8

This amount factors in the amounts the Danos received from Mendoza. At
sentencing, the court factored in the mortgage payments on the 16th Avenue Property along with
the Danos’ ability to stay in the property to award restitution in the amount of $512,901.98.
17

“unless the files and records of the case conclusively show that the prisoner is
entitled to no relief.” 28 U.S.C. § 2255(b). “In determining whether a hearing and
findings of fact and conclusions of law are required, ‘[t]he standard essentially is
whether the movant has made specific factual allegations that, if true, state a claim
on which relief could be granted.’” United States v. Withers, 638 F.3d 1055, 1062
(9th Cir. 2011) (quoting United States v. Schaflander, 743 F.2d 714, 717 (9th Cir.
1984)). “Thus, the district court’s decision that [the petitioner’s] ineffective
assistance claim did not warrant an evidentiary hearing [is] correct if his
allegations, when viewed against the record, do not state a claim for relief or are so
palpably incredible or patently frivolous as to warrant summary dismissal.” United
States v. Leonti, 326 F.3d 1111, 1116 (9th Cir. 2003) (citing Schaflander, 743 F.2d
at 717) (quotations omitted). Conclusory statements in a § 2255 motion are
insufficient to require a hearing. United States v. Johnson, 988 F.2d 941, 945 (9th
Cir. 1993). After careful consideration of Mendoza’s factual allegations and the
record as a whole, the court concludes that an evidentiary hearing is not required -Mendoza makes no specific factual allegations that state a claim upon which relief
can be granted.
///
///
18

IV. DISCUSSION
In a rambling, stream-of-consciousness approach, Mendoza strings
together various facts that he believes should have been presented at trial, alleged
misstatements and/or falsified exhibits presented by the government, and other
grievances about his trial. Viewing these claims liberally, they appear to fall into
two general categories: (1) ineffective assistance of counsel; and (2) prosecutorial
misconduct. The court addresses these claims in turn.
A.

Ineffective Assistance of Counsel
1.

Legal Standard for Ineffective Assistance of Counsel Claims
To prevail on an ineffective assistance claim, a § 2255 movant must

show that (1) counsel’s representation fell below an objective standard of
reasonableness, and (2) there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.
Strickland v. Washington, 466 U.S. 668, 687-88 (1984).
As to the first prong, counsel “is strongly presumed to have rendered
adequate assistance and made all significant decisions in the exercise of reasonable
professional judgment.” Id. at 690; see Hughes v. Borg, 898 F.2d 695, 702 (9th
Cir. 1990). “[S]trategic choices made after thorough investigation of law and facts
relevant to plausible options are virtually unchallengeable; and strategic choices
19

made after less than complete investigation are reasonable precisely to the extent
that reasonable professional judgments support the limitations on investigation.”
Strickland, 466 U.S. at 690-91. The court “‘will neither second-guess counsel’s
decisions, nor apply the fabled twenty-twenty vision of hindsight,’ but rather, will
defer to counsel’s sound trial strategy.” Matylinsky v. Budge, 577 F.3d 1083, 1091
(9th Cir. 2009) (quoting Murtishaw v. Woodford, 255 F.3d 926, 939 (9th Cir.
2001)). In other words, “[b]ecause advocacy is an art and not a science, and
because the adversary system requires deference to counsel’s informed decisions,
strategic choices must be respected in these circumstances if they are based on
professional judgment.” Id. (quoting Strickland, 466 U.S. at 681).
Thus, a § 2255 movant “bears the heavy burden of proving that
counsel’s assistance was neither reasonable nor the result of sound trial strategy.”
Id. (quoting Murtishaw, 255 F.3d at 939). In arguing that counsel is deficient, a
§ 2255 movant “must identify the acts or omissions of counsel that are alleged not
to have been the result of reasonable professional judgment.” Id. (quoting
Strickland, 466 U.S. at 690). “The court must then consider those acts or
omissions against ‘prevailing professional norms.’” Id. at 1092 (quoting
Strickland, 466 U.S. at 690).
Even upon showing that counsel’s performance is deficient, the
20

