# Mendez v. McCain

> District Court, E.D. Louisiana · March 22, 2021

URL: https://www.frixlaw.com/law-library/cases/10186445

## Case

- **Court:** District Court, E.D. Louisiana
- **Decided:** March 22, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

JOSE MENDEZ CIVIL ACTION

VERSUS NO. 18-2728

W. SANDY MCCAIN, WARDEN SECTION “G”(2)

ORDER AND REASONS

Before the Court are Petitioner Jose Mendez’s (“Petitioner”) objections to the Report and
Recommendation of the United States Magistrate Judge assigned to the case.1 Petitioner, a state
prisoner incarcerated at the Elayn Hunt Correctional Center in St. Gabriel, Louisiana, filed a
petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 asserting numerous grounds for
relief.2 The Magistrate Judge recommended that Petitioner’s claims be dismissed with prejudice.3
Petitioner objects to the Magistrate Judge’s recommendation.4 After reviewing the petition, the
State’s response, the Magistrate Judge’s Report and Recommendation, Petitioner’s objections, the
record, and the applicable law, the Court overrules Petitioner’s objections, adopts the Magistrate
Judge’s recommendation, and dismisses this action with prejudice.
I. Background
A. Factual Background
On January 17, 2012, Petitioner was charged by felony Bill of Information in the 24th
Judicial District Court for the Parish of Jefferson with Possession of Twenty-Eight to Two

1 Rec. Doc. 22.
2 Rec. Doc. 3.
3 Rec. Doc. 16.
4 Rec. Doc. 22.
Hundred Grams of Cocaine in violation of Louisiana Revised Statute § 40:967(F) (“Count One”)
and Possession of Viagra without a Prescription in violation of Louisiana Revised Statute
§ 40:1238.1 (“Count Two”).5 On January 31, 2012, the defense filed a motion to suppress
evidence.6 After a hearing on November 15, 2012, the state trial court denied the motion to
suppress evidence.7 On March 1, 2013, the defense filed a motion to continue the trial to locate a

witness; the state trial court denied the motion on March 11, 2013.8 On March 4, 2013, the defense
filed a motion for disclosure of the identity of a confidential informant; the state trial court denied
the motion on March 11, 2013.9
Following a jury trial on March 12 and 13, 2013, Petitioner was found guilty as charged.10
On April 1, 2013, the state trial court sentenced Petitioner to twenty years imprisonment at hard
labor on each count to run consecutively with another sentence for a probation violation.11 On
April 3, 2013, the state trial court vacated the sentence and sentenced Petitioner to twenty years
imprisonment at hard labor as to Count One and five years imprisonment as to Count Two, with
both sentences to be served concurrently.12 On May 28, 2013, the state filed a Multiple Offender
Bill of Information charging Petitioner as a second felony offender.13 The same day, Petitioner

5 State Rec., Vol. I of VI, Bill of Information, January 17, 2012.
6 State Rec., Vol. I of VI, Omnibus Motions and Order for Pre-Trial Motions, January 31, 2012. The motion
to suppress was filed as part of an omnibus motion.
7 State Rec., Vol. I of VI, Minute Entry, November 15, 2012.
8 State Rec., Vol. I of VI, Motion to Continue Trial, March 1, 2013. State Rec., Vol. I of VI, Minute Entry,
March 3, 2012.
9 State Rec., Vol. I of VI, Minute Entry, March 11, 2013.
10 State Rec., Vol. I of VI, Trial Minutes, March 12–13, 2013.
11 State Rec., Vol. II of VI, Sentencing Minutes, April 1, 2013.
12 State Rec., Vol. I of VI, Sentencing Minutes, April 3, 2013.
13 State Rec., Vol. I of VI, Multiple Bill of Information, Hearing Minutes, May 28, 2013.
pled guilty to the multiple offender charge.14 The state trial court vacated Petitioner’s previous
sentence as to Count One and sentenced Petitioner as a second felony offender to twenty-five years
imprisonment at hard labor without the benefit of probation or suspension of sentence.15
On direct appeal to the Louisiana Fifth Circuit Court of Appeal, Petitioner’s appellate

counsel filed an Anders brief indicating that counsel had not found a non-frivolous issue to raise
on appeal and a motion to withdraw as counsel of record.16 Thereafter, Petitioner filed a pro se
brief raising three issues: (1) the hearsay statements of Toni Stein and Kenneth Yokum were
unreliable and insufficient evidence supported his convictions; (2) the state trial court erred when
it allowed the hearsay statements of Toni Stein and Kenneth Yokum to be admitted into evidence
in violation of the Confrontation Clause; (3) the trial court erred in failing to provide Petitioner
with an interpreter.17 On April 23, 2014, the Louisiana Fifth Circuit affirmed Petitioner’s
convictions, finding there were no non-frivolous issues for appeal, Petitioner’s Confrontation
Clause claim was procedurally barred due to trial counsel’s failure to object contemporaneously,
and his other claims were without merit.18 On January 9, 2015, the Louisiana Supreme Court
denied Petitioner’s related writ application without stated reasons.19

