United States v. Oliver

• Citation: 878 F.3d 120
• Decision Date: 20 December 2017
• Docket Number: No. 15-4376,15-4376
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Leonard OLIVER, Defendant–Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

878 F.3d 120

UNITED STATES of America, Plaintiff–Appellee,

v.Leonard OLIVER, Defendant–Appellant.

No. 15-4376

United States Court of Appeals, Fourth Circuit.

Argued: September 15, 2017

Decided: December 20, 2017

Amended: December 20, 2017

ARGUED: Kimberly Harvey Albro, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Columbia, South Carolina, for Appellant. John David Rowell, OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee. ON BRIEF: Beth Drake, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee.

Before GREGORY, Chief Judge, WYNN, and DIAZ, Circuit Judges.

Dismissed by published opinion. Chief Judge Gregory wrote the opinion, in which Judge Wynn and Judge Diaz joined.

GREGORY, Chief Judge:

This case addresses our authority to dismiss sua sponte a criminal appeal as untimely under Federal Rule of Appellate Procedure 4(b)(1)(A). Leonard Oliver appealed his criminal conviction years after the Rule 4(b)(1)(A) filing deadline and nearly three months after the district court denied his motion to vacate the conviction under 28 U.S.C. § 2255. The Government failed to object to the appeal’s untimeliness. It is now for this Court to decide whether to proceed to the merits.

We conclude that this Court has the authority to dismiss untimely criminal appeals sua sponte but that it should exercise that authority only in extraordinary circumstances. Given the procedural history of Oliver’s case, we find that such extraordinary circumstances are present here and dismiss the appeal.

I.

Leonard Oliver pleaded guilty to attempt to possess with intent to distribute 500 grams or more of cocaine and was sentenced to ten years in prison, the mandatory minimum sentence for the offense given his criminal record. See 21 U.S.C. §§ 841(b)(1)(B), 846.¹ The district court entered its judgment on September 30, 2011. The following year, Oliver filed a timely pro se motion to vacate the conviction and sentence under 28 U.S.C. § 2255 based on three ineffective-assistance-of-counsel claims.

Oliver v. United States , No. 5:11-435, 2014 WL 5506758, at *2–3 (D.S.C. Oct. 29, 2014). The district court ultimately granted summary judgment in the Government’s favor in March 2015. See id. at *5 ; J.A. 9.

On June 18, 2015, Oliver filed a pro se notice of appeal, seeking to directly appeal the same conviction and sentence from September 30, 2011. This Court assigned counsel, who then filed a brief pursuant to Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). The Government notified this Court that it would not file a response brief. Oliver was informed of his right to file separately but did not do so.

II.

The time for filing an appeal from a criminal judgment is governed by Federal Rule of Appellate Procedure 4(b). The Rule requires 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." Fed. R. App. P. 4(b)(1)(A).

Without question, Oliver’s appeal is years late. The judgment was entered on September 30, 2011. To comply with Rule 4(b)(1)(A), Oliver needed to notice his appeal by October 14, 2011. Oliver nonetheless filed the notice on June 18, 2015—three years and eight months after the deadline. We have held that when a notice of appeal is filed after the 4(b)(1)(A) deadline but within thirty days of that deadline, district courts should determine whether the late filing was due to "excusable neglect or good cause" under Rule 4(b)(4). See United States v. Reyes , 759 F.2d 351, 353 (4th Cir. 1985). Given that Oliver’s notice was far more than thirty days late, however, Rule 4(b)(4) ’s extension of time to file for excusable neglect or good cause is no help to him.

We note at the outset that Oliver’s failure to adhere to Rule 4(b)(1)(A) ’s filing deadline does not deprive this Court of subject-matter jurisdiction. See United States v. Urutyan , 564 F.3d 679, 685 (4th Cir. 2009). Rather, Rule 4(b)(1)(A) is an inflexible claim-processing rule. See id. (explaining that Rule 4(b) is judicially created and "not backstopped by any federal statutory deadline"); Hamer v. Neighborhood Hous. Servs. of Chi. , ––– U.S. ––––, 138 S.Ct. 13, 17, ––– L.Ed.2d –––– (2017) ("A time limit not prescribed by Congress ranks as a mandatory claim-processing rule, serving ‘to promote the orderly progress of litigation by requiring that the parties take certain procedural steps at certain specified times.’ " (quoting Henderson v. Shinseki , 562 U.S. 428, 435, 131 S.Ct. 1197, 179 L.Ed.2d 159 (2011) )). When the Government promptly invokes the rule in response to a late-filed criminal appeal, we must dismiss. See Eberhart v. United States , 546 U.S. 12, 18, 126 S.Ct. 403, 163 L.Ed.2d 14 (2005) (per curiam) (discussing Rule 4(b) ’s predecessor, Federal Rule of Criminal Procedure 37 ); see also Rice v. Rivera , 617 F.3d 802, 810 (4th Cir. 2010) ("Claim-processing rules ... are to be rigidly applied when invoked by a litigant."). But, if the Government fails to object promptly to an appeal’s untimeliness in either its merits brief or an earlier motion to dismiss, it generally forfeits the right to do so. See Eberhart , 546 U.S. at 18, 126 S.Ct. 403 ; see also Kontrick v. Ryan , 540 U.S. 443, 458, 124 S.Ct. 906, 157 L.Ed.2d 867 (2004) (noting that time bars generally must be raised in answer or responsive pleading); United States v. Reyes-Santiago , 804 F.3d 453, 459 (1st Cir. 2015) (denying Government’s motion to dismiss appeal under Rule 4(b)(1)(A) because motion was filed after merits brief and Government had not previously raised untimeliness issue). Here, the Government did not seek dismissal of Oliver’s appeal as untimely until well after the merits briefing, and it has provided no justification for the delay.² We therefore have no obligation to raise Rule 4(b) on our own motion or to dismiss the appeal in this case.

