FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

 March 22, 2007

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 06-12911

Non-Argument Calendar

________________________

D. C. Docket No. 90-00271-CR-T-N

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

versus 

AL JOSEPH FELDER, SR., 

Defendant-Appellant. 

________________________

Appeal from the United States District Court

for the Middle District of Alabama

_________________________

(March 22, 2007)

Before WILSON, PRYOR and FAY, Circuit Judges.

PER CURIAM:
2

Al Joseph Felder, Sr., who was convicted of two counts of possession with

the intent to distribute cocaine and one count of using and carrying firearms during

and in relation to the commission of drug offenses, appeals the district court’s

denial of his pro se post-conviction motion to dismiss his indictment. For the

reasons discussed more fully below, we affirm.

More than 14 years after this Court affirmed Felder’s convictions and

sentence, and over 13 years after the Supreme Court denied certiorari review,

Felder filed a motion to dismiss his indictment, arguing that the indictment failed

to charge the offense of manufacturing and distributing cocaine. The district court

denied without opinion the motion to dismiss the indictment. During the same

time as Felder filed the instant motion, he also had filed a 28 U.S.C. § 2255

petition in the district court. The district court granted in part and denied in part

Felder’s § 2255 petition because Felder was actually innocent of the firearms

charge, but his remaining § 2255 claims were untimely. This Court denied Felder

a certificate of appealability (“COA”) on September 5, 2006. 

On appeal, Felder identifies no source of subject matter jurisdiction that

would have empowered the district court to consider the merits of his motion to

dismiss the indictment. He nevertheless argues that his indictment was defective

because it failed to charge him with the crimes of distributing and manufacturing
3

cocaine. He asserts that his offense conduct supported a charge of distributing and

manufacturing cocaine, and, thus, his indictment should have charged him with

those crimes. He therefore concludes that, because his indictment was defective

for failure to charge an offense, that defect stripped the court of jurisdiction. He

contends that his allegation of a jurisdictional defect in the indictment could have

been raised at anytime. Felder also makes arguments regarding procedural default

and states that the court’s ruling in his habeas proceeding was erroneous. 

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). Generally, a motion alleging a defect in an indictment must 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). In Felder’s case, he filed his motion to

dismiss his indictment 14 years after we had affirmed his convictions, and 13 years

after the Supreme Court denied certiorari review. Felder v. United States, 510 U.S.

882, 114 S.Ct. 228, 126 L.Ed.2d 183 (1993). Thus, Felder’s case was not

“pending” within the meaning of Rule 12(b)(3)(B) when he filed his motion to

dismiss, and the district court properly denied the motion because it was without

subject matter jurisdiction to entertain it. See United States v. Patton, 309 F.3d
4

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, Felder’s § 2255 petition was pending at the time he filed his

motion to dismiss his indictment, and that petition has since been denied by the

district court and we declined to grant a COA. Thus, to the extent that Felder

raises in the instant appeal arguments concerning his § 2255 proceedings, he

improperly has attempted to circumvent federal habeas requirements. See 28

U.S.C. § 2255, cross-referencing 28 U.S.C. § 2244 (requiring that, before an

applicant may file a second or successive § 2255 petition in the district court, the

applicant must move the court of appeals for an order authorizing the district court

to consider such a motion).

Upon review of the record, consideration of the parties’ briefs, and in light

of the foregoing, the district court’s denial of Felder’s post-conviction motion to

dismiss his indictment is

AFFIRMED.