United States v. Kirk Marsh ( 2019 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 18-4609
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
KIRK RUSSELL MARSH,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern District of Virginia, at
Alexandria. Anthony John Trenga, District Judge. (1:17-cr-00122-AJT-1)
Argued: September 20, 2019 Decided: December 9, 2019
Before GREGORY, Chief Judge, and THACKER and HARRIS, Circuit Judges.
Motion to dismiss appeal granted by published opinion. Judge Harris wrote the opinion,
in which Judge Thacker joined. Chief Judge Gregory wrote an opinion concurring in part,
dissenting in part, and dissenting in the judgment.
ARGUED: James R. Theuer, JAMES R. THEUER, PLLC, Norfolk, Virginia, for
Appellant. Aidan Taft Grano, OFFICE OF THE UNITED STATES ATTORNEY,
Alexandria, Virginia, for Appellee. ON BRIEF: G. Zachary Terwilliger, United States
Attorney, Katherine L. Wong, Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee.
PAMELA HARRIS, Circuit Judge:
Kirk Russell Marsh pleaded guilty to identity theft and fraud. At sentencing, the
district court failed to advise Marsh of his right to appeal, in what Marsh identifies as a
violation of Rule 32(j) of the Federal Rules of Criminal Procedure. Marsh ultimately did
file an appeal, but not until well after the time limit for that filing had expired under Rule
4(b) of the Federal Rules of Appellate Procedure. The government promptly moved to
dismiss Marsh’s appeal as untimely.
Marsh contends that his late filing should be excused by the district court’s violation
of Rule 32(j). We disagree. Because Rule 4(b)’s deadline is a mandatory claim-processing
rule that must be strictly applied, the district court’s error cannot excuse Marsh’s untimely
filing of his notice of appeal, and equitable doctrines are unavailable to extend the deadline.
Our conclusion, however, does not render Rule 32(j) a nullity, as Marsh suggests; instead,
Marsh may seek to remedy the district court’s error in collateral proceedings. Accordingly,
we grant the government’s motion to dismiss Marsh’s appeal.
I.
Marsh was indicted on three charges: bank fraud, in violation of 18 U.S.C. § 1344;
aggravated identity theft, in violation of 18 U.S.C. § 1028A; and wire fraud, in violation
of 18 U.S.C. § 1343. The government alleged that Marsh used his position as a loan officer
at two federally insured banks to approve fraudulent loans to companies in which he had a
personal stake, creating false documents and bank records in the process.
2
Marsh and the government entered into a written plea agreement, under which
Marsh pleaded guilty to all three counts against him. The agreement also included an
appellate waiver, in which Marsh waived his “right to appeal the conviction and any
sentence within the statutory maximum . . . on any ground whatsoever other than an
ineffective assistance of counsel claim that is cognizable on direct appeal.” J.A. 13–14.
At his plea colloquy, Marsh acknowledged that he understood the appellate waiver in his
plea agreement and that he had spoken with his lawyer about whether he should waive his
right to appeal.
Marsh was sentenced on November 17, 2017. Following argument and rulings on
Marsh’s objections, the district court adopted the Probation Office’s Sentencing Guidelines
calculation, which led to a range of 78 to 97 months on the two fraud charges followed by
a 24-month consecutive sentence for identity theft. The district court then imposed a
below-Guidelines sentence of 54 months for the two fraud charges and a consecutive 24-
month sentence on the identity theft charge, for a total of 78 months imprisonment, to be
followed by a three-year term of supervised release. Critically, at no point during
sentencing did the district court advise Marsh of his remaining rights to appeal, as required
by Rule 32(j). See Fed. R. Crim. P. 32(j)(1)(B) (“After sentencing – regardless of the
defendant’s plea – the court must advise the defendant of any right to appeal the
sentence.”).
The court entered judgment the same day it sentenced Marsh, on November 17,
2017. Under Rule 4(b) of the Federal Rules of Appellate Procedure, a defendant’s notice
of appeal in a criminal case generally must be filed within 14 days of the entry of judgment.
3
See Fed. R. App. P. 4(b)(1)(A)(i). It was not until August 15, 2018, however – 283 days
after the entry of judgment – that Marsh noted his pro se appeal by submitting it through
the mail system of the Bureau of Prisons. The government promptly filed a motion to
dismiss Marsh’s appeal as untimely, which Marsh opposed. This court then issued an order
for supplemental briefing on the issue of timeliness, directing the parties to address whether
the district court’s non-compliance with Rule 32(j) or equitable tolling excused Marsh’s
late filing of his notice of appeal.
II.
A.
At the outset, the government contends that the premise of this case is mistaken:
The district court’s failure to advise Marsh of his right to appeal, according to the
government, was not a Rule 32(j) error at all. Under Rule 32(j)(1)(B), when a defendant
pleads guilty, the district court, after imposing sentence, “must advise the defendant of any
right to appeal the sentence.” Fed. R. Crim. P. 32(j)(1)(B). But here, the government
argues, no discussion of Marsh’s appellate rights was required, because Marsh knowingly
and voluntarily waived the right to appeal in his plea agreement. We disagree.
The first problem for the government’s argument is that Marsh’s plea agreement
expressly preserves his right to appeal his sentence based on “an ineffective assistance of
counsel claim.” J.A. 13–14. Because the text of Rule 32 requires the district court to
“advise the defendant of any right to appeal the sentence,” Fed. R. Crim. P. 32(j)(1)(B)
(emphasis added), the district court was required to advise Marsh of his right, under the
4
plain terms of his plea agreement, to an appeal for ineffective assistance. As the Supreme
Court has cautioned, district courts “must be meticulous and precise in following each of
the requirements of Rule 32 in every case,” see Peguero v. United States, 526 U.S. 23, 27
(1999) (addressing failure to advise of appeal rights), and that includes advising a
defendant of even a narrow right to appeal.
Nor was the scope of the district court’s error limited to the appeal rights expressly
reserved in the appeal waiver. As we have held, a defendant who waives the right to appeal
nevertheless “retains the right to obtain appellate review of his sentence on certain limited
grounds,” even if those grounds are not specified in the plea agreement. United States v.
Attar, 38 F.3d 727, 732 (4th Cir. 1994). No appeal waiver, for instance, can bar a
defendant’s right to challenge his sentence as outside a statutorily prescribed maximum,
“or based on a constitutionally impermissible factor such as race.” United States v. Marin,
961 F.2d 493, 496 (4th Cir. 1992); see also Attar, 38 F.3d at 732–33 (plea waiver does not
bar appellate review of post-plea violation of right to counsel). And, of course, Marsh
retained the right to argue on appeal that he did not enter into his appeal waiver knowingly
and voluntarily, rendering that waiver invalid. See United States v. Johnson, 410 F.3d 137,
151 (4th Cir. 2005). In short, “[a]n appeal waiver does not always preclude an appeal,”
id., and the district court was required by Rule 32(j) to inform Marsh of his remaining,
though strictly limited, right to appeal.
We think the government’s contrary argument is inconsistent not only with Rule
32(j)’s text, but also with the importance the Supreme Court has attached to “[t]he
requirement that the district court inform a defendant of his right to appeal.” Peguero, 526
5
U.S. at 26. It is not enough, the Court has explained, that the defendant is somehow made
aware of his right to appeal, though that of course is critical. What is equally vital under
Rule 32(j) is that advice about appeal rights “comes from the court itself.” Id. at 27
(emphasis added). Relying on defense counsel is not a substitute, in part because there
may be practical obstacles to communication once the defendant is taken into custody or if
the post-sentencing “relationship between the defendant and the attorney [is] strained.” Id.
at 26. But also, as the Court emphasized in Peguero, requiring that the district court itself
advise a defendant of “any right to appeal” disabuses the defendant of any concern he
otherwise might have that the judge – “who may later rule upon a motion to modify or
reduce the sentence” – will see the filing of an appeal as an “affront.” Id. at 26–27.