§ 2255 movant must also show that the deficiency was prejudicial to the
petitioner’s defense. Strickland, 466 U.S. at 692. Stated differently, the petitioner
“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. “To determine whether counsel’s errors prejudiced the outcome of the trial,
[the court] must compare the evidence that actually was presented to the jury with
that which could have been presented had counsel acted appropriately.” Cannedy v.
Adams, 706 F.3d 1148, 1163 (9th Cir. 2013) (quoting Thomas v. Chappell, 678
F.3d 1086, 1102 (9th Cir. 2012)). “What matters is whether a competent lawyer
would have been able to introduce the evidence, in some form, at trial.” Id. Thus,
“a failure to introduce evidence that is clearly inadmissible cannot be prejudicial,
because there is no chance that the jury ever would have heard that evidence.” Id.
A court need not determine whether counsel’s performance was
deficient before examining the prejudice suffered by the petitioner as a result of the
alleged deficiencies. Strickland, 466 U.S. at 697. In other words, any deficiency
that does not result in prejudice necessarily fails.
2.

Application
The charges against Mendoza put into context his arguments that

Domingo provided ineffective assistance of counsel. All twenty-two counts of the
21

TSI were directed to an alleged scheme by Mendoza and his co-conspirators to
defraud lender/financial institutions -- the counts for conspiracy, mail fraud, wire
fraud, making false statements on loan applications to financial institutions, and
money laundering were all based on allegations that Mendoza obtained loan
proceeds from financial institutions through false loan applications, and the counts
for willfully failing to file federal income tax returns were based on his failure to
report income from these transactions. Thus, although the homeowners provided
testimony regarding their interactions with Mendoza, any alleged harm to the
homeowners was not a focus of the trial and not necessary to the charges against
Mendoza. That is, the government was required to prove a fraud against financial
institutions (or, as to the tax counts, the government), and not the homeowners.
Domingo explains in his Declaration that after reviewing all of the
government’s documents and meeting with Mendoza, they agreed on a theory of
defense that the loan brokers fraudulently obtained loans for the straw buyers
without Mendoza’s knowledge. Doc. No. 485-1, Domingo Decl. ¶ 11. At trial,
Domingo attempted to bolster this theory through eliciting testimony regarding
(1) Mendoza’s payments on behalf of the Kovach and Dano families, and (2) the
knowledge and sophistication of the mortgage brokers and their ability to structure
the transactions without Mendoza’s input. Id.
22

Mendoza does not dispute that Domingo’s theory of defense was an
appropriate trial strategy. Rather, Mendoza asserts that Domingo failed to take
reasonable steps in establishing this theory by presenting all of the facts supporting
this theory. Indeed, Mendoza spends much of his § 2255 Motion rehashing the
intricacies of these transactions to show that he was simply trying to help these
families (even though such contention is secondary to the government’s case that
Mendoza defrauded financial institutions).
For example, Mendoza asserts that for the Mokapu Property
transaction, the parties’ intent was for the property to be used for various charitable
endeavors and that Socorro Kovach never had any intention of continuing to live in
the home. Doc. No. 479, Mot. at 3, 5-6. Mendoza further asserts that he provided
the Kovach family many benefits, including: (1) getting Socorro Kovach’s finances
in line by paying off her gambling debt and providing money for her to move to
the Philippines, id. at 3; (2) ensuring that Kovach received the equity in the
Mokapu Property that she would have lost had Beneficial evicted her, Doc. No.
488, Reply at 3-4; (3) providing counseling/mediation services to help repair
Socorro Kovach and Alvin Pineda’s relationship, Doc. No. 479, Mot. at 4-7; and
(4) giving Alvin Pineda housing advice, allowing him to stay at the Mokapu
Property for $1,000 monthly rent, and proposing business opportunities. Id. at 6-7.
23

