United States v. Abdul Muhammud ( 2012 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 10-3138
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UNITED STATES OF AMERICA
v.
ABDUL KARIEM MUHAMMUD, a/k/a Gerald Rogers
Abdul Kariem Muhammud,
Appellant
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APPEAL FROM THE UNITED STATES DISTRICT
COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
(D.C. Crim. No. 2-07-cr-00062-001)
District Judge: Honorable Timothy J. Savage
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Submitted Under Third Circuit LAR 34.1(a)
September 13, 2012
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Before: SCIRICA, ROTH and BARRY, Circuit Judges
(Opinion Filed: September 28, 2012)
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Annette Verdesco, Esq.
Anthony Pope Law Firm
60 Park Place
Suite 703
Newark, NJ 07102
Counsel for Appellant
Mary E. Crawley, Esq.
Anita D. Eve, Esq.
Catherine Votaw, Esq.
Office of United States Attorney
Suite 1250
615 Chestnut Street
Suite 1250
Philadelphia, PA 19106
Counsel for Appellee
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OPINION OF THE COURT
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BARRY, Circuit Judge
Abdul Kariem Muhammud pleaded guilty pursuant to a
written plea agreement in which he waived his right to appeal
or collaterally attack the judgment of conviction.
Nevertheless, more than two years after he was sentenced,
Muhammud filed a notice of appeal. The government,
mistakenly believing that he was appealing the denial of his §
2255 petition, moved to enforce the waiver but failed to assert
the untimeliness of what was an appeal from the judgment of
conviction. We are presented with the following questions:
(1) whether the government can initially raise untimeliness in
its merits brief to us, or must do so beforehand by motion; (2)
whether a court can raise untimeliness sua sponte when the
government has failed to do so; and (3) whether, if the appeal
is not dismissed as untimely, Muhammud has waived his right
to appeal. Because the government properly raised
untimeliness in its merits brief, we will dismiss the appeal and
do not reach the other questions presented.
I. BACKGROUND
Muhammud was charged in a superseding indictment
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with conspiracy to distribute controlled substances, in
violation of 21 U.S.C. § 846; possession of a firearm in
furtherance of a drug trafficking crime, in violation of 18
U.S.C. § 924(c); and possession of a firearm by a convicted
felon, in violation of 18 U.S.C. § 922(g)(1). On June 12,
2007, he pleaded guilty to all three counts pursuant to a
written plea agreement that contained a waiver both of appeal
and collateral attack of his conviction.1 At the plea hearing,
he acknowledged the waiver, and responded to the District
Court’s questions regarding the waiver. He was subsequently
sentenced to 90 months’ imprisonment, as stipulated in the
plea agreement, and acknowledged at sentencing that his
appellate rights were limited by the plea agreement. He did
not file a notice of appeal within ten days of entry of the final
judgment on June 27, 2008, as then required by Rule
4(b)(1)(A)(i).
Almost a year later, Muhammud filed a pro se motion
under 28 U.S.C. § 2255, asserting several bases of ineffective
assistance of counsel. He argued that his petition should be
heard, despite the waiver, because his guilty plea had been
coerced by his attorney and entered under duress. On August
19, 2009, the District Court granted the government’s motion
to enforce the waiver and dismiss the petition after concluding
that Muhammud had knowingly and voluntarily waived his
right to collaterally attack his conviction and that upholding
the waiver would not result in a miscarriage of justice. On
September 22, 2009, Muhammud filed, pro se, a notice of
appeal with respect to the order dismissing the § 2255
petition. We remanded the matter to the District Court to
determine whether a certificate of appealability (“COA”)
should issue. The District Court denied a COA. We then
denied Muhammud’s application to us for a COA, finding that
jurists of reason would not debate the District Court’s
conclusion that he knowingly and voluntarily waived his right
to collaterally attack his conviction.
On June 11, 2010, Muhammud filed a notice of appeal
1
The waiver contains limited exceptions not applicable
here.
3
from his judgment of conviction of two years earlier. The
following month, the government moved to enforce the
appellate waiver and for summary affirmance,2 and the Clerk
of the Court advised the parties of the timeliness issue. A
motions panel referred the government’s motion to the merits
panel and directed that the parties also brief whether we may
raise sua sponte the timeliness requirement of Fed. R. App. P.
4(b), an issue left open in Gov’t of the Virgin Islands v.
Martinez, 620 F.3d 321, 327 n.6 (3d Cir. 2010). The
government now challenges this appeal as untimely and,
failing that, as waived.
II. ANALYSIS
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. Martinez, 620 F.3d at 328-29;
see also Bowles v. Russell, 551 U.S. 205, 212 (2007). An
untimely appeal must be dismissed, however, if the
government objects. Martinez, 620 F.3d at 328-29.
Although we have not directly considered the issue,
other courts of appeals have allowed the government to object
to timeliness at any point up to and including in its merits
brief. See, e.g., United States v. Watson, 623 F.3d 542, 548
(8th Cir. 2010); United States v. Lopez, 562 F.3d 1309, 1313
(11th Cir. 2009); United States v. Byfield, 522 F.3d 400 (D.C.
Cir. 2008); United States v. Garduno, 506 F.3d 1287, 1292
n.7 (10th Cir. 2007). We agree with that conclusion. Because
the government invokes Rule 4(b) in its brief, we must—and
will—dismiss this concededly untimely appeal.3
2
The government maintains that it did not move to
dismiss the appeal as untimely because it mistakenly believed
Muhammud was again attempting to appeal the order
dismissing his § 2255 petition.
3
Although, given this conclusion, we need not reach
the remaining questions, we note that, albeit in dicta, we have
also agreed with other courts of appeals that a court may sua
sponte raise untimeliness under Rule 4, see Long v. Atlantic
City Police Dep't, 670 F.3d 436, 445 n.18 (3d Cir. 2012);
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One final note. Although an objection to timeliness
can be raised by the government in its brief, the government is
strongly encouraged to file a motion to dismiss a criminal
appeal as untimely at the outset of an appeal before the filing
of the appellant’s brief. Early identification of untimely
criminal appeals saves both the government and CJA counsel
the time and the costs associated with unnecessary transcript
preparation, motions for extensions of time, and the
preparation of and filing of full briefs.
III. CONCLUSION
We will dismiss the appeal as untimely.
United States v. Gaytan-Garza, 652 F.3d 680, 681 (6th Cir.
2011) (dismissing four-year old appeal sua sponte); United
States v. Mitchell, 518 F.3d 740, 750-51 (10th Cir. 2008), and
have already found, in the context of his collateral attack, that
the waiver Muhammud acknowledged was knowing and
voluntary. Enforcing that waiver would not work a
miscarriage of justice. United States v. Goodson, 544 F.3d
529, 536 (3d Cir. 2008).
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