CLD-005 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 11-3041

___________

UNITED STATES OF AMERICA

v.

AL HAYY HASAN

a/k/a HAYWOOD HINTON,

Appellant

____________________________________

Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Criminal No. 06-cr-174)

District Judge: Honorable Legrome D. Davis

____________________________________

Submitted for Possible Dismissal Due to a Jurisdictional Defect or for

Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6

October 6, 2011

Before: RENDELL, HARDIMAN and ROTH, Circuit Judges

(Opinion filed: March 13, 2012)

_________

OPINION OF THE COURT

_________

PER CURIAM

Al Hayy Hasan pleaded guilty in the United States District Court for the Eastern 

District of Pennsylvania to one count of aiding and abetting a bank fraud. He was 

sentenced to sixty months of imprisonment followed by five years of supervised release. 
2

We affirmed Hasan’s conviction but remanded for resentencing on a discrete issue. See

United States v. Hasan, 407 F. App’x 602, 603 (3d Cir. 2011). Thereafter, the District 

Court conducted a hearing and ultimately imposed a new sentence of fifty-seven months 

of imprisonment, again followed by five years of supervised release. The District Court’s 

amended criminal judgment was entered on June 15, 2011.1

Five days later, the District Court denied Hasan’s pro se motion for relief under 

Rule 12(b)(3) of the Federal Rules of Criminal Procedure.

2

 1 Hasan’s counseled appeal from that judgment was docketed at C.A. No. 11-2689.

2 Rule 12(b)(3) “states that, ‘at any time while the case is pending, the court may hear a 

claim that the indictment or information fails to invoke the court’s jurisdiction or to state 

an offense.’” United States v. Vitillo, 490 F.3d 314, 320 (3d Cir. 2007). Hasan’s motion 

was filed two months before the District Court entered its amended criminal judgment.

Hasan’s undated notice of 

appeal was received by the District Court thirty-five days after it entered its order on June 

20, 2011. This might have been late under the fourteen-day time period that governs 

criminal appeals, see Fed. R. App. P. 4(b)(1)(A)(i), but special rules govern the 

application of that time period. See Houston v. Lack, 487 U.S. 266, 276 (1988) (a pro se 

prisoner’s notice of appeal is deemed filed at the moment of delivery to prison authorities 

for forwarding to the district court); United States v. Grana, 864 F.2d 312, 316 (3d Cir. 

1989) (“in computing the timeliness of pro se prisoners’ appeals, any prison delay in 

transmitting to the prisoner notice of the district court’s final order or judgment shall be 

excluded from the computation of an appellant’s time for taking an appeal”). In this 

particular case, we need not turn to those special rules.
3

We recently held that “Rule 4(b) is not jurisdictional and is subject to forfeiture.” 

V.I. v. Martinez, 620 F.3d 321, 327 (3d Cir. 2010). As in Martinez, here the Government 

did not respond to the Clerk’s order permitting “written argument regarding jurisdiction.” 

(Order of the Clerk dated August 10, 2011). Nor did it invoke Rule 4(b) in a motion to 

dismiss. Accordingly, the Government has forfeited any available untimeliness 

argument. See Martinez, 620 F.3d at 329.

We therefore exercise jurisdiction under 28 U.S.C. § 1291.3

In Hasan’s Rule 12(b)(3) motion, he contended that “any [plea] agreement signed 

or verbally contracted which violates Federal Statutes is NULL AND VOID.” The 

motion also challenged the jurisdiction

 We will summarily 

affirm the District Court’s June 20, 2011 order because this appeal does not present a 

substantial question. Murray v. Bledsoe, 650 F.3d 246, --- (3d Cir. 2011) (per curiam).

4

 3 The denial of a Rule 12(b)(3) motion generally occurs pre-judgment and is considered a 

non-appealable interlocutory ruling. See United States v. Litman, 661 F.2d 17, 18 (3d 

Cir. 1981). Because Hasan’s Rule 12 motion was denied after the District Court’s entry 

of judgment, his appeal is not “interlocutory.” See Black’s Law Dictionary 113 (9th ed. 

2009) (defining the term “interlocutory appeal” as “[a]n appeal that occurs before the trial 

court’s final ruling on the entire case”) (emphasis added). Were we to characterize the 

District Court’s June 20, 2011 order as something other than a ‘final,’ appealable order, 

the decision would effectively evade appellate review.

of the District Court: “[Co-defendant] never 

signed a contract or any other piece of paper which would make a material false 

representation [in order to defraud a financial institution, in violation of 18 U.S.C. 

4

 We use the term ‘jurisdiction’ only to be consistent with prior descriptions of Hasan’s 

arguments. Cf. Vitillo, 490 F.3d at 320 (“We conclude that Vitillo’s challenge to the 
4

§ 1344]. She had no contract with the bank; hence no involvement with the FDIC, and 

no violation of Interstate Commerce, which is the basis of all Federal Jurisdiction.” 

The District Court noted both its rejection of identical arguments made by Hasan 

in February 2008, and that we likewise found Hasan’s arguments to be meritless on 

appeal. See Hasan, 407 F. App’x at 603. Accordingly, the District Court denied Hasan’s

motion as barred by ‘the law of the case doctrine.’ The District Court alternatively found 

Hasan’s arguments to be “equally meritless the second time around.”

The District Court appropriately invoked the law of the case doctrine in rejecting 

Hasan’s arguments in support of Rule 12(b)(3) relief, based on the fact that those 

arguments were previously rejected by the District Court and again by this Court on 

appeal. See Farina v. Nokia, Inc., 625 F.3d 97, 117 n.21 (3d Cir. 2010) (“The law of the 

case doctrine ‘posits that when a court decides upon a rule of law, that decision should 

continue to govern the same issues in subsequent stages in the same case’”) (citation 

omitted). While there exist exceptions to the doctrine, see Schneyder v. Smith, --- F.3d --

-, 2011 WL 3211504, *13 (3d Cir. July 29, 2011, No. 10-2367), none is remotely 

applicable to Hasan’s case. We also note that, the law of the case doctrine aside, Rule 

12(b)(3) is hardly the appropriate vehicle to challenge a guilty plea. See United States v. 

Bergrin, 650 F.3d 257, --- (3d Cir. 2011) (“Generally speaking, [Rule 12(b) triggers] a 

narrow limited analysis geared only towards ensuring that legally deficient charges do not 

 

indictment [under Rule 12(b)(3)] is more properly characterized as a ‘pleading’ challenge 

than one of ‘jurisdiction’”). 
5

go to a jury”). 

Accordingly, for the reasons given in this opinion, we will summarily affirm the 

June 20, 2011 order of the District Court.