Government may object to timeliness of appeal at any point up to and including its merits brief

In United States v. Muhammud, 10-3138 (Decided: Sept. 28, 2012; Published Nov. 5, 2012), the Third Circuit joined several of its sister circuits in holding that the government may object to the timeliness of an appeal, under Fed.R.App.P. 4(b), at any point up to and including in its merits brief.

Appellant Muhammad's guilty plea contained an appellate waiver and a collateral attack waiver. He did not directly appeal his conviction, but did file a 28 U.S.C. § 2255 petition nearly one year after his conviction became final, arguing that his guilty plea had been entered under duress. The district court enforced the waiver, dismissed the petition and denied a Certificate of Appealability (COA). The Third Circuit also denied Mr. Muhammad's request for a COA.

One year after the denial of his request for a COA and two years after his conviction became final, Mr. Muhammad filed a notice of appeal from his judgment of conviction. The government, believing the notice of appeal was challenging the dismissal of the § 2255 petition, did not move to dismiss the appeal as untimely. Instead, one month after the notice of appeal was filed, the government moved to enforce the appellate waiver and for summary affirmance.

The Court directed the parties to brief the issue of timeliness under Rule 4(b). The government challenged the appeal as untimely. The Third Circuit joined several of its sister circuits in holding that the government may object to the timeliness of an appeal, under Fed.R.App.P. 4(b), at any point up to and including in its merits brief and dismissed Mr. Muhammad's appeal as untimely. However, the Court "strongly encouraged" the government to file a motion to dismiss a criminal as untimely at the outset of the appeal in order to save the time and costs associated with ordering transcripts and preparing full briefs. Finally, the Court also noted, in dicta, that it also agreed with other courts of appeals that a court may sua sponte raise untimeliness under Rule 4(b).