Mendoza contends that his company, Storehouse Financial, had a valid contract to
purchase and sell the Mokapu Property from Alimoot, and that Mendoza structured
the transaction to include Storehouse Financial to protect Kovach and/or Pineda
from having Alimoot sell the property from under them. Id. at 8. According to
Mendoza, he never told Galacgac to falsify evidence, id. at 7, 9, and he made all
mortgage loan payments until he learned that Galacgac, Alimoot, and Pineda had
gone behind his back to impermissibly take out the remaining equity in the
property through the sale from Alimoot to Pineda. Id. at 8-9.
As to the 16th Avenue Property, Mendoza asserts that Domingo
should have explained that this transaction differed from the Mokapu Property
because the Danos planned to stay in the property. Id. at 12. Mendoza asserts that
the Danos received valuable consideration for entering into this transaction,
including (1) the ability to stay in the home without the threat of foreclosure while
Mendoza paid the mortgage; (2) $100,000 and additional monies provided by
Mendoza; and (3) investment and business opportunities (including a lunchwagon
business). Id. at 12, 15. According to Mendoza, even when the Danos moved to
Las Vegas (despite Mendoza’s pleas to stay), Mendoza continued to provide them
assistance in Las Vegas and continued to pay the mortgage on the 16th Avenue
Property. Id. at 16-17. Mendoza asserts that he stopped paying the mortgage on
24

the advice of his then-counsel only when Cristo refused to fulfill her obligations to
the contract she signed. Id. at 17.
According to Mendoza, Domingo could have called witnesses to
verify Mendoza’s version of events, admitted into evidence the mortgage payments
and the contracts regarding the transactions, and presented expert testimony to
explain the transactions. Id. at 10-11. Based on the following, the court finds that
Mendoza has failed to carry his burden of establishing that Domingo rendered
ineffective assistance, or that any of Domingo’s decisions caused any prejudice.9
a.

Mendoza offers no explanation as to how Domingo could have
admitted into evidence certain facts where Mendoza decided
not to testify

Although Mendoza spends the bulk of his § 2255 Motion reciting his
version of events, he identifies only a few specific actions he asserts Domingo
should have taken in presenting this version at trial. See Strickland, 466 U.S. at
690 (stating that a claimant must identify particular acts or omissions that are not
the result of reasonable professional judgment). And because Mendoza chose not
to testify, the court cannot discern how Mendoza contends Domingo could have
presented Mendoza’s version of events. See Cannedy, 706 F.3d at 1163
9

Beyond arguing that Domingo failed to present Mendoza’s version of events to the
jury, Mendoza also appears to argue that Domingo failed to secure Mendoza an interview with
the media. Doc. No. 479, Mot. at 19. It should go without saying that the failure to obtain press
coverage does not amount to ineffective assistance of counsel.
25

(explaining that to establish prejudice, the evidence at issue must be both
admissible and potentially determinative of the trial’s outcome).
For example, Mendoza would need to testify to explain (1) that he
assisted these families for the sole purposes of having them avoid foreclosure and
become financially stable; (2) what benefits he provided to the Kovach and Dano
families (to the extent such facts did not come out during their testimony); (3) his
plans for using the Mokapu Property for charitable purposes; (4) why he structured
each loan transaction to involve the various agreements between the straw
purchaser, Mendoza, and/or one of his companies; (5) that he did not instruct
Galacgac to falsify the loan documents; and (6) his reasons for why he stopped
paying the mortgages on the properties. Without Mendoza’s testimony, Domingo
was hard-pressed for a means to present these facts, and Mendoza does not suggest
that Domingo should have taken any particular steps to present them. Given that
Mendoza fails to identify what actions Domingo should have taken to present these
facts or explain how these facts could be presented in an admissible form,
Mendoza has failed to show either deficient assistance or prejudice.
And to the extent Mendoza’s assertion of these facts in his § 2255
Motion could be construed as asserting that Domingo provided ineffective
assistance in advising Mendoza of his right to testify, such claim fails. Domingo
26

outlined the benefits and risks of testifying to Mendoza, who ultimately chose not
to exercise this right. See Lema v. United States, 987 F.2d 48, 52 (1st Cir. 1993)
(“[L]egal advice concerning exercise of the right to testify infringes no right, but
simply discharges defense counsel’s ethical responsibility to the accused.”
(citations omitted)); Cf. United States v. Edwards, 897 F.2d 445, 447 (9th Cir.
1990) (“Neither the prosecution nor the court was given any reason to think the
defendant desired to testify. In such circumstances, [t]o hold that a defendant may
abide by his lawyer’s advice and not take the stand and then invalidate the trial
because he so acted is not fair to the government.”) (internal quotation marks and
citation omitted). Domingo advised Mendoza that although testifying would allow
him to explain his role in the transactions, Mendoza would be cross examined
regarding how he expected the Kovach and Dano families to repurchase their
homes at the higher mortgage amounts and how he spent the monies he received
from the transactions. Doc. No. 485-1, Domingo Decl. ¶ 9. Domingo further
explained that Mendoza’s inability to explain and document what he did with the
loan proceeds would hurt his credibility, and that a blanket denial was not plausible
given the sophistication of the transactions. Id. ¶ 12. At trial, Mendoza confirmed
to the court that through his discussions with Domingo he did not wish to testify.
Doc. No. 431, Trial Tr. at 86.
27

