Mendoza v. Lee

Filing 10

MEMORANDUM & ORDER: SO ORDERED that Petitioner's application for a writ of habeas corpus pursuant to 28 u.s.c. § 2254 is DENIED. Because there can be no debate among reasonable jurists that Petitioner was entitled to habeas relief, the Court does not issue a Certificate of Appealability. The Clerk of the Court is directed to mark this matter CLOSED. Ordered by Judge Joanna Seybert on 10/24/2012. (Florio, Lisa)

FILED
IN CLERK'S OFFICE
DISTRICT COURT E 0 N y

us

*

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

*

oc·r ' 4 2012

LONG ISLAND OFFICE

-------------------------------------X

JOSE S. MENDOZA,

Petitioner,
MEMORANDUM & ORDER
09-CV-3814(JS)

-againstWILLIAM LEE, SUPERINTENDENT OF
GREEN HAVEN CORRECTIONAL FACILITY,
Respondent.

-------------------------------------X
APPEARANCES
For Petitioner:

Christopher Joseph Cassar, Esq.
Christopher J. Cassar, P.C.
13 East Carver Street
Huntington, NY 11743

For Defendants:

Marion M. Tang, Esq.
Suffolk County District Attorney's Office
Criminal Courts Building
200 Center Drive
Riverhead, NY 11901

SEYBERT, District Judge:
Jose

S.

Mendoza

("Petitioner")

petitions

for a writ of habeas corpus pursuant to 28 U.S.C.

this

Court

2254.

For

convicted

of

§

the following reasons, his Petition is DENIED.
BACKGROUND
On

December

14,

2004,

Petitioner

Criminal Sexual Act

in the First Degree,

Abuse

in the

Degree,

Child

in connection with his

girl.

(Trial

First

Tr.

1044-4 7.)

was

two counts of Sexual

and Endangering

the
of

a

Welfare

of

a

sexual

abuse

five-year-old

He was

sentenced on February 2,

2005

to

concurrent

determinate

terms

of

twenty-five

years

of

incarceration and five years of post-release supervision on the
count of Criminal Sexual Act in the First Degree, seven years of
incarceration and three years of post-release supervision on the
counts

of

Sexual Abuse

incarceration
Child.

on
~~

(Pet.

the

in the

count

10-11;

First

of

Return~

Degree,

Endangering

and one year of
the

Welfare

of

a

59.)

Petitioner appealed the judgment of conviction to the
Appellate

Division,

Second

Department

on

the

grounds

that:

(1) the trial court committed reversible error by allowing the
five-year-old
28-33);

(2)

victim

to give

sworn

testimony

(Appellant's

Br.

the evidence was legally insufficient to establish

the required elements of the crimes charged beyond a reasonable
doubt

(Appellant's Br.

34-40);

(3) he was denied a

fair

trial

when the trial court refused to suppress the statements he made
to the police 1 because the police arrested him without probable
cause

(Appellant's Br.

because

the

trial

"outcry" witnesses
committed

41-44);

court

(4)

allowed

he was denied a
the

introduction

(Appellant's Br. 45-48);

reversible

error

by

1

allowing

(5)
the

fair trial
of

several

the trial court
prosecution

to

After Petitioner waived his rights under Miranda (Hr'g Tr. 8489), he told the police that while babysitting the victim and
her siblings on or around March 28, 2004, he "was on the bed
with [the victim], playing with her," and he "tickled her vulva,
and then kissed her there" (Hr'g Tr. 100-01). He stated that he
was not wearing pants at the time.
(Hr'g Tr. 101.)
2

bolster the victim's testimony with prior consistent statements
(Appellant's Br. 49-51);
trial

court

allowed

(6) he was denied a fair trial when the
the

prosecution's

expert

speculate as to why there were no physical
the

victim's

55);

allegations

of

sexual

witness

findings

abuse

to

to support

(Appellant's

Br.

52-

(7) he was denied a fair trial when the trial court allowed

the prosecution to ask the victim leading questions
Br.

