[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
AUGUST 18, 2008
No. 08-10459 THOMAS K. KAHN
Non-Argument Calendar 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