III.

The question then becomes whether we even have the authority to invoke Rule 4(b) sua sponte. It is well-settled that "[c]ourts invested with the judicial power of the United States have certain inherent authority to protect their proceedings and judgments in the course of discharging their traditional responsibilities." Degen v. United States , 517 U.S. 820, 823, 116 S.Ct. 1777, 135 L.Ed.2d 102 (1996). Inherent powers are those "necessarily vested in courts to manage their own affairs so as to achieve the orderly and expeditious disposition of cases." United States v. Moussaoui , 483 F.3d 220, 236 (4th Cir. 2007) (quoting Link v. Wabash R.R. Co. , 370 U.S. 626, 630–31, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962) ). The Supreme Court has thus recognized federal courts’ inherent authority to vacate a judgment procured by fraud, see Chambers v. NASCO, Inc. , 501 U.S. 32, 44, 111 S.Ct. 2123, 115 L.Ed.2d 27 (1991), to dismiss a lawsuit for failure to prosecute, see Link , 370 U.S. at 631–32, 82 S.Ct. 1386, to stay an action pending the outcome of parallel proceedings in another court, see Landis v. N. Am. Co. , 299 U.S. 248, 254, 57 S.Ct. 163, 81 L.Ed. 153 (1936), and to assess attorney’s fees against counsel, see Roadway Express, Inc. v. Piper , 447 U.S. 752, 765, 100 S.Ct. 2455, 65 L.Ed.2d 488 (1980), among other actions. The source of such inherent power is not a particular rule or statute but "the very nature of the court as an institution." See United States v. Shaffer Equip. Co. , 11 F.3d 450, 461–62 (4th Cir. 1993).

Accordingly, we have held that a court may independently consider an issue not raised by the parties when necessary to protect important institutional interests. In Clodfelter v. Republic of Sudan , we affirmed a district court’s sua sponte invocation of a res-judicata defense to avoid the unnecessary expenditure of judicial resources where the defendant, a foreign sovereign, had not appeared in the case. 720 F.3d 199, 209–10 (4th Cir. 2013). In Nasim v. Warden, Maryland House of Correction , we recognized that where a complaint filed in forma pauperis under 28 U.S.C. § 1915(d) is untimely on its face, the district court may raise a statute-of-limitations defense on its own motion. 64 F.3d 951, 953–54, 956 (4th Cir. 1995) (en banc). Because complaints filed under section 1915(d) are more likely to be "frivolous, malicious, or repetitive," we reasoned that such authority was necessary to prevent the court’s docket from becoming clogged with meritless claims. Id. at 953–54. And, in Hill v. Braxton , we concluded that a federal habeas court may also consider a statute-of-limitations defense sua sponte because petitions brought under 28 U.S.C. § 2254"implicate considerations of comity, federalism, and judicial efficiency to a degree not present in ordinary civil actions." 277 F.3d 701, 705–06 (4th Cir. 2002).

Like meritless complaints and untimely habeas petitions, late-filed criminal appeals can implicate significant judicial interests. Most notably, they disrupt the finality of criminal judgments. A criminal conviction becomes final at the end of the appellate process—i.e., when the time for a direct appeal expires and the defendant has not noticed an appeal or, if the defendant pursues an appeal, when the time for filing a petition for certiorari expires. See United States v. Sanders , 247 F.3d 139, 142 (4th Cir. 2001). Once final, that judgment is presumptively valid and can serve as the basis for future proceedings and judgments. See United States v. Frady , 456 U.S. 152, 164–65, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982). For example, a final conviction—and only a final conviction—can be collaterally reviewed. See 28 U.S.C. § 2255(f). And, a final conviction may subject the defendant to sentencing enhancements should he or she be convicted of another crime. See, e.g. , 21 U.S.C. § 841(b)(1)(B) (providing that person who commits enumerated drug offense shall be sentenced to no less than five years in prison, but if that person "commits such a violation after a prior...