56-60);

and

(8)

his

sentence

was

harsh

(Appellant's

and

excessive

(Appellant's Br. 61-62).
On March 4,

2008,

judgment of conviction.
N.Y.S.2d 364
merit

to

the Appellate Division affirmed the

People v.

(2d Dep't 2008).

Petitioner's

Mendoza,

contention

that

he

as here,

accuses

a

individual

of

held

(citing N.Y.
that

because
that

the

the

CRIM.

victim

trial

PENAL LAW
was

court's

she

knew

the

telling a

lie,

promised to

was

crime,

Id. at 560,

§

competent

to

"examination
between

tell

the

give
of

police

853 N.Y.S.2d at

sworn

the

telling

truth,

the

The court further

70.10(2)).

difference

arrested without

an identified citizen

specific

possess probable cause to arrest."
365

853

The court held that there was no

probable cause because "[w] here,
another

49 A.D.3d 559,

and

testimony,

child
the

revealed
truth

indicated that

she would be punished by her family and God if she lied."

3

and

I d.

(Citing N . Y . CRIM . PENAL LAW
also

found

discretion

that
in

the

allowing

6 0 . 2 0 (2 ) )

§

court

trial
the

2

The Appellate Division
properly

prosecution's

exercised

expert

to

its

testify

regarding the lack of physical findings of abuse and in allowing
Finally,

the prosecution to ask the victim leading questions.

the court found that Petitioner's sentence was not excessive and
that

his

review.

remaining

arguments

unpreserved

for

appellate

the

Court

Id. at 561, 853 N.Y.S.2d at 366.
Petitioner

Appeals,

were

sought

leave

to

which was denied on June 12,

10 N.Y.3d 937,
September 3,

892 N.E.2d 409,

2009,

appeal
2008,

to

of

People v. Mendoza,

862 N.Y.S.2d 343

(2008),

and on

Petitioner filed the pending application for

a writ of habeas corpus pursuant.
DISCUSSION
I.

Standard of Review
Under

Act

of

1996

the

Antiterrorism

( "AEDPA"),

a

and

federal

Effective

court

may

Death

grant

a

Penalty
writ

of

habeas corpus to a state prisoner when prior state adjudication
of the prisoner's case "resulted in a decision that was contrary
to,

or

involved

an

established Federal law,

unreasonable

application

of,

clearly

as determined by the Supreme Court of

2

In the alternative, the court held that the victim "could
properly have been permitted to testify as an unsworn witness
because her testimony was sufficiently corroborated by other
evidence." Id. (citing N.Y. CRIM. PENAL LAW § 60.20 (2)).
4

the

United

States."

decision is

28

u.s.c.

2254 (d) (1).

§

contrary to clearly established

A state-court

federal

law if

it

"applies a rule that contradicts the governing law set forth in
[Supreme Court]
materially
Court
U.S.

indistinguishable

but
133

cases, or if it confronts a set of facts that is

reaches
141,

1

state-court

a

125

different

S.

Ct.

decision

[the

Supreme]

state

court

unreasonable

161

1

an

clearly
[them]

manner."
the

1432

holdings,

decision

of

L.

Ed.

2d

334

unreasonable

the

[the

Brown v.

established

to

Id.

a

result."

involves

Court's
applies

from

facts

Payton,

544

(2005).

"A

application

precedents
in

an

Clearly
as

Supreme]

established

opposed

to

the

objectively
Federal

to

Supreme]

Court's decisions as of the time of the relevant stateYarborough v. Alvarado,

124 S.

158 L.

Ct.

2140,

Ed.

2d 938

dicta,

541 U.S.

(2004)

of

law

"refers

court decision."

the

if

of

652,

[the

660-61,

(internal quotation

marks and citation omitted).
II.