Rule 32(j), in other words, serves “important functions” that include but go beyond
ensuring a defendant’s knowledge of “any right to appeal.” Id. at 26. Because the district
court did not advise Marsh that he retained the right to appeal on certain limited grounds,
it failed to comply with Rule 32(j).
B.
That brings us to the question on which we ordered briefing: Whether a district
court’s error in failing to inform a defendant at sentencing of a right to appeal can excuse
a defendant’s late filing of a notice of appeal under Rule 4(b). We conclude that it cannot,
and therefore we must dismiss Marsh’s appeal as untimely.
1.
We begin with the nature of the time limit prescribed by Federal Rule of Appellate
Procedure 4(b). Rule 4(b) requires a criminal defendant in Marsh’s position to file a notice
6
of appeal “in the district court within 14 days after . . . the entry of either the judgment or
the order being appealed.” Fed. R. App. P. 4(b)(1)(A). “Upon a finding of excusable
neglect or good cause, the district court may” extend that deadline, but by no more than 30
days. Fed. R. App. 4(b)(4). There was no extension in this case, and in any event, there is
no question that Marsh’s notice of appeal, filed 283 days after the date of judgment in his
case, was well outside any possible Rule 4(b) deadline.
As the parties agree, Rule 4(b)’s deadline is not jurisdictional. Instead, Rule 4(b) is
a nonjurisdictional claim-processing rule. See United States v. Hyman, 884 F.3d 496, 498
(4th Cir. 2018) (“[T]he late filing of a notice of appeal does not deprive the Court of subject
matter jurisdiction[.]”). That means that Rule 4(b)’s time limit, unlike a jurisdictional rule,
may be waived or forfeited if it is not timely raised. See id.; see also Hamer v.
Neighborhood Hous. Servs. of Chicago, 138 S. Ct. 13, 17–18 (2017) (describing distinction
between jurisdictional rules and nonjurisdictional claim-processing rules). But here, of
course, there has been no waiver; the government promptly moved to dismiss Marsh’s
appeal on timeliness grounds, and Marsh does not contend otherwise.
The fact that Rule 4(b)’s time limit is not jurisdictional, however, does not by itself
mean that a late filing can be excused, even for good cause – like a district court’s Rule
32(j) error. That is because some claim-processing rules are “mandatory,” meaning that
they are “unalterable if properly raised by an opposing party.” Nutraceutical Corp. v.
Lambert, 139 S. Ct. 710, 714 (2019) (internal quotation marks and citations omitted). And,
critically, it is clear, that Rule 4(b) falls into this “mandatory camp,” id.; we held as much
in Hyman, see 844 F.3d at 498, and the Supreme Court later agreed, see Manrique v. United
7
States, 137 S. Ct. 1266, 1271 (2017) (declining to decide whether Rule 4(b) is jurisdictional
but holding that the filing of “a timely notice of appeal . . . is at least a mandatory claim-
processing rule”). It follows that once properly raised, we must “strictly apply” Rule 4(b)’s
deadline, Hyman, 884 F.3d at 499: As the Supreme Court has instructed, claim-processing
rules in the “mandatory camp” are “not susceptible [to] equitable approach[es],” like
equitable tolling, that otherwise might forgive a late filing. Lambert, 139 S. Ct. at 714.
2.
Marsh does not dispute that Rule 4(b) is a mandatory claim-processing rule, with all
that entails. Nevertheless, he argues, the time limit in Rule 4(b) may be excused in his case
because of the district court’s Rule 32(j) error, or equitably tolled because he was not
advised by the district court of his right to appeal. We cannot agree.
At the outset, we note that the Supreme Court very recently (and only after briefs
were submitted in this case) addressed a very similar question. In Nutraceutical Corp. v.
Lambert, the Court held that a different nonjurisdictional 14-day appeal deadline – this one
for seeking an interlocutory appeal from an order respecting class certification under Rule
23(f) of the Federal Rules of Civil Procedure – is “mandatory” and thus not subject to an
“equitable approach” in the form of equitable tolling. Lambert, 139 S. Ct. at 714–15.
As the Court explained, the key to determining whether a nonjurisdictional claim-
processing rule like Rule 23(f) is “mandatory” so as to “preclude[] equitable tolling” is the
text, and, specifically, whether “the text of the rule leaves room for such flexibility.” Id.
at 714. That a rule is “phrased in an unqualified manner,” the Court clarified, is not enough
to show that it is mandatory. Id. at 715. But what did “speak directly to the issue of Rule
8
23(f)’s flexibility,” in the Court’s view, was that a different rule, Rule 26(b) of the Federal
Rules of Appellate Procedure, expressly excepted the deadline for “the precise type of
filing” found in Rule 23(f) from a general authorization of extensions for good cause. Id.
Because Lambert’s reasoning on this point is so critical here, we explain it in some
detail. Federal Rule of Appellate Procedure 26 governs deadlines for filings in the courts
of appeals. See Fed. R. App. P. 26 (“Computing and Extending Time”). Under Rule 26(b),
courts are given broad discretion to “extend the time prescribed by these rules” or by a
court order “[f]or good cause.” Id. at 26(b). That authorization, however, does not extend
to a few specified deadlines: “But the court may not extend the time to file: (1) a notice of
appeal (except as authorized in Rule 4) or a petition for permission to appeal; or (2) [a
notice of appeal or challenge to certain agency actions].” Id. (emphasis added). Because
Rule 23(f)’s deadline for petitions seeking permission to appeal class certification orders
falls within this “express carveout,” the Court concluded, the Rules “express a clear intent
to compel rigorous enforcement of [that deadline], even where good cause for equitable
tolling might otherwise exist.” Lambert, 139 S. Ct. at 715.
The Court’s reasoning in Lambert controls this case. As noted above, this court
already has concluded that Rule 4(b)’s deadline for filing a criminal appeal is a mandatory
version of a claim-processing rule, Hyman, 884 F.3d at 498, and the defendant does not
argue otherwise. And, crucially, the very same subsection of Rule 26(b)(1) that “single[s]
out” Rule 23(f)’s deadline “for inflexible treatment,” Lambert, 139 S. Ct. at 715, also
singles out one other deadline: Rule 4’s deadline for the filing of an appeal. See Fed. R.
App. P. 26(b) (“But the court may not extend the time to file [] a notice of appeal (except
9
as authorized in Rule 4) or a petition for permission to appeal . . . .”) (emphasis added).
And though Rule 4(b) itself allows for one potential extension, under no circumstances
may that exception “exceed 30 days.” Fed. R. App. P. 4(b)(4). The upshot, then, is a
maximum period of 44 days after judgment in which to file a criminal appeal under Rule
4(b). And for precisely the same reasons given by the Court in Lambert, Rule 26(b)(1)’s
“express carveout” of the Rule 4 time limit reflects an intent to make that deadline
mandatory, and to preclude equitable approaches that otherwise might excuse a late filing.
Lambert, 139 S. Ct. at 715.
As in Lambert, that conclusion is reinforced by the other governing appellate rules.
