Rule, objections that an indictment “fails ... to charge an offense ... shall be noticed by the court at any time during the pendency of the proceedings.” Defendant additionally raises a claim under Apprendi, that the Indictment was invalid for failing to specifically reference the drug type and quantity at issue in the case. Finally, defendant argues that he did not waive certain claims at a 1997 evidentiary hearing on his first habeas petition. Although some of defendant’s arguments resemble those raised in defendant’s several habeas petitions, see supra note 3, defendant argues that Rule 12(b)(2) provides him with a procedural mechanism distinct from a petition under § 2255. In making this argument, defendant seeks to avoid the substantive gatekeeping provisions go S.D.N.Y.2001) (<HOLDING>). Defendant’s direct appeal concluded in 1994.
holding that after final judgment was entered and defendant did not file a direct appeal the proceedings were no longer pending under rule 12b2 holding that rulings not challenged on appeal are implicitly affirmed holding proceedings no longer pending for rule 12b2 purposes after conviction affirmed on appeal holding that judgment may be affirmed on any ground supported by record holding that judgment may be affirmed on any ground supported by the record