Mendez v. Sheehan

Filing 21

DECISION AND ORDER denying Petitioners request for a writ of habeas corpus, and the petition (Dkt #1) is dismissed. Because Petitioner has not made a substantial showing of the denial of a constitutional right pursuant to 28 U.S.C. § 2253(c)(2), no certificate of appealability shall issue. (The Clerk of Court is directed to close this case.) Copy of this Decision and Order sent by first class mail to Plaintiff.. Signed by Hon. Michael A. Telesca on 10/30/17. (JMC)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

JOSE MENDEZ,
Petitioner,

No. 1:15-cv-00009-MAT
DECISION AND ORDER

-vsMICHAEL SHEEHAN,
Respondent.

I.

Introduction
Jose

Mendez

(“Petitioner”),

proceeding

pro

se,

filed

a

petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254
alleging that he is being detained in Respondent’s custody as the
result of an unconstitutional conviction entered against him on
November 30, 2006, in State of New York, County Court, County of
Monroe (King, J.). As discussed further herein, Petitioner has not
demonstrated entitlement to a writ of habeas corpus, and his
petition is dismissed.
II.

Factual Background and Procedural History
On May 20, 2006, at about 6:45 p.m., Petitioner and two

acquaintances (Roberto A. Astacio (“Astacio”) and Maximillan T.
Garrison (“Garrison”)) broke into the Rochester, New York home of
Anthony Manella (“Manella”), a 59-year-old painting contractor.
Manella also managed and trained boxers, and he had been training
Petitioner for about 2 or 3 months prior to the incident. Wearing

masks and carrying fake guns, Petitioner and his cohorts tied up
Manella’s daughter and stole money from her and Manella’s wife.
Astacio pistol-whipped Manella several times across the left side
of his head while demanding money and gem stones from him.
At some point, Manella’s daughter was able to yell out to her
boyfriend, who was standing outside smoking a cigarette, that there
were men inside the house with guns. The boyfriend called 911, and,
shortly after 7 p.m., members of the Rochester Police Department
surrounded the house. Manella and his wife escaped down the back
staircase to the second floor where they untied their daughter.
Astacio surrendered immediately to police. Approximately one
hour later, Petitioner left the house with his hands up. The police
eventually

found

Garrison

hiding

in

a

crawl

space

in

the

third-floor bedroom and had to break down the wall to extract him.
Manella was taken to the hospital where doctors determined he
had sustained multiple fractures on the left side of his face as
well as permanent loss of vision in his left eye due to blunt force
trauma to the optic nerve.
Petitioner was taken into custody and, after being advised of
his Miranda rights, he told the police that it was his idea to go
to Manella’s house to steal marijuana from him. Approximately three
hours later, Petitioner gave a written statement in which he
admitted that he knew Manella, knew that Manella had marijuana in
his house, and that he had gone to Manella’s house with Garrison

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and Astacio to steal marijuana. Petitioner stated that apart from
telling Manella’s wife that he wanted their “weed,” he took no part
in the crime and hid in the basement until he left the house.
The police recovered masks, a BB gun replica of a Smith &
Wesson automatic handgun, a hard plastic replica of a Baretta 92
model 9 millimeter pistol, a knife, body armor, and several pieces
of clothing at Manella’s residence after the incident. However, no
fingerprints were recovered from the weapons, and no forensic
testing was conducted on any of these items.
Severance was granted as to all defendants. On October 25,
2006, following a jury trial, Petitioner was convicted of one count
each of first-degree burglary and second-degree assault, and four
counts of second-degree robbery. On November 30, 2006, the County
Court adjudicated Petitioner a second felony offender and sentenced
him to the following concurrent determinate prison terms: 20 years
on both of the first-degree burglary and first-degree assault
convictions, and 15 years on each of the four second-degree robbery
convictions. The County Court also imposed a five-year term of
post-release supervision.
Through appellate counsel, Petitioner appealed his conviction
to the Appellate Division, Fourth Department, of New York State
Supreme Court. Petitioner also filed a pro se supplemental brief.
The

Appellate

Division

unanimously

affirmed

the

judgment

on

October 1, 2010. People v. Mendez, 77 A.D.3d 1312 (4th Dep’t 2010).

