Velez v. City of New York et al

Filing 33

ORDER granting 22 Motion to Dismiss for Failure to State a Claim; ORDER TRANSFERRING CASE AS SUCCESSIVE PETITION. For the reasons set forth in the attached order and on the record during oral argument today, I construe Velez's claims that th e defendants unconstitutionally destroyed or lost evidence as a successive habeas petition, which I transfer to the court of appeals. Velez is to submit to the court of appeals any supplemental papers in support of his petition by September 10, 2012. Defendants' 22 motion to dismiss is granted with respect to all remaining claims. The Clerk is respectfully directed to close the case. Ordered by Judge John Gleeson on 8/10/2012. (Sheketoff, Julia)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

NOT FOR PUBLICATION

JOSE VELEZ,
Plaintiff,
- versus CITY OF NEW YORK, DISTRICT
ATTORNEY CHARLES J. HYNES,
individually and in his official capacity, ADA
JANE LUBOWITZ, ADA CAROLINE R.
DONHAUSER, ADA ANTHEA H. BRUFFEE,
ADA PHILLIS MINTZ, individually and in
their official capacities as employees of the City
of New York who are/were Assistant District
Attorneys within the Office of the District
Attorney, County of Kings, DETECTIVE
THOMAS J. BRESNAHAN, DETECTIVE GIL
VARGAS, DETECTIVE PATRICIA
STEVENS, SERGEANT JAMES RUSSO,
INSPECTOR JACK J. TRABITZ,
INVESTIGATOR J. HIPPOLYTE,
JONATHAN DAVID, POLICE OFFICER
JOHN DOE and VARIOUS JOHN/JANE
DOES, individually and in their official
capacities as employees of the City of New
York who are/were members of the Police
Department of the City of New York,

ORDER
11-CV-5527

Defendants.

JOHN GLEESON, United States District Judge:
Jose Velez, currently incarcerated in the Sing Sing Correctional Facility, brings
this pro se action under 42 U.S.C. § 1983, against various officials of the State and City of New
York. Velez, who was convicted after trial in the Supreme Court of New York, Kings County,
on five counts of sodomy in the first degree, contends that the defendants violated his
constitutional rights by destroying or losing evidence that could have exonerated him. Velez
appears to seek vacatur of his convictions, a reduction of his sentence, or a new trial, as well as

money damages, a hearing to determine why evidence was destroyed, an injunction directing
defendants to preserve and make available any evidence that still exists, and a declaration that
destroying any existing evidence would be unlawful.
Judgment for Velez upon his claims that the defendants unconstitutionally
destroyed or lost evidence would necessarily imply the invalidity of his convictions. Thus, in
addition to being meritless, see Arizona v. Youngblood, 488 U.S. 51 (1988); California v.
Trombetta, 467 U.S. 479 (1984), they are not cognizable under § 1983, Heck v. Humphrey, 512
U.S. 477 (1994); Preiser v. Rodriguez, 411 U.S. 475 (1973); Bivins v. Hudson, No. 94-3323,
1996 WL 137849, at *2 (7th Cir. Mar. 19, 1996). Upon Velez’s request, I instead construe the
claims as a petition for habeas corpus. Velez has already twice petitioned for federal habeas
corpus relief, which renders the instant petition a “successive” petition governed by 28 U.S.C. §
2244(b)(3). Because Velez lacks the requisite authorization by the court of appeals to file a
successive petition under this provision, his petition is hereby transferred to the court of appeals.
See 28 U.S.C. § 1631; Liriano v. United States, 95 F.3d 119, 123 (2d Cir. 1996). Velez is to
submit to the court of appeals any supplemental papers in support of his petition by September
10, 2012.
To the extent Velez asserts any remaining claims, they are dismissed for the
reasons stated on the record at oral argument today.

So ordered.

John Gleeson, U.S.D.J.
Dated: August 10, 2012
Brooklyn, New York

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