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Velez v. Duncan

May 30, 2007



Pro se petitioner Jose Velez seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his conviction on July 29, 1997, in Supreme Court, New York County. Petitioner was convicted after a bench trial of burglary in the second degree and criminal mischief in the fourth degree for ransacking and burglarizing a woman's apartment. He is currently serving an indeterminate sentence of sixteen years to life for the burglary charge and one year for the criminal mischief charge, to run concurrently, at the Fishkill Correctional Facility in Fishkill, New York.

After petitioner filed his initial habeas petition, the case was referred to Magistrate Judge Ronald L. Ellis for a Report and Recommendation. Petitioner then moved for leave to amend his petition to add new claims, which this Court granted. Judge Ellis has since issued two Reports recommending that the writ be denied. Petitioner filed a timely objection to each Report. This Opinion adopts the Reports.


The background and relevant procedural history are set forth in the two Reports issued by Judge Ellis, familiarity with which is assumed. See Velez v. Duncan, No. 00 Civ. 6163 (BSJ) (RLE), 2005 U.S. Dist. LEXIS 9699, 2005 WL 1221836 (S.D.N.Y. May 13, 2005); Velez v. Duncan, No. 00 Civ. 6163 (RJH) (RLE), 2006 U.S. Dist. LEXIS 10285 (S.D.N.Y. Mar. 6, 2006). The facts relevant to this Opinion are briefly highlighted here.

Petitioner was arrested for burglary on October 5, 1995, after Yvonne Whitfield reported to police that she had returned home to find petitioner in her apartment, the door lock and door frame damaged, and the apartment ransacked. The People offered petitioner a plea of nine years to life if petitioner pled guilty to burglary in the second degree, a class "C" felony. Upon petitioner's rejection of the People's offer, New York County Court Judge Gerald Sheindlin stated off-the-record that if petitioner opted for a bench trial instead of a jury trial and was subsequently found guilty of burglary in the second degree, he would receive a maximum sentence of eight years to life as a persistent violent felony offender.*fn1 (2005 Obj. Ex. E (Resentencing Tr. (Dec. 23, 1997)), at 4, 5--9.) Petitioner accepted Judge Sheindlin's offer. After a three-day bench trial, Judge Sheindlin found petitioner guilt of burglary in the second degree, N.Y. Penal Law § 140.25(2), and criminal mischief in the fourth degree, N.Y. Penal Law § 145.00(1). On July 29, 1997, Judge Sheindlin sentenced petitioner as a persistent violent felony offender to eight years to life on the burglary count and one year on the criminal mischief count, the sentences to run concurrently. On October 20, 1997, the trial court denied petitioner's post-trial motions.

On December 12, 1997, the State filed a motion to set aside the sentence for burglary in the second degree on the ground that it was invalid as a matter of law.*fn2 On October 1, 1995-four days before the crime took place in this case-the statutory minimum for a class "C" felony by a persistent violent felony offender was raised from eight years to sixteen years. See N.Y. Penal Law § 70.08(3)(b). Because Velez was indicted for the instant crime on October 11, 1995, the State argued that the new minimum of sixteen years applied to him. Petitioner's attorney argued that, in waiving his right to a jury trial, he had relied on Judge Sheindlin's promise that he would sentence petitioner to eight years to life, and thus that the sentencing promise should be enforced. Judge Sheindlin rejected this argument, stating, The defendant waived a jury in this case not so much because of the sentence but because he was hoping that I would somehow or other be persuaded by his testimony knowing that a jury would never have accepted his story that he weaved before me. . . . This observation is supported by the fact that if I promised him eight to life after the trial, why would he go to trial before me knowing that he is going to get eight to life. Why didn't he plead guilty? . . . He still hoped against hope . . . that he would beat the charges and receive no time whatsoever. (Resentencing Tr. 7--9.) Accordingly, on December 23, 1997, Judge Sheindlin granted the State's motion and resentenced petitioner to a term of sixteen years to life.

On direct appeal to the Appellate Division, First Department, petitioner claimed that: (1) the State failed to prove petitioner's guilt beyond a reasonable doubt; (2) petitioner was denied effective assistance of trial counsel in violation of the Sixth Amendment; and (3) the court's resentencing of sixteen years to life, after initially issuing a sentence of eight years to life, constituted cruel and unusual punishment in violation of the Eighth Amendment. On March 21, 2000, the Appellate Division affirmed the conviction and sentence, finding that: (1) the verdict was based on legally sufficient evidence and there was no reason to disturb the trial judge's determinations concerning credibility; (2) petitioner received effective assistance of counsel, and even if petitioner's counsel's mistake regarding the minimum sentence for a class "C" felony caused petitioner to reject a favorable plea offer, he was not prejudiced because the plea offer was itself unlawful; and (3) the new sentence did not constitute cruel and unusual punishment. See People v. Velez, 706 N.Y.S.2d 306, 306 (N.Y. App. Div. 2000). Petitioner's application for leave to appeal to the New York State Court of Appeals was denied on May 19, 2000.

Petitioner's initial habeas petition, filed with this Court on July 26, 2000, challenged his incarceration on the same three grounds. Judge Ellis issued a Report and Recommendation ("2005 Report") on May 13, 2005, recommending that the writ be denied and the petition dismissed on the grounds that: (1) there was sufficient evidence for the trier of fact to find petitioner guilty of the crimes of which he was convicted; (2) petitioner received effective assistance of counsel; and (3) petitioner's sentence is within the range prescribed by state law and not grossly disproportionate to the severity of the crime, and, therefore, is not cruel and unusual in violation of the Eighth Amendment. See Velez, 2005 U.S. Dist. LEXIS 9699, 2005 WL 1221836. Petitioner filed objections to each of the 2005 Report's conclusions ("2005 Objections").

On September 20, 2005, the Court granted petitioner leave to amend and ordered respondent to submit a response to petitioner's new claims. The amended petition raises three claims: (1) a renewed sentencing claim that focuses on the contractual nature of Judge Sheindlin's promise of eight years to life and seeks specific performance; (2) a renewed claim of ineffective assistance of counsel; and (3) a claim that the prosecution intimidated petitioner's key trial witness. The first claim refers to a motion to vacate judgment that petitioner filed on June 3, 2004, in state court, pursuant to New York Criminal Procedure Law § 440.10(1)(h), after filing his original habeas petition. The state court denied his motion without opinion on September 7, 2004, and the Appellate Division denied leave to appeal on November 30, 2004. (See Amended Complaint Exs. A--E.)

Judge Ellis issued a report and recommendation ("2006 Report") with respect to the amended petition on March 6, 2006. The 2006 Report concludes that (1) the trial judge's determination that petitioner's waiver of a jury trial was not induced by the trial judge's mistake about the minimum sentence was not unreasonable; (2) petitioner's new evidence regarding his ineffective assistance of counsel claim does not establish that the state court employed an "unreasonable application" of Supreme Court precedent; (3) the witness intimidation claim is unexhausted, and, in any event, petitioner has not demonstrated that his witness was actually intimidated or that her testimony would have affected the outcome of his case. See Velez, 2006 U.S. Dist. LEXIS 10285. Petitioner filed objections only to the 2006 Report's first conclusion, the sentencing issue ("2006 Objections").


I. Standard of Review


The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214, modified the standard under which federal courts review ยง 2254 petitions. When a claim has been adjudicated on the merits in state court proceedings, habeas relief may not be granted unless the state court's decision was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." The court presumes that factual findings by a state court are correct unless ...

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