NOT PRECEDENTIAL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. 
2

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.
3

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 
4

the appellate waiver and for summary affirmance,2and 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 
5

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).