Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-7-2006

USA v. Smith
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-2614




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"USA v. Smith" (2006). 2006 Decisions. Paper 117.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/117


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                                                                             CLD-36
                                                                   NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT

                                       No. 06-2614
                                       ___________

                            UNITED STATES OF AMERICA

                                              v.

                                 FRANKLIN D. SMITH,
                                           Appellant

                     On Appeal From the United States District Court
                         For the Middle District of Pennsylvania
                             (D.C. Criminal No. 03-cr-00099)
                     District Judge: Honorable William W. Caldwell
                           _____________________________

             Submitted For Possible Dismissal due to a Jurisdictional Defect
            or Summary Action Under Third Circuit LAR 27.4 and I.O.P. 10.6
                                   November 2, 2006

                Before: RENDELL, SMITH and COWEN, Circuit Judges

                                (Filed : December 7, 2006)
                                      _____________

                               OPINION OF THE COURT
                                   _____________

PER CURIAM

       Franklin Smith appeals the District Court’s order dismissing his motion to dismiss

the charges against him. In January 2004, Smith was sentenced to sixty months in prison

after he pled guilty to possession of a firearm in furtherance of drug trafficking. He

voluntarily withdrew his appeal, and his recent motion to reopen the appeal was denied
on October 26, 2006. In April 2005, Smith filed a § 2241 petition in the District Court for

the Middle District of Pennsylvania seeking to bring a claim based on the Vienna

Convention. On January 6, 2006, this Court affirmed the District Court’s dismissal of the

§ 2241 petition because the claims were cognizable only in a § 2255 motion. See C.A.

No. 05-2982. On January 20th, Smith filed a motion in his criminal case to dismiss the

charges based on the Vienna Convention. The District Court dismissed the motion

without prejudice to Smith bringing the claim in a § 2255 motion. Smith filed a timely

notice of appeal.

       Where a District Court has dismissed a complaint without prejudice, the dismissal

is generally not appealable under 28 U.S.C. § 1291 unless the litigant cannot cure the

defect or where the litigant declares an intention to stand on the complaint, whereupon the

District Court’s order becomes final. Borelli v. City of Reading, 

, 951-52 (3d

Cir. 1976) (per curiam). Because Smith has chosen to stand on his pleading as filed, we

have jurisdiction over the appeal.

       As we noted in Smith’s prior appeal, he must file a motion pursuant to 28 U.S.C. §

2255 in order to raise these claims. Thus, the District Court did not err in dismissing his

motion to dismiss the charges. Summary action is appropriate if there is no substantial

question presented in the appeal. See Third Circuit LAR 27.4. For the above reasons, as

well as those set forth by the District Court, we will summarily affirm the District Court’s

order. See Third Circuit I.O.P. 10.6.




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