Domingo’s advice to Mendoza whether to testify “is a paradigm of the
type of tactical decision that cannot be challenged as evidence of ineffective
assistance.” See Carter v. Lee, 283 F.3d 240, 249 (4th Cir. 2002) (internal
quotations omitted). The court therefore rejects the § 2255 Motion to the extent it
(1) suggests that Domingo should have presented facts that only Mendoza could
have offered through testifying; or (2) attacks Domingo’s advice to Mendoza
regarding whether to testify.
b.

Domingo’s alleged failure to call fact witnesses

Mendoza asserts that Domingo should have presented Mendoza’s
version of the facts through witness testimony including: (1) Skaggs to testify
regarding the fact that Socorro Kovach owed her money and she considered
placing a lien on the Mokapu Property; (2) the pastor from the Shield of Faith
ministry and the Assistant Pastor from Hope Chapel to testify regarding Socorro’s
decision to move to the Philippines, the problems between Kovach and Pineda, and
the proposed charitable uses of the Mokapu Property; (3) Cynthia Thielen to testify
regarding Mendoza’s proposed charitable uses of the Mokapu Property; and (4)
Alvin Pineda to testify regarding his dealings with Mendoza and his transaction

28

with Galacgac and Alimoot.10 Contrary to Mendoza’s argument, whether to call
these witnesses at trial was a reasonable strategy deserving broad deference. See
Raley v. Ylst, 470 F.3d 792, 801 (9th Cir. 2006) (determining that decision not a
call a witness was a reasonable trial strategy).
As an initial matter, given Mendoza’s decision not to testify, Mendoza
offers no explanation as to how Domingo could have established a foundation for
witness testimony regarding what Mendoza planned to do with the Mokapu
Property, or his interactions with the Kovach and Dano families. And anything
Mendoza told these witnesses would likely be hearsay and inadmissible. See
Cannedy, 706 F.3d at 1163 (“[A] failure to introduce evidence that is clearly
inadmissible cannot be prejudicial, because there is no chance that the jury ever
would have heard that evidence.”).
Further, some of this testimony would have been redundant and/or
cumulative of other testimony already presented at trial. For example, Kovach

10

In his Reply, Mendoza raises an additional argument that Domingo should have called
as a witness Vance Inouye, who had relevant information regarding the 16th Avenue Property
transactions. Doc. No. 488, Reply at 9. The court does not address arguments raised for the first
time in a reply. See Local Rule 7.4 (“Any argument raised for the first time in the reply shall be
disregarded.”); see also United States v. Berry, 624 F.3d 1031, 1039 n.7 (9th Cir. 2010)
(declining to address an argument raised for the first time in a reply brief in a § 2255 motion);
Belgrade v. Montana, 123 F.3d 1210, 1216 (9th Cir. 1997) (declining to consider claims not
raised in the original habeas petition to the district court). And in any event, Mendoza fails to
carry his burden by explaining what testimony this witness would have provided and how such
testimony could have affected the result at trial.
29

