No. 97 CR 391.
December 4, 2000
OPINION AND ORDER
Before the court is Dennis Bennett's pro se "Notice of Objection to Court's Jurisdiction Pursuant to Federal Rules (sic) of Criminal Procedure 12(b)(2)." As explained below, the court construes the pleading as a motion to vacate, set aside, or correct Bennett's sentence under 28 U.S.C. § 2255. The court does not have subject matter jurisdiction over the motion, and dismisses it pursuant to 28 U.S.C. § 2244(b)(3)(A).
On January 28, 1999, pursuant to a written plea bargain agreement, Bennett pleaded guilty to two counts of fraud under 18 U.S.C. § 1341. The instant matter is the latest in a series of collateral attacks on his conviction, which the court outlines below.
A. Bennett's previous filings:
On June 26, 2000, Bennett filed a motion under 28 U.S.C. § 2255 (hereinafter the "June 26th motion"), which was given case number 00 C 4049 and assigned to this court. In the June 26th motion, Bennett argued that his sentence exceeded the sentencing guideline range for his crimes, and that his counsel was ineffective for failing to raise the issue. While that motion was pending, and without leave of court, on August 11, 2000, Bennett filed an amendment to the June 26th motion (hereinafter the "August 11th amendment"). The August 11th amendment was based entirely on the case of Apprendi v. New Jersey, 120 S.Ct. 2348 (2000). In the August 11th amendment, Bennett argued that the court violated Apprendi by relying on facts outside of his indictment to enhance his guideline sentence range beyond the base offense level.
On October 13, 2000, while the June 26th motion and August 11th amendment were pending in this court, Bennett filed a new, separate, petition for habeas corpus under 28 U.S.C. § 2241. The October 13th petition was given case number 00 C 6580, and was assigned to Judge Kocoras.
In two orders, dated October 30, 2000 and November 7, 2000, this court rejected on their merits both the June 26th motion and the August 11th amendment. (See Case No. 00 C 4049, Orders of October 30, 2000 [5-1] and November 7, 2000 [6-1].) On November 17, 2000, Judge Kocoras dismissed the § 2241 petition pending before him. (See Case No. 00 C 6580, Order of November 17, 2000 [6-1].)
B. Bennett's current motion:
All of this brings the court to the current pleading, which Bennett filed under the original case number, 97 CR 391, and was received by the clerk's office on November 9, 2000. This latest pleading raises a new argument for relief. Bennett now asserts that the court did not have subject matter jurisdiction over his criminal proceedings. According to Bennett, the statute under which he was convicted, 18 U.S.C. § 1341, is not a duly enacted law because there was no implementing regulation published in the Federal Register. Thus, Bennett argues that the statute is merely a statement of policy, which lacks the effect of law. While the court seriously doubts the merits of the claim, the court does not have jurisdiction to rule on it.
A. Bennett's latest filing is a second or successive § 2255 motion
Notwithstanding Bennett captioning this pleading under Federal Rule of Criminal Procedure 12(b)(2), the court must construe it as a motion attacking his sentence under 28 U.S.C. § 2255. Regardless of how a defendant captions a pleading, "any post-judgment motion in a criminal proceeding that fits the description of § 2255 ¶ 1 is a motion under § 2255 . . . ." United States v. Evans, 224 F.3d 670, 672 (7th Cir. 2000). In the pleading at bar, Bennett argues that the court did not have jurisdiction over his criminal case, which is one of the bases for relief described in § 2255 ¶ 1. 28 U.S.C. § 2255 ¶ 1. Therefore, the court must construe this pleading as a § 2255 motion.
Moreover, the sequence of Bennett's filings demonstrates that this pleading is a § 2255 motion. The Evans decision is limited to cases where a defendant first brings an avowed § 2255 motion, and later brings a motion based on a Federal Rule of Criminal Procedure. See Evans, 224 F.3d at 674-75; see also Adams v. United States, 155 F.3d 582, 583-84 (2nd Cir. 1998) (noting that a district court should not recharacterize a motion based on Fed.R.Crim.P. 12(b)(2) as a § 2255 motion when the prisoner has not yet brought an explicit § 2255 motion). Bennett expressly invoked § 2255 in both the June 26th motion and the August 11th amendment, but cited Federal Rule of Criminal Procedure 12(b)(2) as a basis for relief in his latest pleading. Thus, this case is on all fours with Evans, and the court construes Bennett's latest motion as one under § 2255. See Evans, 224 F.3d at 672-75.
