USA v. Jean Baptiste Joseph

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-12238
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JEAN BAPTISTE JOSEPH,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:15-cr-20590-BB-1
____________________
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2 Opinion of the Court 22-12238
Before J ORDAN, B RANCH, and E DMONDSON, Circuit Judges.
PER CURIAM:
Jean Baptiste Joseph, a federal prisoner proceeding
pro se,
appeals the district court’s denial of his
pro se motion to dismiss his
indictment under Fed. R. Crim. P. 12. The government has moved
for summary affirmance and for a stay of the briefing schedule. We
summarily affirm the district court’s order and deny as moot the
government’s motion to stay the briefing schedule.
In October 2015, a federal grand jury returned a superseding
indictment charging Joseph with being a felon in possession of a
firearm, with possession with intent to distribute a controlled sub-
stance (ethylone and marijuana), and with possession of a firearm
in furtherance of a drug-trafficking offense. Joseph was convicted
on all counts and was sentenced to 660 months’ imprisonment.
We affirmed Joseph’s convictions and sentence on direct appeal.
See United States v. Joseph, 700 F. App’x 918 (11th Cir. 2017) (un-
published). The mandate issued on 3 August 2017.
In September 2018, Joseph filed a counseled motion to va-
cate under 28 U.S.C. § 2255. The district court denied the motion
on the merits; we denied Joseph a certificate of appealability.
In May 2022, Joseph filed
pro se the motion at issue in this
appeal: a motion to dismiss the indictment for lack of jurisdiction,
pursuant to Fed. R. Crim. P. 12. Briefly stated, Joseph contends
that Counts 2 and 3 of the superseding indictment (offenses
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22-12238 Opinion of the Court 3
involving ethylone) should be dismissed for lack of subject matter
jurisdiction in the light of our decision in
United States v. Phifer,
909 F.3d 372 (11th Cir. 2018).
The district court denied Joseph’s motion for lack of jurisdic-
tion, determining that Joseph’s case was no longer “pending” for
purposes of Rule 12(b)(2). The district court also determined that
-- to the extent Joseph’s motion could be construed as a section
2255 motion -- the motion constituted an unauthorized second or
successive section 2255 motion over which the district court lacked
jurisdiction.
Summary disposition is appropriate where “the position of
one of the parties is clearly right as a matter of law so that there can
be no substantial question as to the outcome of the case, or where,
as is more frequently the case, the appeal is frivolous.”
Groendyke
Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969).
We review
de novo questions about jurisdiction.
See United
States v. Lopez, 562 F.3d 1309, 1311 (11th Cir. 2009). We construe
liberally
pro se pleadings.
See Tannenbaum v. United States, 148
F. 3d 1262, 1263 (11th Cir. 1998). We also read liberally briefs filed
by
pro se litigants.
See Timson v. Sampson, 518 F.3d 870, 874 (11th
Cir. 2008).
The district court committed no error in denying Joseph’s
motion for lack of jurisdiction. Generally speaking, a motion alleg-
ing a defect in an indictment must be filed before trial.
See Fed. R.
Crim. P. 12(b)(3)(B). Rule 12(b)(2) provides, however, that a
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4 Opinion of the Court 22-12238
motion challenging the district court’s jurisdiction “may be made
at any time while the case is pending.” Fed. R. Crim. P. 12(b)(2).
Here, Joseph filed his Rule 12(b) motion nearly five years after the
mandate issued in his direct criminal appeal. At that point, his case
was no longer “pending.”
See United States v. Elso, 571 F.3d 1163,
1166 (11th Cir. 2009) (explaining that a defendant’s criminal case
ends -- and is no longer “pending” within the meaning of Rule 12(b)
-- when the mandate issues on direct appeal or when the Supreme
Court denies a petition for certiorari). The district court therefore
lacked jurisdiction to consider Joseph’s Rule 12(b) motion.
See id.
The district court also considered properly whether Joseph’s
motion could be recharacterized as a section 2255 motion.
See
Gooden v. United States, 627 F.3d 846, 847 (11th Cir. 2010) (“Fed-
eral courts have long recognized that they have an obligation to
look behind the label of a motion filed by a
pro se inmate and de-
termine whether the motion is, in effect, cognizable under a differ-
ent remedial statutory framework.”);
Darby v. Hawk-Sawyer, 405
F.3d 942, 944 (11th Cir. 2005) (“Typically, collateral attacks on the
validity of a federal sentence must be brought under § 2255.”). Be-
cause Joseph had already filed a section 2255 motion and had re-
ceived no authorization to file a second or successive section 2255
motion, the district court concluded correctly that it lacked juris-
diction to consider relief under section 2255.
See Farris v. United
States, 333 F.3d 1211, 1216 (11th Cir. 2003) (“Without authoriza-
tion, the district court lacks jurisdiction to consider a second or suc-
cessive [§ 2255 motion].”).
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22-12238 Opinion of the Court 5
No substantial question exists on the outcome of this appeal.
Because the government’s position is correct as a matter of law,
summary affirmance is appropriate. The government’s motion for
summary affirmance is GRANTED, and the government’s motion
to stay the briefing schedule is DENIED as moot.
AFFIRMED.
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