-3-

The

New

York

Court

of

Appeals

denied

leave

to

appeal

on

February 24, 2011. People v. Mendez, 16 N.Y.3d 799 (2011).
On April 20, 2012, Petitioner filed a pro se motion to vacate
the

conviction

pursuant

to

New

York

Criminal

Procedure

Law

(“C.P.L.”) § 440.10 in the County Court. Citing then-recent Supreme
Court cases, Missouri v. Frye, 132 S. Ct. 1399 (2012) (“Frye”), and
Lafler v. Cooper, 132 S. Ct. 1376 (2012) (“Lafler), Petitioner
asserted that he received ineffective assistance of counsel during
plea negotiations.

On July 10, 2014, the County Court (Piampiano,

J.)1 issued a Decision and Order (SR.340-45) denying the motion
without a hearing, finding that it could be decided on the trial
record. On November 30, 2014, the Appellate Division denied leave
to appeal. (SR.426).
In his timely-filed habeas petition, Petitioner claims that he
was denied effective assistance of trial counsel (1) during the
plea negotiations because his attorney failed to inform him that
his lack of intent to injure Manella was not a defense to the
burglary charge; and (2) at trial, because (a) counsel erroneously
raised

a

defense

that

Petitioner

lacked

intent

to

commit

first-degree burglary and (b) counsel failed to move to suppress
Petitioner’s written statements on the ground that they were
obtained without Petitioner being advised of his Miranda rights;

1

Since the time of Petitioner’s trial, Judge King had retired. Judge
Piampiano was assigned to handle Petitioner’s C.P.L. § 440.10 motion.

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(3) the trial court erroneously denied Petitioner’s motion for a
mistrial after a police officer used the term “home invasion”
during his testimony despite the trial court ruling precluding the
use of that term; and (4) Petitioner was denied due process when
the trial court arbitrarily refused to hold a hearing on the C.P.L.
§ 440.10 motion. (Petition [#1], ¶ 12).
In

his

answer,

Respondent

argues

that

the

claims

are

unexhausted, procedurally defaulted, or not cognizable on habeas
review and, in any event, are without merit. Petitioner filed a
reply but did not address Respondent’s procedural defenses. For the
reasons set forth below, the petition is dismissed.
IV.

Discussion
A.

Ineffective Assistance of Trial Counsel (Grounds One and
Two)
1.

Ineffectiveness During Plea Negotiations (Ground
One)

At trial, defense counsel argued that Petitioner’s only intent
was to take an illegal substance (marijuana) from Manella, not to
injure

him

or

steal

money

or

jewels

from

him.

Petitioner

characterizes this defense as a “sham” and faults trial counsel for
misrepresenting

the

merits

of

such

a

defense.

According

to

Petitioner, if he had been properly counseled, he would have
accepted the prosecution’s purported offer to plead guilty in
exchange for a determinate sentence of 10 years.

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The Sixth Amendment entitled Petitioner to the effective
assistance of counsel during plea negotiations. Frye, 566 U.S. at
140 (citations omitted). While defendants have “no right to be
offered a plea[,]” id. at 148 (citation omitted), “defense counsel
has the duty to communicate formal offers from the prosecution to
accept a plea on terms and conditions that may be favorable to the
accused.” Id. at 145. Relatedly, “[i]f a plea bargain has been
offered, a defendant has the right to effective assistance of
counsel in considering whether to accept it.” Lafler, 566 U.S. at
168. However, “[i]f no plea offer is made, or a plea deal is
accepted by the defendant but rejected by the judge, the issue [of
whether

the

defendant

received

effective

assistance

in

this

context] does not arise.” Id.
In his C.P.L. § 440.10 motion, Petitioner claimed that he
would have accepted the prosecution’s offer of a sentence promise
of 10 years if he pled guilty to the entire indictment, if counsel
had advised him that a lack of mens rea as to the first-degree
burglary count was not a defense under a theory of accomplice
liability. (See SR.354-62). In opposing the motion, the prosecution
acknowledged

that

Petitioner,

but

Petitioner

would

a

plea

asserted
not

bargain
an

agree

offer
to

indictment. (See SR.331-39).