testified that she paid off her debt to Skaggs using money provided by Mendoza.
As a result, Skaggs’ testimony to this same point would have added little to
Mendoza’s case. Galacgac and Alimoot also testified regarding their mortgage
transaction with Pineda such that Domingo’s decision not to present Pineda’s
testimony is not unreasonable. See Clabourne v. Lewis, 64 F.3d 1373, 1382 (9th
Cir. 1995) (holding that counsel’s failure to present redundant testimony cannot be
ineffective assistance (citing United States v. Schaflander, 743 F.2d 714, 718 (9th
Cir. 1984) (failure to present cumulative testimony does not amount to ineffective
assistance)).
Another consideration is that the testimony by these witnesses (in
particular, the pastors and Pineda) could have done more harm than good by
highlighting on cross-examination Mendoza’s use of religion to ingratiate himself
with the families he was allegedly victimizing. Determining whether to call a
witness based on these considerations falls well within the purview of sound trial
strategy. See Brodit v. Cambra, 350 F.3d 985, 994 n.3 (9th Cir. 2003) (holding
state court reasonably concluded trial attorney provided effective assistance where
attorney declined to present evidence favorable to defense out of concern it would
open the door to unfavorable evidence).
Finally, even if these witnesses were called, there is no reasonable
30

probability that the result of trial would be different given the strength of the
evidence regarding Mendoza’s convictions.
The court therefore DENIES Mendoza’s § 2255 Motion to the extent
he asserts that Domingo provided ineffective assistance of counsel by failing to call
these witnesses.
c.

Domingo’s alleged failure to call expert witnesses

Mendoza argues that Domingo provided ineffective assistance of
counsel by failing to call expert witnesses to explain the mortgage transactions.
Mendoza’s argument is meritless.
In preparing for trial, Domingo consulted with two experts regarding
the mortgage transactions. Doc. No. 485-1, Domingo Decl. ¶ 13. Domingo
decided not to present either of their testimony -- although they could explain the
structure of the transactions, Domingo was concerned that they might admit that
the use of assignees was not common in residential transactions and that the
misrepresentations on the loan applications made the transactions fraudulent. Id.
¶ 14. Domingo was also concerned that they might testify that Mendoza’s plan had
no real chance of success where the amount of the successive mortgages made it
difficult for the original homeowners to buy back their homes. Id.
Given these considerations, Domingo’s decision not to call expert
31

witnesses was a reasonable (and indeed, prudent) strategic decision. See Raley,
470 F.3d at 801. Further, given that these experts would have likely provided
testimony harmful to Mendoza’s defense, Mendoza has failed to establish any
prejudice.
In opposition, Mendoza argues that these experts might have provided
more favorable testimony had Domingo explained to the experts Mendoza’s theory
of defense, rather than focusing on the government’s evidence. See Doc. No. 488,
Reply at 11-12. This argument is wrong in both fact and logic. Contrary to
Mendoza’s argument, Domingo explained the theory of defense to the experts. See
Doc. No. 485-3, Gov’t Ex. B. Further, it should go without saying that Domingo
needed to articulate the government’s case so that the experts could provide
opinions taking into account all theories and facts, and to prevent any surprise
during cross examination by the government.
The court therefore DENIES Mendoza’s § 2255 Motion to the extent
it asserts that Domingo provided ineffective assistance of counsel by failing to
present expert testimony.
d.

Domingo’s alleged failure to present documents regarding the
mortgage transactions and loans

Mendoza asserts that Domingo should have presented into evidence
(1) Mendoza’s mortgage payments on the properties; (2) two checks he received
32

from Rosemary Dano in the amount of $5,278.52 each; and (3) the contracts
between his companies and the straw purchasers.11 Based on the following, the
court finds that Mendoza has failed to establish that Domingo’s strategic decisions
regarding these documents fell below prevailing professional norms, or that there is
a reasonable possibility, had this evidence been admitted, that the result of the
proceeding would be different.
I.

Mortgage payments

Construing his arguments liberally, Mendoza asserts that Domingo
should have presented evidence at trial that Mendoza paid the mortgages on both
properties, and stopped making payments (1) as to the Mokapu Property only after
learning that Alvin Pineda, Albert Alimoot, and Paula Galacgac had entered into a
transaction without Mendoza whereby Alimoot sold the Mokapu Property to
Pineda; and (2) as to the 16th Avenue Property only after Laura Cristo refused to
fulfill her obligations pursuant to an agreement she signed with Grace

