U.S. v. Mitchell

• Decision Date: 29 February 2008
• Docket Number: No. 05-2052.,05-2052.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Roland Lorenzo MITCHELL, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

518 F.3d 740

UNITED STATES of America, Plaintiff-Appellee, v. Roland Lorenzo MITCHELL, Defendant-Appellant.

No. 05-2052.

United States Court of Appeals, Tenth Circuit.

February 29, 2008.

Marc H. Robert, Assistant Federal Public Defender, Las Cruces, NM, on the brief for Defendant-Appellant.

Larry Gomez, Acting United States Attorney, and Terri J. Abernathy, Assistant United States Attorney, Las Cruces, NM, on the brief for Plaintiff-Appellee.

Before LUCERO, EBEL, and MURPHY, Circuit Judges.

OPINION ON REMAND

MURPHY, Circuit Judge.

I. Introduction¹

Roland Lorenzo Mitchell filed an untimely notice of appeal of his conviction for possession of marijuana with intent to distribute. This court dismissed his appeal, sua sponte, for lack of jurisdiction because Mitchell failed to comply with the time limitations of Federal Rule of Appellate Procedure 4(b). United States v. Mitchell, 464 F.3d 1149, 1149 (10th Cir.2006). The Supreme Court vacated our decision and remanded for further consideration in light of Bowles v. Russell, ___ U.S. ___, 127 S.Ct. 2360, 2366, 168 L.Ed.2d 96 (2007) (holding the timeliness requirements in Fed. R.App. P. 4(a) are jurisdictional because they derive from a statute). Mitchell v. United States, ___ U.S. ___, 127 S.Ct. 2973, 2973, 168 L.Ed.2d 701 (2007). Upon further consideration, we reach the merits of Mitchell's appeal because the government forfeited its objection to the untimely notice of appeal and sua sponte dismissal under Rule 4(b) would be inappropriate.

II. Background

Mitchell, a long haul truck driver, was arrested at the Eastbound Motor Transportation Division Port of Entry in Lordsburg, New Mexico.² Pursuant to N.M. Stat. Ann. § 65-5-1, officers from the New Mexico Department of Public Safety approached Mitchell's tractor-trailer for inspection. Mitchell told the officers he was traveling from Phoenix, Arizona to Atlanta, Georgia with an empty trailer. On review of Mitchell's log book, the officers conducting the inspection determined it contained inaccuracies and evidence of falsification. In response to questioning, Mitchell told the officers he was going to pick up a cargo load at a nearby truck stop. An officer, however, had personal knowledge that particular truck stop did not have a loading dock and was essentially a convenience store.

The officers requested that Mitchell open the trailer to confirm it was empty. The opened door revealed five boxes, which Mitchell claimed contained "parts." The officer asked Mitchell to open the boxes to verify the contents. Mitchell replied he was not sure that was a good idea. The officer asked again and Mitchell consented. The boxes contained marijuana.

Mitchell was charged with possession of more than 100 kilograms of marijuana with intent to distribute in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B). The district court denied his motion to suppress the marijuana, holding the search did not violate the Fourth Amendment. Mitchell entered into a conditional guilty plea, reserving his right to appeal the district court's decision on the motion to suppress. The district court sentenced Mitchell to sixty months' imprisonment.

Although judgment was entered in Mitchell's case on February 9, 2005, a notice of appeal was not filed until February 25, 2005, one day outside the ten-day period allowed under Federal Rule of Appellate Procedure 4(b)(1).³ Mitchell filed a contemporaneous motion in the district court seeking an extension of time to file the notice of appeal due to excusable neglect. Fed. R.App. P. 4(b)(4). The district court granted the motion. In this court, both Mitchell and the government briefed the merits of the appeal, but did not address whether the district court erred in granting Mitchell's motion for an extension to file the notice of appeal. This court, recognizing that the motion may have been improperly granted, raised the issue at oral argument sua sponte.⁴

This panel issued an opinion in Mitchell's case in September of 2006 holding as a matter of law that Mitchell's untimely notice of appeal was not the result of excusable neglect and dismissing the appeal for lack of jurisdiction. Mitchell, 464 F.3d at 1149. As noted above, this matter is now before us on remand from the Supreme Court for reconsideration in light of Bowles v. Russell, 127 S.Ct. at 2360. Mitchell, 127 S.Ct. at 2973.

III. Effect of an Untimely Notice of Appeal

The time bar of the Federal Rules of Appellate Procedure for the filing of a notice of appeal in a criminal case was long considered "mandatory and jurisdictional." Wilkinson v. United States, 278 F.2d 604, 605 (10th Cir.1960) (per curiam) (citing United States v. Robinson, 361 U.S. 220, 224, 80 S.Ct. 282, 4 L.Ed.2d 259 (1960)). The Supreme Court's recent decision in Bowles, however, clarified that court-issued federal procedural rules not derived from statutes are not jurisdictional, but rather inflexible claim-processing rules. 127 S.Ct. at 2363-66. This court recently held that, in light of Bowles, Federal Rule of Appellate Procedure 4(b)(1) is a claim-processing rule. United States v. Garduño, 506 F.3d 1287, 1288-89 (10th Cir.2007). As a result, dismissal of Mitchell's appeal, based on his failure to file a timely notice of appeal, is no longer mandatory and jurisdictional.

