Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Menjivar v. Sears

August 7, 2007

JUAN MENJIVAR PETITIONER,
v.
LARRY SEARS, RESPONDENT.



The opinion of the court was delivered by: John Gleeson, United States District Judge

FOR ONLINE PUBLICATION ONLY

MEMORANDUM AND ORDER

Juan Menjivar petitions for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He challenges his September 17, 2002 conviction in Queens County following a plea of guilty to robbery in the first degree. He was sentenced to five years in prison and two and one-half years of post-release supervision. Menjivar claims his plea was not valid because he was not advised that his sentence would include a mandatory period of post-release supervision. For the reasons set forth below, the petition is denied.

BACKGROUND

A. The Offense Conduct

On July 8, 2001, Menjivar robbed a Burger King restaurant in Queens, New York. After fleeing the jurisdiction, Menjivar was apprehended in Seattle on March 7, 2002, and was returned to New York for prosecution.

B. The Procedural History

1. The Plea Colloquy

Menjivar was not informed when he pled guilty on September 17, 2002 that his sentence would entail a period of post-release supervision. Guilty Plea Tr. 6. The court sentenced him immediately following the plea, and informed him at that time of the two-year mandatory supervised release provision. Id.

In spite of his waiver of the right to appeal, Menjivar filed a notice of appeal on September 27, 2002. On January 8, 2003, the Appellate Division, Second Department, appointed counsel to represented Menjivar. Def.'s Br. 3. Menjivar subsequently withdrew his appeal, and by order dated August 11, 2003, the Appellate Division marked his appeal withdrawn. People v. Menjivar, No. 2545/01, *1 (2d Dep't., Aug. 11, 2003).

2. The Motion to Vacate Judgment

On August 18, 2005, two years after the withdrawal of Menjivar's appeal, he moved for state collateral relief pursuant to N.Y. Crim. Proc. Law § 440.10. Menjivar based his § 440 motion on People v. Catu, 4 N.Y. 3d 242 (2005), which held that courts must inform defendants during the plea allocution of any mandatory term of post-release supervision. Menjivar claimed that because he had not been informed of the mandatory period of post-release supervision before pleading guilty, his conviction was invalid.

On September 14, 2005, the New York Supreme Court, Queens County, denied the § 440 motion. Because Menjivar had failed to raise his claim on direct appeal, the court found the claim to be procedurally barred. See People v. Menjivar, No. 2005-10482, 2545/01, 3 (N.Y. Sup. Ct., Sept. 14, 2006) (Rotker, J.) ("§ 440 Decision"). The court also rejected the claim on the merits, concluding that Catu "does not apply retroactively to defendant's case in this court." § 440 Decision at 4.

On December 27, 2005, the Appellate Division denied Menjivar's motion for leave to appeal. See People v. Menjivar, No. 2005-10482, 2545/01, 1 (2d Dep't., Dec. 27, 2005) (Cozier, J.). On January 30, 2005, the Court of Appeals also denied leave ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.