11

Mendoza asserts that these documents were in a black briefcase, which was seized
upon his arrest. Doc. No. 479, Mot. at 19. Mendoza contends that Domingo “failed to secure a
receipt for the black briefcase,” and that the government violated his due process rights by
failing to provide a receipt or return the briefcase in a timely manner. Id. In earlier papers,
however, Mendoza admitted that Domingo received the briefcase prior to trial. See Doc. No.
464, at 2. As a result, the court construes Mendoza’s argument regarding the black briefcase as
asserting that Domingo failed to admit into evidence these documents. See also Doc. No. 488,
Reply at 7 (outlining the documents in the briefcase which Mendoza asserts should have been
presented at trial).
33

International. Mendoza asserts that evidence of the mortgage payments would
have supported his theory of defense that he did not engage in mortgage fraud (and
instead attempted to legitimately aid the Kovach and Dano families), and would
have undermined the government’s theory that he knowingly defrauded financial
institutions.
Through supplemental briefing,12 the parties have brought Mendoza’s
argument into focus. At trial, the following evidence of Mendoza’s mortgage
payments was presented:
•

Mendoza made two payments of $2,001.62 and $770.94 on Alimoot’s first
mortgage loan on the Mokapu property, Gov’t Trial Exs. 123-123A;

•

Alimoot testified that Mendoza made seventeen payments on his second
mortgage loan on the Mokapu property, which called for monthly payments
of $3,398.97, Doc. No. 425, Trial Tr. at 87, Gov’t Trial Ex. 129;

•

Koizumi testified that Mendoza made monthly payments of $5,140.61 for
“over a year” on his mortgage loan on the 16th Avenue property, Doc. No.
425, Trial Tr. at 141; and
12

The court limited supplemental briefing to the issue of “whether Domingo provided
ineffective assistance of counsel by failing to present evidence of Mendoza’s mortgage
payments,” and warned that “discussion of any of the other issues raised in Mendoza’s § 2255
Motion will not be entertained at this time.” Doc. No. 491, Feb. 22, 2013 Order at 5. The court
therefore will not consider unrelated arguments raised in Mendoza’s supplemental briefing. See
Belgrade, 123 F.3d at 1216.
34

•

Mendoza made payments totaling $20,634.04 on Cristo’s mortgage loan on
the 16th Avenue Property, Gov’t Trial Ex. 194.

The only additional evidence regarding mortgage payments that was not presented
at trial were Western Union checks (there was no evidence of direct payments to
the lenders from any of Mendoza’s accounts). See Doc. No. 495-2, Gov’t Ex. A.
Thus, Mendoza’s argument boils down to the assertion that Domingo should have
presented the Western Union checks and/or outlined each payment Mendoza made
on each mortgage. The court rejects that Domingo’s strategic decision not to
present this evidence in a particular manner was deficient, much less caused any
prejudice.
As an initial matter, Mendoza offers no suggestion as to how
Domingo could have presented these Western Union checks into evidence where
Mendoza chose not to testify.13 Mendoza was in the best position to explain that he
purchased each Western Union check and made the payments on the mortgage
loans. Yet as explained above, testifying would have opened Mendoza to crossexamination, and Domingo’s advice to Mendoza whether to testify (as well as
Mendoza’s ultimate decision not to take the stand) cannot be challenged. See
13

Domingo also believed that the Western Union checks seemed “unusual,” and that he
would not be able to explain why they were purchased without calling Mendoza as a witness.
See Doc. No. 495-1, Domingo Suppl. Decl. ¶ 7. The court does not second-guess this strategic
decision. See Matylinsky, 577 F.3d at 1091.
35

Carter, 83 F.3d at 249.
Second, and more importantly, even if Domingo could have
introduced the Western Union checks into evidence, they were largely redundant of
the evidence already presented to the jury. Specifically, there was no dispute at
trial that (1) Alimoot, Koizumi, and Cristo were the purchasers of the properties
and obligated on the mortgage loans, (2) it was Alimoot, Koizumi, and Cristo’s
understanding that Mendoza would make mortgage payments; and (3) Mendoza
did in fact make the mortgage payments. Mendoza offers no explanation as how -where Mendoza’s payments were undisputed -- specific evidence of each mortgage
payment would have forwarded his case.
Indeed, both Domingo and the government argued to the jury the
relevance of Mendoza’s payments, and there is no basis for the court to find that
more specific evidence would have affected these arguments or the jury’s decision.
For example, during his closing, Domingo argued that Mendoza was not involved
in the fraudulent loan applications and instead was simply trying to help these
families. Domingo emphasized that Mendoza paid the Dano mortgages and
“[t]here’s no dispute as far as that goes.” Doc. No. 432, Trial Tr. at 81. In
comparison, the government argued that these payments were just part and parcel
of Mendoza’s scheme to obtain as much equity as possible from each property:
36