The Petition
The grounds on which Petitioner seeks

federal

habeas

relief are extremely unclear as the Petition itself only cites
to

federal

law

Section 2254.

when

describing

The Court,

the

standard

nonetheless,

of

review

interprets the

broadly as asserting the following grounds for relief:

5

under

Petition
(1)

that

the

trial

court's

evidentiary errors 3

"so

infected

the

trial" that Petitioner's conviction violated due process
69) ;

that

( 2)

violation

of

Petitioner's

Petitioner's

the

sentence

Eighth Amendment

Fourth

Amendment

was

(Pet.

rights

~

were

unduly
65);

and

violated

entire
~

(Pet.

harsh

in

(3)

that

when

the

trial court denied his motion to suppress his statements made to
the police.
A.

The Court will address each in turn.

Trial Court's Evidentiary Errors
State court evidentiary errors can rise to the level

of

a

constitutional

violation

if

the

errors

"so

infused

trial with unfairness as to deny due process of law. •
v. McGuire,
(1991)

62,

75,

112 S. Ct. 475,

Estelle

116 L. Ed.

2d 385

(internal quotation marks and citation omitted); see also

Evans v.
2011)

502 U.S.

the

Fischer,

816

F.

Supp.

2d 171,

(collecting Supreme Court cases).

187

&

n.11

(E.D.N.Y.

However, before raising

this claim in support of a petition for a writ of habeas corpus,
a

petitioner

U.S.C.
remedy,

§

a

must

exhaust

2254 (b) (1) (A).
petitioner

any available
To

properly

state

exhaust

"must apprise the highest

3

remedies.
a

state

28
court

state court of

The Petition specifically refers to the following alleged
evidentiary errors: ( 1) allowing the victim to provide sworn
testimony (Pet. ~~ 25-40); (2) allowing several "outcry•
witnesses to testify at trial (Pet. ~~ 47-56); (3) allowing the
introduction of prior consistent statements of the victim to
bolster her testimony (Pet. ~~ 57-58); (4) allowing the
prosecution's expert to testify about the lack of physical
findings of abuse (Pet. ~~ 59-61); and (5) allowing the
prosecution to ask the victim leading questions (Pet. ~~ 62-64).
6

both the factual and the legal premises of the
ultimately asserted in the habeas petition."
394 F.3d 68,
735

73

F.2d 684,

(2d Cir.

687

federal

Galdamez v. Keane,

2005); see also Petrucelli v.

(2d Cir.

1984)

claims

Coombe,

("Because non-constitutional

claims are not cognizable in federal habeas corpus proceedings,
a habeas petition must put state courts on notice that they are
to decide federal constitutional claims."

(citations omitted));

St. Helen v. Senkowski, 374 F.3d 181, 182-83
satisfy the
petitioner

exhaustion
must

alert

requirement
the

state

of
court

nature of a claim but need not refer[]
[of]

the U.S. Constitution."

notice

to

the

U.S. C.

to
[to]

the

§

state

court

("To

2254 (b),

a

constitutional

chapter and verse

(alterations in original)

quotation marks and citation omitted)) .
sufficient

28

(2d Cir. 2004)

(internal

A petitioner provides
that

it

is

to

decide

1982);

accord

federal constitutional claims if he:
(a)
reli[es]
on pertinent federal
cases
employing
constitutional
analysis,
(b)
reli[es]
on
state
cases
employing
constitutional
analysis
in
like
fact
situations, (c) assert [s]
. the claim in
terms so particular as to call to mind a
specific
right
protected
by
the
Constitution,
and
(d)
alleg[es]
. a
pattern of facts that is well within the
mainstream of constitutional litigation.
Daye v.

Att'y Gen.,

Petrucelli,
here.

He

696

F.2d 186,

735 F.2d at 688.

194

(2d Cir.

Petitioner has failed to do that

relied exclusively on

7

state

law

in

support

of his

evidentiary arguments to the Appellate Division,

4

and the Court

cannot find that Petitioner's general argument to the Appellate
Division

"made

clear

constitutional rights."

that

he

Petrucelli,

was

asserting

735 F.2d at 690

federal

(describing

the difference between classifying a petitioner's argument as a
state law evidentiary issue or a

federal

"more

trial

than

semantical"

because

constitutional one as
judges

discretion when deciding evidentiary issues
argument

but

typically
not

have

"when the

is raised to the federal constitutional level").