The next issue is whether the motion at bar is second or successive to the June 26th motion and August 11th amendment, for if it is, the court does not have jurisdiction over it. See id. at 675. Paragraph 8 of § 2255 instructs that a second or successive motion to vacate, correct, or set aside a sentence must be certified by the court of appeals in accordance with § 2244. 28 U.S.C. § 2255 ¶ 8; Evans, 224 F.3d at 672-75; see also United States, 196 F.3d 802, 804 (7th Cir. 1999) (discussing second or successive § 2255 motions). Section 2244(b)(3)(A), in turn, "`is an allocation of subject-matter jurisdiction to the court of appeals.'" In re Page, 170 F.3d 659, 661 (7th Cir. 1999) (quoting Nunez v. United States, 96 F.3d 990, 991 (7th Cir. 1996)),opinion supplemented on denial of rehearing en banc, 179 F.3d 1024 (7th Cir. 1999). "A district court must dismiss a second or successive petition . . . unless the court of appeals has given approval for the filing." In re Page, 170 F.3d at 661 (internal citations and subsequent history omitted, emphasis in original).
The court finds that the motion at bar is a second or successive one within the scope of § 2255 ¶ 8. The paradigm second or successive § 2255 motion is where a "prisoner files a motion, loses on the merits, exhausts appellate remedies, and then files another motion."Johnson, 196 F.3d at 804; see also Potts v. United States, 210 F.3d 770, 770-71 (7th Cir. 2000) (contrasting habeas cases that are second or successive with those that are not); Pratt v. United States, 129 F.3d 54, 60-62 (1st Cir. 1997) (analyzing the phrase "second or successive"). TheJohnson opinion also analyzed the statutory intent to limit multiple attempts to obtain collateral relief, and reiterated that the district court must dismiss transparent attempts to avoid the need for appellate court approval of second collateral attacks. See Johnson, 196 F.3d at 804-05; see also Talbott v. Indiana, 226 F.3d 866, 869 (7th Cir. 2000) (noting that prisoners are entitled to only one round of collateral review, and should choose their issues wisely).
As outlined above, this court previously rejected Bennett's June 26th motion and his August 11th amendment on their merits. Bennett filed the current motion under the original criminal case number, and after the court ruled on the merits of the June 26th motion and August 11th amendment. The thrust of the current motion, that the court did not have subject matter jurisdiction over the case, fits squarely within § 2255 ¶ 1. Moreover, Bennett has not previously raised this issue, and puts forth no complaints with the court's resolution of his earlier pleadings. Plainly, this motion is another attempt at collateral relief, which is second or successive to the June 26th motion and August 11th amendment See Johnson, 196 F.3d at 804 (describing the paradigm second or successive § 2255 motion).
The motion at bar is also independent of the June 26th motion and August 11th amendment. An independent motion filed while the first motion is sub judice can be deemed second or successive within the scope of § 2255 ¶ 8. See Johnson, 196 F.3d at 804. Bennett has demonstrated that he is adept at filing pleadings; indeed, he has explored many avenues of federal collateral attacks. Bennett knew that the June 26th motion was pending under case number 00 C 4049, as evidenced by the August 11th amendment, which was styled as an amendment and bore case number 00 C 4049. If Bennett intended for his latest motion to be another amendment to his earlier pleadings, he was capable of making that clear, but failed to do so. Furthermore, the latest pleading makes a new argument, which is unrelated to anything presented in either the June 26th motion or the August 11th amendment. And, Bennett filed the latest pleading under the original criminal case number, rather than the number assigned to his § 2255 motion in this court, or the case number assigned to his § 2241 petition pending before Judge Kocoras. These facts demonstrate that this latest pleading is independent of the June 26th and August 11th filings, and therefore a second or successive motion. See Johnson, 196 F.3d at 804.
B. Bennett did not seek leave of court to amend
Johnson makes clear that a prisoner can move to amend a pending § 2255 motion without seeking appellate approval. See Johnson, 196 F.3d at 804. The district court should analyze a motion to amend a § 2255 motion under Federal Rule of Civil Procedure 15, see id. at 805, but is not required to allow the proposed amendment. See id. (noting that delay is a common reason to deny a motion to amend); see also Rutledge v. United States, ___ F.3d ___, No. 99-1686, 2000 WL 1582768 (7th Cir. Oct. 24, 2000) (refusing to consider a prisoner's letter as a motion for leave to amend a § 2255 motion). Here, Bennett does not seek leave of court to amend the June 26th motion with this latest filing. Instead, Bennett continues to simply pepper the court with various papers, causing delay and wasting judicial resources. Indeed, Bennett has caused two judges in this district to spend time on four different sets of pleadings for collateral relief. Bennett's vexatious conduct demonstrates the need for parties to seek leave of court to amend pleadings, which is manifested in Federal Rule of Civil Procedure 15. Thus, even if the court found an implicit motion to amend in Bennett's latest filing, which it does not, the court would deny leave to amend.
