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Veliz v. Flournoy

United States District Court, S.D. Georgia, Brunswick Division

September 7, 2017

LAZARO VELIZ, Petitioner,
v.
JOHN V. FLOURNOY, Respondent.

          ORDER AND MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          R. STAN BAKER, UNITED STATES MAGISTRATE JUDGE

         Petitioner Lazaro Veliz (“Veliz”), who is currently incarcerated at the Federal Correctional Institution in Jesup, Georgia, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241. (Doc. 1.) Respondent filed a Motion to Dismiss and an additional supporting brief, (docs. 12, 15), to which Veliz filed a Response, (doc. 16). For the reasons which follow, I RECOMMEND that the Court GRANT Respondent's Motion, DISMISS Veliz's Section 2241 Petition, and DIRECT the Clerk of Court to CLOSE this case. I also RECOMMEND the Court DENY Veliz in forma pauperis status on appeal.

         BACKGROUND

         Following a jury trial in the United States District Court for the Southern District of Florida, Veliz was convicted of the following crimes: RICO conspiracy, in violation of 18 U.S.C. § 1962(d) (Count 1); four counts of Hobbs Act conspiracy, in violation of 18 U.S.C. §§ 1951 and 2 (Counts 2, 6, 9, 12, and 15); four counts of Hobbs Act robbery, in violation of 18 U.S.C §§ 1951 and 2 (Counts 3, 7, 10, 13, and 16); conspiracy to use and carry firearms during a crime of violence, in violation of 18 U.S.C. § 924(n) (Count 4); using and carrying firearms during a crime of violence, in violation of 18 U.S.C. § 924(c) (Counts 5, 8, 11, 14, and 17); and money laundering, in violation of 18 U.S.C. §§ 1956 and 2 (Count 28). (Docs. 12-1; 12-2; & 12-3.) The Court sentenced Veliz to a total term of incarceration of 105 years, consisting of: concurrent terms of 20 years as to each of Counts 1, 2, 3, 4, 6, 7, 9, 10, 12, 13, 15, 16 and 28; a consecutive term of 5 years as to Count 5; and consecutive terms of 20 years as to each of Counts 8, 11, 14, and 17. (Doc. 12-3.)

         Veliz filed a direct appeal, and the Eleventh Circuit Court of Appeals upheld his conviction. (Doc. 12-4.) However, the Eleventh Circuit remanded the case for the district court to make findings of fact with respect to Veliz's ability to pay restitution and directed the court to conform the sentence imposed with the oral pronouncement of sentence. Id. The Southern District of Florida then issued an amended judgment in accordance with the Eleventh Circuit's remand. (Doc. 12-5.) Veliz filed another Notice of Appeal, and his counsel filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), and a motion to withdraw. After reviewing the case and counsel's assessment of the relative merit on appeal, the Eleventh Circuit determined that there were no issues of arguable merit and affirmed Veliz's sentence. (Doc. 12-6.)

         Veliz then mounted a number of efforts to collaterally attack his conviction and sentence. In his first Section 2255 motion and amendments thereto, he complained that his counsel was ineffective because counsel: (1) labored under a conflict of interest; (2) failed to investigate the criminal history of the government's key witness; (3) failed to pursue a plea agreement; and (4) failed to challenge the stacking of the consecutive mandatory sentences arising from one RICO conspiracy. (Docs. 12-7, 12-8, 12-9.) Veliz also argued that the Comprehensive Crime Control Act of 1984 was unconstitutional and that the district court committed sentencing errors based on Apprendi v. New Jersey, 530 U.S. 466 (2000). Id. The district court denied Veliz's Section 2255 motion, finding that the first four claims were meritless, and the last two claims were untimely. (Docs. 12-10, 12-11.) Veliz sought a certificate of appealability, but both the district court and the Eleventh Circuit denied that request. (Docs. 12-12, 12-13.)

