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Veliz v. Griffin

United States District Court, E.D. New York

March 2, 2017

TEODORO VELIZ, Petitioner,


          BRIAN M. COGAN U.S.D.J.

         Petitioner seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254(d), vacating his sentence of 15 years' custody for first degree manslaughter on the ground that it was excessive under the Eighth Amendment. I cannot reach that question because the Appellate Division's decision properly declined to address the issue on state law grounds. Even if I did consider the issue, petitioner has failed to meet the standard for habeas corpus relief as to excessive sentence claims. The petition is therefore denied.


         The facts are simply stated: Petitioner, who is in this country illegally, and two accomplices beat a man to death with their hands and feet. Petitioner was charged with first degree manslaughter, which carries a 5 to 25 year sentence, and first degree gang assault.

         Before trial, and while represented by counsel, with a Spanish interpreter, petitioner entered into a plea agreement calling for 15 years' custody on the manslaughter charge and dismissal of the assault charge. In allocuting him, the trial court told him: “As part of this plea negotiation, you are going to also agree to waive your right to appeal. Which means this will be a final decision of the Court and there will be no changing your mind and no further appeals.” Petitioner responded “yes” when the court asked if he was “willing to do that.” He then admitted that he had punched and kicked the victim with intent to cause serious injury.

         After advising him of other rights he would be waiving by his guilty plea, the court returned to the topic of appeal, advising petitioner, “Now I want to talk about that right of appeal that you are giving up . . . [W]e will give you this copy now of the right to appeal that I want you, as part of this plea negotiation, to also give up.” The court provided a written waiver of appeal, in Spanish, and gave petitioner and his counsel the opportunity to review it. The court then stated:

[Y]ou've looked over this waiver of appeal that's done in Spanish and you had an opportunity to discuss it with your attorney[] and I just want to be clear that you realize that by signing this and waiving your rights of appeal on the record, that by pleading guilty and waiving those rights, this case is over with. [Do] you understand that?

         Petitioner answered, “yes, sir.” He signed the waiver of appeal.

         The waiver of appeal form that petitioner reviewed and signed stated that petitioner had been advised of his right to appeal; that he understood that even after a guilty plea, a defendant has the right to appeal unless he waives that right; that his right to appeal included the right to be represented by counsel on appeal, and that an attorney would be provided if he could not afford to hire one; that his guilty plea did not eliminate his right to appeal; that the waiver of an appeal had to be expressly agreed to by the parties; that if he gave up the right to appeal, his sentence and conviction would be final; and that he was waiving his right to appeal with full awareness, knowingly, and voluntarily.[1]

         At sentencing, the court imposed the 15-year sentence as called for by the plea agreement.

         About 18 months later, petitioner, through Legal Aid counsel, made a motion to the Appellate Division to reduce his sentence.[2] He sought to avoid the appeal waiver by arguing that the court “did not adequately explain the right to appeal.” The Appellate Division held summarily that “[t]he defendant's valid waiver of his right to appeal precludes appellate review of his contention that the sentence imposed was excessive.” People v. Veliz, 142 A.D.3d 630, 36 N.Y.S.3d 609 (2d Dep't), leave to app. denied, 28 N.Y.3d 1076 (2016). It thus did not reach his excessive sentence claim.


         At the outset, it is important to note that petitioner is not challenging the voluntariness of his guilty plea. Cf. Iris v. Haggat, No. 12-cv-1538, 2015 WL 6737031 (N.D.N.Y. Nov. 3, 2015) (the petitioner claimed that both the guilty plea and appeal waiver were invalid). As he stated to the Appellate Division: “The only issue raised on appeal is the excessiveness of Mr. Veliz's sentence.” Nor is he claiming that his counsel was ineffective in advising him of the consequences of his guilty plea in terms of being able to challenge his sentence. Cf. id. at *12-14 (the petitioner claimed that his trial attorney had him waive his right to appeal without his realizing the ramifications of the waiver).

         In addition, in seeking to have the Appellate Division determine that his waiver of the right to appeal his sentence was not knowing and voluntary, petitioner's counsel advanced no federal constitutional argument. Counsel cited no provision of the federal Constitution nor any federal cases, nor did the state court cases upon which counsel relied refer to any federal constitutional provision or federal cases. See Daye v. Attorney General of the State of New York, 696 F.2d 186 (2d Cir. 1982) (en banc). The closest petitioner came to making a federal constitutional argument was to cite People v. Callahan, 80 N.Y.2d 273, 284, 590 N.Y.S.2d 46, 52 (1980), in which the New York Court of Appeals referred to the right of appeal as being “of constitutional dimension, ” ...

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