-6-

had
was

plead

been
not
guilty

discussed
extended
to

the

with

because
entire

The key issue, as the County Court found, was whether there
actually was a plea offer of 10 years extended by the prosecution.
The

County

Court

found

that

defense

counsel’s

remarks

at

sentencing, arguing in favor of a 10-year sentence, did not support
Petitioner’s claim. (SR.344-45). Specifically, at sentencing, trial
counsel noted that
[e]ven at the point of jury selection, Your Honor, we
were discussing 10 years. I’d ask the Court to remember
that even when we were discussing that, the People
continued to insist upon a plea to the entire indictment,
including one count that once we had informed the Court
we could not accept that, they withdrew and dismissed one
count in regards to Mr. Mannella.
(Id.) (emphases supplied). The County Court found these remarks by
trial counsel fatally undercut Petitioner’s assertion that the
prosecution had actually offered a plea offer with a sentence
promise of 10 years.
“Factual determinations by state courts are presumed correct
absent clear and convincing evidence to the contrary, [28 U.S.C.]
§ 2254(e)(1), and a decision adjudicated on the merits in a state
court and based on a factual determination will not be overturned
on factual grounds unless objectively unreasonable in light of the
evidence

presented

in

the

state-court

proceeding,

[id.,

§ 2254(d)(2)[.]” Miller-El v. Cockrell, 537 U.S. 322, 340 (2003)
(citation

omitted).

The

Court

need

not

determine

whether

§ 2254(e)(1)’s or § 2254(d)(2)’s standard applies, because the
result is the same in either case. Petitioner has not come forward

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with

“clear

and

convincing”

proof

sufficient

to

rebut

§ 2254(e)(1)’s presumption. To the extent the County Court’s
decision was based on a factual determination, it certainly was not
objectively unreasonable given the factual record below, see 28
U.S.C. § 2254(d)(2).
2.

Ineffectiveness at Suppression Hearing and Trial
(Ground Two)
a.

Petitioner

Failure to
Statements

faults

trial

Move

to

counsel

Suppress

for

failing

Petitioner’s
to

move

to

suppress his written statements on the ground that they were
obtained without Petitioner being re-advised of his Miranda rights.
Respondent raises the defenses of non-exhaustion and procedural
default, and alternatively argues that the claim is meritless.
“Each substantially independent factual claim made in support
of an allegation of ineffective assistance of counsel must be
fairly presented to a state court before a federal habeas court may
rule upon it.” Jelinek v. Costello, 247 F. Supp.2d 212, 267
(E.D.N.Y. 2003) (citing Rodriguez v. Hoke, 928 F.2d 534, 538
(2d Cir. 1991)). As Respondent points out, Petitioner has never
fairly presented this claim in Federal constitutional terms to the
State courts in the course of completing one round of the State’s
established

appellate

review

process,

thereby

rendering

these

claims unexhausted. See Baldwin v. Reese, 541 U.S. 27, 29 (2004).

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However, Petitioner is procedurally barred from returning to
state court to exhaust this claim of ineffective assistance of
trial counsel. First, he has already completed his direct appeal.
By statute, New York law used to specifically provide for only a
single application for direct review. Spence v. Sup’t, Great Meadow
Corr. Fac., 219 F.3d 162, 170 (2d Cir.2000) (relying on former
New York Rules for the Court of Appeals (“N.Y. R. Ct.”) § 500.10(a)
(discussing leave applications for criminal appeals)). N.Y. R. Ct.
§ 500.10 has since been amended, and criminal leave applications
are now addressed in N.Y. R. Ct. § 500.20. Although § 500.20 “does
not specifically state that there may be only one application for
appeal, see N.Y. R. Ct. § 500.20, such a restriction may be
inferred,” since “[b]oth Rule 500.20(d) and CPL § 460.10(5) provide
a 30–day window for any such application to be filed; this time
limit would be meaningless were multiple applications permitted.”
Colon v. Connell, No. 07 Civ. 7169(BSJ)(JCF), 2009 WL 2002036, at
*6 n. 4 (S.D.N.Y. July 9, 2009) (noting that both N.Y. R. Ct.
§ 500.20(d) and N.Y. Crim. Proc. Law § 460.10(5) provide a 30–day
window for any such application to be filed; "this time limit would
be meaningless were multiple applications permitted"); accord,
e.g., Cunningham v. Conway, 717 F. Supp.2d 339, 365 (W.D.N.Y. 2010)
(collecting cases). In addition, § 500.20(a)(2) provides that the
leave letter must indicate that “that no application for the same
relief has been addressed to a justice of the Appellate Division,

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as

only

one

application

is

available[.]”