         On June 13, 2016, Veliz filed an application with the Eleventh Circuit for leave to file a second or successive Section 2255 motion. (Doc. 12-14.) Veliz argued that his convictions for violating 18 U.S.C. § 924(c) were no longer predicate violate felonies after the United States Supreme Court's holding in Johnson v. United States, ___ U.S. ___, 135 S.Ct. 2551 (2015) (finding unconstitutional the residual clause of the Armed Career Criminal Act's violent felony definition). On June 27, 2016, the Eleventh Circuit denied that application, finding that Veliz failed to make a prima facie showing that Johnson applied to his Section 924(c) convictions. (Doc. 12-15.) Shortly thereafter, Veliz filed another Section 2255 motion in the Southern District of Florida raising essentially the same Johnson claims that Veliz had raised in his application to file a successive motion. (Doc. 12-16.) The district court denied this motion as a second or successive Section 2255 motion filed without permission of the Eleventh Circuit. (Doc. 12-17.) Veliz then filed a second application with the Eleventh Circuit for leave to file a second or successive Section 2255 motion. In this application, Veliz raised the same arguments from his first application and also claimed that the Eleventh Circuit erroneously denied his first application. (Doc. 12-18.) The Eleventh Circuit denied that second application as procedurally barred in accordance with In re Baptiste, 828 F.3d 1337, 1341 (11th Cir. 2016). (Doc. 12-19.)

         Having been repeatedly rejected by the Southern District of Florida and the Eleventh Circuit Court of Appeals, Veliz then turned to this Court. He filed the instant Section 2241 Petition, once again contending that his convictions for violating 18 U.S.C. § 924(c) are no longer valid following the Supreme Court's decision in Johnson. Respondent moved to dismiss Veliz's Petition, contending that he does not satisfy the requirements of the 28 U.S.C. § 2255(e) “saving clause.” (Doc. 12.) Respondent then supplemented this argument following the Eleventh Circuit's decision in McCarthan v. Dir. of Goodwill Indus.-Suncoast, Inc., 851 F.3d 1076, 1081 (11th Cir. 2017). Veliz filed a Response to the Motion to Dismiss and supporting briefs. (Doc. 16.)

         DISCUSSION

         I. Whether Veliz can Proceed Pursuant to Section 2241

         Section 2241 habeas corpus petitions “are generally reserved for challenges to the execution of a sentence or the nature of confinement, not the validity of the sentence itself or the fact of confinement.” Vieux v. Warden, 616 F. App'x 891, 896 (11th Cir. 2015) (internal punctuation and citation omitted). Ordinarily, an action in which an individual seeks to collaterally attack “the validity of a federal sentence must be brought under § 2255, ” in the district of conviction. 28 U.S.C. § 2255(a); Turner v. Warden Coleman FCI (Medium), 709 F.3d 1328, 1333 (11th Cir. 2013). To utilize Section 2241 to attack the validity of a federal sentence or conviction, a petitioner must show that the remedy afforded under Section 2255 is “inadequate or ineffective”. Taylor v. Warden, FCI Marianna, 557 F. App'x 911, 913 (11th Cir. 2014); Turner, 709 F.3d at 1333 (noting the petitioner bears the burden of establishing that the remedy under Section 2255 was inadequate or ineffective to test the legality of his detention). A motion to vacate covers only challenges to the validity of a sentence, but the saving clause and a petition for a writ of habeas corpus cover challenges to the execution of a sentence. Cf. Antonelli v. Warden, U.S.P. Atlanta, 542 F.3d 1348, 1351 n.1 (11th Cir. 2008) (“It is well-settled that a § 2255 motion to vacate is a separate and distinct remedy from habeas corpus proper. . . . A prisoner in custody pursuant to a federal court judgment may proceed under § 2241 only when he raises claims outside the scope of § 2255(a), that is, claims concerning execution of his sentence.”) (internal citations omitted)); United States v. Flores, 616 F.2d 840, 842 (5th Cir. 1980) (“[The prisoner's] appropriate remedy is under § 2255, not 28 U.S.C. § 2241, since the alleged errors occurred at or prior to sentencing.”).

         Section 2255(e) provides:

An application for a writ of habeas corpus in behalf of a prisoner who is authorized to apply for relief by motion pursuant to this section, shall not be entertained if it appears that the applicant has failed to apply for relief, by motion, to the court which sentenced him, or that such court has denied him relief, unless it also appears that the remedy by motion is inadequate or ineffective to test the legality of his detention.

28 U.S.C. § 2255(e) (emphasis added). The above-emphasized portion of Section 2255(e) is referred to as the “saving clause.” “Section 2255(e) makes clear that a motion to vacate is the exclusive mechanism for a federal prisoner to seek collateral relief unless he can satisfy” the saving clause. McCarthan v. ...


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