Lazaro Veliz v. United States

USCA11 Case: 21-14435 Document: 26-1 Date Filed: 03/15/2023 Page: 1 of 8
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-14435
Non-Argument Calendar
____________________
LAZARO VELIZ,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:20-cv-20264-FAM
____________________
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2 Opinion of the Court 21-14435
Before WILSON, ROSENBAUM, and JILL PRYOR, Circuit Judges.
PER CURIAM:
Lazaro Veliz, a federal prisoner, appeals the district court’s
denial of his authorized, successive 28 U.S.C. § 2255 motion to va-
cate. The district court dismissed his petition under the procedural
default rule because Mr. Veliz failed to raise his claims on direct
review and could not qualify for any exceptions to the rule. The
district court granted a certificate of appealability on the issue of
whether Mr. Veliz’s claim is barred from relief under the proce-
dural default rule as set forth in Granda v. United States, 990 F.3d
1272 (11th Cir. 2021), cert. denied, 142 S. Ct. 1233 (2022). After
careful review, we conclude his claims under Davis v. United
States, 139 S. Ct. 2319 (2019) are not jurisdictional and therefore
subject to procedural default. Further, we conclude that Mr.
Veliz’s cause-and-prejudice argument and his actual innocence ar-
gument are controlled by Granda and therefore fail. Accordingly,
we AFFIRM.
I.
We assume the parties are familiar with the facts and re-
count only a brief procedural history for this appeal. Mr. Veliz and
his co-conspirators were convicted of planning and carrying out
robberies of Brinks and Wells Fargo money messengers in Miami,
Florida. In 2001, Mr. Veliz was indicted in a thirty count, second
superseding indictment for multiple counts of both conspiracy to
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21-14435 Opinion of the Court 3
commit Hobbs Act robbery and substantive Hobbs Act robbery, 18
U.S.C. §§ 1951, 1952. He was also charged with carrying a firearm
in furtherance of these crimes of violence, in violation of 18 U.S.C.
§ 924(c), (o). Both the Hobbs Act conspiracy charges and the sub-
stantive Hobbs Act charges were alleged as predicate “crimes of vi-
olence” under the definitions found in § 924(c)(3).
Recently, the Supreme Court has narrowed the scope of
what constitutes a crime of violence under 18 U.S.C. § 924(c). In
United States v. Davis, the Supreme Court held that the statute’s
residual clause definition of a “crime of violence,” § 924(c)(3)(B),
was unconstitutionally vague. Davis, 139 S. Ct. at 2324. Accord-
ingly, with this court’s permission, Mr. Veliz filed this successive
habeas petition in the district court raising a challenge under
Stromberg v. California. See 283 U.S. 359, 367–68 (1931) (holding
that a conviction must be set aside if it was rendered by general
verdict and one theory supporting the conviction is invalidated).
Because Mr. Veliz had not raised the unconstitutionality of the re-
sidual clause in his direct criminal proceedings, the district court
held that he had procedurally defaulted this challenge. The district
court further held that his challenge was not jurisdictional in na-
ture, that he could not show cause-and-prejudice under this court’s
Granda precedent, nor could he show actual innocence under
Granda. Accordingly, the district court dismissed the petition, but
granted Mr. Veliz a certificate of appealability to address Granda’s
applicability to this case.
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4 Opinion of the Court 21-14435
A.
We turn first to Mr. Veliz’s argument that his challenge is
jurisdictional in nature and cannot be procedurally defaulted. A
habeas petitioner “can avoid the procedural-default bar alto-
gether, . . . if the alleged error is jurisdictional.” United States v.
Bane, 948 F.3d 1290, 1294 (11th Cir. 2020) (citing United States v.
Peter, 310 F.3d 709, 711–13 (11th Cir. 2002) (per curiam)). “[A] dis-
trict court lacks jurisdiction when an indictment alleges only a non-
offense.” Peter, 310 F.3d at 715. This is because an indictment that
only alleges non-criminal conduct does not invoke the district
court’s jurisdiction to adjudicate “offenses against the laws of the
United States” under 18 U.S.C. § 3231. See id. at 713. But we held
in United States v. Brown that, as long as an indictment alleges that
the defendant’s conduct constituted at least some violation of fed-
eral law, defects in an indictment are not jurisdictional errors. 752
F.3d 1344, 1354 (11th Cir. 2014) (holding that the omission of an
element of the charged offense is not a jurisdictional error “[s]o
long as the indictment charges the defendant with violating a valid
federal statute as enacted in the United States Code”).
Here, Mr. Veliz’s § 924(c) and (o) charges relied on both sub-
stantive Hobbs Act robbery and conspiracy to commit Hobbs Act
robbery, in violation of 18 U.S.C. §§ 1951 and 1952. Davis tells us
that carrying a firearm in furtherance of a Hobbs Act conspiracy is
a “non-offense” under § 924(c) because a Hobbs Act conspiracy is
not a crime of violence. However, Davis did nothing to change the
fact that carrying a firearm in furtherance of a substantive Hobbs
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21-14435 Opinion of the Court 5
Act robbery is an offense because, substantive Hobbs Act robbery
remains a crime of violence under § 924(c)(3)(A). Mr. Veliz’s in-
dictment rested his § 924(c) and (o) charges on both predicates and
thus the indictment did not allege “only a non-offense.” See Peter,
310 F.3d at 715. Thus, the error in the indictment was not jurisdic-
tional, and accordingly, his Davis claim was procedurally defaulted
by his failure to raise it on direct review.
