                                                        [DO NOT PUBLISH]




            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                     ________________________                  FILED
                                                      U.S. COURT OF APPEALS
                            No. 07-12726                ELEVENTH CIRCUIT
                                                            MAY 27, 2008
                        Non-Argument Calendar
                      ________________________           THOMAS K. KAHN
                                                              CLERK

                  D. C. Docket No. 03-14028-CR-KMM

UNITED STATES OF AMERICA,


                                                  Plaintiff-Appellee,

                                 versus

EDGAR JOE SEARCY,

                                                  Defendant-Appellant.

                      ________________________

               Appeal from the United States District Court
                   for the Southern District of Florida
                     _________________________

                             (May 27, 2008)

Before ANDERSON, HULL and WILSON, Circuit Judges.

PER CURIAM:
      Edgar Joe Searcy appeals pro se the district court’s order denying his

motion in arrest of judgment pursuant to Federal Rule of Criminal Procedure 34.

On appeal, Searcy argues that his Rule 34 motion was not untimely because it

challenged the district court’s subject-matter jurisdiction. Further, he maintains

that the district court had an obligation to raise the issue sua sponte because it

involved a jurisdictional defect.

      A district court’s subject-matter jurisdiction “is a question of law and,

therefore, subject to de novo review.” United States v. Perez, 956 F.2d 1098, 1101

(11th Cir. 1992) (per curiam). A defendant must file a motion to arrest judgment

“within 7 days after the court accepts a verdict or finding of guilty, or after a plea

of guilty or nolo contendere.” Fed. R. Crim. P. 34(b). The court may grant an

extension of time to file a motion, so long as the party requests the extension

within the time period originally prescribed for the underlying motion. Fed. R.

Crim. P. 45(b)(1)(A). Moreover, the district court may consider an untimely

motion where the party’s failure to act was the result of excusable neglect. Fed. R.

Crim. P. 45(b)(1)(B).

      The time period to file a Rule 34 motion to arrest judgment is jurisdictional.

See Massicot v. United States, 254 F.2d 58, 61 (5th Cir. 1958) (affirming the

district court’s dismissal of defendant’s untimely Rule 34 motion where no

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extension of time was granted).1 Thus, a defendant’s failure to move for arrest of

judgment within Rule 34(b)’s prescribed seven-day period, without having been

granted an extension of time, divests the district court of jurisdiction to rule on the

motion. See id.

       Searcy filed his motion to arrest judgment on April 17, 2007—more than

three years after he entered his guilty plea on September 26, 2003—without ever

having moved under Rule 45(b)(1)(A) for an extension of time to file. Thus,

under Rule 34’s plain language, Searcy’s motion was untimely because it was filed

more than seven days after the entry of his guilty plea. While the district court

could have entertained the motion upon a showing of excusable neglect under

Rule 45(b)(1)(B), Searcy did not advance such an argument below and does not

argue so now. Thus, the district court lacked jurisdiction to consider Searcy’s

Rule 34 motion to arrest judgment.

       Because Searcy filed his Rule 34 motion pro se, “we have a duty to liberally

construe [his] assertions to discern whether jurisdiction to consider his motion can

be founded on a legally justifiable base.” Sanders v. United States, 113 F.3d 184,

187 (11th Cir. 1997) (per curiam) (internal quotation marks omitted). In his Rule


       1
         In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we
adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to the
close of business on September 30, 1981.

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34 motion, Searcy argues that the district court lacked subject-matter jurisdiction

because the indictment failed to set forth each element of the offense. Thus,

Searcy’s motion may be liberally construed as a Rule 12(b)(3)(B) motion alleging

a defect in the indictment.2 Generally, motions alleging a defect in the indictment

must be made before trial. Fed. R. Crim. P. 12(b)(3)(B). Except upon a showing

of good cause, a defendant waives any Rule 12(b)(3) defense, objection, or request

not raised by the district court’s pretrial motion deadline or other extension

provided by the district court. Fed. R. Crim. P. 12(e). A defendant does not have

good cause warranting relief from waiver when he had all the information

necessary to bring a 12(b) motion before the date set for pretrial motions. United

States v. Ramirez, 324 F.3d 1225, 1228 n.8 (11th Cir. 2003) (per curiam).