Rule 3 states that appeals “may be taken only by filing a notice of appeal . . . within the
time allowed by Rule 4.” Fed. R. App. P. 3(a)(1) (emphasis added). And as the Court
indicated in Lambert, although Rule 2 generally permits a court of appeals to “‘suspend
any provision of these rules in a particular case’” for good cause, it does so with a
“conspicuous caveat,” specifying that this authorization is available “‘except as otherwise
provided in Rule 26(b).’” Lambert, 139 S. Ct. at 715 (quoting Fed. R. App. P. 2). And
that brings us, like the Lambert Court, back to the plain text of Rule 26(b) – which, as
discussed above, expressly prohibits extensions of the notice of appeal deadline where no
source of authority for the extension appears in the text of Rule 4 itself, just as it prohibits
extensions of the Rule 23(f) deadline for petitions seeking permission to appeal. See
Lambert, 139 S. Ct. at 715. Because the courts “may not disregard” a clear intent to make
a claim-processing rule mandatory, we must conclude that Marsh’s late filing under Rule
10
4(b) cannot be excused nor his deadline extended through “equitable approach[es],” like
the doctrine of equitable tolling, under Lambert. Id. at 714.
We recognize, of course, the gravity of the stakes when what is at issue is a criminal
appeal. But nothing in the text of Rule 26(b) or the Court’s reasoning in Lambert allows
us to distinguish for these purposes between a civil appeal deadline under Rule 23(f) and a
criminal appeal deadline under Rule 4(b). On the contrary: Rule 26(b) groups the two
together in a single subsection, see Fed. R. App. P. Rule 26(b)(1), and Lambert relies in
part on United States v. Robinson, 361 U.S. 220 (1960), see Lambert, 139 S. Ct. at 715, a
criminal case in which the Court held, on the basis of an extension-of-time provision
similar to Rule 26(b)’s, that an untimely notice of appeal from a criminal judgment requires
dismissal “regardless of [the] excuse,” Robinson, 361 U.S. at 226–27. When the “rules
invoked” – whether criminal or civil – “show a clear intent to preclude tolling, courts are
without authority to make exceptions” – even in cases where a litigant may have been
“reasonably mistaken, or otherwise deserving,” Lambert, 139 S. Ct. at 714.
3.
Perhaps in response to the Supreme Court’s recent decision in Lambert, Marsh now
focuses not on equitable tolling, but on a different equitable doctrine. As the Court
acknowledged in Lambert, it has left open the question of whether even a mandatory claim-
processing rule, not subject to equitable tolling, nevertheless might give way in certain
unique circumstances, see Lambert, 139 S. Ct. 717 n.7, where “the cause of the failure to
meet [a] Rule’s deadline [is] an erroneous ruling or assurance by the District Court itself,”
11
Carlisle v. United States, 517 U.S. 416, 428 (1996). 1 According to Marsh, this “unique
circumstances” exception applies in his case, because of the district court’s failure to advise
him of his right to appeal. We cannot agree.
Marsh’s specific objection, as described above, is to the district court’s
noncompliance with Rule 32(j)(1)(B) at sentencing. And as we have explained, Marsh is
correct that the district court’s omission of information about his remaining appellate rights
constituted a violation of Rule 32(j). But the unique circumstances doctrine is a narrow
and “sharply honed” exception. See Carlisle, 517 U.S. at 435 (Ginsburg, J., concurring).
And at a minimum, it requires some affirmative statement by the district court – later
proved incorrect – that a filing will be timely. See id. at 428 (unique circumstances doctrine
inapplicable in absence of “an erroneous ruling or assurance by the District Court itself”);
id. at 435–36 (Ginsburg, J., concurring) (describing unique circumstances exception as
“based on a theory similar to estoppel” that applies when a litigant is “misled by [a] trial
court statement or action”) (citation omitted). Indeed, we have rejected application of the
unique circumstances exception on precisely that ground, refusing to excuse an untimely
filing where the litigant could not show “that he relied on an affirmative assurance by the
district court that his [motion] was sufficiently timely[.]” Alston v. MCI Commc’ns Corp.,
84 F.3d 705, 707 (4th Cir. 1996) (emphasis added); see also Panhorst v. United States, 241
1
Lambert also noted a possible exception, even to a mandatory claim-processing
rule, where “an insurmountable impediment” makes a timely filing impossible. 139 S. Ct.
at 717 n.7 (citing Fed. R. App. P. 26(a)(3), addressing computation of time when “the
clerk’s office is inaccessible”). Marsh has not relied on any such exception here.
12
F.3d 367, 372 (4th Cir. 2001) (rejecting unique circumstances exception in part because
“the district court . . . did not provide specific assurance” that filing was timely) (internal
quotation marks and citation omitted).
This “limited” understanding of the unique circumstances exception, see Panhorst,
241 F.3d at 370, is consistent with the cases that gave rise to the doctrine, decided by the
Supreme Court in the early 1960s. First, in Harris Truck Lines, Inc. v. Cherry Meat
Packers, Inc., 371 U.S. 215 (1962) (per curiam), the Supreme Court excused an otherwise
untimely appeal where a litigant had received from the district court, and then relied on, a
14-day extension of the time to appeal that subsequently was deemed invalid by the court
of appeals. In light of the “unique circumstances” presented – the “obvious great hardship”
to a party who relies to his detriment on an incorrect ruling by a district court – the Supreme
Court ruled that the litigant was entitled to file within the district court’s erroneous
extension of the time limit for appeal. Id. at 217. Two years later, in Thompson v. INS,
375 U.S. 384 (1964) (per curiam), the Court again applied the unique circumstances
exception, where a litigant relied on a trial judge’s “explicit statement” that his motion for
a new trial was filed “in ample time,” so that it would postpone the deadline for filing an
appeal, id. at 386. The district court proved to be incorrect, but by then, the appellant
already had filed an appeal “within the assumedly new deadline” but outside the actual
deadline, and for that reason, the Supreme Court concluded, the late filing must be excused.
Id. at 387.
13
The Supreme Court has not actually applied the unique circumstances exception
since the time of Harris and Thompson. 2 What it has done in the intervening years is
overrule Harris and Thompson, “to the extent they purport to authorize an exception to a
jurisdictional rule.” Bowles v. Russell, 551 U.S. 205, 214 (2007). And while it has left
open the question of whether some form of the unique circumstances exception might
continue to apply to nonjurisdictional but mandatory claim-processing rules like Rule 4(b),
see Carlisle, 517 U.S. at 428; Lambert, 139 S. Ct. at 717 n.7 (Court had “no occasion to
address” whether motion might be deemed timely had district court “misled [party] about
the appeal filing deadline”), it also has described that doctrine in exceptionally narrow
terms, tailored to the precise factual circumstances presented by Harris and Thompson.
The unique circumstances doctrine, the Court has explained, can apply “only where a party
has performed an act which, if properly done, would postpone the deadline for filing his
appeal and has received specific assurance by a judicial officer that this act has been
properly done.” Osterneck v. Ernst & Whinney, 489 U.S. 169, 179 (1989); see also
Panhorst, 241 F.3d at 372–73 (applying Osterneck formulation and rejecting application
of unique circumstances exception).
Whatever the precise status and scope of the unique circumstances exception, we
do not think it can be stretched to accommodate this case. The district court’s Rule 32(j)
2
In 1964, the Court applied the exception for a third and final time, in a one-sentence
per curiam opinion, where a district court erroneously had issued an extension of the ten-
day filing deadline for a Rule 59(b) motion. See Wolfsohn v. Hankin, 376 U.S. 203 (1964)
(per curiam).
