United States v. Ricky Jackson , 53 F. App'x 401 ( 2002 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 02-2928
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the Eastern
* District of Missouri
Rickey L. Jackson, *
* [UNPUBLISHED]
Appellant. *
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Submitted: December 19, 2002
Filed: December 26, 2002
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Before McMILLIAN, FAGG, and BOWMAN, Circuit Judges.
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PER CURIAM.
Rickey Jackson appeals from the final judgment entered in the District Court1
for the Eastern District of Missouri denying his motion to dismiss the indictment in
his criminal case. For the reasons discussed below, we affirm the judgment of the
district court.
1
The Honorable E. Richard Webber, United States District Judge for the
Eastern District of Missouri.
In 1998, a jury convicted Jackson of conspiring to distribute cocaine base, the
district court sentenced him to life imprisonment, and we affirmed. See United States
v. Jackson, No. 99-1957, 1999 WL 1059825, at *1 (8th Cir. Nov. 19, 1999)
(unpublished per curiam). Jackson later sought relief under 28 U.S.C. § 2255, and
filed motions for a copy of grand jury records and for a new criminal trial based on
newly discovered evidence, all without success. See Jackson v. United States,
No. 01-2226 (8th Cir. Sept. 6, 2001) (denying certificate of appealability); United
States v. Jackson, No. 01-2897, 39 Fed. App. 453, 453-54 (8th Cir. Feb. 28, 2002)
(unpublished per curiam) (affirming denial of new trial motion and motion for grand
jury records).
In the instant motion to dismiss the indictment, Jackson alleged that the
government violated an immunity agreement by introducing certain evidence at trial,
and that the district court never ruled on his objection. The district court denied as
untimely Jackson’s motion to dismiss, and also denied his motions for appointment
of counsel and a hearing. We agree that relief under Fed. R. Crim. P. 12(b)(2), the
provision addressing indictment defects, is no longer available to Jackson. See
United States v. Wolff, 241 F.3d 1055, 1056-57 (8th Cir. 2001) (per curiam) (motion
under Rule 12(b)(2) must be made during pendency of criminal proceedings, not after
entry of final judgment). To the extent Jackson’s motion is construed as a collateral
proceeding, it is successive and filed without authorization, and he made no showing
of either new and convincing evidence of innocence or a new rule of constitutional
law made retroactive to cases on collateral review by the Supreme Court. See 28
U.S.C. § 2244(b)(2), (3). Instead, Jackson appears to be repeating an evidentiary
challenge that he raised during trial and in support of his motion for a new trial, and
he is simply arguing that the district court never ruled on whether certain testimony
should have been excluded pursuant to an immunity agreement. He may not use a
motion to dismiss the indictment to bypass the requirement that he obtain
authorization for a successive collateral filing. See United States v. Patton, 309 F.3d
1093, 1094 (8th Cir. 2002) (per curiam). Accordingly, we affirm.
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A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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