14 Id.
15 Id.
16 State Rec., Vol. IV of VI, Appellant Brief, December 2, 2013. See Anders v. California, 386 U.S. 738
(1967).
17 State Rec., Vol. IV of VI, Pro Se Brief, January 30, 2014.
18 State v. Mendez, 13-KA-909 (La. App. 5 Cir. 4/23/14); 140 So. 3d 284. The Louisiana Fifth Circuit
amended Petitioner’s sentence to delete a $50,000 fine. Id.
19 State v. Mendez, 14-KO-1085 (La. 1/9/15); 157 So. 3d 596. Petitioner’s conviction became final 90 days
later, on April 9, 2015, when the time expired for Petitioner to file a petition for writ of certiorari with the
United States Supreme Court.
On July 17, 2015, Petitioner submitted an application for post-conviction relief to the state
trial court.20 Petitioner raised the following claims on post-conviction relief: (1) the affidavit
submitted in support of the search warrant was unreliable, resulting in an illegal search and seizure;
(2) trial counsel provided ineffective assistance by failing to properly prepare for trial, interview

and subpoena witnesses, adequately move for a continuance of trial or seek appellate review when
a continuance was denied, move to compel the disclosure of the informant and contest false
statements made in the application underlying the search warrants during the suppression hearing,
discuss the options available to contest the multiple offender bill, object to the unconstitutional
predicate offense at the multiple offender hearing, and require sufficient proof for an adjudication
of guilt; (3) appellate counsel provided ineffective assistance for failing to assert claims relating
to the multiple offender proceedings, including ineffective assistance of counsel at the
proceedings, and the falsity of statements contained in the affidavit submitted in support of the
search warrants; (4) the state trial court violated Petitioner’s confrontation and compulsory process
rights when it failed to order disclosure of the identity of the confidential informant; and (5)

Petitioner’s plea to a predicate offense of the multiple offender bill was not knowing and
voluntary.21
On August 19, 2015, the state trial court denied relief with respect to all claims related to
Petitioner’s multiple offender proceedings—including the ineffective assistance of counsel claims
that related to the multiple offender proceedings —as procedurally barred under Louisiana Code

20 State Rec., Vol. II of VI, Uniform Application for Post-conviction Relief and Brief in Support, July 23,
2015.
21 State Rec., Vol. II of VI, Uniform Application for Post-conviction Relief and Brief in Support, July 23,
2105.
of Criminal Procedure article 930.3.22 On November 30, 2015, the state trial court denied
Petitioner’s remaining claims finding: (1) the claims relating to illegal search and seizure and
failure to disclose the identity of the confidential informant were procedurally barred and without
merit; (2) the ineffective assistance of counsel claims were speculative and conclusory; and (3)
Petitioner failed to prove any deficiency in counsel’s performance or any resulting prejudice.23 On

April 20, 2016, the Louisiana Fifth Circuit Court of Appeal denied Petitioner’s related writ
application, finding no error in the ruling of the state trial court.24 On September 22, 2017, the
Louisiana Supreme Court also denied Petitioner’s related writ application.25
In the interim, Petitioner filed a motion to correct illegal sentence and set aside his guilty
plea with the state trial court.26 The state trial court denied the motion on August 22, 2016.27 The
Louisiana Fifth Circuit denied Petitioner’s related writ application on November 2, 2016.28
Petitioner did not seek review of the Louisiana Fifth Circuit’s ruling.
On March 11, 2018, Petitioner filed the instant petition for a writ of habeas corpus pursuant
to 28 U.S.C. § 2254. Petitioner raises the following grounds for relief: (1) the state trial court erred

in admitting “other crimes” evidence; (2) the state trial court erred in allowing Detective Clogher
to testify regarding statements made by Yokum and Stein in violation of the Confrontation Clause;
(3) the state trial court erred in denying disclosure of the identity of the confidential informant and

22 State Rec., Vol. II of VI, Trial Court Order, August 19, 2015.
23 State Rec., Vol. II of VI, Trial Court Order, November 20, 2015.
24 State Rec., Vol. II of VI, 5th Circuit Opinion, 16-KH-109, April 20, 2016.
25 State ex. rel Mendez v. State, 16-KH-0962 (La. 9/22/17); 226 So. 3d 1088.
26 State Rec., Vol. II of VI, Motion to Correct Illegal Sentence and Set Aside Guilty Plea, August 16, 2016.
27 State Rec., Vol. I of VI, Order, August 22, 2016.
28 State Rec., Vol. II of VI, 5th Circuit Opinion, November 2, 2016.
the affidavit submitted in support of the search warrants contained materially false statements
resulting in an illegal search and seizure; (4) the multiple offender proceedings were defective;
and (5) the state trial court erred in failing to appoint counsel for post-conviction review.29 Finally,
Petitioner argues that he received ineffective assistance of counsel when: (1) trial counsel “failed

to investigate available defenses prior to taking adverse actions without notice” which resulted in
forfeiture of his right to have claims heard on direct appeal; (2) trial counsel failed to investigate
the underlying conviction for purposes of the multiple offender adjudication; and (3) appellate
counsel failed to raise any issues on appeal.30
On June 20, 2018, the State filed a response in opposition to the petition.31 The State
contends that certain claims are procedurally barred or alternatively, should be dismissed on the
merits.32
B. Report and Recommendation Findings
The Magistrate Judge recommended that the petition be denied and dismissed with
prejudice.33 The Magistrate Judge noted that Petitioner failed to raise his claim regarding the
admission of other crimes evidence in state court.34 Furthermore, Petitioner would now be unable

to raise the claim in state court because the claim would be procedurally barred under state law.35

29 Rec. Doc. 3.
30 Id.
31 Rec. Doc. 15.
32 Id.
33 Rec. Doc. 16.
34 Id. at 15.
35 Id. at 15–16.
Therefore, the Magistrate Judge found that federal review of the claim is barred by the doctrine of
procedural default.36
Additionally, the Magistrate Judge noted that the state courts applied a procedural bar to
the following claims: (1) the state trial court erred in allowing Detective Clogher to testify

regarding statements made by Yokum and Stein in violation of Petitioner’s confrontation rights;
(2) the state trial court erred in denying disclosure of the identity of the confidential informant and
the affidavit in support of the search warrants contained materially false statements resulting in an
illegal search and seizure; and (3) the multiple offender proceedings were defective.37 Specifically,
the Louisiana Fifth Circuit Court of Appeal found that the Confrontation Clause claim was not
preserved for appeal because trial counsel had not raised a contemporaneous objection.38 In the
state post-conviction proceedings, both the state trial court and the Louisiana Fifth Circuit found
Petitioner’s claims relating to the identity of the confidential informant and the affidavit in support
of the search warrants procedurally barred under Louisiana Code of Criminal Procedure article
930.4(C) for failure to raise the issues on direct appeal.39 The Magistrate Judge found that both of

these procedural rules were independent and adequate state law grounds to bar review by the
federal courts.40 The Magistrate Judge also found that Petitioner had not established the
applicability of an exception to the procedural default rule that would allow the Court to review
the claims on the merits because Petitioner had not established cause for his default, prejudice