The

fact that Petitioner asserted that the trial court's evidentiary
errors "denied him a fair trial," did not put the state court on
notice
See

that

Daye,

he was asserting a

696

F. 2d at

193

federal

(" [N] ot

4

due process violation.

every

event

in

a

criminal

Petitioner cited to only three cases in his sixty-three page
appellate brief that engage in any sort of constitutional
analysis. The first is People v. Morales, 80 N.Y.2d 450, 606
N.E.2d 953, 591 N.Y.S.2d 825 (1992) (see Appellant's Br. 29-30);
however, the constitutional discussion in Morales, which
concerns a criminal defendant's right to be present at trial,
was not cited by Petitioner as it is irrelevant to his habeas
petition. The second is Jackson v. Virginia, 443 U.S. 307, 99
S. Ct. 2781, 61 L. Ed. 2d 560 (1979); however, he cites to
Jackson merely to supply the standard used on a criminal appeal
--~, that a court must consider, after viewing the evidence
in the light most favorable to the prosecution, whether any
rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt, id. at 319 (Appellant's
Br. 40).
Further, Petitioner is not asserting as a ground for
relief in his federal habeas petition that the evidence was
legally insufficient. And, finally, he cites to Henry v. United
States, 361 U.S. 98, 80 s. Ct. 168, 4 L. Ed. 2d 134 (1959) in
his section on probable cause (Appellant's Br. 42), which the
Court will address in more detail below. See supra pages 11-12.
8

proceeding

that

violation of

might

be

described

the defendant's

Kirksey v. Jones,

as

'unfair'

rights under

673 F.2d 58,

60

would

be

a

the Constitution.") ;

(2d Cir. 1982)

("Alleging lack

of a fair trial does not convert every complaint about evidence
or a prosecutor's summation into a federal due process claim.").
Thus,

the

Court

finds

that

Petitioner's

federal

due

process

claim is unexhausted.
"A petitioner must return to state court if he has not
exhausted his state remedies."

Cadilla v. Johnson,

2d 366,

(citing Engle v.

107,
If,

374 n.7

(S.D.N.Y. 2000)

125-26 n.28,
however,

litigate

102

S.

Ct.

1558,

71 L.

Ed.

119 F. Supp.

Isaac, 456 U.S.
2d 783

(1982)).

a petitioner has no available state court forum to

his

unexhausted

exhausted but forfeited.
120-21 (2d Cir. 1991).

claims,

those

claims

See id.; Grey v.

will

Hoke,

be

deemed

933 F.2d 117,

Here, Petitioner has already appealed to

the Appellate Division and the Court of Appeals;

therefore,

he

is now barred from raising his unexhausted claim in state court,
see N.Y. CT.
direct
Court

RULES

appeal

§

500.20(a)

and one

of Appeals);

collateral
review).

Therefore,

application

N.Y.

review if a

(permitting the filing of only one

CRIM.

PROC.

for
LAW

leave
§

to

appeal

440.10(2) (c)

to

the

(barring

claim could have been raised on direct

although Petitioner's

9

federal

due process

claim

is

exhausted,

it

is

procedura).ly barred

and

cannot

be

considered by this Court. 5
B.

Unduly Harsh Sentence
Petitioner also asserts that his sentence was unduly

harsh and
Court

severe

finds

Petitioner

that

this

failed

to

claim
raise

claim on direct appeal,
§

470.15(2)(c).

claim

is

presented

Cir.

sentenced

is
the

meritless.

"No
the

constitutional

federal

within

is

White v. Keane,

(citation

to

determinate

omitted)
term

CRIM.

Eighth

as

of

his

PROC. LAW
Amendment
issue

the

is

range

969 F.2d 1381,

1383

Petitioner

was

Here,

of

The

barred,

nature

constitutional

sentence

1992)
a

procedurally

Petitioner's

Nonetheless,

where .

also

relying instead on N.Y.

prescribed by state law."
(2d

the Eighth Amendment. 6

in violation of

twenty-five

years--the

maximum sentence prescribed by the New York Penal Law for the
crimes for which Petitioner was convicted.

