The opinion of the court was delivered by: Juan R. Sanchez, J.
Defendant Nelson Hernandez, who is currently serving a mandatory life sentence following his conviction on federal drug charges, has filed a "Motion to Dismiss Information Filed Under Title 21 U.S.C. § 851(a) for Lack of Subject Matter Jurisdiction Pursuant to [Federal Rule of Civil Procedure] 60(b)(6) and [Federal Rule of Criminal Procedure] 12(b)(2)," which he has twice moved to supplement. In all three motions, Hernandez seeks relief from his sentence, arguing the district court lacked subject matter jurisdiction to impose a mandatory life sentence because one of the prior convictions used to enhance his sentence did not qualify as a conviction for a "felony drug offense." Although Hernandez seeks relief pursuant to Federal Rule of Civil Procedure 60(b) and Federal Rule of Criminal Procedure 12, his motion is in substance a second motion for relief from sentence pursuant to 28 U.S.C. § 2255, which this Court may not consider absent authorization from the Third Circuit Court of Appeals. Because Hernandez has not obtained the required authorization, his motion will be dismissed for lack of jurisdiction.*fn1
In July 1990, Hernandez was indicted on federal drug charges, including one count of conspiracy to distribute five kilograms or more of cocaine, in violation of 21 U.S.C. § 846. On May 13, 1991, three days prior to trial, the Government filed an information pursuant to 21 U.S.C. § 851 charging Hernandez with having previously been convicted of two drug offenses under Florida law. The information referenced (1) a state court conviction for cocaine trafficking for which Hernandez received a three-year mandatory minimum sentence (less time served) on August 22, 1985, and which arose out of an April 18, 1984, arrest, and (2) a state court cocaine possession conviction for which Hernandez was sentenced on March 29, 1989, arising out of an August 4, 1988, arrest.*fn3 On May 29, 1991, a jury convicted Hernandez of Counts 1--3 of the federal indictment, including the conspiracy count.
Following his conviction, on October 22, 1991, United States District Judge Joseph L. McGlynn, Jr. sentenced Hernandez to a mandatory life sentence on the conspiracy count pursuant to 21 U.S.C. § 841(b)(1)(A) based on the two Florida drug convictions referenced in the Government's § 851 notice. Judge McGlynn also imposed a ten-year term of imprisonment on each of the remaining two counts, to run concurrently with each other and with the life sentence on the conspiracy count.
Section 841(b)(1)(A) sets forth mandatory minimum penalties for persons convicted of drug trafficking offenses involving threshold quantities of certain drugs, and provides for enhanced mandatory minimum penalties for offenders with one or more prior convictions for a "felony drug offense."*fn4 Under § 841(b)(1)(A), a person convicted of conspiracy to distribute five or more kilograms of cocaine is subject to a mandatory minimum sentence of ten years. A defendant who commits the same offense "after a prior conviction for a felony drug offense has become final" is subject to a 20-year mandatory minimum, and a defendant who commits such an offense "after two or more prior convictions for a felony drug offense have become final . . . shall be sentenced to a mandatory term of life imprisonment without release." Id. A court may not impose the enhanced penalties set forth in § 841(b)(1)(A), however, unless prior to trial the government "files an information with the court (and serves a copy of such information on the person or counsel for the person) stating in writing the previous convictions to be relied upon."
At sentencing, Hernandez objected to the use of his March 1989 cocaine possession conviction to enhance his sentence under § 841(b)(1)(A). See Def.'s Mot. to Dismiss Ex. A, ECF No. 101 at 37-38 (excerpt from sentencing transcript).*fn5 The district court overruled the objection, finding the conviction was "a valid conviction of a felony in the state of Florida" and was "entitled to be considered as far as enhancement [of Hernandez's sentence]."*fn6 Def.'s Mot. to Dismiss Ex. A, ECF No. 101 at 37-38. Based on the two convictions identified in the Government's § 851 notice, the district court imposed a mandatory life sentence on the conspiracy count. See id. at 38. The Third Circuit Court of Appeals affirmed Hernandez's conviction and sentence in June 1992, rejecting Hernandez's argument that the mandatory life sentence violated his due process rights and constituted cruel and unusual punishment.