Nevertheless, the district court may, “at any time while the case is pending, . . .

hear a claim that the indictment or information fails to invoke the court’s

jurisdiction or to state an offense.” Fed. R. Crim. P. 12(b)(3)(B).

       Yet, even when we construe Searcy’s pro se motion as one made pursuant to

Rule 12(b)(3)(B), his motion remains untimely. Just as Searcy has failed to show



       2
          Federal Rule of Criminal Procedure 12(b)(3)(B) provides, in relevant part, that a motion
alleging a defect in the indictment must be made before trial, but that the court may hear a claim
that the indictment fails to invoke its jurisdiction at any time while the case is pending. Fed. R.
Crim. P. 12(b)(3)(B).

                                                 4
excusable neglect to invoke Rule 45(b)(1)(B), he has not demonstrated good cause

to justify his failure to file his motion challenging the indictment before trial. To

the extent that Searcy’s motion argues that the indictment failed to state an offense

invoking the district court’s jurisdiction, Searcy may have been entitled to raise

the objection during the pendency of the proceedings. See Fed. R. Crim. P.

12(b)(3)(B). While we have yet to formally decide precisely when a case ceases to

be “pending” within the meaning of Rule 12(b)(3)(B), it is clear that when Searcy

filed his motion in arrest of judgment—at the conclusion of his 28 U.S.C. § 2255

collateral attack on his conviction and sentence—his case was no longer

“pending,” and the district court was without subject-matter jurisdiction to

entertain it.3 By raising his challenge to the indictment after the district court



       3
          In two unpublished opinions, we have held that a case is no longer pending under Rule
12(b)(3)(B) after the time period for direct appeal has passed. See United States v. Felder, 220 F.
App’x 951, 951 (11th Cir. 2007) (per curiam) (case no longer “pending” within meaning of Rule
12(b)(3)(B) after we affirmed the defendant’s conviction and the Supreme Court denied
certiorari); United States v. Clarke, 150 F. App’x 969, 970 (11th Cir. 2005) (per curiam) (case no
longer “pending” after the defendant had pled guilty, district court had imposed sentence, and the
period for direct appeal had lapsed).
        Of our sister circuits that have addressed this issue, the Eighth Circuit has consistently
held that a district court may not notice jurisdictional challenges to the indictment after the
petitioner files the motion after an unsuccessful post-conviction appeal under § 2255 because the
conviction and sentence are no longer pending within the meaning of Rule 12(b)(3)(B) [formerly
Rule 12(b)(2)]. See, e.g., United States v. Patton, 309 F.3d 1093, 1094 (8th Cir. 2002) (per
curiam) (citing cases). Also, the Third Circuit has rejected a pro se petitioner’s attempt to nullify
his conviction through a motion to dismiss the indictment on procedural grounds finding that
“there is no general right, other than on collateral attack, to challenge a conviction or indictment
after the defendant pleads guilty.” United States v. Miller, 197 F.3d 644, 648 (3d Cir. 1999).

                                                 5
denied his § 2255 motion to vacate, Searcy has improperly attempted to

circumvent federal habeas requirements. See 28 U.S.C. § 2255(h) (applicants

must move this Court pursuant to 28 U.S.C. § 2244 for an order authorizing

district court to consider second or successive § 2255 motion).

      Because Searcy failed to file the Rule 34 motion in arrest of judgment

within seven days after entering his guilty plea, without excusable neglect, and

waited until the conclusion of his post-conviction appeal to raise jurisdictional

challenges to his indictment, the district court lacked subject-matter jurisdiction to

entertain his motion. For these reasons, we AFFIRM the district court’s denial of

Searcy’s Rule 34 motion and DISMISS Searcy’s outstanding motions as moot.

      AFFIRMED.




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