36 Id. at 17–18.
37 Id. at 18–19.
38 Id.
39 Id. at 19.
40 Id. at 22–25.
attributed thereto, or that the failure to review the defaulted claim would result in a fundamental
miscarriage of justice.41
The Magistrate Judge addressed Petitioner’s remaining ineffective assistance of counsel
claims on the merits.42 Regarding Petitioner’s claim that he was entitled to relief because the state

courts did not provide him with assistance of counsel to develop his claims post-conviction, the
Magistrate Judge determined that the claim was without merit because there is no constitutional
right to counsel on post-conviction review.43
Regarding Petitioner’s numerous claims of ineffective assistance of counsel at trial, the
Magistrate Judge found that under Strickland44 Petitioner had not provided any basis to question
his counsel’s performance before or during trial or undermine the deference due to his counsel’s
trial decisions.45 Therefore, the Magistrate Judge found that Petitioner received adequate
assistance of counsel,46 that Petitioner presented no proof that counsel did not adequately
investigate and prepare for trial,47 and Petitioner failed to show prejudice resulting from counsel’s
failure to seek writs.48 The Magistrate Judge also found that trial counsel did not perform
ineffectively by failing to object to the admission of hearsay.49 The Magistrate Judge found the

41 Id. at 31–32.
42 Id. at 36–69.
43 Id. at 69.
44 Strickland v. Washington, 466 U.S. 668 (1984).
45 Rec. Doc. 16 at 39–57.
46 Id. at 43.
47 Id. at 45–49.
48 Id. at 51.
49 Id. at 53–57.
introduction of hearsay statements by Stein and Yokum was harmless and Petitioner was not
prejudiced by their admission because the other evidence of Petitioner’s guilt was overwhelming.50
Additionally, the Magistrate Judge found that Petitioner did not demonstrate any deficient
performance by appellate counsel or show any prejudice caused by counsel’s failure to assert any
claims on direct appeal.51 Finally, construing Petitioner’s claims broadly, the Magistrate Judge

considered Petitioner’s claim that appellate counsel performed ineffectively by failing to challenge
the multiple offender adjudication and by failing to raise issues of ineffective assistance of trial
counsel related to the multiple offender proceedings.52 Specifically, Petitioner argued that his
appellate counsel should have challenged the multiple offender proceedings because Petitioner
was not provided an interpreter to better understand the proceedings.53 The Magistrate Judge found
that Petitioner never complained of an inability to understand English and never requested an
interpreter until direct appeal.54 Therefore, the Magistrate Judge found Petitioner’s claim of
ineffective assistance of appellate counsel meritless and unsupported by the record.55
II. Objections

A. Petitioner’s Objections
Petitioner objects to the Magistrate Judge’s Report and Recommendation.56 Petitioner
asserts that his claims rest on trial counsel’s failure to comply with Louisiana Code of Criminal

50 Id. at 56.
51 Id. at 68–69.
52 Id. at 62–69.
53 Id. at 63.
54 Id. at 65.
55 Id. at 66.
56 Rec. Doc. 22.
Procedure article 841 and appellate counsel’s failure to raise any claims on direct appeal.57 Further,
Petitioner argues that there is no limit on this Court’s discretion to review Petitioner’s claims
because the State “has not shown an intentional relinquishment of [Petitioner’s] rights of access to
federal courts to challenge [Petitioner’s] trial/appellate counsel’s ineffectiveness under Strickland
and Cronic and the benefit of a tactical advantage guilty such relinquishment.”58

Petitioner objects to the Magistrate Judge’s finding that the state record does not support
Petitioner’s claim that he is unable to understand English; Petitioner re-asserts his argument that
his inability to understand the proceedings resulted “in the unconstitutional forfeiture without due
process.”59
B. State’s Opposition
The State of Louisiana did not file a brief in opposition to Petitioner’s objections despite
receiving electronic notice of the filings.
III. Standard of Review
A. Review of the Magistrate Judge’s Report and Recommendation

In accordance with Local Rule 73.2, this case was referred to a magistrate judge to provide
a Report and Recommendation. A district judge “may accept, reject, or modify the recommended
disposition” of a magistrate judge on a dispositive matter.60 A district judge must “determine de

57 Id. at 1.
58 Id. at 2.
59 Id. at 3.
60 Fed. R. Civ. P. 72(b)(3); see also 28 U.S.C. § 636(b)(1).
novo any part of the [Report and Recommendation] that has been properly objected to.”61 A district
court’s review is limited to plain error for parts of the report which are not properly objected to.62
B. Standard of Merits Review Under the AEDPA
Following the enactment of the Antiterrorism and Effective Death Penalty Act of 1996

(“AEDPA”), the standard of review used to evaluate issues presented in habeas corpus petitions
was revised “to ensure that state-court convictions are given effect to the extent possible under
law.”63 For questions of fact, federal courts must defer to a state court’s findings unless they are
“based on an unreasonable determination of the facts in light of the evidence presented in the State
court proceeding.”64 A state court’s determinations on mixed questions of law and fact or pure
issues of law, on the other hand, are to be upheld unless they are “contrary to, or involve[ ] an
unreasonable application of, clearly established Federal law, as determined by the Supreme Court
of the United States.”65
Regarding this standard, the U.S. Court of Appeals for the Fifth Circuit further explains:

A state-court decision is contrary to clearly established precedent if the state court
applies a rule that contradicts the governing law set forth in the Supreme Court’s
cases. A state-court decision will also be contrary to clearly established precedent
if the state court confronts a set of facts that are materially indistinguishable from
a decision of the Supreme Court and nevertheless arrives at a result different from
Supreme Court precedent. A state-court decision involves an unreasonable
application of Supreme Court precedent if the state court identifies the correct
governing legal rule from the Court’s cases but unreasonably applies it to the facts
of the particular state prisoner’s case.66

61 Fed. R. Civ. P. 72(b)(3).
62 See Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1428–29 (5th Cir. 1996) (en banc), superseded
by statute on other grounds, 28 U.S.C. § 636(b)(1) (extending time to file objections from ten to fourteen
days).
63 Bell v. Cone, 535 U.S. 685, 693 (2002).
64 28 U.S.C. § 2254(d)(2).
65 28 U.S.C. § 2254(d)(1).
66 Wooten v. Thaler, 598 F.3d 215, 218 (5th Cir. 2010) (citations and quotation marks omitted).
If Supreme Court case law “give[s] no clear answer to the question presented, let alone one in [the
petitioner’s] favor, ‘it cannot be said that the state court unreasonably applied clearly established
Federal law.’”67 Additionally, “unreasonable is not the same as erroneous or incorrect; an incorrect
application of the law by a state court will nonetheless be affirmed if it is not simultaneously
unreasonable.”68
However, the AEDPA’s deferential standards of review apply only to claims adjudicated
on the merits by the state courts.69 Claims that were not adjudicated on the merits by the state
courts are reviewed “de novo without applying AEDPA-mandated deference.”70

IV. Law and Analysis
A. Exhaustion Doctrine and Procedural Default
The Magistrate Judge recommended that four of Petitioner’s claims be dismissed under the
procedural default rule.71 The Magistrate Judge also found that Petitioner had not established the
applicability of an exception to the procedural default rule that would allow the Court to review
the claims on the merits.72 Petitioner does not object to this finding.73 Accordingly, the Court
reviews for plain error.74

67 Wright v. Van Patten, 552 U.S. 120, 126 (2008) (quoting Carey v. Musladin, 549 U.S. 70, 77 (2006)).
68 Puckett v. Epps, 641 F.3d 657, 663 (5th Cir. 2011) (quotation marks omitted).
69 Henderson v. Cockrell, 333 F.3d 592, 597 (5th Cir. 2003).
70 Carty v. Thaler, 583 F.3d 244, 253 (5th Cir. 2009) (citing Henderson, 333 F.3d at 597).
71 Rec. Doc. 16 at 18–19.
72 Id. at 31–32.
73 Rec. Doc. 22.
74 Douglass, 79 F.3d at 1428–29.
A habeas corpus claim may not be reviewed in federal court “if the last state court to
consider that claim expressly relied on a state ground for denial of relief that is both independent
of the merits of the federal claim and an adequate basis for the court’s decision.”75 Additionally,
when a petitioner has failed to exhaust state court remedies and the state court to which the petition

would be required to present their claims would now find the claims procedurally barred, the
claims are procedurally defaulted for purposes of federal habeas review and must be dismissed.76
In such cases, “federal habeas review is barred unless the petitioner demonstrates either cause and
prejudice or that a failure to address the claim will result in a fundamental miscarriage of justice.”77
“To establish cause for a procedural default, there must be something external to the
petitioner, something that cannot fairly be attributed to him.”78 In McQuiggin v. Perkins, the United
States Supreme Court held that “actual innocence, if proved, serves as a gateway through which a
[habeas] petitioner may pass whether the impediment is a procedural bar . . . or expiration of the
statute of limitations.”79 The Court cautioned, however, that this exception “applies to a severely
confined category: cases in which new evidence shows ‘it is more likely than not that no reasonable
juror would have convicted [the petitioner].’”80

The Magistrate Judge found that the following claims are procedurally defaulted: (1)
Petitioner’s claim regarding the admission of other crimes evidence; (2) Petitioner’s claim that the
state trial court erred in allowing Detective Clogher to testify to hearsay statements made by

75 Finley v. Johnson, 243 F.3d 215, 218 (5th Cir. 2001).
76 Coleman v. Thompson, 501 U.S. 722, 735 n.1 (1991).
77 Hughes v. Johnson, 191 F.3d 607, 614 (5th Cir. 1999).
78 Johnson v. Puckett, 176 F.3d 809, 816 (5th Cir. 1999) (quotation marks omitted).
79 McQuiggin v. Perkins, 569 U.S. 383, 386 (2013).
80 Id. at 395 (quoting Schlup v. Delo, 513 U.S. 298, 329 (1995)).
Yokum and Stein in violation of the Confrontation Clause; (3) Petitioner’s claim that the state trial
court erred in denying disclosure of the identity of the confidential informant and the affidavit in
support of the search warrants contained materially false statements resulting in an illegal search
and seizure; and (4) Petitioner’s claim that the multiple offender proceedings were defective.81

Petitioner does not object to this determination. He has not provided an explanation to show the
applicability of the cause and prejudice exception. Petitioner also has not shown that failure to
address the claims would result in a fundamental miscarriage of justice.82 Furthermore, Petitioner
does not argue that he is actually innocent of the crimes. Accordingly, the Court adopts the
Magistrate Judge’s finding that federal review of these claims is barred by the doctrine of
procedural default.
B. State Trial Court Erred in Failing to Appoint Counsel for Post-Conviction Review
The Magistrate Judge found that Petitioner is not entitled to relief on his claim that the state
courts did not provide him with assistance of counsel to develop his claims further.83 Construing
Petitioner’s objections broadly, Petitioner objects to the Magistrate Judge’s findings.84