N.Y.

R.

CT.

§ 500.20(a)(2).
Collateral

review

in

state

court

of

this

ineffective

assistance claim is likewise barred because “sufficient facts
appear on the record of the proceedings underlying the judgment” to
have permitted Petitioner to raise the claim on direct appeal. See
N.Y. Crim. Proc. Law § 440.10(2)(c) (mandating that court dismiss
motion to vacate if sufficient facts appeared on the record to have
permitted direct review but defendant unjustifiably failed to raise
claim on direct appeal).
Because a state court would find Petitioner’s unexhausted
ineffective assistance claim to procedurally barred from review,
they are deemed exhausted. Grey v. Hoke, 933 F.2d 117, 120–21 (2d
Cir. 1991). However, the state’s barriers to relief that cause the
Court

to

deem

Petitioner’s

claim

exhausted

also

renders

it

procedurally defaulted. E.g., Ramirez v. Att’y Gen’l of N.Y., 280
F.3d 87, 94 (2d Cir. 2001) (citation omitted).
A procedural default may be excused by a federal court,
however, if the petitioner demonstrates either cause for the
default and actual prejudice from the alleged violation of federal
law, or that the failure to consider the claims will “result in a
fundamental miscarriage of justice.” Coleman v. Thompson, 501 U.S.
722,

750

(1991).

A

miscarriage

of

justice

on

occurs

“in

an

extraordinary case, where a constitutional violation has probably

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resulted in the conviction of one who is actually innocent.” Murray
v. Carrier, 477 U.S. 478, 496 (1986). Petitioner has not made a
showing of cause and prejudice, or that he is actually innocent.
Indeed, prejudice is lacking because the underlying Miranda
argument is without merit, as the Appellate Division determined on
direct appeal. That court found that Petitioner was administered,
and

waived,

his

Miranda

rights

at

approximately

9:30

p.m.

Subsequently, he “remained in police custody, and there is no
evidence in the record before us that he invoked his right to
counsel or had reason to believe that he was no longer under
investigation.”
questioned

Mendez,

him

77

A.D.3d

approximately

at

three

1312.

When

hours

the

later,

police
without

readministering Miranda warnings, he gave the written statement at
issue. The Appellate Division concluded, that under the facts of
this case, “there was no need for the police to readminister [his]
Miranda rights and thus . . . the [trial] court properly refused to
suppress [his] written statement[.] Id. (citation omitted). Given
that both the trial court and the appellate court rejected the
argument that Petitioner contends trial counsel should have made at
the

suppression

hearing,

Petitioner

cannot

show

that

he

was

prejudiced by trial counsel’s failure to do so.
b.

Assertion of a “Sham” Defense

Petitioner claims that trial counsel was ineffective for
raising a defense that he lacked the intent to commit burglary

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because he did not intend to injure Mannella or rob Mannella’s wife
and daughter. Specifically, during summation, trial counsel argued
that Petitioner intended only to steal Manella’s stash of marijuana
and did not share his co-defendants’ intention of robbing and
assaulting Mannella, and forcibly taking property from Mannella’s
wife

and

daughter.

(T.410-12).

Petitioner

asserts

that

this

argument was a “sham” because it was not a complete defense to any
of the charges against him.

