Veliz v. Flournoy

Filing 17

REPORT AND RECOMMENDATIONS of the Magistrate Judge that the Court DISMISS Veliz's 1 Petition for Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2241, GRANT Respondent's 12 MOTION to Dismiss, and DIRECT the Clerk to CLOSE this case. It is further RECOMMENDED that the Court DENY Veliz leave to proceed in forma pauperis status on appeal. The Court ORDERS any party seeking to object to this Report and Recommendation to file specific written objections within fourteen (14) days of the date on which this Report and Recommendation is entered. (Objections to R&R due by 9/21/2017). ORDER directing service of the REPORT AND RECOMMENDATION of the Magistrate Judge. Signed by Magistrate Judge R. Stan Baker on 9/7/2017. (ca)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
BRUNSWICK DIVISION

LAZARO VELIZ,
Petitioner,

CIVIL ACTION NO.: 2:16-cv-152

v.
JOHN V. FLOURNOY,
Respondent.

ORDER and MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
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

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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

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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

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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. Dir. of Goodwill Indus.-Suncoast, Inc., 851 F.3d 1076, 1081 (11th
Cir. 2017).
For years, lower courts were to utilize a test 1 to determine whether a petitioner seeking
habeas corpus relief pursuant to Section 2241 met the saving clause and could proceed with a
Section 2241 petition. However, the Eleventh Circuit Court of Appeals has determined its

1

This test was set forth in Bryant v. Warden, FCC Coleman-Medium, 738 F.3d 1253 (11th Cir. 2013),
and required petitioners to satisfy a five-factor test. Under this five-factor test, the petitioner had to
establish that: (1) binding circuit precedent squarely foreclosed the claim “throughout his sentence, direct
appeal, and first § 2255 proceeding”; (2) “subsequent to his first 2255 proceeding,” a Supreme Court
decision overturned that circuit precedent; (3) the rule announced in that Supreme Court decision applies
retroactively on collateral review; (4) as a result of the new rule, the petitioner’s current sentence exceeds
the statutory maximum penalty authorized by Congress; and (5) the savings clause reaches the petitioner’s
claim. Bryant, 738 F.3d at 1274 (synthesizing the saving clause tests discussed in Wofford v. Scott, 177
F.3d 1236 (11th Cir. 1999); Gilbert v. United States, 640 F.3d 1293 (11th Cir. 2011); and Williams v.
Warden, Federal Bureau of Prisons, 713 F.3d 1332, 1343 (11th Cir. 2013)).

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“precedents have ignored the text” of Section 2255.

McCarthan, 851 F.3d at 1080.

The

McCarthan court took “the rare step of overruling [Eleventh Circuit] precedents for three
reasons. First, they are wholly divorced from the text. Second, reliance interests are minimal.
And third, our precedents have proved unworkable.

Continuing to follow these erroneous

precedents would do more harm than good.” Id. at 1096. 2
Accordingly, after McCarthan, to determine whether a prisoner satisfies the saving
clause, a court need only analyze “whether the motion to vacate is an adequate procedure to test
the prisoner’s claim.” Id. at 1086. To answer this question, a court should “ask whether the
prisoner would have been permitted to bring that claim in a motion to vacate. In other words, a
prisoner has a meaningful opportunity to test his claim whenever section 2255 can provide him a
remedy.” Id. at 1086–87. In short, when reviewing a Section 2241 petition, courts should look
to whether the petitioner’s claim is of a kind that is “cognizable” under Section 2255. If so, the
petitioner cannot meet the “saving clause” and cannot proceed under Section 2241. To be sure,
“[t]he remedy [afforded] by [a Section 2255] motion is not ineffective unless the procedure it
provides is incapable of adjudicating the claim.” Id. at 1088. Whether the petitioner could
obtain relief under Section 2255 is not relevant to the McCarthan test. Thus, the “remedy” that
must be “inadequate or ineffective” to trigger the saving clause is “the available process—not
substantive relief.” Id. at 1086.
“Allowing a prisoner with a claim that is cognizable in a motion to vacate to access the
saving clause nullifies the procedural hurdles of section 2255[.]” Id. at 1090. For example,
2