Accordingly, the Court reviews this issue de novo.
In the petition and objections, Petitioner cites Martinez v. Ryan85 to support his assertion
that the state courts were required to provide him with assistance of counsel on post-conviction
review. However, in Martinez the Supreme Court reiterated there is no constitutional right to

81 Rec. Doc. 16 at 18–19.
82 Rec. Doc. 22.
83 Rec. Doc. 16 at 69.
84 Rec. Doc. 22.
85 566 U.S. 1 (2012).
counsel on post-conviction review.86 Nothing in Martinez requires that Petitioner be provided with
post-conviction assistance of counsel in the state courts or this federal court to develop his claims
further. Accordingly, the Court adopts the Magistrate Judge’s finding that Petitioner is not entitled
to relief on this claim.

C. Claims of Ineffective Assistance of Counsel
Petitioner argues that he received ineffective assistance of counsel when: (1) trial counsel
“failed to investigate available defenses prior to taking adverse actions without notice” which
resulted in forfeiture of his right to have claims heard on direct appeal; (2) trial counsel failed to
investigate the underlying conviction for purposes of the multiple offender adjudication; and (3)
appellate counsel failed to raise any issues on appeal.87 The Magistrate Judge reviewed the claims
under Strickland88 and found the claims to be meritless.89 Construing Petitioner’s objections
broadly, Petitioner objects to the Magistrate Judge’s findings regarding his claims of ineffective
assistance of counsel.90 Accordingly, the Court reviews this issue de novo.
To succeed on an ineffective assistance of counsel claim, a petitioner must demonstrate

both that counsel’s performance was deficient and that the deficient performance prejudiced his
defense.91 If a court finds that a petitioner fails on either of these two prongs it may dispose of the
ineffective assistance claim without addressing the other prong.92 To satisfy the deficient

86 Id. at 13.
87 Rec. Doc. 3.
88 Strickland, 466 U.S. at 668.
89 Rec. Doc. 16 at 36–69.
90 Rec. Doc. 22.
91 Strickland, 466 U.S. at 697.
92 Id.
performance prong, a petitioner must overcome a strong presumption that the counsel’s conduct
falls within a wide range of reasonable representation.93 Petitioner must show that the conduct was
so egregious that it failed to meet the constitutional minimum guaranteed by the Sixth
Amendment.94 Courts addressing this prong of the test for ineffective counsel must consider the
reasonableness of counsel’s actions in light of all the circumstances.95 To prevail on the actual

prejudice prong, a petitioner “must show that there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been different.”96 A
reasonable probability is “a probability sufficient to undermine confidence in the outcome.”97
The state courts rejected Petitioner’s claims of ineffective assistance of counsel on the
merits.98 Because such claims present mixed questions of law and fact, this Court must defer to
the decision of the state court unless that decision was “contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme Court of the United
States.99
The United States Supreme Court has explained that in considering a petitioner’s claims

on federal habeas corpus review that are repetitive of claims already made to a state court, the
central question “is not whether a federal court believes the state court’s determination under

93 See Crockett v. McCotter, 796 F.2d 787, 791 (5th Cir. 1986); Mattheson v. King, 751 F.2d 1432, 1441 (5th
Cir. 1985).
94 See Styron v. Johnson, 262 F.3d 438, 450 (5th Cir. 2001).
95 See Strickland, 466 U.S. at 689.
96 Id. at 694.
97 Id.
98 State ex rel. Mendez, 226 So. 3d at 1088.
99 28 U.S.C. § 2254(d)(1)). State ex. rel Mendez, 226 So. 3d at 1088.
Strickland was incorrect but whether [it] was unreasonable—a substantially higher threshold.”100
In addition, “because the Strickland standard is a general standard, a state court has even more
latitude to reasonably determine that a defendant has not satisfied that standard.”101 Thus, this
standard is considered “doubly deferential” on habeas corpus review.102

1. Constructive Denial of Counsel
Construing broadly Petitioner’s argument that he was constructively denied counsel due to
counsel’s inadequate performance before and during trial,103 the Magistrate Judge found that
Petitioner had not met his burden of showing that he was constructively denied counsel.104 The
Magistrate Judge further noted that Petitioner’s counsel subjected the prosecution’s case to
“meaningful adversarial testing at each stage.”105
Petitioner asserts that his trial counsel was ineffective because trial counsel “failed to
investigate available defenses prior to taking adverse actions without notice,” which resulted in
forfeiture of his right to have claims heard on direct appeal, and trial counsel failed to investigate
the underlying conviction for purposes of the multiple offender adjudication.106 Petitioner also
asserts his appellate counsel was ineffective due to failure to assert available issues on appeal.107

Petitioner states that his counsel made no contemporaneous objection during trial to the testimony

100 Knowles v. Mirzayance, 556 U.S. 111, 112 (2009) (quoting Schriro v. Landrigan, 550 U.S. 465, 478
(2007)).
101 Id.
102 Id.
103 Rec. Doc. 3 at 29–30.
104 Rec. Doc. 16 at 41.
105 Id. at 42.
106 Rec. Doc. 3.
107 Id.
of Detectives Alvarado, Klien, and Clogher.108 In the petition, Petitioner specifically brings up the
standard of United States v. Cronic.109
In United States v. Cronic,110 the Supreme Court held that a defendant may be
constructively denied counsel, even though an attorney was appointed to represent him. The

