IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA
August 9, 2005
ROBERT LEE COLLINS AKA ROBERT ZILITIS, PETITIONER,
UNITED STATES OF AMERICA, RESPONDENT.
The opinion of the court was delivered by: Susan Illston United States District Judge
ORDER DENYING MOTION TO DISMISS INDICTMENT
On June 25, 2005, petitioner brought this pro se motion to dismiss his conviction for lack of federal jurisdiction, pursuant to Federal Rule of Criminal Procedure 12(b)(2). Petitioner contends that this Court lacked jurisdiction to convict and sentence him under 18 U.S.C. § 2113 (the "Federal Bank Robbery statute") because the indictment did not charge him with section (f) of 18 U.S.C. § 2113. Section 2113(f) defines the term "bank" as used in the statute.
On January 7, 2000, petitioner pled guilty to eleven counts of armed bank robbery, one count of the use of a firearm in connection with a crime of violence, and one count of conspiracy to commit armed bank robbery. On April 14, 2000, petitioner received a sentence of 300 months in custody with five years of supervised release for violating multiple statutes, including § 2113(a) and (d). Section (a) involves the taking of money or property from a federally insured bank, and section (d) increases the punishment for violation of section (a) when the crime was committed with "a dangerous weapon or device" which "puts in jeopardy the life of any person." § 2113(a), (d).
On March 26, 2002, petitioner filed a habeas petition under 28 U.S.C § 2255, No. C 02-01453 SI, alleging: (1) lack of jurisdiction to enter conviction or impose sentence; (2) convictions in violation of the plea agreement; (3) improperly ordered restitution; (4) inappropriate enhancement of base level offense; and (5) ineffective assistance of counsel. On August 12, 2002, this Court denied the petition, finding that it was time-barred by the one year statute of limitations. In addition, the Court noted that four of the five claims would have been dismissed because, in petitioner's plea agreement, he gave up his right to collaterally attack his conviction on any ground other than ineffective assistance of counsel, and therefore only the fifth claim would have been permitted under the plea agreement. Aug. 12, 2002 Order at 2. This Court then denied petitioner's request for a certificate of appealability. Petitioner appealed the denial of his habeas petition to the Ninth Circuit; the appeal was dismissed and the appeal record was returned on October 24, 2003.
"A petitioner seeking appellate review of a district court's denial of a § 2255 motion must obtain a certificate of appealability from a judge of the district court or the court of appeals." United States v. Allen, 157 F.3d 661, 665 (9th Cir. 1998). A successive habeas petition may only be heard by a district court after the appropriate court of appeals, pursuant to the rules in 28 U.S.C § 2244, certifies that the second motion contains either newly discovered evidence or falls under a new retroactively imposed rule of constitutional law. See 28 U.S.C. § 2255.
Any claims that were presented in the prior habeas petition will be dismissed by the district court. See 28 U.S.C. § 2244(b)(1). Claims are successive "if the basic thrust or 'gravamen' of the legal claim is the same, regardless of whether the basic claim is supported by new and different legal arguments." Molina v. Rison, 886 F.2d 1124, 1129 (9th Cir. 1989).
1. Successive § 2255 Petition
Petitioner identifies Federal Rule of Criminal Procedure 12(b)(2) as the basis for his motion. That rule, however, governs motion which may be made before trial. See Fed. R. Cr. P. 12(b)(2). Here, petitioner contends that, because the Court lacked jurisdiction over his case, his conviction should be overturned. This amounts to a collateral challenge to his conviction. The proper procedure for collaterally challenging a federal criminal conviction is to file a § 2255 habeas petition.
Petitioner previously brought a habeas petition under § 2255 in 2002. After denying petitioner's habeas petition, this Court denied a certificate of appealability, and the Ninth Circuit declined petitioner's request for review. In the first claim of that petition, petitioner argued that the Court had no jurisdiction to convict him under the Federal Bank Robbery statute because the indictment failed to "charge [him with] a material element of the offense," the robbery of a federally insured credit union. Pet.'s § 2255 Mot. at 3. In this motion, the legal claim petitioner presents is virtually identical to that claim, and the "legal thrust" of the claims is clearly the same. See Molina, 886 F.2d at 1129. Petitioner alleges no newly discovered evidence nor does he cite an applicable new constitutional rule. Thus, petitioner's motion is an unauthorized successive habeas petition, alleging a claim already dismissed in a prior petition. Accordingly, this motion must be DENIED.
2. Sufficiency of the Evidence for Federal Jurisdiction
Even if the Court reaches the merits of petitioner's motion, it still finds petitioner's argument unavailing. According to petitioner, "§ 2113 mandates that subsection (f) be charged in the indictment to provide the Federal Courts with subject matter jurisdiction." Pet.'s Mot. at 6. The statute does not contain such a mandate, and there is no authority suggesting that a defendant must be charged in an indictment with subsection (f) to be convicted of the Federal Bank Robbery statute.
Section 2113(f) states:
As used in this section the term "bank" means any member bank of the Federal Reserve System, and any bank, banking association, trust company, savings bank, or other banking institution organized or operating under the laws of the United States, including a branch or agency of a foreign bank, and any institution the deposits of which are insured by the Federal Deposit Insurance Corporation.
It is true that evidence necessary to satisfy § 2113(f) is an essential element of a conviction under the Federal Bank Robbery statute. United States v. James, 987 F.2d 648, 650 (9th Cir. 1993) (citing United States v. Bishop, 959 F.2d 820, 829 (9th Cir. 1992); United States v. Phillips, 427 F.2d 1035, 1037 (9th Cir. 1970) ("there is no question but that a proper showing that the bank was F.D.I.C. insured is an essential element of the crime charged"). In his plea agreement, petitioner stipulated that the bank he robbed was federally insured and gave up the right to challenge that fact on appeal, either directly or collaterally. Pet.'s Plea Agreement at 3, 8.
Establishing that a bank is federally insured under § 2113(f) "is essential to establish federal jurisdiction," but "the threshold quantum of proof for this element may be easily satisfied." United States v. Ali, 266 F.3d 1242, 1245 (9th Cir. 2001). In United States v. Washburn, the Ninth Circuit adopted the Fifth Circuit's standard of a "minimum level of acceptable proof" necessary to prove that a bank was federally insured. 758 F.2d 1339, 1340 (9th Cir. 1985). Petitioner's admission during the plea proceedings is certainly more than a "minimum level of acceptable proof."
For the foregoing reasons, the Court hereby DENIES petitioner's motion to dismiss indictment for lack of jurisdiction.
IT IS SO ORDERED.
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