United States v. Adrian Hyman
884 F.3d 496
4th Cir.2018Background
- Hyman pleaded guilty to distribution of cocaine; judgment entered June 27, 2016, sentencing him to 57 months and three years supervised release.
- Hyman filed a pro se notice of appeal dated November 2, 2016 (postmarked Nov. 15) and filed his opening brief and joint appendix on February 13, 2017.
- The Government moved to dismiss the appeal for untimely filing under Fed. R. App. P. 4(b)(1)(A); the motion was filed after Hyman had already filed his opening brief but before the Government’s response brief.
- Hyman argued the Government’s delay in moving to dismiss (i.e., waiting until after the opening brief) forfeited its ability to raise the timeliness defect and thus cured his late notice.
- The Fourth Circuit applied its Local Rule 27(f), which permits motions to dismiss on procedural grounds “at any time,” and concluded the Government’s motion was timely and the appeal must be dismissed.
Issues
| Issue | Hyman's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether the Government forfeited the right to seek dismissal for untimely notice by waiting until after Hyman filed his opening brief | Government’s delay in moving to dismiss waived/forfeited the timeliness objection and should estop dismissal | Local Rule 27(f) allows motions to dismiss on procedural grounds “at any time”; Government raised the issue before its response brief | Motion to dismiss was timely; appeal dismissed |
| Whether Local Rule 27(f) allows a late-filed motion to dismiss despite Rule 4(b)’s mandatory timing | Equity/precedent from other circuits suggest early objection is required | Local Rule 27(f)’s plain language permits dismissal motions at any time; Fourth Circuit is bound by its local rule | Local Rule 27(f) governs here; its broad language forecloses Hyman’s equitable argument |
Key Cases Cited
- United States v. Urutyan, 564 F.3d 679 (4th Cir. 2009) (Rule 4(b) violation does not deprive court of jurisdiction)
- Eberhart v. United States, 546 U.S. 12 (U.S. 2005) (mandatory claim-processing rules can be forfeited if not timely raised)
- Kontrick v. Ryan, 540 U.S. 443 (U.S. 2004) (claim-processing rules may be forfeited by delay)
- United States v. Shank, 395 F.3d 466 (4th Cir. 2005) (apply plain language of local rules)
- Ga. Pac. Consumer Prods., LP v. Von Drehle Corp., 710 F.3d 527 (4th Cir. 2013) (discusses timing of raising procedural defenses)
- Peterson v. Air Line Pilots Ass’n, Int’l, 759 F.2d 1161 (4th Cir. 1985) (timely assertion of affirmative defenses)
- Ramos v. Ashcroft, 371 F.3d 948 (7th Cir. 2004) (Seventh Circuit practice regarding timeliness objections)
- Miss. River Transmission Corp. v. FERC, 969 F.2d 1215 (D.C. Cir. 1992) (D.C. Cir. timing rule for motions to dismiss)