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Government Can Raise 'Untimeliness' for First Time in Appeal

By Robyn Hagan Cain on November 08, 2012 | Last updated on March 21, 2019

The government is entitled to a little latitude when asserting the untimeliness of an appeal, according to a recent Third Circuit decision.

Abdul Kariem Muhammud pleaded guilty to conspiracy to distribute controlled substances, possession of a firearm in furtherance of a drug trafficking crime, and possession of a firearm by a convicted felon pursuant to a written plea agreement in which he waived his right to appeal or collaterally attack the judgment of conviction.

More than two years after he was sentenced, Muhammud filed a notice of appeal asserting ineffective counsel.

The government, mistakenly believing that he was appealing the denial of his habeas petition, moved to enforce the waiver but failed to assert the untimeliness of what was an appeal from the judgment of conviction. So can the government initially raise untimeliness in its merits brief to an appellate court? The Third Circuit Court of Appeals says it can.

The time limit for filing a criminal appeal set forth in Rule 4(b) is rigid but not jurisdictional, and may be waived if not invoked by the government. An untimely appeal must be dismissed if the government objects.

Before this case, the Third Circuit had not considered whether the government could object to timeliness at any point up to, and including in, its merits brief. The Eighth, Tenth, Eleventh, and D.C. Circuits, however, all agreed that it was an acceptable practice.

While the Third Circuit joined the other circuits in permitting the government to initially raise untimeliness in its merits brief, it strongly encouraged the government to file a motion to dismiss a criminal appeal as untimely at the outset of an appeal in the future.

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