United States v. Abdul Muhammud , 701 F.3d 109 ( 2012 )

NOT PRECEDENTIAL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)
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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OPINION
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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 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,
1
The waiver contains limited exceptions not applicable here.
2
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 from his judgment of
conviction of two years earlier. The following month, the government moved to enforce
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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 Appellee’s Br. 26-27 (collecting cases)). 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); 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
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III. CONCLUSION
We will dismiss the appeal as untimely.
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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