Case 9:08-cv-81283-JAL Document 269 Entered on FLSD Docket 05/04/2012 Page 1 of 3

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO. 01-8084-CR-LENARD CASE NO. 08-21283-CV-LENARD/WHITE UNITED STATES OF AMERICA,

v. ELROY A. PHILLIPS, Defendant. ________________________________/ ELROY A. PHILLIPS, Movant, v. UNITED STATES OF AMERICA, Respondent. ________________________________/ ORDER THIS CAUSE is before the Court on the Parties Joint Motion to Vacate Defendants Convictions on Counts 1, 9, 14, and 17 and to Dismiss With Prejudice Counts 1, 9, 14, and 17 and Parties Stipulated Motion to Dismiss With Prejudice 28 U.S.C. 2255 Proceeding (Motion, Case No. 01-8084-CR, D.E. 480; Case No. 08-21283-CV, D.E. 268), filed on May 4, 2012. The Parties filed this Motion in Phillips pending 2255 civil case, and in Phillips closed criminal case.

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In the criminal case against Phillips, a jury convicted Phillips of five counts of narcotics and weapons offenses. (Jury Verdict, Case No. 01-8084-CR, D.E. 239.) Phillips conviction was affirmed on direct appeal. (See Mandate, Case No. 01-8084-CR, D.E. 387.) Phillips has filed a Motion to Vacate, Set Aside, or Correct Judgment and Sentence pursuant to 28 U.S.C. 2255, and this civil case remains open. In their Joint Motion, the Parties now request that this Honorable Court vacate the convictions of defendant Elroy Antonio Phillips as to Counts 1, 9, 14, and 17, and dismiss with prejudice Count 1, 9, 14, and 17 of the Second Superseding Indictment in the abovestyled criminal case as to defendant Elroy Antonio Phillips, pursuant to Fed. R. Crim. P. 48(a) and Mesarosh v. United States, 352 U.S. 1 (1956). (Motion 1-2.)1 The Parties do not cite to any authority that states that this Court has jurisdiction to grant the relief requested in the criminal case. Typically, collateral attacks on the validity of a federal conviction or sentence must be brought under 2255. United States v. Neder, 451 F. Appx 842, 844-45 (11th Cir. 2012) (per curiam) (citing Sawyer v. Holder, 326 F.3d 1363, 1365 (11th Cir. 2003)). Furthermore, [g]enerally, 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 courts jurisdiction or to state an offense. United States v. Felder, 220 F. Appx 951, 952 (11th Cir. 2007) (per curiam)

The Parties further stipulate and respectfully request, pursuant to Fed. R. Civ. P. 41(a) and Rule 12 of the Rules Governing 2255 Proceedings, that this Court dismiss with prejudice Phillips action filed pursuant to 28 U.S.C. 2255 in the above-styled civil case. (Motion 2.) 2

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(quoting F ED. R. C RIM. P. 12(b)(3)(B)) (emphasis added) (finding that the district court properly denied the movants post-conviction motion to dismiss the indictment because the case was no longer pending and therefore district court lacked jurisdiction to entertain the motion). Here, Phillips criminal case is no longer pending before this Court because the jury has convicted Phillips and that conviction has been upheld on appeal. Accordingly, it is ORDERED AND ADJUDGED that on or before May 11, 2012, the Parties shall file a joint memorandum of law that addresses the jurisdiction of this Court to grant the relief requested in the criminal case. DONE AND ORDERED in Chambers at Miami, Florida this 4th day of May, 2012. ___________________________________ JOAN A. LENARD UNITED STATES DISTRICT JUDGE