United States District Court, D. South Carolina, Florence Division
L. WOOTEN, SENIOR UNITED STATES DISTRICT JUDGE
matter comes before the Court for consideration of the
petition to vacate, set aside, or correct a sentence pursuant
to 28 U.S.C. § 2255 filed by Petitioner Marco Antonio
Velez. For the reasons stated below, the Court dismisses the
pled guilty to a charge of violating 18 U.S.C. § 924(c),
and he was sentenced as a career offender to 276 months
imprisonment pursuant to the then-mandatory Sentencing
Guidelines. ECF No. 56. His career offender predicate
convictions were a New York conviction for Manslaughter, 1st
Degree and three South Carolina convictions for Assault and
Battery of a High and Aggravated Nature (ABHAN). See PSR
¶¶ 22, 23. He filed a direct appeal, but the Fourth
Circuit affirmed. United States v. Velez, 167
Fed.Appx. 349 (4th Cir. 2006). The Supreme Court denied
certiorari on June 19, 2006. Velez v. United States,
547 U.S. 1217 (2006).
filed a prior § 2255 petition, ECF No. 76, which was
denied on the merits, ECF No. 88, and the Fourth Circuit
denied a certificate of appealability and dismissed the
appeal, United States v. Velez, 314 Fed.Appx. 604
(4th Cir. 2009).
about April 6, 2016, Petitioner filed in the Fourth Circuit a
motion pursuant to 28 U.S.C. § 2244 requesting
permission to file a successive § 2255
petition. No. 16-324 (4th Cir.), ECF No. 2-1. The
Fourth Circuit granted that motion on June 21, 2016, No.
16-324 (4th Cir), ECF No. 14-2, and his § 2255 petition
was filed in this Court on that date, ECF No. 127.
Petitioner's § 2255 petition, he says that he should
be resentenced without the application of the career offender
enhancement. He argues that the Supreme Court's decision
in Johnson v. United States, 135 S.Ct. 2551 (2015),
which invalidated the Armed Career Criminal Act's
residual clause as unconstitutionally vague, also applies to
invalidate the residual clause in the career offender
sentencing guideline, formerly found at §
4B1.2(a)(2). He also says that, in light of United
States v. Montes-Flores, 736 F.3d 357 (4th Cir. 2013)
and United States v. Hemingway, 734 F.3d 323 (4th
Cir. 2013), his ABHAN convictions cannot be considered crimes
of violence under the force clause in § 4B1.2(a)(1).
Government filed a response in opposition, arguing, in part,
that the petition must be dismissed as untimely. ECF No. 133.
Petitioner then filed a reply to the Government's motion.
ECF No. 134. While the petition was under advisement, he
filed a motion requesting a ruling, acknowledging that in
light of recent case law, “[he] does not appear to be
entitled to relief in this successive § 2255.” ECF
is correct that he is not entitled to relief based on the
current state of the law. In United States v. Brown, the
Fourth Circuit concluded that a § 2255 petitioner making
substantially the same argument as Petitioner-that he should
be resentenced because his career offender sentence imposed
under the mandatory Guidelines is now invalid-was not
entitled to relief because the Supreme Court had not
recognized the specific right at issue. 868 F.3d 297, 304
(4th Cir. 2017), cert. denied, 139 S.Ct. 14 (2018). Because
Supreme Court recognition of that specific right was the only
possible avenue to render the petition timely, the Fourth
Circuit affirmed the district court's dismissal of the
Court concludes that Petitioner here is in the same situation
as the petitioner in Brown. He is almost nine years late
under 28 U.S.C. § 2255(f)(1), (f)(2) and (4) do not
apply, and he cannot restart the statute of limitations under
(f)(3) because the Supreme Court has not recognized the
specific right at issue. Accordingly, the Court is required
to dismiss his petition as untimely.
reasons stated, Petitioner's petition for relief pursuant
to § 2255, ECF No. 127, is DISMISSED.
Court has reviewed this petition in accordance with Rule 11
of the Rules Governing Section 2255 Proceedings. In order for
the Court to issue a certificate of appealability, Rule 11
requires that Petitioner satisfy the requirements of 28
U.S.C. § 2253(c)(2), which in turn requires that he
“has made a substantial showing of the denial of a
constitutional right.” The Court concludes that he has
not made such a showing, and it is therefore not appropriate
to issue a certificate of appealability as to the issues
raised in this petition. Petitioner is advised that he may
seek a certificate from the Fourth Circuit Court of Appeals
under Rule 22 of the Federal Rules of Appellate Procedure.