Nevertheless, the time bar in Rule 4(b) must be enforced by this court when properly invoked by the government. Garduño, 506 F.3d at 1290-91; see Eberhart v. United States, 546 U.S. 12, 19, 126 S.Ct. 403, 163 L.Ed.2d 14 (2005) ("These claim-processing rules thus assure relief to a party properly raising them."). In this case the government never objected to the untimeliness of Mitchell's notice of appeal and, as a result, forfeited its opportunity to ensure enforcement of the rule.⁵ Although it acknowledges that after Bowles this court has no obligation to raise the issue of timeliness, the government maintains this court could and should raise and decide the issue sua sponte.

We begin this analysis by noting that this area of the law has been in flux since Kontrick v. Ryan, 540 U.S. 443, 124 S.Ct. 906, 157 L.Ed.2d 867 (2004), and Eberhart v. United States, 546 U.S. at 12, 126 S.Ct. 403, first indicated the time limitations in the federal rules may not be jurisdictional under some circumstances. As a result, there is limited case law indicating how the courts should enforce those rules which are no longer jurisdictional. The question of whether a court may sua sponte raise timeliness under Rule 4(b) is one of first impression in this circuit and appears to have only been addressed tangentially in other circuits.⁶ See Wilburn v Robinson, 480 F.3d 1140, 1143-48 (D.C.Cir.2007).

A.

Kontrick and Eberhart do not specifically speak to the issue of whether a court may sua sponte raise timeliness under non-jurisdictional federal rules. They generally indicate, however, that claim-processing rules must be raised by the parties. In Kontrick, which involved the time constraints of Bankruptcy Rule 4004 governing when a party must file a complaint objecting to a debtor's discharge, the party seeking to assert the time bar waited until after the matter had been fully adjudicated on the merits. 540 U.S. at 451, 124 S.Ct. 906. The Court analogized the time bar in the Bankruptcy Rules to affirmative defenses governed by Fed.R.Civ.P. 8(c), stating "under the Bankruptcy Rules as under the Civil Rules, a defense is lost if it is not included in the answer or amended answer." 540 U.S. at 459, 124 S.Ct. 906. By invoking the affirmative defense provision of the Federal Rules of Civil Procedure, the Court implied that failure to raise a timeliness constraint amounts to a forfeiture of the issue. See Bentley v. Cleveland County Bd. of County Comm'rs, 41 F.3d 600, 604 (10th Cir.1994) ("Failure to plead an affirmative defense results in a waiver of that defense."). The Court in Kontrick did not address whether the district court could raise Rule 4004 sua sponte. Nevertheless, as courts generally may not raise affirmative defenses sua sponte, Kontrick may imply courts cannot raise time bars in claim-processing federal rules. See Eriline Co. S.A. v. Johnson, 440 F.3d 648, 653-56 (4th Cir.2006).

In Eberhart, the Court expanded on its holding in Kontrick by ruling that Fed. R.Crim.P. 33(a), which includes time limitations for filing new-trial motions, is a claim-processing rule. 546 U.S. at 13, 126 S.Ct. 403. In that case, the government raised for the first time on appeal an objection to the defendant's failure to comply with the time limitations of Rule 33(a). Id. at 14, 126 S.Ct. 403. The Court held, "[h]ere, where the Government failed to raise a defense of untimeliness until after the District Court had reached the merits, it forfeited that defense. The Court of Appeals should therefore have proceeded to the merits." Id. at 19, 126 S.Ct. 403. The implication from this language may be that a court does not have the option to raise the timeliness issue sua sponte.

Both Kontrick and Eberhart, however, can be distinguished from the case before this court. Most notably, Kontrick and Eberhart involved rules that apply at the trial level where Fed.R.Civ.P. 8(c) operates as the mechanism for pleading affirmative defenses.⁷ There is no analogous rule at the appellate level. Furthermore, in both Kontrick and Eberhart the timeliness issue was not raised until after the dispute had been adjudicated on the merits. That is not the case here as this court recognized the timeliness issue before proceeding to the merits. Mitchell, 464 F.3d at 1149.

The government relies on Day v. McDonough, 547 U.S. 198, 126 S.Ct. 1675, 164 L.Ed.2d 376 (2006), as support for its argument that despite Kontrick and Eberhart this court may raise sua sponte the timeliness of a notice of appeal. The justifications for the result in Day, however, are unique to the habeas corpus context and have limited applicability to the case at bar. Day presented the...