Cronic standard applies only when counsel has entirely failed to challenge the prosecution’s
case.111 The Fifth Circuit Court of Appeals has held that the petitioner has the burden to show that
he was constructively denied counsel.112
In the instant case, Petitioner does not allege or show that his counsel entirely failed to
challenge the prosecution’s case. In fact, the state trial court’s records show that Petitioner’s
counsel challenged the prosecution both before and during trial. Before trial, Petitioner’s counsel
filed omnibus motions, including a motion to suppress evidence.113 The state trial court denied the
motion to suppress evidence.114 Counsel then filed a motion to continue the trial to locate a witness;
the state trial court denied that motion as well.115 Finally, counsel for Petitioner filed a motion for
disclosure of the identity of a confidential informant, which the state trial court denied.116 Clearly,

108 Id. at 19.
109 Rec. Doc. 3 at 29.
110 466 U.S. 648 (1984).
111 Bell v. Cone, 535 U.S. 685, 697 (2002).
112 Childress v. Johnson, 103 F.3d 1221, 1228, 1231–32 (5th Cir. 1997).
113 State Rec., Vol. I of VI, Omnibus Motions and Order for Pre-Trial Motions, January 31, 2012.
114 State Rec., Vol. I of VI, Minute Entry, November 15, 2012.
115 State Rec., Vol. I of VI, Motion to Continue Trial, March 1, 2013. State Rec., Vol. I of VI, Minute Entry,
March 3, 2012.
116 State Rec., Vol. I of VI, Minute Entry, March 11, 2013.
Petitioner’s counsel challenged the prosecution’s case several times. Therefore, Petitioner was not
constructively denied counsel.
2. Whether Trial Counsel was Ineffective for Failing to Investigate Available Defenses
and Prepare for Trial

Petitioner claims that trial counsel “failed to investigate available defenses prior to taking
adverse actions without notice … resulting in unconstitutional forfeiture … to have claims heard
on direct appeal.”117 Petitioner refers to Louisiana Criminal Code of Procedure article 841, but
does not specify how his counsel failed to investigate defenses and prepare for trial.118 In
Petitioner’s state court application for post-conviction relief, he more specifically claimed that trial
counsel failed to prepare for trial, failed to interview and call Yokum and Stein to testify, failed to
adequately move for a continuance, and failed to file for writs and move for a stay when the motion
for continuance was denied.119
The Fifth Circuit has ruled that “a defendant who alleges a failure to investigate on the part
of his counsel must allege with specificity what the investigation would have revealed and how it
would have altered the outcome of the trial.”120 A petitioner cannot show prejudice as to a claim
that his counsel failed to investigate without adducing what the investigation would have shown.121
In the instant case, Petitioner does not explain how his counsel did not adequately investigate the
case and prepare for trial. The record reflects that Petitioner’s counsel attempted to locate Stein

117 Rec. Doc. 3 at 30.
118 Id.
119 Rec. Doc. 16 at 43.
120 Moawad v. Anderson, 143 F.3d 942, 948 (5th Cir. 1998); Druery v. Thaler, 647 F.3d 535, 541 (5th Cir.
2011).
121 Diaz v. Quarterman, 239 F. App’x 886, 890 (5th Cir. 2007).
and filed a motion to continue the trial to locate Stein.122 The record also reflects that Stein
provided negative statements about Petitioner to detectives.123
Petitioner has failed to present any evidence to show that if Stein had been available to
testify she would have provided favorable testimony that contradicted her statements to detectives.

Petitioner also presents no evidence to show Yokum, Petitioner’s co-defendant, would have
testified favorably to his defense. Accordingly, Petitioner has not established that his counsel
performed ineffectively by failing to prepare for trial, interview and call Yokum and Stein to
testify, adequately move for a continuance, and file for writs or move for a stay when the motion
for continuance was denied.
3. Whether Trial Counsel was Ineffective for Failure to Object to Introduction of
Certain Evidence

a. Identity of Confidential Informant and Affidavit in Support of Search Warrants

Petitioner claims that his counsel failed to discover the identity of the confidential
informant; Petitioner also claims that counsel failed to object to the “false” information contained
in the affidavit supporting the search warrants.124 However, the record reflects that trial counsel
filed a motion for disclosure of the identity of the confidential informant.125 The trial court denied
the motion.126 An adverse ruling to trial counsel’s motion does not establish ineffective assistance

122 State Rec., Vol. I of VI, Motion to Continue Trial, March 1, 2013; Minute Entry, March 11, 2013;
Motion for New Trial and for Post-Verdict Judgment of Acquittal, March 27, 2013.
123 According to Detective Clogher, Stein told him that Mendez sold cocaine and that he stored it in a black
lockbox at Yokum’s residence. State Rec. Vol. IV of VI, Trial Transcript, pp. 116–20, March 13, 2013.
124 Rec. Doc. 3.
125 State Rec., Vol. I of VI, Motion for Disclosure of the Identity of the Confidential Informant. March 4,
2013.
126 State Rec., Vol I of VI, Minute Entry, March 11, 2013.
of counsel.127 Accordingly, Petitioner has failed to show prejudice resulting in counsel’s failure to
discover the identity of the confidential informant.
Additionally, under Louisiana law, a defendant is not entitled to the disclosure of the
identity of the confidential informant when the information provided by the informant is not the
basis of the arrest or conviction.128 In the underlying case, the confidential informant provided

information that resulted in a “controlled buy” observed by the police.129 The police obtained a
search warrant after observing the controlled buy and the drugs found as a result of the search
resulted in the charges in the Bill of Information.130 Therefore, Petitioner was not entitled to the
disclosure of the identity of the confidential informant because the information from the
confidential informant did not form the basis for Petitioner’s arrest and conviction.
Finally, regarding Petitioner’s claims that the informant made false statements to police
and police could not see the controlled buy, Petitioner’s counsel questioned witnesses about the
reliability of the informant’s information and attempted to impeach the credibility of the detective
who witnessed the controlled buy.131 Petitioner presents no evidence to support his statement that

the affidavit the police submitted in support of the search warrants contained false information.
Accordingly, Petitioner has failed to establish that information in the affidavit was false or that
counsel performed deficiently by failing to challenge the affidavit.

