Opinion
Cause No. 3:07-CR-104 RLM
05-01-2019
UNITED STATES OF AMERICA, v. MELVIN FAGAN
OPINION AND ORDER
On February 4, 2019 defendant Melvin Fagan filed a motion to dismiss his conviction pursuant to Fed. R. Crim. P. 12(b)(6) [Doc. No. 84].
As an initial matter, Mr. Fagan's motion to dismiss is improper. Fed. R. Crim. P. 12 concerns pleadings and pretrial motions. Fed. R. Crim. P. 12(b)(6) is not the proper mechanism under which Mr. Fagan can challenge his conviction. Mr. Fagan's proper course of remedy is a motion to vacate his conviction under 28 U.S.C. § 2255. The court, recognizing that Mr. Fagan is proceeding pro se, will construe his current motion as if it were a petition made under 28 U.S.C. § 2255. For the reasons stated below, the court denies Mr. Fagan's petition.
On January 2, 2019, this court denied Mr. Fagan's most recent motion to vacate because his 28 U.S.C. § 2255 was untimely [Doc. No. 83]. Mr. Fagan's conviction became final more than nine years ago and his motion therefore faces serious statute of limitations issues. Under the exceptions of 28 U.S.C. § 2255, unless Mr. Fagan can provide evidence that the government either impeded the filing of this motion or that he recently discovered facts supporting his claim, the motion is time-barred.
Mr. Fagan has raised no new evidence to support a granting of his most recent 28 U.S.C. § 2255 petition. Similar to the court's finding in its January 2, 2019 order, Mr. Fagan offers only speculation that indictment in his various cases were never returned by the grand jury and that the government fraudulently induced his waiver of prosecution in this case by agreeing to dismiss these unreturned indictments. No evidence has been presented in support of his theory.
For the foregoing reason, the court DENIES Mr. Fagan's motion to vacate [Doc. No. 84].
SO ORDERED
ENTERED: May 1, 2019
/s/ Robert L. Miller, Jr.
Judge, United States District Court