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Date: 12-20-2017

Case Style:



Case Number: 15-4376

Judge: Roger L. Gregory


Plaintiff's Attorney: John David Rowell
Beth Drake
United States Attorney

Defendant's Attorney: Kimberly Harvey Albro

Description: 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 tLeonard 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

1 Sections 841(b)(1)(B) and 846 provide that a person convicted of attempt to possess with intent to distribute 500 grams or more of cocaine who had a prior, final felony drug conviction at the time of the offense shall be sentenced to a minimum of ten years and a maximum of life in prison. Oliver stipulated that he had one prior felony drug conviction that had become final.

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.
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 (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.

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., 138 S. Ct. 13, 17 (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 (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 (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; see also Kontrick v. Ryan, 540 U.S. 443, 458 (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.

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 (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 (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 (1991), to dismiss a lawsuit for failure to prosecute, see Link, 370 U.S. at 631–32,
to stay an action pending the outcome of parallel proceedings in another court, see Landis
v. N. Am. Co., 299 U.S. 248, 254 (1936), and to assess attorney’s fees against counsel, see
Roadway Express, Inc. v. Piper, 447 U.S. 752, 765 (1980), among other actions. The

2 Local Rule 27(f) appears to countenance such action, as it provides, “Motions to dismiss based upon . . . procedural grounds may be filed at any time.” While we think forfeiture is appropriate here, notwithstanding our Local Rule, we need not decide that question because (as we explain) we have inherent authority to dismiss the appeal and choose to exercise it.

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 (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
conviction for a felony drug offense that has become final, such person shall be sentenced
to a term of imprisonment no less than 10 years”). Reviewing the merits of an appeal filed
after the Rule 4(b) deadline reopens the appellate process and thereby makes what was a
final judgment no longer final. When an appeal is filed so late that another judgment in
the interim has relied on the judgment being appealed, adjudication of the appeal could
unravel both the underlying judgment and the intervening judgment. And unraveling
intervening judgments simply creates further channels of litigation that would not have
been available but for the defendant’s delay. Courts clearly have a strong interest in
preserving valid final judgments and not expending judicial resources on cases that upset
those judgments.
Moreover, some untimely criminal appeals, if decided on the merits, would give the
defendant an undeserved second bite at the apple. The federal criminal justice system
prescribes a clear, sequential process for resolving criminal cases: The district court enters

its judgment; the defendant may challenge the judgment in an appeal to this Court and then
to the United States Supreme Court; and if unsuccessful, the defendant may challenge both
judgments on collateral review. See 18 U.S.C. § 3742; 28 U.S.C. § 2255. Filing a direct
appeal after pursuing collateral relief, as Oliver has done here, thwarts this process. And a
decision on the appeal’s merits would unfairly allow the defendant additional judicial
review not available to litigants who adhere to the rules of procedure. See Magwood v.
Patterson, 561 U.S. 320, 331 (2010) (holding that issuance of new judgment renews right
to collateral review). Needless to say, rewarding those who flout our rules threatens the
integrity of our judicial system. Courts thus have a strong interest in ensuring that litigants
do not gain additional opportunities for judicial review by circumventing the process.
Given the potential consequences of adjudicating untimely criminal appeals, we
conclude that the power to dismiss such appeals is necessary to protect the finality of
criminal judgments and the efficiency and fairness of our justice system. Therefore, we
hold that this Court has the inherent authority to invoke Rule 4(b)(1)(A) sua sponte.
The two other circuits that have squarely addressed the question agree. In United
States v. Mitchell, the Tenth Circuit held that it may raise the Rule 4(b) time bar sua sponte
because the rule “implicates important judicial interests beyond those of the parties.” 518
F.3d 740, 750 (10th Cir. 2008). The court noted that Rule 4(b) “plays an important role in
ensuring finality of a criminal conviction” and thus serves both “societal interests and the
interests of judicial administration by minimizing uncertainty and waste of judicial
resources.” Id. Relying on Mitchell’s reasoning, the Sixth Circuit held the same. United
States v. Gaytan-Garza, 652 F.3d 680, 681 (6th Cir. 2011).