I welcome the McCarthan test’s more straightforward approach to the saving clause. The Bryant test
proved not only textually unsupportable but also practically unwieldy. See Mims v. Flournoy, No. 2:15CV-95, 2016 WL 1090602, at *3 n.3 (S.D. Ga. Mar. 18, 2016), report and recommendation adopted, as
modified, No. 2:15-CV-95, 2016 WL 3023311 (S.D. Ga. May 23, 2016) (noting potential for more
straightforward reading of Section 2255(e) but applying Bryant factors as binding law of the Eleventh
Circuit at that time) and (citing Samak v. Warden, FCC Coleman-Medium, 766 F.3d 1271, 1275–76 (11th
Cir. 2014) (Pryor, J., concurring)).
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“[t]he mere fact that such a [§ 2255 motion] is procedurally barred by § 2255’s statute of
limitations or restriction on second or successive motions does not make it inadequate or
ineffective.” Id. at 1091 (“A federal prisoner has one year to move to vacate his sentence under
section 2255. But when a prisoner uses the saving clause to bring a claim that is cognizable in a
motion to vacate, he bypasses his statute of limitations and gains limitless time to press claims
that prisoners who meet the requirements of section 2255 do not receive.”); Body v. Taylor, No.
1:15-CV-00311-AKK, 2015 WL 1910328, at *6 (N.D. Ala. Apr. 27, 2015), appeal dismissed,
(Oct. 28, 2015) (quoting Wofford, 177 F.3d at 1245 (Cox, J., concurring specially) (“I also agree
that the remedy by motion under § 2255 is not rendered ‘inadequate or ineffective’ because an
individual is procedurally barred from filing a second or successive § 2255 motion.”); United
States v. Lurie, 207 F.3d 1075, 1077 (8th Cir. 2000) (bars on successive motions and statute of
limitations do not render § 2255 motion inadequate or ineffective); and Charles v. Chandler, 180
F.3d 753, 756–58 (6th Cir. 1999) (statute of limitations bar does not make Section 2255
inadequate or ineffective)).
The Eleventh Circuit emphasized that the saving clause has meaning because not all
claims can be remedied by Section 2255. “A prisoner sentenced by a federal court, for example,
may file a petition for a writ of habeas corpus to challenge the execution of his sentence, such as
the deprivation of good-time credits or parole determinations.” McCarthan, 851 F.3d at 1092–93
(citing Hajduk v. United States, 764 F.2d 795, 796 (11th Cir. 1985)). “The saving clause also
allows a prisoner to bring a petition for a writ of habeas corpus when the sentencing court is
unavailable. Other circuits have held that a prisoner may file a petition for a writ of habeas
corpus if his sentencing court has been dissolved.” Id. at 1093 (quoting Prost v. Anderson, 636
F.3d578, 588 (10th Cir. 2011) (explaining that, for military prisoners, “the resort to § 2241 is the

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norm rather than the exception . . . due to the evanescent nature of court martial proceedings: the
sentencing court literally dissolves after sentencing and is no longer available to test a prisoner’s
collateral attack”)). Additionally, “perhaps practical considerations (such as multiple sentencing
courts) might prevent a petitioner from filing a motion to vacate.” Id. (citing Cohen v. United
States, 593 F.2d 766, 771 & n.12 (6th Cir. 1979)). However, “only in those kinds of limited
circumstances is [the remedy by motion] ‘inadequate or ineffective to test the legality of his
detention.’” Id. (quoting Samak, 766 F.3d at 1278 (W. Pryor, J., concurring) (quoting 28 U.S.C.
§ 2255(e)). It is not enough to trigger the “saving clause” to claim that new case law exists, that
new facts have come to light, or that the Section 2255 court got it wrong. Id. at 1086, 1090. “If
the saving clause guaranteed multiple opportunities to test a conviction or sentence, then the bar
against second and successive motions under section 2255(h) would become a nullity.” Id. at
1090.
This case does not present the “limited circumstances” warranting application of the
saving clause. Veliz’s claims—that his Section 924(c) conviction no longer qualifies as a violent
felony for sentencing purposes and that his sentence violates due process—are the types of
claims and requested relief that Section 2255 encompasses. Thus, Section 2255 provides Veliz
with an adequate procedure to test this claim. Indeed, Veliz has repeatedly asserted the same
arguments he brings in this case in Section 2255 proceedings before the Southern District of
Florida and the Eleventh Circuit.
It appears that, though Veliz labels his filing a Section 2241 Petition, he is actually
attempting to bring a second or successive Section 2255 motion. Pursuant to Section 2255(h):
A second or successive motion must be certified as provided in section 2244 by a
panel of the appropriate court of appeals to contain—

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(1) newly discovered evidence that, if proven and viewed in light of the
evidence as a whole, would be sufficient to establish by clear and
convincing evidence that no reasonable factfinder would have found the
movant guilty of the offense; or
(2) a new rule of constitutional law, made retroactive to cases on collateral
review by the Supreme Court, that was previously unavailable.
28 U.S.C. § 2255(h). However, Veliz must first obtain permission from the Eleventh Circuit
before filing a second Section 2255 motion. Nevertheless, Veliz has available to him an actual
remedy under Section 2255: the right to request permission to file a second or successive Section
2255 motion under Section 2255(h). The fact that the Eleventh Circuit has denied Veliz’s
application to file a second or successive Petition does not render the remedy “unavailable” to
him. See Harris v. Warden, 801 F.3d 1321, 1323 (11th Cir. 2015) (“Regardless of whether the
[Circuit from which permission is sought] will actually certify a successive motion based upon
the above facts and legal theories, § 2255 is adequate to test the legality of [the petitioner’s]
sentence. Accordingly, § 2255(e)’s saving[ ] clause does not apply.”). As such, Veliz cannot
rely upon Section 2255(e) to proceed with his Section 2241 Petition.
Further, Veliz’s Section 2255 remedy is not nullified merely because he cannot overcome
procedural requirements for relief. See McCarthan, 851 F.3d at 1086 (“[A] procedural bar might
prevent relief, but that bar does not render the motion itself an ineffective or inadequate
remedy.”). Thus, the fact that Veliz previously brought a Section 2255 motion and faces the
successiveness bar in Section 2255(h) does not itself render a Section 2255 motion inadequate or
ineffective. Id.; Gilbert, 640 F.3d at 1308. Rather, “[w]hat makes the § 2255 proceeding
‘inadequate or ineffective’ for [a petitioner] is that he had no ‘genuine opportunity’ to raise his
claim in the context of a § 2255 motion.” Zelaya v. Sec’y, Fla. Dep’t of Corr., 798 F.3d 1360,
1370 (11th Cir. 2015).