As to whether or not Mr. Mendoza did intend for these
deals to take place and to be consummated by payment
on the mortgage and stuff, we submit to you that that
wasn’t really the case here. The evidence doesn’t support
that. Maybe he intended to make payments for as long as
he needed to be able to refinance on the property, but
once it appeared the property was struck dry, he seemed
to stop making payments.
Id. at 99. See also id. at 101 (“Mr. Mendoza was making payments . . . until a
refinance, a new assignee could be found or a new refinance could be done.”).
In short, there was no dispute at trial that Mendoza made the payments
as he claims in his § 2255 Motion. From this fact the jury could infer -- if it
deemed appropriate -- that Mendoza was in fact attempting to aid these families,
which could in turn be relevant to the jury’s determination of whether he defrauded
the financial institutions. Even if the Western Union Checks could have been
admitted without Mendoza testifying, the evidence would simply be redundant.
The court therefore finds that Domingo’s decision not to delve into the specifics of
each payment was a strategic choice that rests soundly within his professional
judgment. See Matylinsky, 577 F.3d at 1091.
Finally, even if Domingo should have presented the Western Union
checks, Mendoza has utterly failed to prove any prejudice. Admission of the
mortgage payments that he did make (perhaps in some clearer fashion than as
presented at trial) would not have undermined the substantial evidence that
37

Mendoza engaged in a scheme to defraud several financial institutions through
wire fraud, mail fraud, and money laundering, and making false statements on loan
applications. Nor do the mortgage payments negate or otherwise undermine that
Mendoza received money from these transactions well in excess of the payments
he did make. In other words, Mendoza’s intentions as to the homeowners was at
most circumstantial evidence that was not on its own sufficient to rebut the
government’s case.
The court therefore DENIES Mendoza’s § 2255 Motion to the extent
he argues that Domingo provided ineffective assistance of counsel by failing to
present evidence of the mortgage payments, or that such deficiency was in any way
prejudicial.
ii.

Checks from Rosemary Dano

Mendoza asserts that the checks from Rosemary Dano, if presented
into evidence, would have established that they were not intended or used for
Mendoza’s mortgage payments and not used to purchase a sports car as suggested
by the government. Doc No. 488, Reply at 7. The court rejects this argument.
As initial matter, what Mendoza did with these checks is largely
irrelevant and would not undermine the confidence of the verdict -- Mendoza’s
explanation regarding these checks does not rebut the fact that Rosemary Dano
38

gave Mendoza the two checks, and does not rebut the government’s evidence that
the end result of the real estate transactions was that Mendoza received substantial
sums of money with each loan transaction. Further, whatever Mendoza’s
explanation as to these checks may be, Mendoza himself would have needed to
provide this explanation. As explained above, however, Mendoza chose not to
testify. Mendoza has therefore failed to establish that Domingo’s decisions
regarding these checks were deficient or that Mendoza suffered any prejudice.
iii.

Contracts

Finally, Mendoza argues that Domingo should have presented
evidence regarding the underlying contracts for these real estate transactions. At
trial, however, several agreements were presented into evidence and their terms
discussed (by Alimoot and Cristo in particular). See Gov’t Trial Exs. 103, 171,
172. As a result, the court cannot discern whether Mendoza asserts that Domingo
should have admitted additional contracts, or rather that Domingo failed to bring
out specific nuances of the contracts that were admitted into evidence. Needless to
say, Mendoza’s vague argument fails to carry his burden to show either that
Domingo’s representation fell below professional norms or that it caused any
prejudice. Further, like the checks, Mendoza was in the best position to testify
regarding these contracts and chose not to testify. Mendoza has therefore failed to
39

establish that Domingo was ineffective by failing to present such contracts.
e.