14
error meant that Marsh was not informed by the court of his remaining appellate rights.
But notwithstanding this serious omission, the district court did not convey incorrect
information, through a ruling or other assurance at the sentencing hearing to which Marsh
objects, that caused Marsh to believe that his appeal was timely or that the deadline for
appeal had been extended. Cf. Carlisle, 517 U.S. at 435 (Ginsburg, J., concurring)
(describing doctrine as applying where district court “convey[s] . . . incorrect”
information). 3 And it seems clear – and Marsh does not argue otherwise – that the still-
narrower formulation of Osterneck, requiring that a party actually take some step that could
permit the district court to extend an appeal deadline and that the district court endorse that
step incorrectly, see 489 U.S. at 179, could not apply here. Accordingly, Marsh’s untimely
appeal cannot be excused under the unique circumstances doctrine.
3
At oral argument, Marsh suggested that he was affirmatively misled, for purposes
of the unique circumstances exception, by the district court’s statement at his plea colloquy
that he had waived his right to appeal both his convictions and his sentence. But that
statement conveyed no information about the timeliness of any potential appeal, the matter
at the heart of the unique circumstances doctrine. More fundamentally, the district court’s
warning at the plea colloquy, designed to ensure that Marsh fully understood the gravity of
his appeal waiver, see Fed. R. Crim. P. 11(b)(1)(N), was not in error. At sentencing, as we
have held, the district court was required to advise Marsh of his remaining and limited
appeal rights. But at the plea colloquy stage, its job was to impress upon Marsh the
magnitude of the much larger category of rights he was waiving. Qualifications and
caveats about expressly preserved and unwaivable grounds for appeal at the plea
acceptance stage risk confusion for the defendant, and a district court does not err by saving
those advisements for sentencing.
15
4.
Finally, Marsh argues that unless we can find a way to excuse the late filing of his
appeal, we effectively nullify the requirements of Rule 32(j). As Marsh sees it, this is a
perfect Catch-22: If a district court fails to advise a defendant of his appeal rights and the
defendant nevertheless files a timely appeal, then the Rule 32(j) error is harmless; if as a
result of the district court’s error the defendant does not file a timely appeal, then we must
dismiss the appeal instead of reviewing the error. Absent direct review, in other words,
there can be no meaningful remedy for a Rule 32(j) violation.
We disagree. The Supreme Court has made clear that there is a remedy for a Rule
32(j) violation, and that it comes in the form of vacatur of a sentence on collateral review.
The Court considered precisely this question in Peguero v. United States, after a district
court failed to advise the petitioner of his right to appeal his sentence under the then-
applicable version of Rule 32(j). 526 U.S. at 24–25. The petitioner, who never filed a
direct appeal, later moved under 28 U.S.C. § 2255 to set aside his sentence, which would
allow for an appeal after resentencing. See id. at 24–25, 29. Because the record firmly
established that the petitioner had “full knowledge of his right to appeal” notwithstanding
the district court’s error, the Court concluded, he could not show prejudice and thus was
not entitled to collateral relief. Id. at 28. But the Court also made clear that “a court’s
failure to give a defendant advice required by the Federal Rules is a sufficient basis for
collateral relief” when the petitioner is prejudiced by that error because he does not have
independent knowledge of his right to appeal. Id. at 27–29 (emphasis added).
16
Nothing about Peguero’s prejudice analysis renders the promise of collateral relief
illusory. As the Second Circuit explained in applying Peguero, when a district court fails
to advise a defendant of his right to appeal in violation of Rule 32(j) and the defendant
seeks § 2255 relief, it is the government that “bears the burden of establishing harmlessness
by showing through clear and convincing evidence that the defendant either actually
exercised [the right to appeal], waived this right, or had independent knowledge of this
right.” Soto v. United States, 185 F.3d 48, 50, 55 (2d Cir. 1999). And, importantly, it is
the loss of the right to appeal itself that establishes the prejudice necessary to merit
collateral relief. See id. at 54. It is not necessary, in other words, that the petitioner also
“demonstrate that he had meritorious grounds for an appeal” in order to prevail under
Peguero. Id. at 54–55 (quoting Peguero, 526 U.S. at 30 (O’Connor, J., concurring)).
Instead, a district court’s “failure to inform a defendant of his right to appeal, when
combined with the defendant’s lack of independent knowledge of and his actual failure to
exercise this right . . . leads to the loss of an important – albeit non-constitutional – federal
right which, by itself, is sufficient to merit collateral relief.” Soto, 185 F.3d at 54. That
approach, we note, is consistent with the one we have taken to § 2255 ineffective assistance
claims based on counsel’s failure to file an appeal at a defendant’s request; in those
circumstances, we have held, the petitioner establishes prejudice through the loss of the
17
right to appeal itself, and need not also show meritorious grounds for an appeal. See United
States v. Peak, 992 F.2d 40, 41 (4th Cir. 1993). 4
Remedying Rule 32(j) errors through collateral relief is not a new idea in this circuit.
For years, we have vacated judgments of conviction in collateral proceedings because the
court failed to advise the defendant of the right to appeal as required by the Federal Rules
of Criminal Procedure. See, e.g., Paige v. United States, 443 F.2d 781, 781–83 (4th Cir.
1971). This case, of course, involves the right to appeal a sentence, not a conviction, but
the legal doctrines are the same. We cannot excuse Marsh’s untimely notice of direct
appeal. But if Marsh seeks habeas relief based on the district court’s Rule 32(j) error, and
the government cannot show that Marsh had independent knowledge of his limited right to
appeal his sentence, then Marsh would be entitled to relief in the form of a vacatur of his
sentence and entry of a new judgment “from which an appeal can be taken.” Peak, 992
F.2d at 42.
4
The government suggested at argument that a petitioner might be procedurally
foreclosed from collateral relief by a failure to object to a Rule 32(j) error in an (attempted)
direct appeal. That suggestion is hard to square with Peguero, in which the petitioner never
filed a direct appeal at all, raising the error in question only on collateral review. 526 U.S.
at 24. And this is not surprising; as in the Strickland context, district court adjudication of
a § 2255 petition usually will be “the forum best suited to developing the facts necessary
to determining” whether a petitioner had independent knowledge of his right to appeal
under the Peguero prejudice standard. See Massaro v. United States, 538 U.S. 500, 505
(2003).
18
III.
For the foregoing reasons, we dismiss Marsh’s appeal as untimely.
DISMISSED
19
GREGORY, Chief Judge, concurring in part, dissenting in part, and dissenting in the judgment:
This case is about two rules being violated. The first rule directs that “the court
must advise the defendant of any right to appeal.” Fed. R. Crim. P. 32(j)(1)(B) (emphasis
added). The second rule directs that “a defendant’s notice of appeal must be filed in the
district court within 14 days after . . . the entry of either the judgment or the order being
appealed,” or within 44 days if there is “excusable neglect or good cause.” Fed. R. App.
P. 4(b) (emphasis added). Neither party disputes that these rules were not followed.
Rather, the petitioner here claims that the district court’s failure to follow the first rule is
the reason the petitioner failed to follow the second. That is, the defendant failed to timely
file a notice of appeal because the district court did not inform him of his right to appeal.
The majority today decides, in effect, that appellate judges are required to enforce a
nonjurisdictional deadline even when a trial court caused a defendant to miss the deadline.
