The opinion of the court was delivered by: Cedarbaum, District Judge.
MEMORANDUM OPINION AND ORDER
Petitioner J. Michael Rice has filed a motion to dismiss the
indictment pursuant to Rule 12(b)(2) of the Federal Rules of
Criminal Procedure. Petitioner was convicted by a jury on one
count of conspiracy and six counts of money laundering on
October 9, 1996. The Court of Appeals affirmed his conviction by
summary order on October 30, 1998. The mandate was issued on
November 20, 1998. Petitioner submitted this motion on July 24,
The motion was initially assigned to Chief Judge Mukasey, who
construed the motion as a motion under 28 U.S.C. § 2255. He
directed petitioner to submit an Amended Petition under § 2255
and to show cause by affirmation why the motion should not be
barred as untimely. Rice v. United States, No. 00 Civ.
7280(MBM), Order, Sept. 27, 2000. Petitioner submitted an
Amended Petition opposing the recharacterization of his motion
under Adams v. United States, 155 F.3d 582 (2d Cir.),
asserting the right to make a motion under 12(b)(2) at any time
and, in the alternative, asking that the one year statute of
limitations under § 2255 be tolled. The case has since been
reassigned to my calendar.
Rule 12(b)(2) authorizes a motion to dismiss when defects in
an indictment deprive the court of jurisdiction. Such a motion
is not required to be brought prior to trial but "shall be
noticed by the court at any time during the pendency of the
proceedings." Fed.R.Crim.P. 12(b)(2). Petitioner has been tried,
convicted and has had his conviction affirmed on appeal.
Petitioner's criminal proceedings are no longer pending.
Therefore, a motion under Rule 12(b)(2) is not available.
The Second Circuit has held that a 12(b)(2) motion should not
be recharacterized as a motion under § 2255 "unless (a) the
movant agrees . . . to have the motion so recharacterized or (b)
the court finds that, notwithstanding its designation, the
motion should be considered as made under § 2255 because of the
nature of the relief sought, and offers the movant the
opportunity to withdraw the motion rather than have it so
recharacterized." Adams, 155 F.3d at 584.
By this motion, petitioner seeks to attack collaterally his
conviction and sentence on the ground that defects in the
indictment deprived the trial court of jurisdiction. The relief
petitioner seeks is properly sought under § 2255, which provides
the avenue for a prisoner to attack his sentence after the
conclusion of trial and appeal when "the court was without
jurisdiction to impose such a sentence." 28 U.S.C. § 2255.
Accordingly, the motion should be considered as made under §
2255. Adams, 155 F.3d at 584; Chambers v. United States,
106 F.3d 472, 474-75 (2d Cir. 1997).
For the foregoing reasons, petitioner's motion is dismissed as
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