See N.Y. PENAL LAW

5

A federal court may nonetheless reach the merits of a
procedurally barred claim if the petitioner can demonstrate
"both cause and prejudice--cause for the default and prejudice
arising from imposing the bar of a default," or actual
innocence. Strogov v. Att'y Gen., 191 F.3d 188, 193 (2d Cir.
1999). Petitioner, however, has failed to make a showing that
his Petition falls within any of these exceptions.
6

Petitioner actually asserts that he was "denied due process
when the court imposed a sentence of incarceration of twentyfive (25) years which is unduly harsh and severe."
(Pet. , 65
(emphasis added).) This is more appropriately characterized as
a violation of his rights under the Eighth Amendment, and the
Court will analyze it as such.
10

§

130. SO

(describing

the

offense

of

criminal

sexual

act

in

the

first degree as a class B felony); N.Y. PENAL LAw§ 70.80(4)(a)(i)
(stating that the sentence for a class B felony sex offense is a
determinate term of at least five years and no more than twentyfive years).
C.

Accordingly, this claim is without merit.

Unreasonable Search and Seizure
Petitioner's

final

claim is that his

right under the

Fourth Amendment 7 to be free from unreasonable search and seizure
was

(Pet.

violated.

,

41.)

Specifically,

Petitioner alleges

that the trial court should have suppressed the statements that
he made to the police because the police lacked probable cause
(Pet.

for his arrest.
from

reviewing

this

Powell,

428 U.S.

( 1976) ,

held that

for

full

and

465,

,

41.)

claim.
494,

The Court,
The

96 S.

Supreme
Ct.

the

49 L.

litigation

of

a

975

F.2d

that

evidence

568 F. 2d 83 0,
67,

70

in

Stone

Ed.

Fourth Amendment

v.

2d 1067

obtained

in

(1992).

state prisoner has

839

(2d Cir.

The

an

7

unconstitutional

1977) ; Capell an v.

opportunity

has
for

held
a

Riley,
that

full

a

and

Again, Petitioner inappropriately characterizes his claim as a
violation of his right to due process.
11

a

See also Gates v.

Second Circuit

been denied an

claim,

habeas corpus relief

search or seizure was introduced at trial."
Henderson,

is barred

"where the State has provided an opportunity

fair

ground

Court

3037,

state prisoner may not be granted federal
on

however,

fair

litigation of

his

Fourth Amendment

claims

(1)

if:

"the

state provides no corrective procedures at all to redress Fourth
Amendment violations" or (2)
utilizing

[the

"the defendant

[was] precluded from

state's corrective procedures]

Gates,

unconscionable breakdown in that process."
840.

Neither situation exists here.

by reason of an

Rather,

568 F.2d at

Petitioner had a

full opportunity to challenge the state court's probable cause
finding at pretrial Huntley, Dunaway, and Payton hearings and on
appeal

to

the

assert that
those

Appellate

there was an

proceedings.

Division.

And

Petitioner

"unconscionable breakdown"

The

Court,

therefore,

is

does

not

of any of

barred

from

reaching the merits of his Fourth Amendment claim.
CONCLUSION
For

the

reasons

set

forth

Petitioner's

above,

application for a writ of habeas corpus pursuant to 28
is

DENIED.

reasonable

jurists

§

2254

Because
that

there

can

Petitioner

was

be

no

debate

entitled

to

u.s.c.
among
habeas

relief, the Court does not issue a Certificate of Appealability.
28

u.s.c.

§

2253(c); Middleton v. Att'ys Gen., 396 F.3d 207, 209

(2d Cir. 2005).

12

The Clerk of the Court is directed to mark this matter
CLOSED.
SO ORDERED.

/s/ JOANNA SEYBERT
Joanna Seybert, U.S.D.J.
Dated:

October
24
, 2012
Central Islip, NY

13