The court raises another issue: Bennett tendered this latest motion to prison officials for mailing on November 6, 2000, and may have been unaware of the court's rulings on the June 26th motion and August 11th amendment. Some, but not all, pro se prisoner filings are considered filed as of the date the prisoner delivers them to prison officials for mailing, rather than on the date they are received by the court clerk.See Jones v. Gertrand, 171 F.3d 499, 500-02 (7th Cir. 1999) (discussing the "mailbox rule" and citing Houston v. Lack, 487 U.S. 266 (1988)). Recall that the court ruled on the June 26th motion and August 11th amendment on October 30th and November 7th, respectively. The certificate of service on Bennett's latest motion indicates that he delivered it for mailing on November 6, 2000, raising the possibility that Bennett was unaware of the court's ruling on the merits of his claims. Thus, some might say that the court should consider the instant pleading as an amendment within the scope of Johnson. See Johnson, 196 F.3d at 804 (holding that an amendment to a § 2255 motion is not necessarily a second or successive motion).
The court rejects such a notion because the mailbox rule has not been extended to cover a motion to amend a plea for collateral relief. See Rutledge v. United States, ___ F.3d ___, No. 99-1686, 2000 WL 1582768 (7th Cir. Oct. 24, 2000). Even if the mailbox rule does cover a motion to amend, cf. Jones, 171 F.3d at 500-02 (discussing the rationale of the mailbox rule), as discussed above, Bennett did not seek leave to amend. See Rutledge, 2000 WL 1582768 (refusing to decide whether the mailbox rule covered a motion for leave to amend because the prisoner did not make any such motion). Like the prisoner in Rutledge, Bennett has shown he is adept at filing pleadings, and is capable of filing a proper motion if he chooses to do so. Having not done so, the court does not construe this latest pleading as seeking leave to amend.
C. Even if Bennett's motion were properly before the court, it is without merit.
Out of an abundance of caution, see Fed.R.Crim.P. 12(b)(2), the court also addresses the merits of Bennett's claim. As noted above, Bennett asserts that the court did not have subject matter jurisdiction over his case because the mail fraud statute, 18 U.S.C. § 1341, does not have an implementing regulation. Bennett cites no case holding that federal courts lack subject matter jurisdiction over violations of 18 U.S.C. § 1341. And, no one can seriously consider that the court lacks such jurisdiction. The mail fraud statute has been in existence since 1872, see Neder v. United States, 119 S.Ct. 1827, 1840 (1999), and its validity is beyond doubt. See e.g. McNally v. United States, 483 U.S. 350 (1987) (discussing the history of the mail fraud statute);Parr v. United States, 363 U.S. 370 (1960) (detailing the legislative intent behind the statute); Ex Parte Jackson, 96 U.S. 727, 732-37 (1877) (affirming Congressional authority to pass laws concerning the postal system); Bateman v. United States, 875 F.2d 1304 (7th Cir. 1989) (analyzing McNally); United States v. Watson, 35 F. 358 (E.D.N.C. 1888) (describing federal jurisdiction over mail fraud); United States v. Jones, 10 F. 469 (S.D.N.Y. 1882) (discussing the corpus delicti of mail fraud); United States v. Loring, 91 F. 881 (ND. Ill. 1884) (finding that Congress had authority to pass the mail fraud statute). Thus, Bennett's latest motion is patently without merit
For the foregoing reasons, the court does not have jurisdiction over Bennett's latest motion, and dismisses it pursuant to 28 U.S.C. § 2244(b)(3)(A).
This does not mean that a prisoner asserting a lack of subject matter jurisdiction in a second or successive § 2255 motion is unable to pursue the claim. See 28 U.S.C. § 2255 8 (outlining the bases for allowing a second or successive § 2255 motion); compare Hatch v. Oklahoma, 92 F.3d 1012, 1014-15 (10th Cir. 1996) (refusing to grant leave to file a second or successive petition under 28 U.S.C. § 2254 because a lack of subject matter jurisdiction is not a basis for granting such leave). Federal Rule of Criminal Procedure 12(b)(2) instructs that the court shall notice an objection based on lack of jurisdiction at any time during the pendency of the proceedings. Because a second or successive § 2255 motion is a proceeding that must be presented to the court of appeals, that court can address any purported lack of jurisdiction, or order that the district consider the question. See Fed.R.Crim.P. 54(a).
IT IS SO ORDERED.