B.
Turning next to Mr. Veliz’s cause-and-prejudice argument,
his argument is foreclosed by our ruling in Granda. A defendant
can excuse his procedural default if he can show both “cause to ex-
cuse the default and actual prejudice from the claimed error.”
Granda, 990 F.3d at 1286. In this context, a defendant can show
cause if the habeas petition is based on a novel legal rule that was
not available to counsel on direct appeal. Id. In Granda, we con-
sidered whether a Davis challenge presents a novel constitutional
rule that gave defendants cause to be excused from their proce-
dural default. Id. We concluded it did not, holding that Granda
“did not then lack the ‘building blocks of’ a due process vagueness
challenge to the § 924(c) residual clause.” Id. at 1287 (quoting Bane,
948 F.3d at 1297). We noted that as early as 1986 litigants were
bringing vagueness challenges to other portions of § 924(c), and
those cases showed that the tools were available for defendants
seeking to challenge § 924(c)’s residual clause. Id. at 1288; see also
Pitts v. Cook, 923 F.2d 1568, 1572 n.6 (11th Cir. 1991) (“Even if oth-
ers have not been raising a claim , the claim may still be unnovel if
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6 Opinion of the Court 21-14435
a review of the historical roots and development of the general is-
sue involved indicate that petitioners did not “lack[ ] the tools to
construct their constitutional claim.”).
Here, Mr. Veliz conceded the applicability of Granda in his
initial brief: “Mr. Veliz acknowledges that this Court is bound by
the decision[] in Granda . . . regarding the showing required to
demonstrate ‘cause’ to excuse procedural default, notwithstanding
the decisions of other circuit courts to the contrary. He raises the
issue herein to preserve it for further review.” Because Veliz con-
cedes the applicability of Granda, we need not address it much fur-
ther. Simply put, we held in Granda that Davis did not constitute
a novel enough constitutional rule to excuse a defendant’s failure
to raise the issue on direct review. So here, Mr. Veliz cannot show
cause to avoid the procedural default of his Davis claim. The pro-
cedural default rule requires a showing of both cause and prejudice,
but we need not address Mr. Veliz’s prejudice arguments because
his “failure to establish cause is fatal.” Bane, 948 F.3d at 1297. Ac-
cordingly, Mr. Veliz has failed to show cause-and-prejudice under
our precedents to excuse his procedural default.
C.
Finally turning to Mr. Veliz’s claim of actual innocence, this
too fails. If a petitioner cannot show cause-and-prejudice, they may
alternatively avoid the procedural-default bar if they can show “ac-
tual innocence” of the conviction. Granda, 990 F.3d at 1286, 1292–
93. But this exception is narrow and “[a]ctual innocence means
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21-14435 Opinion of the Court 7
factual innocence, not mere legal innocence.” Id. at 1292 (quota-
tion marks omitted) (quoting Lynn v. United States, 365 F.3d 1225,
1235 n.18 (11th Cir. 2004) (per curiam)). Like in Granda, Mr. Veliz
must show “that no reasonable juror would have concluded he
conspired to possess a firearm in furtherance of any of the valid
predicate offenses.” Id. In Granda, we held that the petitioner
there could not establish actual innocence because the factual cir-
cumstances of the conspiracy charges and the substantive charges
were “inextricably intertwined” such that a jury could not have rea-
sonably convicted—or acquitted—the petitioner of one without
the other. Id. at 1290, 1292.
Here, Mr. Veliz again concedes “Granda’s holding that his
claim [is] one of ‘legal’ rather than ‘actual’ innocence, but [he] re-
spectfully disagrees.” He argues that the Supreme Court’s decision
in Bousley v. United States, 523 U.S. 614 (1998), supports that
claims of legal innocence are sufficient to show actual innocence.
However, barring intervention of the en banc court, under our
prior panel rule we are bound to apply this court’s Granda decision
to the facts in this case. See Sabal Trail Transmission, LLC v. 18.27
Acres of Land in Levy Cnty., 59 F.4th 1158, 1164 (11th Cir. 2023)
(explaining our prior panel rule). Mr. Veliz was charged both with
planning to rob money messengers and with actually robbing
them. He was charged with carrying a firearm in furtherance of
both crimes. At trial there was no evidence or theory of the case
offered by Mr. Veliz that would have allowed the jury to convict
him for carrying a gun to further the plan of committing the
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8 Opinion of the Court 21-14435
robberies without also convicting him for carrying a gun in further-
ance of the robberies themselves. Accordingly, the Hobbs Act
charges are inextricably intertwined, Granada, 990 at 1290, 1292,
and Mr. Veliz cannot show actual innocence for the crimes
charged.
* * *
Accordingly, Mr. Veliz’s Davis challenge is not jurisdictional
and was thus subject to procedural default. Under this court’s bind-
ing precedent in Granda, he cannot show either cause-and-preju-
dice, nor actual innocence, to excuse the default. Accordingly, the
dismissal of his petition is AFFIRMED.
AFFIRMED.