127 Mitchell v. Leblanc, No. 16-31003, 2017 WL 6276121 (5th Cir. July 5, 2017).
128 State v. Smith, 09-KA-259 (La. App. 5 Cir. 11/25/09); 28 So. 3d 1092, 1097–98.
129 State Rec., Vol. IV of VI, Louisiana Fifth Circuit Court of Appeal Opinion, 13-KA-909, pp. 3–6, April
23, 2014.
130 Id.
131 State Rec., Vol. III of VI, Hearing Transcript, pp. 12–16, 19–20, 25–39, 78–82. November 15, 2012.
b. Testimony by Detective Clogher Regarding Hearsay Statements from Stein
and Yokum

Petitioner claims that his trial counsel was ineffective for failing to object to testimony by
Detective Clogher regarding statements of Stein and Yokum, who did not testify at trial.132
The United States Supreme Court has held that the Confrontation Clause of the Sixth
Amendment prohibits admission of “testimonial statements of a witness who did not appear at trial
unless he was unavailable to testify, and the defendant had a prior opportunity for cross-
examination.”133 Confrontation Clause violations are subject to harmless error analysis.134 A
federal court may grant habeas relief on account of constitutional error only if the error had a
“substantial and injurious effect or influence in determining the jury’s verdict” and resulted in
“actual prejudice.”135 To assess error, federal courts “consider the importance of the witness’
testimony in the prosecution’s case, whether the testimony was cumulative, the presence or
absence of evidence corroborating or contradicting the testimony of the witness on material points,
the extent of cross-examination otherwise permitted, and of course, the overall strength of the
prosecution’s case.”136
In the instant case, Detective Clogher testified that he spoke to Stein and Yokum after
Petitioner was arrested.137 On cross-examination, Petitioner’s trial counsel asked Detective

132 Rec. Doc. 3.

133 Crawford v. Washington, 541 U.S. 36, 53–54 (2004).
134 Fratta v. Quarterman, 536 F.3d 485, 507–508 (5th Cir. 2008); Bullcoming v. New Mexico, 564 U.S. at
668 n.11.
135 Brecht v. Abrahamson, 507 U.S. 619, 637 (1993); see Delaware v. Van Arnsdall, 475 U.S. 673, 684 (1986)
(if the reviewing court determines beyond a reasonable doubt that the error was harmless, then the petitioner
is not entitled to relief.)
136 United States v. Edwards, 303 F.3d 606, 623 (5th Cir. 2002).
137 State Rec., Vol. IV of VI, Trial Transcript, pp. 83–84, 100, 106–15, March 13, 2013.
Clogher about the statements made by Stein and Yokum.138 In response to those questions,
Detective Clogher testified that Yokum admitted that he found cocaine residue on a counter and
that Stein, who had lied to police about her name and was an admitted cocaine user, told police
where to find cocaine in Petitioner’s truck and that she had seen a black box in Yokum’s
bedroom.139

On re-direct examination, Detective Clogher testified that Stein told police that Petitioner
sold and gave Stein cocaine and that he hid the cocaine in a hidden compartment in his truck.140
According to Detective Clogher, Stein also said that Petitioner stored his cocaine in a black box
kept at Yokum’s residence and that Petitioner would retrieve the cocaine while his buyers waited
at Petitioner’s residence.141 Detective Clogher testified that Yokum told him that he had seen
Petitioner in possession of cocaine, that he allowed Petitioner to store a black lockbox at his
residence, and that he knew there was money in the box.142 Defense counsel did not object to the
testimony.
Although it was likely error to admit the hearsay statements of Stein and Yokum, Petitioner

has not shown that his counsel performed ineffectively by failing to object to the admission of the
evidence because the error was harmless. There was significant other evidence that supported
Petitioner’s guilt. Trial testimony established that after detectives observed Petitioner carrying a
white packet, they conducted a traffic stop, and searched Petitioner and his vehicle, leading to the

138 Id. at 106–08, 110–15.
139 Id. at 106, 107, 111, 114–15.
140 Id. at 115–17.
141 Id. at 117–20.
142 Id. at 122–23.
discovery of illegal drugs.143 The trial record shows the other evidence of Petitioner’s guilt was
overwhelming; therefore, the introduction of the hearsay statements was harmless and Petitioner
has not shown that he was prejudiced by the introduction of the statements. Because Petitioner has
failed to show prejudice as a result of his trial counsel’s failure to object, he is not entitled to relief

on this claim.
4. Whether Appellate Counsel was Ineffective
a. Appellate Counsel’s Failure to Raise Certain Issues
Petitioner claims that his appellate counsel was ineffective because counsel did not raise
the Confrontation Clause issue, the issue regarding the identity of the confidential informant, the
statements contained in the affidavit underlying the search warrants, and the habitual offender
proceedings.144 The United States Supreme Court has ruled that Strickland’s standard applies to
claims of ineffective appellate counsel.145 The Fifth Circuit has explained that to prevail on a claim
that appellate counsel was constitutionally ineffective, a petitioner must show that his appellate
counsel unreasonably failed to discover and assert a nonfrivolous issue and establish a reasonable

probability that he would have prevailed on this issue on appeal but for his counsel’s deficient
representation.146 Additionally, appellate counsel has the discretion to exclude even a nonfrivolous
issue if that issue was unlikely to prevail.147

