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)

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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

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