Having recognized that we have the inherent power to dismiss untimely criminal
appeals sua sponte, we now turn to whether we should exercise it. A court’s exercise of
inherent power must be “a reasonable response to the problems and needs that provoke it.”
Degen, 517 U.S. at 823–24. Indeed, “inherent power is limited by the necessity giving rise
to its exercise.” Id. at 829. The necessity here is the need to protect the finality of criminal
judgments and maintain the efficiency and fairness of the judicial process. Because
adjudicating a late-filed criminal appeal necessarily disrupts the finality of the underlying
judgment and thus jeopardizes at least the fairness of our procedures, our power to dismiss
such appeals on our own motion extends to all appeals filed after the Rule 4(b)(1)(A)
But “[j]ust because” we have the inherent authority to act “does not mean that it is
appropriate to use that power in every case.” Dietz v. Bouldin, 136 S. Ct. 1885, 1893
(2016). This is particularly true where, as here, the exercise of inherent power involves
raising an issue that the parties have forfeited or waived and dismissing the case on that
ground. See Eriline Co. S.A. v. Johnson, 440 F.3d 648, 653–54 (4th Cir. 2006); Shaffer
Equip., 11 F.3d at 462. In our adversarial system, “we rely on the parties to frame the
issues for decision and assign to courts the role of neutral arbiter of matters the parties
present.” Greenlaw v. United States, 554 U.S. 237, 243 (2008). The importance of
preserving this system and its benefits weighs heavily against considering Rule 4(b) sua

“Courts do not, or should not, sally forth each day looking for wrongs to right.” Id.
at 244 (internal alterations and citation omitted); see also Carducci v. Regan, 714 F.2d 171,
177 (D.C. Cir. 1983) (Scalia, J.) (“[A]ppellate courts do not sit as self-directed boards of
legal inquiry and research, but essentially as arbiters of legal questions presented and
argued by the parties before them.”). And for good reason—our adversarial system of
justice is premised on “the well-tested principle” that party presentation is the most
effective method for reaching the best outcome in each case. Penson v. Ohio, 488 U.S. 75,
84 (1988); Alderman v. United States, 394 U.S. 165, 183–84 (1969); see also Herring v.
New York, 422 U.S. 853, 862 (1975) (“[P]artisan advocacy on both sides of a case will best
promote the ultimate objective that the guilty be convicted and the innocent go free.”).
Such adversary proceedings not only increase public confidence in the justice system, see
United States v. Nixon, 418 U.S. 683, 709 (1974), but they implicitly recognize that “parties
know what is best for them and are responsible for advancing the facts and arguments
entitling them to relief,” Greenlaw, 554 U.S. at 244 (citation omitted). See also id.
(“Counsel almost always know a great deal more about their cases than we do, and this
must be particularly true of counsel for the United States, the richest, most powerful, and
best represented litigant to appear before us.” (citation omitted)).
Issues “waivable by the inaction of a party,” such as the untimeliness of a criminal
appeal, “bear[] the hallmarks of our adversarial system.” Eriline, 440 F.3d at 654. Indeed,
the principle that parties forfeit an argument if they fail to timely raise it encourages each
side to actively participate in all stages of the litigation. When the court raises a forfeited
issue sua sponte, it undermines the principle of party presentation and risks becoming a

third advocate. See Arizona v. California, 530 U.S. 392, 412–13 (2000). Habitual sua
sponte consideration of a forfeited issue disincentivizes vigorous advocacy and thereby
chips away at the foundation of our justice system.
For these reasons, we have warned that courts should not invoke a statute of
limitations sua sponte unless proceeding to the merits would significantly implicate the
efficiency and integrity of the judicial process. In Eriline Co. S.A. v. Johnson, the plaintiffs
filed their complaint nearly a year after the relevant statute of limitations had run. 440 F.3d
at 650–51. Because certain defendants failed to respond, the plaintiffs moved for default
judgment. Id. at 651. Finding that the case was time-barred, the district court raised the
statute-of-limitations defense sua sponte and dismissed the complaint in its entirety. Id.
We held on appeal that the dismissal was an unjustified departure from the general rule
that a defendant must either timely raise a statute of limitations or forfeit its protection. Id.
at 657. A statute of limitations, we reasoned, “primarily serves only defendants” and any
interest that a court possesses in its enforcement “ordinarily falls short of that necessary to
outweigh the benefits derived from adhering to the adversarial process.” Id. at 655.
We find our reasoning in Eriline instructive here. Eriline made clear that courts are
not to intervene in the adversarial process solely because a party filed late. See 440 F.3d
at 655–57. Rather, the defendant holds the responsibility of raising a statute of limitations,
as it is the defendant who primarily benefits from its invocation. Id. at 653–54. Only when
consideration of a statute of limitations primarily benefits the judicial system may the court
raise that time bar on its own motion. Id. at 655–56. Indeed, we recognized in Eriline that
a court may raise a statute of limitations sua sponte in only two narrow circumstances:

untimely complaints filed in forma pauperis under 28 U.S.C. § 1915 and untimely habeas
petitions filed under 28 U.S.C. § 2254. Id. at 655–57 (discussing Nasim, 64 F.3d 951, and
Hill, 277 F.3d 701). These cases are exceptional in that they “implicate important judicial
and public concerns not present in the circumstances of ordinary civil litigation”—namely,
preventing the court’s docket from becoming clogged with meritless claims and
considerations of comity, federalism, and judicial efficiency. Id. at 656.
Our decision in Eriline thus struck a balance between courts’ interest in maintaining
the adversarial process and the institutional interests implicated by these two types of
filings. When dismissal primarily benefits the defendant, the interest in preserving our
adversarial system is paramount, and the court should not consider the statute of limitations
sua sponte. See id. at 655. But, in some cases, deciding a complaint or petition on the
merits implicates important judicial interests to such an extent that the court’s interest in
dismissing the case outweighs its interest in adhering to the adversarial process. See id. at
655–56. In those cases, and only those cases, the court may raise the statute of limitations
on its own motion. See id. at 657.
The same weighing of interests applies to determining whether or when we should
invoke Rule 4(b)(1)(A). Here, the Government holds the responsibility of raising the
untimeliness of a criminal appeal, and generally, the Government enjoys the greatest
benefit when criminal appeals are dismissed on untimeliness grounds. If the Government
neglects to object to a late-filed criminal appeal, we must not rush to its aid. Indeed, we
should assume that the Government wishes the court to decide the case on the merits. See
Greenlaw, 554 U.S. at 244. There are, however, some circumstances in which this Court’s

interests in dismissing an untimely criminal appeal supersede the interests of the parties
and the principle of party presentation. Consistent with our decision in Eriline, we think
that in those instances, and only those instances, this Court should exercise its inherent
authority to consider Rule 4(b)’s filing deadline sua sponte.
Two circumstances in particular threaten the judiciary’s institutional interests to
such an extent that intervening in the adversarial process by raising a forfeited or waived
Rule 4(b) defense is necessary. The first is an appeal from a final judgment filed so late
that in the interim, a court has issued a subsequent judgment, such as a sentence
enhancement, in reliance on the judgment appealed. As we discussed above, adjudication
of such an appeal on the merits has a domino effect—it disrupts not only the judgment
appealed, but also the subsequent judgment. And disrupting the latter judgment would
create new grounds to challenge that judgment, grounds that would not exist but for the
defendant’s untimely appeal.
The following hypothetical best illustrates the problem: An individual is convicted
and sentenced for a felony drug offense and does not file an appeal within the time provided
by Rule 4(b). That judgment becomes final when the Rule 4(b) filing period expires. The
same individual later commits and is convicted of attempt to possess with intent to
distribute 500 grams or more of cocaine under 21 U.S.C. §§ 841(b)(1)(B) and 846—the
offense in Oliver’s conviction. Section 841(b)(1)(B) provides, “If any person commits
such a violation after a prior conviction for a felony drug offense has become final, such
person shall be sentenced to a term of imprisonment which may not be less than 10 years.”
21 U.S.C. § 841(b)(1)(B) (emphasis added). Thus, the court, relying on the finality of the