143 Id. at 28–29, 35–36, 75–77.
144 Rec. Doc. 3.
145 Smith v. Robbins, 528 U.S. 259, 285 (2000).
146 Briseno v. Cockrell, 274 F.3d 204, 207 (5th Cir. 2001).
147 Penson v. Ohio, 488 U.S. 75, 83–84, 109 (1988).
As discussed in detail above, Petitioner’s trial counsel did not object to the introduction of
hearsay evidence.148 Louisiana Code of Criminal Procedure article 841, requires an objection to
preserve a claim for review on direct appeal. Because trial counsel did not object, appellate counsel
could not raise the claim on appeal. Petitioner also raised the Confrontation Clause issue himself

on direct appeal. Furthermore, as discussed above, the introduction of the evidence was harmless
because there was sufficient evidence to support Petitioner’s conviction, without references to the
statements of Stein and Yokum.149 Accordingly, Petitioner’s instant claim fails because he cannot
show a reasonable probability that he would have prevailed on appeal if the issue had been raised
by counsel.
Regarding the identification of the confidential informant and the affidavit in support of
the search warrants, as discussed above, Petitioner was not entitled to the disclosure of that
information under Louisiana law nor did Petitioner establish that information in the affidavit was
false. Accordingly, Petitioner’s instant claim fails because he cannot show a reasonable probability
that he would have prevailed on appeal if the issue had been raised.

b. Appellate Counsel’s Failure to Challenge Multiple Offender Proceedings
and Sentence

Petitioner argues his appellate counsel failed to challenge the multiple offender
proceedings based on the fact that he was not provided an interpreter to better understand the
proceedings.150 The Magistrate Judge found that Petitioner never complained of an inability to
understand English and never requested an interpreter until direct appeal.151 Therefore, the

148 State Rec., Vol. IV of VI, Trial Transcript, pp.83–122, March 13, 2013.
149 Mendez, 140 So. 3d at 292.
150 Id. at 63.
151 Id. at 65.
Magistrate Judge found that Petitioner’s claim of ineffective assistance of appellate counsel was
meritless and unsupported by the record.152
Louisiana law requires the trial court to advise a defendant of the allegations contained in
the multiple offender bill of information, his right to a hearing, and his right to remain silent.153

Under Louisiana case law, a defendant intelligently waives his rights if the record reflects that the
defendant was advised of his multiple offender rights by the trial judge and/or his counsel.154
Additionally, Louisiana Code of Criminal Procedure article 25.1 requires that a court appoint an
interpreter upon request by a non-English speaking person after consultation with the non-English-
speaking person or his attorney. The Louisiana Supreme Court has held that the “appointment of
a qualified language interpreter based on an adequate showing of a defendant’s inability to
understand the proceedings in English is within the [trial] court’s discretion.”155
Here, the record reflects that Petitioner never complained of an inability to understand
English and never requested an interpreter during the state trial proceedings. Before the multiple
offender proceedings, Petitioner executed a waiver of rights form which advised him of his rights,

including his rights to an attorney, to remain silent and to a hearing at which the State would have
to prove his multiple offender status, the potential sentencing range as a second felony offender,
and the negotiated sentence.156 During the plea colloquy, the state trial court orally advised
Petitioner of his rights, and Petitioner repeatedly acknowledged that he understood his rights and

152 Id. at 66.
153 La. Rev. Stat. § 15:529.1
154 State v. Hart, 10-905 (La. App. 5 Cir. 5/10/11); 66 So. 3d 44, 48.
155 State v. Lopes, 2001-1383 (La. 12/7/01); 805 So. 2d 124, 128.
156 State Rec. Vol. III of VI, Waiver of Rights - Plea of Guilty, May 28, 2013.
wished to waive them and enter a guilty plea to the multiple offender bill.157 Additionally, when
Petitioner was read his Miranda rights in English and Spanish, he stated to the detective that he
understood both languages.158
Petitioner’s claim that he did not understand the multiple offender proceedings is

unsupported by the record. Petitioner has provided no evidence to contradict the record. As
discussed above, appellate counsel is not required to bring baseless claims on direct appeal.
Appellate counsel’s failure to assert these baseless claims on direct appeal cannot be deemed either
deficient performance or prejudicial, since there was no reasonable probability that these
arguments would have prevailed on appeal. Accordingly, Petitioner’s instant claim fails because
he cannot show a reasonable probability that he would have prevailed on appeal if the issue had
been raised.
V. Conclusion
For the reasons stated above, the Court finds that the following claims are procedurally
defaulted: (1) Petitioner’s claim that the trial court erred in allowing certain testimony; (2)

Petitioner’s claim that the state trial court erred in denying disclosure of the identity of the
confidential informant and the affidavit in support of the search warrants contained materially false
statements resulting in an illegal search and seizure; (3) Petitioner’s claim that the state court erred
in allowing admission of other crimes evidence; and (4) Petitioner’s claim that the multiple
offender proceedings were defective. Furthermore, Petitioner has failed to overcome the
procedural bar to these claims. Moreover, Petitioner has not established that the state courts’ denial

157 State Rec. Vol. IV of VI, Multiple Bill Hearing Transcript, pp. 6-12, May 28, 2013.
158 State Rec. Vol. III of VI, Hearing Transcript, p. 22, November 15, 2012.
of relief on Petitioner’s ineffective assistance of counsel claims was contrary to or an unreasonable
application of Supreme Court law. Accordingly,
IT IS HEREBY ORDERED that Petitioner’s objections are OVERRULED;
IT IS FURTHER ORDERED that the Court ADOPTS the Report and Recommendation;
IT IS FURTHER ORDERED that Petitioner Jose Mendez’s petition for issuance of a
writ of habeas corpus, pursuant to 28 U.S.C. § 2254 is DENIED and DISMISSED WITH
PREJUDICE.
NEW ORLEANS, LOUISIANA, this 22nc day of March, 2021.

D errette bunt. Browwr
NANNETTE JOUIVETTE BROWN
CHIEF JUDGE
UNITED STATES DISTRICT COURT

28

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10186445. Public record. Not legal advice.