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United States District Court, D. New MexicoMay 24, 2007
No. CV 07-0325 JP/ACT, CR-04-0512 JP. (D.N.M. May. 24, 2007)

No. CV 07-0325 JP/ACT, CR-04-0512 JP.

May 24, 2007


This matter is before the Court on Defendant's response to the order entered April 13, 2007. In the order, the Court notified Defendant that rule 60(b)(4) of the Federal Rules of Civil Procedure does not provide a basis for an attack on a criminal judgment. In his response, Defendant asks the Court to recharacterize and construe his rule 60 motion as a 28 U.S.C. § 2255 motion. The Court now considers the motion under § 2255. See 28 U.S.C. § 2255 R.4(b).

No relief is available on Defendant's allegations. Defendant was charged and convicted of bank fraud under 18 U.S.C. § 1344. In his § 2255 motion, Defendant asserts that Congress never enacted the bank fraud statute and thus the Court had no jurisdiction to try or convict him thereunder. As noted in the earlier order, contrary to Defendant's assertions, on October 12, 1984, Congress enacted the statute under which Defendant was charged. See Pub.L. No. 98-473, 98 Stat. 2147 (codified as amended at 18 U.S.C. § 1344 (2000)); United States v. De La Mata, 266 F.3d 1275, 1287 (11th Cir. 2001). Because the statute was regularly enacted, the Court had jurisdiction of the subject matter in this criminal proceeding. See, e.g., Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 89-90 (1998); United States v. Tush, 287 F.3d 1294, 1297 (10th Cir. 2002); United States v. Martin, 147 F.3d 529, 532 (7th Cir. 1998). Defendant's motion will be dismissed. See § 2255 R.4(b).

IT IS THEREFORE ORDERED that Defendant's Motion To Void Judgment Under Title 28 U.S.C. Federal Rules of Civil Procedure 60(b)(4) Et Seq (CV Doc. 1; CR Doc. 20) filed March 28, 2007, recharacterized and construed as a motion to vacate, set aside, or correct sentence under 28 U.S.C. § 2255, is DISMISSED with prejudice; and judgment will be entered.

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