Domingo’s alleged failure to present IRS transcripts

Finally, Mendoza argues that Domingo provided ineffective assistance
of counsel by failing to admit into evidence the IRS Memoranda of Interview, in
which Mendoza asserted that he was willing to pay any taxes he owed. Doc. No.
479, Mot. at 18. These Memoranda constitute self-serving hearsay and are
inadmissible. As a result, Mendoza cannot base his ineffective assistance claim on
Domingo’s alleged failure to admit them into evidence. See Cannedy, 706 F.3d at
1163.
B.

The Government’s Use of Allegedly Altered Documents
Finally, Mendoza argues that the government engaged in prosecutorial

misconduct by (1) presenting government’s trial exhibit 137 with missing
information; and (2) failing to publish the entire exhibit of government’s trial
exhibit 31B.14 The court rejects these arguments.
Government’s trial exhibit 137 is a final statement (i.e., a “HUD-1”)
issued by First American Title Company for the October 3, 2005 sale of the
Mokapu Property from Alimoot to Pineda. Although Mendoza argues that the
14

Beyond his arguments regarding these exhibits, Mendoza outlines an altercation
between him and the government during the deposition of Rosemary Dano. See Doc. No. 479,
Mot. at 19-21. Whatever occurred, the jury was not made aware of this incident and it is
therefore irrelevant to the trial.
40

government must have altered the exhibit because it contains only Pineda’s side of
the transaction and does not show Alimoot’s side of the transaction establishing
that Alimoot received proceeds, there is no evidence that the government altered
this exhibit. Rather, an escrow company generates three different versions of
“final statements” of transactions to show the buyer’s side, the seller’s side, and
both sides, respectively, see Doc. No. 485-4, Clare Connors Decl. ¶ 4, and the
government simply chose to use the one showing Pineda’s side of the transaction.
Using this version of the HUD-1 caused no prejudice to Mendoza -- he was not
charged with any crime stemming out of the Alimoot/Pineda transaction.
As to government trial exhibit 31B, a statement of income for “Theos
Alms,” there is no requirement that the government publish each page of an exhibit
for the jury. Rather, the exhibit was admitted into evidence and could be examined
by the jury.15
The court therefore DENIES the § 2255 Motion to the extent it asserts
that the government committed prosecutorial misconduct as to these exhibits.

15

Mendoza further asserts that he did not write this document and that the income listed
should have been titled “projected income,” a mistake that he corrected with the document’s
recipient. Doc. No. 479, Mot. at 21. To the extent Mendoza asserts that Domingo provided
ineffective assistance of counsel by failing to bring out these facts, Mendoza would have had to
testify regarding these facts.
41

V. CERTIFICATE OF APPEALABILITY
In dismissing the § 2255 Motion, the court must also address whether
Mendoza should be granted a certificate of appealability (“COA”). See R. 11
Governing § 2255 Cases in the U.S. Dist. Cts. (providing that “[t]he district court
must issue or deny a certificate of appealability when it enters a final order adverse
to the applicant”). A COA may issue only if the petitioner “has made a substantial
showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).
“The standard for a certificate of appealability is lenient.” Hayward v.
Marshall, 603 F.3d 546, 553 (9th Cir. 2010) (en banc). The petitioner is required to
demonstrate only “that reasonable jurists could debate the district court’s resolution
or that the issues are adequate to deserve encouragement to proceed further.” Id.
(citation and internal quotation marks omitted). The standard “requires something
more than the absence of frivolity but something less than a merits determination.”
Id. (internal quotation marks omitted).
The court carefully reviewed all of Mendoza’s assertions and gave
him every benefit by liberally construing them. Based on the above analysis, the
court finds that reasonable jurists could not find the court’s rulings debatable.
Accordingly, a COA is DENIED.

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VI. CONCLUSION
Based on the above, the court DENIES the Petition pursuant to 28
U.S.C. § 2255 to Vacate Sentence and Set Aside for a New Sentencing, and
DENIES a certificate of appealability.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, May 30, 2013.

/s/ J. Michael Seabright
J. Michael Seabright
United States District Judge

United States v. Mendoza, Civ. No. 12-00566 JMS/BMK, Cr. No. 08-00303-01 JMS, Order:
(1) Dismissing Petitioner’s Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct
Sentence by a Person in a Federal Custody; and (2) Denying a Certificate of Appealability
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