Marbel Mendoza

Case information

Marbel Mendoza (date of birth: 09/23/66) was sentenced to death on 08/02/94 in the Eleventh Judicial Circuit, Dade County, in Case# 92-9940C (DC# 450307). The sentencing judge was The Honorable Alan L. Postman.

Attorneys included Assistant Public Defenders B. Wax and A. Suri for trial. Direct appeal counsel was John H. Lipinski. Collateral appeals counsel included Neal Dupree, Rachel L. Day, and Dan D. Hallenberg (CCRC-S).

Background

Marbel Mendoza and Humberto Cuellar planned to rob the victim Conrad Calderon.

The offence

Humberto Cuellar asked his brother, Lazaro Cuellar, to drive the getaway car. Humberto Cuellar and Mendoza gained knowledge of Mr. Calderon’s schedule and were waiting outside Mr. Calderon’s house during the predawn hours of 03/17/92. At approximately 5:40 am, Mr. Caldron left his house and proceeded to his car.

Mendoza and Humberto Cuellar were hiding behind a hedge and confronted Mr. Calderon in the driveway between the two vehicles. Mendoza carried a .38 caliber revolver and Humberto Cuellar had a 9-mm automatic pistol.

A struggle ensued between the three men. Humberto Cuellar hit Mr. Calderon in the head with his pistol, at which time the victim took out a .38 special revolver and shot Humberto Cuellar in the chest. Humberto Cuellar then ran to the car; while he was running away, he heard shots. When Mendoza arrived at the car, he stated to Humberto Cuellar that he had shot Mr. Calderon.

The three men drove to a hospital. At the hospital the police recovered the car, which contained Humberto Cuellar’s gun. The side of the gun had hair embedded in it, which was consistent with the story that Humberto Cuellar would tell the police.

The case also described physical evidence at the scene. No money was taken during the robbery. Mr. Calderon’s gun and a bank bag were found at the scene, under Mr. Calderon’s body. Money was found in the victim’s pocket and in his wallet.

Mendoza’s fingerprints were recovered from the car adjacent to where the victim’s body was found. An x-ray of Humberto Cuellar indicated a bullet, consistent with the victim’s gun, was lodged near his spine.

Casing and bullets recovered from the scene and the victim’s body indicated that Mr. Calderon was shot at point-blank range three times and the fourth shot was from less that six inches away.

Investigation

On 03/24/92, Mendoza was arrested.

Trial

Charges and plea

Mendoza was indicted on 03/31/92 as follows:

• Count I: First-Degree Murder
• Count II: Conspracy to Commit Robbery with a Deadly Weapon
• Count III: Attempted Armed Robbery with a Firearm
• Count IV: Armed Burglary with an Assault

On 04/14/92, Mendoza pled not guilty.

Verdict and recommendation

On 02/08/94, a jury returned guilty verdicts on all counts of the indictment. The jury recommended death by a vote of 7-5.

Sentencing at trial court

On 08/02/94, the court sentenced Mendoza as follows:

• Count I: First Degree Murder – Death
• Count II: Conspiracy to Commit Robbery with a Deadly Weapon – 15 years consecutive to Count I
• Count III: Attempted armed Robbery with a Firearm – 15 years with a 3-year mandatory/minimum sentence consecutive to Counts I & II
• Count IV: Armed Burglary with an Assault – Life with a 3 year mandatory/minimum consecutive sentence to Counts I, II, & III

Codefendant information

Humberto Cuellar (DC# 433373)

Humberto Cuellar was found guilty and sentenced as follows on 01/18/94:

• 2 nd Degree murder, Dangerous Act – 15 years
• Attempted Robbery with no Firearm or Deadly Weapon – 20 years
• Burglary of an Occupied Dwelling or Conveyance – 20 years
• Threatens to use any Firearm – 15 years

Lazaro Cuellar, Jr. (DC# H01509)

On 05/20/93, Lazaro entered a plea agreement with the State and the lower court in which he agreed to plea guilty to a lesser offense of manslaughter and plead guilty as charged to the offenses of conspiracy to commit robbery and attempted armed robbery. The court accepted the plea agreement and sentenced him to three concurrent terms of 10 year imprisonment.

Appeals

Direct appeal

A Direct Appeal was filed to the Florida Supreme Court on 09/19/94. The appellant raised nine claims, including:

• the trial court erred in denying appellant’s motion for mistrial based on the judge’s ex parte communications with the jurors
• allowing the State to impeach appellant’s expert witness by asking him whether he had considered appellant’s criminal history
• allowing the State to comment during closing arguments on appellant’s pending criminal charges

The Court found all of the issues without merit and affirmed Mendoza’s conviction and sentence.

United States Supreme Court

Within two months from the mandate being issued on the Direct Appeal, a Petition for Writ of Certiorari was filed to the United States Supreme Court on 03/10/98. The petition was denied on 10/05/98.

State postconviction proceedings (3.850)

A 3.850 Motion was filed to the Circuit Court on 09/10/99 and was amended on 09/05/00. The evidentiary hearing was held on 04/16/04. The motion was denied on 08/18/04.

