United States District Court, E.D. New York
MEMORANDUM DECISION AND ORDER
M. COGAN U.S.D.J.
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.
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.
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.
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?
answered, “yes, sir.” He signed the waiver of
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
sentencing, the court imposed the 15-year sentence as called
for by the plea agreement.
18 months later, petitioner, through Legal Aid counsel, made
a motion to the Appellate Division to reduce his
sentence. 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.
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).
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, ” ...