Tag Archives: timeliness

Tilting the Level Playing Field – Update for December 27, 2017

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.


Most of us imagine that litigation is a gladiatorial sport, one where the judge keeps it honest but otherwise leaves the parties to rise or fall by their wits, knowledge and preparation.

Lady Justice, after all, is blind to how the scales of justice tip.

justice171227Leonard Oliver got convicted of drug offenses along about seven years ago. Afterwards he filed a post-conviction motion under 28 USC 2255. When the court ruled against him in 2015, he apparently concluded that he probably should have appealed his conviction from four years before. So he filed a notice of appeal, attempting to do so.

The only problem with Len’s cart-before-the-horse approach to criminal litigation is that the Federal Rule of Appellate Procedure allow a criminal defendant 14 days to file a notice of appeal. Len was a little late, about three years and eight months late. Lucky for Len, the Supreme Court ruled earlier this year that a late-filed notice of appeal does not deprive the appeals court of subject-matter jurisdiction. Even luckier for Len, the government fought his appeal on the merits, never, for some inexplicable reason, objecting to the grossly late filing. Perhaps the luckiest break for Len, a party’s failure to timely object to timeliness forfeits its right to do so.

corso170112Lucky, lucky, lucky Len. Well, not so fast. Last week, the 4th Circuit last week held that just because the government overlooked the untimeliness does not mean the court has to. The Circuit invoked the inherent authority that all federal courts possess “to protect their proceedings and judgments in the course of discharging their traditional responsibilities.”

It is unsurprising that the Court found that in cases of prisoner civil litigation, where “complaints… are more likely to be “frivolous, malicious, or repetitive,” the courts could raise nonjurisdictional defenses where the government forgets to do so. Likewise, the 4th said, “a federal habeas court may also consider a statute-of-limitations defense sua sponte because [such] petitions implicate considerations of comity, federalism, and judicial efficiency to a degree not present in ordinary civil actions.”

Extrapolating, the Circuit said that “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.” This is good reason, the Court said, to throw out a late-filed notice of appeal even where the government – because of forgetfulness or for strategic reasons – decides not to.

Say what? If the Court figures the defendant’s case could have been thrown out if the government had only thought to ask that it be, the Court can effectively take over the government’s case. And if the prisoner, who usually is acting as his own attorney and is litigating on a slightly smaller budget that the $2.074 billion allocated to U.S. Attorneys, needs a boost? Maybe he misses advancing a motion or argument that would carry the day for him. Will the judge step in with a useful suggestion?

ranch171227Don’t bet the farm on it, Lucky Len. Federal courts seem much more willing to correct one party’s oversights when the party is the government and prisoners are on the other side. Do the math: a prisoner’s case ends up with two prosecutors, one defendant… and no impartial judge.

United States v. Oliver, Case No. 15-4376 (4th Cir. Dec. 20, 2017)

– Thomas L. Root