The 3.850 Appeal was filed to the Florida Supreme Court on 04/06/01. The Court vacated the trial court’s decision and remanded the case for an evidentiary hearing on the claims of ineffective counsel on 04/03/02.

Mendoza filed a Petition for a Writ of Habeas Corpus to the Florida Supreme Court on 09/06/01, which was dismissed without prejudice on 04/03/02.

On 09/20/04, Mendoza filed a 3.850 Appeal to the Florida Supreme Court. On 05/24/07, the Court reversed Mendoza’s conviction and remanded the case back to the Circuit Court for a new evidentiary hearing on the ineffective assistance of counsel claims.

On 06/07/07, Mendoza filed a motion for rehearing in the Florida Supreme Court; this motion was denied on 08/23/07. The mandate was issued on 09/10/07 by the Florida Supreme Court, upholding the decision reversal and remanding a new evidentiary hearing in the Circuit Court, which had not yet been held.

Other habeas corpus filing and disposition

On 11/28/05, Mendoza filed a Petition for Writ of Habeas Corpus to the Florida Supreme Court, which was denied on 05/24/07. Although the Court was remanding for a new evidentiary hearing based on the postconviction claims, the Court denied all nine claims that were raised in this case. The mandate affirming this decision was issued by the Florida Supreme Court on 09/10/07.

Prior incarceration history (Florida)

The following prior incarceration history in the state of Florida was listed as:

• Offense Date 8/01/1991 — Armed Burglary; Sentence Date 6/08/1995; Sentence 27Y
• Offense Date 8/01/1991 — Felony Kidnapping; Sentence Date 6/08/1995; Sentence 27Y
• Offense Date 8/01/1991 — Armed Robbery; Sentence Date 6/08/1995; Sentence 27Y
• Offense Date 8/01/1991 — Aggravated Assault; Sentence Date 6/08/1995; Sentence 5Y
• Offense Date 8/01/1991 — Threatens to Use Any Firearm; Sentence Date 6/08/1995; Sentence 15Y
• Offense Date 8/01/1991 — Possession of Firearm by Felon; Sentence Date 6/08/1995; Sentence 15Y
• Offense Date 12/28/1991 — Robbery; Sentence Date 6/08/1995; Sentence 15Y
• Offense Date 12/28/1991 — Aggravated Battery Intended Harm; Sentence Date 6/08/1995; Sentence 15Y
• Offense Date 1/29/1992 — Armed Robbery; Sentence Date 6/08/1995; Sentence 27Y
• Offense Date 1/29/1992 — Aggravated Battery w/ Deadly Weapon; Sentence Date 6/08/1995; Sentence 15Y
• Offense Date 1/29/1992 — Possession of Firearm by Felon; Sentence Date 6/08/1995; Sentence 15Y
• Offense Date 2/01/1992 — Armed Robbery; Sentence Date 8/02/1994; Sentence 15Y
• Offense Date 2/14/1992 — Armed Robbery; Sentence Date 5/24/1993; Sentence 12Y
• Offense Date 2/14/1992 — Aggravated battery w/ Deadly Weapon; Sentence Date 5/24/1993; Sentence 12Y
• Offense Date 2/14/1992 — Armed Burglary; Sentence Date 5/24/1993; Sentence 12Y
• Offense Date 2/17/1992 — Burglary Assault; Sentence Date 6/08/1995; Sentence 27Y
• Offense Date 2/17/1992 — Felony Kidnapping; Sentence Date 6/08/1995; Sentence 27Y
• Offense Date 2/17/1992 — Armed Robbery; Sentence Date 6/08/1995; Sentence 27Y
• Offense Date 2/17/1992 — Grand Theft Firearm; Sentence Date 6/08/1995; Sentence 5Y
• Offense Date 3/10/1992 — Armed Burglary; Sentence Date 6/08/1995; Sentence 27Y
• Offense Date 3/10/1992 — Armed Robbery; Sentence Date 6/08/1995; Sentence 27Y
• Offense Date 3/10/1992 — Conspiracy to Commit Armed Robbery; Sentence Date 6/08/1995; Sentence 27Y
• Offense Date 3/10/1992 — Threatens to Use any Firearm; Sentence Date 6/08/1995; Sentence 15Y
• Offense Date 3/10/1992 — Possession of Firearm by a Felon; Sentence Date 6/08/1995; Sentence 15Y

Outcome

Mendoza was sentenced to death on 08/02/94. The Florida Supreme Court affirmed Mendoza’s conviction and sentence on direct appeal. After further postconviction proceedings, the Florida Supreme Court reversed Mendoza’s conviction on 05/24/07 and remanded the case for a new evidentiary hearing on ineffective assistance of counsel claims. The motion for rehearing was denied on 08/23/07, and the mandate issued on 09/10/07 upholding the reversal and remand. The habeas corpus petition was denied on 05/24/07, and the mandate was issued on 09/10/07.