More confusingly, though, the majority’s holding does this while correctly noting the
important functions of Criminal Rule 32(j) and our history of correcting Criminal Rule
32(j) errors. Because I doubt that the drafters of the relevant procedural rules at play in
this case intended them to be read in a way that is more forgiving to judges than criminal
defendants—the people least able to protect themselves in our justice system—I must
respectfully dissent.
I.
Before explaining where we part ways, I note that the majority and I share some
common ground. We agree that the Government is mistaken in claiming that there was no
20
Criminal Rule 32(j) error here. See Maj. Op. Section IIA. The majority provides a great
description of the importance of Criminal Rule 32(j) and an explanation of why it was
violated in this case. We also agree—as do both parties in this case—that Appellate Rule
4(b) is not jurisdictional: it is a claim-processing rule. Our precedent has made this much
clear. See e.g., United States v. Urutyan, 564 F.3d 679, 685 (4th Cir. 2009) (“Appellate
Rule 4(b) is a court-prescribed, procedural rule.”). Finally, the majority and I agree that
both Appellate Rule 4(b) and Criminal Rule 32(j) come with some exceptions. For
example, unlike jurisdictional rules, Appellate Rule 4(b) can be waived or forfeited if not
raised in a timely fashion. Hamer v. Neighborhood Hous. Servs. of Chicago, 138 S. Ct.
13, 17 (2017). Likewise, Criminal Rule 32(j) is not a per se rule—if the government can
show that a defendant has independent knowledge of the right to appeal, then appellate
courts need not vacate a sentence because a judge failed to advise the defendant of this
right. Peguero v. United States, 526 U.S. 23, 29-30 (1999).
What separates the majority and I, then, is how we interpret the interplay between
these two important rules. Despite noting that Appellate Rule 4(b) is a claim-processing
rule, the majority holds that a petitioner cannot seek a remedy for a Criminal Rule 32(j)
violation on direct appeal. “Because Rule 4(b)’s deadline is a mandatory claim-processing
rule that must be strictly applied,” the majority writes, “the district court’s error cannot
excuse Marsh’s untimely filing of his notice of appeal.” Maj. Op. at 2. I cannot agree.
The way I see it, “[t]he procedural rules adopted by the Court for the orderly transaction of
its business are not jurisdictional and can be relaxed by the Court in the exercise of its
discretion when the ends of justice so require.” Schacht v. United States, 398 U.S. 58, 64
21
(1970). For this reason, we are not obliged to enforce Appellate Rule 4(b) when the
defendant was not informed about his right to appeal. Instead, we invoke Appellate Rule
4(b) only after the defendant was made aware of his right to appeal. As this case reaches
us, there is an insufficient record to validate Marsh’s claim that the trial court’s error was
the reason he failed to file a timely notice of appeal. Thus, I cannot subscribe to the
majority’s sweeping refusal to apply equitable doctrines when the result could be—
contrary to the ends of justice—that the defendant would bear the burden of a judge’s
mistake. Rather than dismissing Marsh’s appeal outright, I would remand this case to the
district court for an evidentiary hearing to determine whether the facts of this case call for
equitable doctrines to be applied. I consequently dissent.
II.
Following the majority, let’s begin with “the nature” of the time limit prescribed by
Appellate Rule 4(b). The majority starts by noting that Appellate Rule 4(b) is a
nonjurisdictional claim-processing rule. This typically means that it “does not set forth ‘an
inflexible rule requiring dismissal whenever’ its ‘clock has run.’” Holland v. Florida, 560
U.S. 631, 645 (2010) (citing Day v. McDonough, 547 U.S. 198, 205, 208 (2006)). Unlike
jurisdictional rules, courts may apply equitable exceptions to soften time limitations.
Bowles v. Russell, 551 U.S. 205, 211-14 (2007). As the Supreme Court has put it, “[t]ime
requirements . . . are customarily subject to equitable tolling.” Irwin v. Dep’t of Veterans
Affairs, 498 U.S. 89, 95 (1990). Indeed, the Court has gone so far as declaring that
nonjurisdictional rules are “normally subject to a ‘rebuttable presumption’ in favor ‘of
22
equitable tolling.’” Holland, 560 U.S. at 645–46 (quoting Irwin, 498 U.S. at 95-96).
Accordingly, the nature of a claim-processing rule does not suggest that it is “utterly
exceptionless.” Carlisle v. United States, 517 U.S. 416, 435 (1996) (Ginsburg, J.,
concurring) (“But like limitation periods generally, the 29(c)/45(b) constraint is not utterly
exceptionless.”). As court-promulgated, nonjurisdictional rules are subject to equitable
limitations.
Of course, this distinction between jurisdictional and nonjurisdictional rules is not
merely terminological. “Jurisdictional treatment of statutory time limits makes good
sense.” Bowles, 551 U.S. at 212. This is because “[w]ithin constitutional bounds, Congress
decides what cases the federal courts have jurisdiction to consider.” Id. And since
“Congress decides whether the federal courts can hear cases at all, it can also determine
when, and under what conditions, federal courts can hear them.” Id. at 212-13. This is
why jurisdictional time limits cannot be altered by courts. As the Supreme Court put it, if
jurisdictional rules are “too strict and technical, and likely to produce inconvenience or
injustice, it is for Congress to provide a remedy by altering the existing laws; not for the
court.” United States v. Curry, 47 U.S. 106, 113 (1848). The function of an appellate court
is not to correct what Congress has set as a jurisdictional limit of courts.
However, the Court has “treated the rule-based time limit for criminal cases
differently.” Bowles, 551 U.S. at 212; see also Urutyan, 564 F.3d at 685 (comparing the
nonjurisdictional Appellate Rule 4(b) with Appellate Rule 4(a), which is backstopped by a
federal statutory deadline). This is because these rules, including Appellate Rule 4(b), were
“not enacted by Congress but [were] promulgated by [the] Court under the authority of
23
Congress to prescribe rules concerning the time limitations for taking appeals and applying
for certiorari in criminal cases.” Schacht, 398 U.S. at 64. The nature of the time limit
prescribed by Appellate Rule 4(b), then, is like other claim-processing rules—it is
essentially designed to assist the court in its orderly transition of its business. See United
States v. Kwai Fun Wong, 135 S. Ct. 1625, 1632, (2015) (“Time and again, we have
described filing deadlines as quintessential claim-processing rules, which seek to promote
the orderly progress of litigation, but do not deprive a court of authority to hear a case.”)
(internal quotation marks and citations omitted).
The majority acknowledges that Appellate Rule 4(b) is nonjurisdictional, but it
concludes that something about its nature precludes tolling. Why? Presumably, because
Appellate Rule 4(b) is a “mandatory” claim-processing rule. Since Appellate Rule 4(b) is
mandatory, the majority reasons, it is unalterable if “properly raised” by the Government.
By signifying a “claim processing rule” as mandatory, the majority suggests, a court
forecloses equitable approaches that may forgive late filings. Maj. Op. at 7-8.
The majority’s reasoning here is too quick. For starters, the majority does not tell
us why a rule is “properly raised” against a defendant who was previously unaware that he
had a right to appeal a judge’s sentence because the same judge failed to inform him of this
right. Moreover, the “mandatory” qualifier given to claim-processing rules is not meant to
categorically bar equitable approaches. For as long as the Supreme Court has referred to
claim-processing rules as mandatory, they have avoided claiming that mandatory claim-
processing rules foreclose equitable exceptions. Compare Manrique v. United States, 137
S. Ct. 1266, 1271 (declaring that “a timely notice of appeal . . . is at least a mandatory
24
claim-processing rule”), with Kontrick v. Ryan, 540 U.S. 443, 457 (2004) (“Whether the
Rules, despite their strict limitations, could be softened on equitable grounds is therefore a
question we do not reach.”). Indeed, just two terms ago the Court emphasized this point in
the same opinion. Compare Hamer, 138 S. Ct. at 17 (2017) (“Mandatory claim-processing
rules are less stern. If properly invoked, mandatory claim-processing rules must be
enforced, but they may be waived or forfeited.”), with id. at 18 n.3 (“We have reserved
whether mandatory claim-processing rules may be subject to equitable exceptions.”).
