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Mendez v. Sheehan

United States District Court, W.D. New York

October 30, 2017

JOSE MENDEZ, Petitioner,
v.
MICHAEL SHEEHAN, Respondent.

          DECISION AND ORDER

          HON. MICHAEL A. TELESCA, United States District Judge

         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 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). 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; (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 ...


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