The Appellate Division rejected this

contention, inasmuch as Petitioner “failed to show the absence of
a

strategic

explanation

for

defense

counsel’s

alleged

shortcomings[.]” Mendez, 77 A.D.3d at 1312–13 (citations omitted).
This holding was not erroneous as a matter of federal law.
In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme
Court observed that since “there are countless ways to provide
effective assistance in a given case,” “even the best criminal
defense attorneys would not defend the particular client the same
way.” Id. at 689. “Determinations regarding the defense strategy
adopted at trial are among the ‘virtually unchallengeable’ tactical
decisions left to the judgment of trial counsel.” Swail v. Hunt,
742 F. Supp.2d 352, 365 (W.D.N.Y. 2010) (citing United States v.
Simmons, 923 F.2d 934, 956 (2d Cir. 1991); United States v.
DiTommaso, 817 F.2d 201, 215 (2d Cir. 1987)).
Here, Petitioner was charged with first-degree burglary under
N.Y. Penal Law § 140.30(2), which provides that “[a] person is

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guilty of burglary in the first degree when he [1] knowingly enters
or remains unlawfully in a dwelling [2] with intent to commit a
crime therein, and when, in effecting entry or while in the
dwelling

or

in

immediate

flight

therefrom,

he

or

another

participant in the crime: . . . [3] [c]auses physical injury to any
person who is not a participant in the crime[.]” N.Y. Penal Law
§ 140.30(2).

Here, the prosecution’s proof as to the three

elements was overwhelming.
As to the first and second elements, Petitioner admitted to
the police that it was his idea to steal marijuana from Mannella.
In his written statement, which was read to the jury, Petitioner
stated in part as follows:
Today 5/20/06, I was with two guys that I know. I drove
my blue Mazda Protege to Virginia Avenue and parked. I
know a guy named Tony who lives at Post Avenue. Tony used
to. train me in boxing. Tony usually has marijuana in his
house. I was going to Tony’s house with these two guys to
take his marijuana. We all went in his house and went
upstairs to the attic area. Tony was upstairs with his
wife. I told Tony I want the weed, where is the weed.
Tony’s wife was afraid, so she went and got the weed. It
was like half a Ziploc bag. . . .”
(T.387;

SR.103).

Petitioner

thus

admitted

that

he

“knowingly

entered” Mannella’s home “unlawfully” with the “intent to commit a
crime therein.” As to the third element, there is no dispute that
Mannella’s permanent loss of vision constituted physical injury.
Given Petitioner’s confession, trial counsel did not have much
choice in the way of defenses to raise. He reasonably relied on the

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remainder of Petitioner’s statement2 to put forth an appeal to the
jury’s sympathy, i.e., unlike his co-perpetrators, Petitioner did
not intend to cause injury to the Mannella’s and he only wanted
marijuana. Granted, this was not a legal defense to the charges,
but trial counsel had no other viable defense to raise, and
Petitioner suggests no alternative. Petitioner has not established
deficient

performance by

trial

counsel,

or

that

there

was a

reasonable probability of a different result if trial counsel had
not made the argument regarding Petitioner’s lack of intent.
B.

Erroneous Denial of Mistrial Motion (Ground Three)

Petitioner contends that the trial court erroneously denied
his motion for a mistrial after a police officer used the term
“home invasion” during his testimony.
At the beginning of trial, the prosecutor sought permission to
refer to the crime as a “home invasion,” arguing that it was a
“factual description” of what had occurred. (T.201). The trial
court denied the application, ruling that the issue was a “factual
question of what occurred” and that the use of “home invasion”
carried an implication. (T.201-03). However, one of the police
officers testified that on the date of the crime, he was directed
2

After demanding the marijuana from Manella, Petitioner stated, “I heard a
noise downstairs, so I ran downstairs. Tony’s daughter had a phone, so I took it
from her. I heard some commotion upstairs, so I ran downstairs to the basement
because I was scared. I stayed in the basement after I saw the cops were there.
The cops exchanged words with one of the guys in the house who eventually went
outside. I heard the police identifying themselves on a loud speaker, so I went
outside.” (T.387; SR.103).

