USA v. Terrance Wellons, No. 08-10459 (11th Cir. 2008)
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[DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FILED FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS ________________________ ELEVENTH CIRCUIT No. 08-10459 Non-Argument Calendar ________________________ AUGUST 18, 2008 THOMAS K. KAHN CLERK D. C. Docket No. 98-08148-CR-KLR UNITED STATES OF AMERICA, Plaintiff-Appellee, versus TERRANCE WELLONS, Defendant-Appellant. ________________________ Appeal from the United States District Court for the Southern District of Florida _________________________ (August 18, 2008) Before DUBINA, PRYOR and FAY, Circuit Judges. PER CURIAM: Terrance Wellons appeals pro se the district court s order denying Wellons s motion to dismiss his indictment. Wellons argues that the court lacked subject matter jurisdiction to try, convict, and sentence him because there was a defect in his indictment. For the reasons set forth more fully below, we affirm. I. Generally, we review a district court s denial of a motion to dismiss an indictment for abuse of discretion. See United States v. Evans, 476 F.3d 1176, 1178 (11th Cir.), cert. denied, 128 S.Ct. 193 (2007). However, a district court s subject matter jurisdiction is a question of law and, therefore, subject to de novo review. United States v. Perez, 956 F.2d 1098, 1101 (11th Cir. 1992). A motion alleging a defect in an indictment must normally be filed pre-trial, but at any time while the case is pending, the court may hear a claim that the indictment . . . fails to invoke the court s jurisdiction or to state an offense. Fed.R.Crim.P. 12(b)(3)(B) (emphasis added). In Wellons s case, he filed his motion to dismiss his indictment seven years after we affirmed his convictions and five years after we affirmed the district court s denial of his 28 U.S.C. § 2255 motion to vacate, set aside, or correct his sentence. See Wellons v. United States, 48 Fed.Appx. 328 (11th Cir. 2002). Thus, Wellons s case was not pending within the meaning of Rule 12(b)(3)(B), and, therefore, the district court properly 2 denied the motion. See United States v. Patton, 309 F.3d 1093, 1094 (8th Cir. 2002) (holding that district court correctly denied a post-conviction motion to dismiss an indictment where the defendant s case that led to his conviction and sentence was no longer pending). Moreover, as mentioned above, Wellons had already filed one § 2255 motion that was denied by the district court and affirmed by us. See Wellons v. United States, 48 Fed.Appx. 328 (11th Cir. 2002). Thus, to the extent that Wellons s motion could be construed as a § 2255 motion, his motion was nonetheless properly denied because Wellons improperly has attempted to circumvent federal habeas requirements. See 28 U.S.C. § 2255(h), cross-referencing 28 U.S.C. § 2244 (requiring that, before an applicant may file a second or successive § 2255 motion in the district court, the applicant must move the court of appeals for an order authorizing the district court to consider such a motion). In light of the foregoing, the district court is AFFIRMED. 3
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