Hernandez thereafter unsuccessfully sought collateral review pursuant to 28 U.S.C. § 2255. In his § 2255 motion, Hernandez raised three grounds for relief, including that the mandatory life sentence was illegal because the Government did not file its § 851 notice until after trial had begun, in violation of the statute. The district court denied the motion, finding, as to Hernandez's claim of sentencing error, that the Government had in fact filed its § 851 notice several days before trial. Hernandez appealed the denial of his § 2255 motion, and although the Court of Appeals remanded the case for an evidentiary hearing on Hernandez's ineffective assistance of counsel claim, the Court rejected his argument that the district court had improperly enhanced his sentence based on his two prior drug convictions.*fn7 In addition, following the evidentiary hearing on remand, the district court again denied Hernandez's § 2255 motion, and the Court of Appeals affirmed.
Hernandez also sought relief from his mandatory life sentence by filing a petition for writ of error coram nobis in the district court; however, the district court denied the petition, and the Court of Appeals again affirmed. In March 2007, Hernandez sought authorization from the Court of Appeals to file a second or successive § 2255 motion. The Court of Appeals denied the application, finding Hernandez had not shown his application relied on newly discovered evidence or a new rule of constitutional law made retroactive to cases on collateral review by the Supreme Court. As to the latter requirement, the Court of Appeals specifically noted Lopez v. Gonzales, 549 U.S. 47 (2006), the case on which Hernandez relied in support of his application, "did not state a 'new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court.'" In re Hernandez, No. 07-1910, Order (3d Cir. May 3, 2007).
Following the denial of his application to file a second or successive § 2255 motion, Hernandez filed the instant motion, again seeking relief based on Lopez v. Gonzales, supra. In his motions to supplement, Hernandez argues relief is also warranted based on the Supreme Court's decision in Carachuri-Rosendo v. Holder, 130 S. Ct. 2577 (2010), and the district court's decision in Shelton v. Secretary, Department of Corrections, 802 F. Supp. 2d 1289 (M.D. Fla. 2011), rev'd on other grounds, 691 F.3d 1348 (11th Cir. 2012).
In the instant motion, Hernandez seeks relief from the judgment in his criminal case, arguing the district court lacked subject matter jurisdiction to impose a mandatory life sentence pursuant to 21 U.S.C. § 841(b)(1)(A) because the Government's § 851 notice was defective in that the 1989 state court cocaine possession conviction referenced therein does not qualify as a conviction for a "felony drug offense" under more recently decided cases. Although the motion invokes both Federal Rule of Criminal Procedure 12 and Federal Rule of Civil Procedure 60(b), neither Rule authorizes this Court to grant Hernandez the relief he seeks.
Under Federal Rule of Criminal Procedure 12(b)(3)(B),*fn8
a claim by a criminal defendant "that the indictment or
information fails to invoke the court's jurisdiction" need not be
raised before trial, but may be heard by the district court "at any
time while the case is pending." Even assuming Hernandez's
"jurisdictional" claim could be raised pursuant to Rule 12(b)(3)(B),
the Rule does not provide a basis for relief here because Hernandez's
criminal case is no longer "pending." Compare United States v. Craft,
471 F. App'x 89, 90 (3d Cir. 2012) (holding defendant could not use
Rule 12(b)(3)(B) to challenge his criminal information because his
case was no longer "pending" where his conviction and sentence had
been affirmed on direct appeal, his § 2255 motion had been denied, and
the Court of Appeals had denied a certificate of appealability), and
United States v. Ramsey, 398 F. App'x 708, 709 (3d Cir. 2010) (same),
with Hedaithy, 392 F.3d at 586-89 (holding a defendant may raise a
claim pursuant to Rule 12(b)(3)(B) on direct appeal); see also
Barreto-Barreto v. United States, 551 F.3d 95, 100 (1st Cir. 2008)
("After a final judgment has been entered, and no direct appeal has
been filed, a case is no longer pending, and Rule 12(b)(3)(B) cannot
be invoked to challenge jurisdiction."); United States v.
Valadez-Camarena, 402 F.3d 1259, 1261 (10th Cir. 2005) (holding
defendant's case, which was "long since reduced to judgment, affirmed