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to report to the Mannella home because other officers were working
on a “home invasion robbery.” (T.257). Trial counsel moved for a
mistrial, which was denied (T.258). Instead, the trial court issued
a instruction in which it explained that whether the case involved
a “home invasion” was an issue for the jury to decide. (T.258).
Petitioner asserted the mistrial claim on direct appeal by
framing it as an error of New York state evidentiary law. The
Appellate Division found that the trial court “properly denied” the
motion for a mistrial “based on the single use by a police officer
of the term ‘home invasion’ during his trial testimony, despite the
fact that the court had ruled that the term would be inadmissible.”
Mendez, 77 A.D.3d at 1312.
Respondent correctly argues that this claim is unexhausted
because it was not fairly presented to the state courts as a
federal constitutional claim. See, e.g., Duncan v. Henry, 513 U.S.
at

365-66

(“If

a

habeas

petitioner

wishes

to

claim

that

an

evidentiary ruling at a state court trial denied him the due
process of law guaranteed by the Fourteenth Amendment, he must say
so, not only in federal court, but in state court.”). Because the
claim was not fairly presented to the state courts on Petitioner’s
direct appeal and, pursuant to N.Y.Crim. Proc. Law § 440.10(2)(c),
he cannot now raise the claim in state court, it claim must be
deemed exhausted but procedurally defaulted.

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Petitioner has not attempted to excuse the procedural default
by showing cause and prejudice, or that a fundamental miscarriage
of justice would occur if this Court declines to consider the
claim. The Court notes that cause prejudice, in particular, is
lacking

here.

As

the

Appellate

Division

correctly

held,

the

mistrial motion concerned a single instance of improper testimony,
the trial court properly and promptly instructed the jury, which is
presumed to follow instructions given to it. See, e.g., Greer v.
Miller, 483 U.S. 756, 766 n.8 (1987) (jury is presumed to “follow
an instruction to disregard inadmissible evidence inadvertently
presented to it, unless there is an ‘overwhelming probability’ that
the jury will be unable to follow the court's instructions, and a
strong

likelihood

that

the

effect

of

the

evidence

would

be

‘devastating’ to the defendant”) (citations omitted). The police
officer’s single mention of the term “home invasion” “was not so
damaging as to warrant a departure from this presumption[,]” United
States v. Castano, 999 F.2d 615, 618 (2d Cir. 1993), given that
“[t]he government’s case against [Petitioner] was overwhelming[,]”
id., as discussed above. See also, e.g., United States v. Minicone,
960 F.2d 1099, 1109 (2d Cir. 1992) (three inadvertent references to
uncharged crimes constituted harmless error when court struck them
from record and instructed jury to disregard them).

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C.

Failure to Hold Hearing on C.P.L. § 440.10 Motion (Ground
Four)

Petitioner argues that he was denied due process because the
trial court refused to hold a hearing on his C.P.L. § 440.10
motion. Respondent argues that this claim is unexhausted because
Petitioner did not raise it in support of his leave application
seeking permission to appeal the denial of the C.P.L. § 440.10
motion to the Appellate Division. In any event, Respondent argues,
this claim is not cognizable on habeas review. The Court agrees
that Petitioner’s claim is not cognizable on habeas review and
therefore need not reach the exhaustion argument.
“[F]ederal

law

does

not

require

states

to

provide

a

post-conviction mechanism for seeking relief.” Word v. Lord, 648
F.3d 129, 132 (2d Cir. 2011) (per curiam) (citations omitted). The
Second Circuit,

in

Word,

joined

with

majority

of

its

sister

circuits that “have accordingly concluded that errors in state
post-conviction proceedings do not provide a basis for redress
under § 2254.” Id. (collecting cases). Petitioner’s claim thus is
precluded by clear Second Circuit precedent. See id.; see also,
e.g., Jones v. Duncan, 162 F. Supp.2d 204, 219 (S.D.N.Y. 2001)
(habeas petitioner’s assertion that the state court’s failure to
hold a hearing on his C.P.L. §§ 440.10 and 330.30 newly discovered
evidence motions violated due process is not cognizable on federal
habeas review) (citation omitted).

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V.

Conclusion
For the foregoing reasons, Petitioner’s request for a writ of

habeas corpus is denied, and the petition (Dkt #1) is dismissed.
Because Petitioner has not made a “substantial showing of the
denial

of

a

constitutional

right”

pursuant

to

28

U.S.C.

§ 2253(c)(2), no certificate of appealability shall issue. The
Clerk of Court is directed to close this case.
SO ORDERED.
S/Michael A. Telesca
HON. MICHAEL A. TELESCA
United States District Judge
DATED:

October 30, 2017
Rochester, New York

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