first felony drug conviction, sentences this individual to ten years in prison for the cocaine
offense. Then the individual, now serving ten years in prison, appeals the first felony drug
conviction, and the Government does not object to the appeal’s untimeliness. If this Court
proceeds to the merits of that appeal, it reopens the underlying felony drug conviction,
making that judgment no longer final. And because that conviction is no longer final, the
ten-year sentence issued in reliance on it becomes subject to challenge. Although our
interest in respecting the adversarial process is substantial, opening the courthouse doors
to these otherwise unavailable claims would waste judicial resources and allow those who
disregard Rule 4(b)’s filing deadline to free themselves of valid and binding judgments.
The second circumstance that warrants sua sponte invocation of Rule 4(b) is a direct
appeal filed after the defendant has completed collateral review of the same judgment.
Such appeals circumvent the established process that our criminal justice system prescribes
for resolving cases. A defendant can seek collateral review of a criminal judgment—i.e.,
file a petition for habeas corpus—only after that judgment has become final. Thus, in
collaterally reviewing a criminal judgment, a district court relies on the fact that the
defendant has exhausted all opportunities for direct review. See Frady, 456 U.S. at 164–
65. Reviewing an appeal post-collateral review not only nullifies the district court’s efforts
in adjudicating the habeas petition, but also restarts the process such that the defendant
gains a second opportunity for collateral review. See Magwood, 561 U.S. at 331. As
important as the principle of party presentation is, we cannot allow litigants to turn the
review process on its head and obtain additional judicial review by disregarding Rule 4(b)’s

Accordingly, we hold that, as a general rule, this Court should not invoke Rule
4(b)(1)(A) to dismiss an untimely criminal appeal when the Government has forfeited or
waived its objection. The untimeliness of a criminal appeal does not by itself justify
contravening the principle of party presentation so basic to our adversarial system. We
recognize, however, that certain cases implicate judicial interests to such an extent that not
intervening would harm the court as an institution. Specifically, appeals filed after a
subsequent judgment has relied on the judgment appealed or after the defendant has
pursued collateral review of the judgment threaten the efficiency and integrity of our justice
system to such an extent that this Court’s interest in dismissing them outweighs its interest
in adhering to the adversarial process. In these cases, the Court may exercise its inherent
power to raise Rule 4(b)(1)(A) sua sponte.3
The parties focused much of their supplemental briefing in this case on the Tenth
Circuit’s opinion in Mitchell, 518 F.3d 740. There, the Tenth Circuit held that courts may
raise Rule 4(b) sua sponte when the delay in filing the appeal has been inordinate and
judicial resources and administration are implicated. Id. at 750. We, however, find
Mitchell’s test untenable. As the dissent in that case noted, “inordinate” delay is an
inherently ambiguous standard and begs the question of where to draw the line between
appeals that are late and those that are too late. Id. at 754 (Lucero, J., dissenting).
Similarly, it is unclear to us how courts should measure whether a case implicates judicial

3 We do not foreclose the possibility that additional circumstances might necessitate sua sponte consideration of Rule 4(b)(1)(A). Such an exercise of inherent power, of course, would need to be tethered to the principles articulated herein. Given the weighty importance of preserving the adversarial process, we think such cases will be rare.

resources and administration to the extent that it should be dismissed without wading knee
deep in the merits. And, assuming we did identify those resource-intensive cases, such a
standard would have us dismiss cases that raise numerous potentially meritorious issues
yet adjudicate cases that raise fewer issues or issues we can dispense with more easily. We
think the better approach is to refrain from considering Rule 4(b) sua sponte unless an
intervening judgment or collateral-review proceeding has relied on the judgment appealed.

In this case, Oliver filed his notice of appeal more than three years and eight months
after the district court entered the underlying judgment. Because Oliver chose not to appeal
within the time provided by Rule 4(b)(1)(A), that judgment became final. Thereafter,
Oliver pursued collateral review of the judgment under 28 U.S.C. § 2255. The district
court that adjudicated his habeas petition proceeded on the valid presumption that the
conviction was no longer appealable and concluded that his habeas claims were without
merit. See Oliver, 2014 WL 5506758, at *5; J.A. 9.
Having been unsuccessful in obtaining relief on collateral review, Oliver now asks
this Court to reopen his original conviction and conduct our own review. This we will not
do. Oliver’s appeal presents one of the rare situations we identified, supra at 14, in which
our interest in the efficiency and integrity of the criminal justice system outweighs our
interest in adhering to the principle of party presentation. Accordingly, we exercise our
authority to invoke Rule 4(b)(1)(A) sua sponte, and because there is no question that
Oliver’s appeal is untimely, we dismiss. imely pro se motion to vacate the conviction and sentence under 28 U.S.C. § 2255

Outcome: For the foregoing reasons, we dismiss Oliver’s appeal as untimely under Federal
Rule of Appellate Procedure 4(b)(1)(A).

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