Importantly, a nonjurisdictional deadline does not preclude a court from hearing a case
“even when the time limit is important (most are) and even when it is framed in mandatory
terms (again, most are); indeed, that is so however emphatic[ally] expressed those terms
may be.” Kwai Fun Wong, 135 S. Ct. at 1632 (internal quotation marks and citations
omitted).
Does it follow that nonjurisdictional deadlines are malleable in every respect? No.
“[E]quitable tolling is a discretionary doctrine that turns on the facts and circumstances of
a particular case and, therefore, does not lend itself to bright-line rules.” Rouse v. Lee, 339
F.3d 238, 259-60 (4th Cir. 2003) (en banc) (internal quotation marks and citations omitted);
see also Holmberg v. Armbrecht, 327 U.S. 392, 396 (1946) (“Equity eschews mechanical
rules; it depends on flexibility.”). This is why “circuit precedent requires a court to
consider the facts and circumstances of a particular case” when determining whether to
exercise the power to toll deadlines. Rouse, 339 F.3d at 260. The upshot of all of this is
that, contrary to the majority’s portrayal, there is nothing about “the nature” of a mandatory
claim-processing rule that definitively precludes equitable tolling. Far from it. “Equitable
25
tolling is appropriate in those rare instances where—due to circumstances external to the
party’s own conduct—it would be unconscionable to enforce the limitation period against
the party and gross injustice would result.” Edmonson v. Eagle Nat’l Bank, 922 F.3d 535,
549 (4th Cir. 2019) (internal citations and quotations omitted). Therefore, I would remand
this case to determine whether the facts here present one of those rare instances where
injustice would result.
III.
The majority’s reliance on Nutraceutical Corp. v. Lambert, 139 S. Ct. 710 (2019),
is also misplaced. In Lambert, the Court held that a deadline to file an interlocutory appeal
could not be tolled even when the party seeking the interlocutory appeal orally informed
the district court of his intention to seek reconsideration within the timeframe set out by
Civil Rule 23(f). Id. at 714. In doing so, the Court explained that Civil Rule 23(f) was a
mandatory claim-processing rule that was not amenable to “the equitable approach that the
Court of Appeals applied.” Id. at 716. But nowhere did the Court suggest that mandatory
claim-processing rules trump all other requirements invoked by the Federal Rules. To the
contrary, the Court went out of its way to make clear that the inquiry to determine whether
tolling is available must be guided by examining the “pertinent rule or rules invoked.” Id.
at 714. Taken collectively, the Court concluded that the relevant rules “express[ed] a clear
intent to compel rigorous enforcement of Rule 23(f)’s deadline, even where good cause for
equitable tolling might otherwise exist.” Id. at 715.
26
When examining the relevant rules in this case, the majority’s analysis leaves out
the most important rule: Criminal Rule 32(j). So let’s include it now. A plain reading of
the Rules suggest that Criminal Rule 32(j) is a competing mandatory rule: “After
sentencing—regardless of the defendant’s plea—the court must advise the defendant of
any right to appeal the sentence.” Fed. R. Crim. P. 32(j)(1)(B) (emphasis added). And I
see nothing in the text of the Rules that express a clear intent to preclude tolling when
Criminal Rule 32(j) is not followed. Indeed, at times it appears to suggest the opposite.
Federal Rule of Criminal Procedure 2, for example, states that “[t]hese rules are to be
interpreted to provide for the just determination of every criminal proceeding, to secure
simplicity in procedure and fairness in administration, and to eliminate unjustifiable
expense and delay.” Fed. R. Crim. P. 2. The talk of “just,” “fairness,” and “unjustifiable”
speaks in an equitable tone. Perhaps this is why, as stated above, it has long been the
Supreme Court’s position that “[t]he procedural rules adopted by the Court for the orderly
transaction of its business are not jurisdictional and can be relaxed by the Court in the
exercise of its discretion when the ends of justice so require.” Schacht, 398 U.S. at 64.
The conclusion my dear colleagues reach suggests that the Rules “express a clear intent”
to compel rigorous enforcement of Appellate Rule 4(b) when Criminal Rule 32(j) is
violated. But the Rules contain no language that calls for so harsh an interpretation.
Putting the Criminal Rule 32(j) violation to the side for the moment, there are other
pertinent differences between Appellate Rule 4(b) and Civil Rule 23(f). Contra Maj. Op.
at 11 (“But nothing in the text of Rule 26(b) or the Court’s reasoning in Lambert allows us
to distinguish for these purposes between a civil appeal deadline under Rule 23(f) and a
27
criminal appeal deadline under Rule 4(b).”). First, there are differences between the
emphatic character in which the Federal Rules speak about notices of appeal (which is the
subject here) and petitions for permission to appeal (which was the subject in Lambert). It
is true that Appellate Rule 26(b) mentions both. 1 Yet it gives a different text, and it takes
a different tone, when discussing a petition to appeal than it does when discussing a notice
of appeal. “Appellate Rule 26(b), which generally authorizes extensions of time, in turn
includes this express carveout: A court of appeals ‘may not extend the time to file . . . a
petition for permission to appeal.’” Lambert, 139 S. Ct. at 715. This is without exception.
By contrast, when the Rule discusses the timeframe to submit a notice of appeal it speaks
less authoritatively: “the court may not extend the time to file . . . a notice of appeal (except
as authorized in Rule 4).” Fed. R. App. P. 26(b)(1) (emphasis added). Having
exceptions—and thus speaking less emphatically—is contrary to the inflexible treatment
that Civil Rule 23(f) is singled out for. See Lambert, 139 S. Ct. at 715. Indeed, because
1
It is also true, as the majority points out, Maj. Op. at 10, that Appellate Rule 2
generally permits a court to suspend any provision of the rules for “good cause,” except as
provided in Appellate Rule 26(b). And while there does not seem to be a clear test for
good cause, I submit that a judge’s violation of a compulsory rule that causes a defendant
to lose a statutory right is a more compelling reason to suspend a rule than the more lenient
good cause standard. See Thompson v. E.I. DuPont de Nemours & Co., 76 F.3d 530, 533
(4th Cir. 1996) (noting that the good cause standard is more lenient than excusable neglect);
see also Britt v. Whitmire, 956 F.2d 509, 511 (5th Cir. 1992) (noting “the more lenient
‘good cause’ standard does not apply at all” when addressing an untimely notice of appeal).
Thus, it would be consistent to compel rigorous enforcement of mandatory claim-
processing rules when mere good cause exists (as in Lambert), but nonetheless suspend
them “in those rare instances where—due to circumstances external to the party’s own
conduct—it would be unconscionable to enforce the limitation period against the party and
gross injustice would result.” Edmonson, 922 F.3d at 549 (internal quotation marks and
citations omitted).
28
Appellate Rule 26(b) defers to Appellate Rule 4 to provide the boundaries for notices of
appeal, it follows that the governing rule is Appellate Rule 4 and not (the more inflexible)
Appellate Rule 26.