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Section 2255 provides Veliz an “adequate procedure” to test his conviction and sentence.
This procedure is clearly available to him as he already filed Section 2255 motions, and he has
sought permission to file a second or successive motion. Consequently, Veliz cannot show that
Section 2255’s remedy is “inadequate or ineffective” to challenge his sentence and “cannot now
use the saving clause to make [his] claim[s] in a petition for a writ of habeas corpus.”
McCarthan, 851 F.3d at 1099–1100. Because Veliz cannot satisfy the saving clause, his claims
are procedurally barred, and the Court cannot reach the merits of his arguments.
For all these reasons, I RECOMMEND the Court GRANT Respondent’s Motion to
Dismiss and DISMISS Veliz’s Section 2241 Petition.
II.

Leave to Appeal in Forma Pauperis
The Court should also deny Veliz leave to appeal in forma pauperis. Though Veliz has,

of course, not yet filed a notice of appeal, it would be appropriate to address these issues in the
Court’s order of dismissal. Fed. R. App. P. 24(a)(3) (trial court may certify that appeal of party
proceeding in forma pauperis is not taken in good faith “before or after the notice of appeal is
filed”).
An appeal cannot be taken in forma pauperis if the trial court certifies that the appeal is
not taken in good faith. 28 U.S.C. § 1915(a)(3); Fed. R. App. P. 24(a)(3). Good faith in this
context must be judged by an objective standard. Busch v. Cty. of Volusia, 189 F.R.D. 687, 691
(M.D. Fla. 1999). A party does not proceed in good faith when he seeks to advance a frivolous
claim or argument. See Coppedge v. United States, 369 U.S. 438, 445 (1962). A claim or
argument is frivolous when it appears the factual allegations are clearly baseless or the legal
theories are indisputably meritless. Neitzke v. Williams, 490 U.S. 319, 327 (1989); Carroll v.
Gross, 984 F.2d 392, 393 (11th Cir. 1993). Stated another way, an in forma pauperis action is

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frivolous, and thus, not brought in good faith, if it is “without arguable merit either in law or
fact.” Napier v. Preslicka, 314 F.3d 528, 531 (11th Cir. 2002); see also Brown v. United States,
Nos. 407CV085, 403CR001, 2009 WL 307872, at *1–2 (S.D. Ga. Feb. 9, 2009).
Based on the above analysis of Veliz’s Petition and Respondent’s Motion to Dismiss,
there are no non-frivolous issues to raise on appeal, and an appeal would not be taken in good
faith. Thus, the Court should DENY Veliz in forma pauperis status on appeal.
CONCLUSION
Based on the foregoing, I RECOMMEND that the Court GRANT Respondent’s Motion
to Dismiss, (doc. 7), DISMISS Veliz’s Petition for Writ of Habeas Corpus filed pursuant to 28
U.S.C. § 2241, (doc. 1), and DIRECT the Clerk of Court to CLOSE this case. I further
RECOMMEND that the Court DENY Veliz leave to proceed in forma pauperis.
The Court ORDERS any party seeking to object to this Report and Recommendation to
file specific written objections within fourteen (14) days of the date on which this Report and
Recommendation is entered. Any objections asserting that the Magistrate Judge failed to address
any contention raised in the pleading must also be included. Failure to do so will bar any later
challenge or review of the factual findings or legal conclusions of the Magistrate Judge. See 28
U.S.C. § 636(b)(1)(C); Thomas v. Arn, 474 U.S. 140 (1985). A copy of the objections must be
served upon all other parties to the action. The filing of objections is not a proper vehicle
through which to make new allegations or present additional evidence.
Upon receipt of objections meeting the specificity requirement set out above, a United
States District Judge will make a de novo determination of those portions of the report, proposed
findings, or recommendation to which objection is made and may accept, reject, or modify in
whole or in part, the findings or recommendations made by the Magistrate Judge. Objections not

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meeting the specificity requirement set out above will not be considered by a District Judge. A
party may not appeal a Magistrate Judge’s report and recommendation directly to the United
States Court of Appeals for the Eleventh Circuit. Appeals may be made only from a final
judgment entered by or at the direction of a District Judge. The Court DIRECTS the Clerk of
Court to serve a copy of this Report and Recommendation upon Veliz and Respondent.
SO ORDERED and REPORTED and RECOMMENDED, this 7th day of September,
2017.

R. STAN BAKER
UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA

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