This point is further reinforced when we compare the advisory committee’s notes
for the two rules. See Mississippi Pub. Corp. v. Murphree, 326 U.S. 438, 444 (1946)
(noting that “in ascertaining” the meaning of the Federal Rules, the notes by the advisory
committee is “of some weight”). The advisory notes to Appellate Rule 4 include some
version of the noun “toll” no fewer than twelve times. Fed. R. App. P. 4 advisory
committee’s note. Whereas no form of the noun is mentioned in the advisory notes to Civil
Rule 23. Fed. R. Civ. P. 23 advisory committee’s note. This suggests that the drafters of
the Rules intended to leave more flexibility when enforcing Appellate Rule 4(b) than when
enforcing Civil Rule 23(f).
And for good reason. As Lambert itself reminds us, “interlocutory appeal is an
exception to the general rule that appellate review must await final judgment—which is
fully consistent with a conclusion that Rule 23(f)’s time limit is purposely unforgiving.”
Lambert, 139 S. Ct. at 716. Indeed, “[t]he purpose of Rule 23(f), in part, is to ensure that
interlocutory appeals of class certification decisions are heard and decided in a timely
manner, so as not to disrupt the proceedings at the district court level.” Gutierrez v.
Johnson & Johnson, 523 F.3d 187, 199 (3d Cir. 2008) (citing Fed. R. Civ. P. 23(f) advisory
committee’s note). Appeals to final judgments, however, serve a different purpose. And,
unlike an interlocutory appeal, “[p]ersons convicted in federal district courts have a direct
right to appeal.” United States v. Peak, 992 F.2d 39, 41 (4th Cir. 1993) (citing Coppedge
29
v. United States, 369 U.S. 438 (1962)) (emphasis added). Thus, as one of our sister circuits
recently observed when interpreting Lambert, treating interlocutory appeals different from
appeals as of right “makes sense: a litigant who loses the opportunity to appeal a final
judgment forever loses the ability to appeal, but a litigant who loses the opportunity to file
an interlocutory appeal has another chance later.” Groves v. United States, 941 F.3d 315,
324 (7th Cir. 2019). Since interlocutory appeals are exceptional, there is no surprise that
“their limitations are ‘purposefully unforgiving.’” Id. (citing Lambert, 139 S. Ct. at 716).
In short, Lambert does not foreclose equitable tolling in this case. That case was
about “the rigidity of filing deadlines for interlocutory appeals even when they appear in
claim-processing rules.” Id. at 322 (citing Lambert, 139 S. Ct. at 714-15). The reasoning
there does not extend to criminal appeals as of right, where “the gravity of the stakes” are
much higher. And even if it does, there is nothing in Lambert that suggests that tolling is
categorically precluded when a judge is the reason the defendant missed the deadline. The
majority’s conclusion is inconsistent with the text of the relevant rules involved in this case
and “with the importance the Supreme Court has attached to ‘[t]he requirement that the
district court inform a defendant of his right to appeal.’” Maj. Op. at 5 (citing Peguero,
526 U.S. at 26).
IV.
The majority also considers, and dismisses, Marsh’s attempt to rescue his appeal
under the “unique circumstances” exception. As the majority acknowledges, the Supreme
Court has left open the possibility of mandatory claim-processing rules being overridden
30
in certain circumstances. In Lambert, the Court did not address this issue because “nothing
the District Court did misled [Petitioner] about the appeal filing deadline.” Lambert, 139
S. Ct. at 717 n.7; see also Carlisle, 517 U.S. at 435 (Ginsburg, J., concurring) (noting that
there is a “sharply honed” exception that “covers cases in which the trial judge has misled
a party who could have—and probably would have—taken timely action had the trial judge
conveyed correct, rather than incorrect, information”). Since the petitioner’s delay was not
attributable to a mistake by the district court, there was no reason for the Court to consider
the unique circumstances exception.
To be sure, the Supreme Court has not precisely outlined the contours of the unique
circumstance exception. But appellate courts have interpreted the exception widely. See,
e.g., Hollins v. Dep’t of Corr., 191 F.3d 1324, 1326–28 (11th Cir. 1999) (applying the
unique circumstances doctrine when counsel relied on PACER system’s version of a
docket sheet, which failed to show the entry of final judgment); Sidebottom v. Delo, 46
F.3d 744, 750 (8th Cir. 1995) (applying the unique circumstance doctrine when petitioner
“was ‘lulled into inactivity’ by the district court’s representation,” in which “[t]he clear
inference” was that a notice of appeal could be filed later); Virgin Islands v. Gereau, 603
F.2d 438 (3d Cir. 1979) (applying unique circumstances doctrine “where a defendant or
his counsel [was] affirmatively misl[e]d by some government authority as to the date by
which a Rule 35 motion must be filed”). But see Merrell-Nat’l Labs., Inc. v. Zenith Labs.,
Inc., 579 F.2d 786, 790 (3d Cir. 1978) (recognizing the unique circumstance exception but
refusing to apply it primarily because the case involved “only the lesser hardship of losing
the right to appeal an interlocutory order”). The wisdom behind the doctrine is easy to see:
31
“[t]he unique circumstances exception evolved out of concern with the fairness of a
dismissal when the district court contributed to the party’s failure to take the steps
necessary to perfect the appeal.” Kraus v. Consol. Rail Corp., 899 F.2d 1360, 1365 (3d
Cir. 1990). In this sense, as the majority notes, the doctrine is “based on a theory similar
to estoppel.” Maj. Op. at 12 (citing Carlisle, 517 U.S. at 435 (Ginsburg, J., concurring)).
And viewing the doctrine in this manner makes even more sense with respect to claim-
processing rules—a court should be estopped from faulting a defendant for disrupting rules
designed for the orderly transition of a federal court’s business when a federal judge is the
reason for the disruption.
The record here presents a compelling case to apply the exception if, as Marsh
suggests, the district court was the reason Marsh failed to file a timely notice of appeal.
Marsh’s plea agreement waived any right to appeal “the conviction and any sentence within
the statutory maximum . . . on any ground whatsoever other than an ineffective assistance
of counsel claim that is cognizable on direct appeal.” J.A. 13-14 (emphasis added). During
the Rule 11 plea colloquy, the district court judge asked Marsh if he understood that he had
“waived [his] right of appeal under his plea agreement” and whether he had “spoken with
[his] lawyer about whether or not [he] should waive [his] right of appeal.” J.A. 52. Marsh
answered “Yes” to both questions. J.A. 52. Subsequently, the court again asked Marsh if
he understood that, by pleading guilty, he gave up his “[right] of appeal with respect to
both the convictions that would result from [his] guilty pleas, as well as any sentence that
is imposed based on those convictions.” J.A. 52 (emphasis added). Marsh again answered
“Yes.” Finally, the district court, after describing further rights Marsh would be giving up,
32
asked Marsh if he understood that he was waiving “all of these constitutional rights . . .
[a]nd all that would be left for the Court to do would be to decide what sentence to impose.”
J.A. 57 (emphasis added). Marsh yet again answered in the affirmative. J.A. 57. The
district court went on to explain to Marsh that the court was not bound by the Sentencing
Guidelines, the recommendation from the Government, or other conditions. J.A. 60-62.
Taken together, these statements would lead a defendant to believe he is being sentenced
entirely at the whim of the district court judge and must accept a penalty even if he believes
it is unlawful. But this is why we have Criminal Rule 32(j): to let the defendant know that
he could appeal a sentence he believes was unlawful. The sentencing judge here failed to
relay that message. And Marsh now claims that the failure to relay that message is the
reason he did not file a timely notice of appeal—that is, Marsh was misled by the
sentencing court’s actions.
The majority disagrees. On its view, the doctrine only applies when a judge makes
affirmative statements “about the timeliness of any potential appeal.” Maj. Op. at 15 n.3.
Since the district court “did not convey incorrect information, through a ruling or other
assurance at the sentencing hearing,” 2 the majority reasons, the unique circumstance
2
The majority does not appear to find anything misleading in the district court’s
statements made during the plea colloquy stage. This is because, the majority writes,
“[q]ualifications and caveats about expressly preserved and unwaivable grounds for appeal
at the plea acceptance stage risk confusion for the defendant, and a district court does not
err by saving those advisements for sentencing.” Maj. Op. at 15 n.3. One could quibble
over whether a court should sacrifice accuracy in order to not confuse a defendant. But
even if a court does not err by saving its advisements for sentencing, a court may err when
it tells a defendant all the rights that are given up without later informing the defendant of
the single right he retains. I see no substantive difference in the district court’s misleading
33
doctrine is inapplicable. Maj. Op. at 15. According to the majority’s view, the unique
circumstances may apply if a judge—who is not required to give a party any assurance—
tells a party that the appeal deadline is in 11 days when the deadline is actually in 10 days.
But it cannot apply if a judge fails to inform a defendant about his appellate rights
altogether—which the judge is required to do under Criminal Rule 32(j). See Maj. Op.
Section IIA. In other words, if a court tells you the wrong deadline to file an appeal, shame
on us. But if a court—neglecting its duty—fails to tell you about your right to appeal
whatsoever, shame on you. I don’t get it. 3
This distinction is illogical and frustrates the wisdom behind the doctrine. If an
appellate court is estopped from sending a defendant away when a court gives him the
wrong deadline to file an appeal, then an appellate court should be similarly estopped when
a court’s failure to follow a compulsory rule is the cause of the defendant’s failure to
comply with a deadline. I would therefore apply the unique circumstance doctrine in
situations where a court “misled a party who could have—and probably would have—
taken timely action had the trial judge conveyed correct” information about the party’s
right to appeal. See Carlisle, 517 U.S. at 435 (Ginsburg, J., concurring). Since Marsh
statements being made at the plea colloquy hearing than the sentencing hearing—both have
the capacity to mislead a defendant.
3
It is not entirely clear how the majority would handle a third scenario: where a
sentencing judge—acting in error—affirmatively tells a defendant during a sentencing
hearing that the defendant has no right to appeal the sentence. Since such a statement
would not be about the “timeliness of any potential appeal,” which the majority takes to be
“at the heart of the unique circumstances doctrine,” the majority would presumably also
consider this scenario to be outside of the doctrine’s reach.
34
alleges that this is the case here, I would remand this case to determine whether the facts
call for the unique circumstance doctrine to be applied.
V.
The majority ends its opinion by rightly noting that this Court has remedied
Criminal Rule 32(j) errors for years. Indeed, for nearly five decades many appellate courts
have emphasized the importance of a trial judge informing a defendant of his right to
appeal. 4 See, e.g., Peguero, 526 U.S. at 27 (“Trial judges must be meticulous and precise
in following each of the requirements of Rule 32 in every case.”); Paige v. United States,
443 F.2d 781, 782 (4th Cir. 1971) (noting a Criminal Rule 32 violation “requires a remand
for resentencing and reinstatement of the right to appeal”); United States v. Deans, 436
F.2d 596, 599 (3d Cir. 1971) (“[T]he mandatory time limit for perfecting an appeal does
not begin to run until the defendant is actually notified of his rights.”); United States v.
Benthien, 434 F.2d 1031, 1032 (1st Cir. 1970) (declaring that reinstating an appeal
whenever a trial court has not complied with Criminal Rule 32(a)(2) “insures that all
defendants will receive the protection the rule was intended to provide” and “serve[s] to
warn district judges of the necessity of strict compliance”). Perhaps in recognition of this
tradition, the majority’s analysis raises a more fundamental question: is it only appropriate
4
Criminal Rule 32 was amended in 2002. The requirement that the court advise the
defendant of his right to appeal is currently found in Criminal Rule 32(j)(1)(B). Prior to
the changes, however, the requirement could be found in Criminal Rule 32(a)(2). In
addition, the earlier version of the Rule did not require the court to inform defendants who
pled guilty of their right to appeal—it only required that judges inform defendants who
pled not guilty of their right to appeal.
35
for petitioner to address Criminal Rule 32(j) errors through collateral relief —and not direct
appeal? That issue does not seem to appear in the pre-Kontrick cases, where appellate
courts treated notice of appeal deadlines as jurisdictional. Compare Kontrick, 540 U.S. at
454 (noting that courts “have been less than meticulous” in describing time prescriptions
as “jurisdictional”), with United States v. Robinson, 361 U.S. 220, 226 (1960) (describing
the prescribed time for taking an appeal as “mandatory and jurisdictional”). This is
understandable. If it is well known that a court lacks jurisdiction to hear an appeal, then it
should come as no surprise that a skilled litigant will forego the process of filing a direct
appeal and instead seek habeas relief—a court cannot provide a remedy when it is not in
its power to do so.
But, again, that is not the case here. There is no doubt that Appellate Rule 4(b) is a
court-prescribed deadline, Urutyan, 564 F.3d at 685 (“Appellate Rule 4(b) is a court-
prescribed, procedural rule.”), and this Court possesses the power to grant Marsh the relief
he seeks. See Holland, 560 U.S. at 645 (noting that nonjurisdictional deadlines do not “set
forth an inflexible rule requiring dismissal whenever its clock has run”) (internal quotation
marks and citations omitted). Thus, there is no reason he should only be able to seek relief
through a habeas petition if, as Marsh claims, a judge failing to comply with a compulsory
rule is the reason Marsh missed the deadline. It is well known that petitioners seeking
collateral relief have to clear a higher hurdle than on direct appeal. See, e.g., United States
v. Frady, 456 U.S. 152, 166 (1982) (“We reaffirm the well-settled principle that to obtain
collateral relief a prisoner must clear a significantly higher hurdle than would exist on
direct appeal.”). And the Supreme Court has long recognized that “[t]hose whose right to
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appeal has been frustrated should be treated exactly like any other appellants; they should
not be given an additional hurdle to clear just because their rights were violated at some
earlier stage in the proceedings.” Rodriquez v. United States, 395 U.S. 327, 330 (1969);
see also Frady, 456 U.S. at 165 (“a collateral challenge may not do service for an appeal”).
Limiting relief of a Criminal Rule 32(j) error to a habeas petition would place an undue
burden on defendants who are only in that position because of a trial judge’s mistake. And
what makes matters worse is that petitioners may have to climb these hurdles without the
assistance of counsel. See Pennsylvania v. Finley, 481 U.S. 551, 555–56 (1987) (“Our
cases establish that the right to appointed counsel extends to the first appeal of right, and
no further.”); Hunt v. Nuth, 57 F.3d 1327, 1340 (4th Cir. 1995) (“[T]his Court has held that
the Constitution does not require counsel for defendants who attack their judgments under
28 U.S.C. § 2255.”). Given the perilous path Marsh—and others—would have to tread
because of a judge’s mishap, I cannot endorse the majority’s position that a petitioner can
only seek redress through a habeas petition. We can—and should—address the violation
here.
I respectfully dissent.
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