UNITED STATES of America, Plaintiff-Appellee, v. Roland Lorenzo MITCHELL, Defendant-Appellant.
No. 05-2052.
United States Court of Appeals, Tenth Circuit.
Feb. 29, 2008.
If the agency determines Al-Mousa was a minor at the time of his application, this disability may provide an exception, also forgiving failure to exhaust his claim. Accordingly, we further direct the BIA to address on remand the question whether, if a petitioner under age twenty-one is viewed as a minor, petitioner‘s status as a minor may also forgive his or her failure to exhaust a claim.
We decline to address at this time the propriety of the adverse credibility finding.
REMANDED.
RAWLINSON, Circuit Judge, dissenting:
I respectfully dissent from the majority‘s remand of this case to the Board of Immigration Appeals “to consider whether, as a matter of law, individuals under twenty-one years of age are minors under
The reason for my dissent is simple. We have no jurisdiction to address the issue of whether individuals under the age of twenty-one are minors because that issue was not exhausted by Petitioner Khalid Al-Mousa. See Zhang v. Ashcroft, 388 F.3d 713, 721 (9th Cir.2004) (“The petitioner‘s failure to raise an issue to the BIA constitutes a failure to exhaust, depriving this Court of jurisdiction.“) (citation omitted). Although the majority disposition acknowledges the exhaustion requirement and the fact that the issue was not raised “in the asylum application itself, before the IJ, or in his pro se BIA appeal,” the disposition seeks to skirt the exhaustion requirement by rationalizing that “if the agency determines Al-Mousa was a minor at the time of his application, this disability may provide an exception, also forgiving failure to exhaust his claim.” Absolutely no supporting authority is cited to bolster this novel attempt to bootstrap us into jurisdiction over an unexhausted issue.
Because we have no jurisdiction over the issue of Al-Mousa‘s purported minority, I would deny the petition because the Immigration Judge‘s adverse credibility determination was supported by substantial evidence.
Larry Gomez, Acting United States Attorney, and Terri J. Abernathy, Assistant United States Attorney, Las Cruces, NM, on the brief for Plaintiff-Appellee.
Before LUCERO, EBEL, and MURPHY, Circuit Judges.
OPINION ON REMAND
MURPHY, Circuit Judge.
I. Introduction1
Roland Lorenzo Mitchell filed an untimely notice of appeal of his conviction for possession of marijuana with intent to distribute. This court dismissed his appeal, sua sponte, for lack of jurisdiction because Mitchell failed to comply with the time limitations of
II. Background
Mitchell, a long haul truck driver, was arrested at the Eastbound Motor Trans-
The officers requested that Mitchell open the trailer to confirm it was empty. The opened door revealed five boxes, which Mitchell claimed contained “parts.” The officer asked Mitchell to open the boxes to verify the contents. Mitchell replied he was not sure that was a good idea. The officer asked again and Mitchell consented. The boxes contained marijuana.
Mitchell was charged with possession of more than 100 kilograms of marijuana with intent to distribute in violation of
Although judgment was entered in Mitchell‘s case on February 9, 2005, a notice of appeal was not filed until February 25, 2005, one day outside the ten-day period allowed under
This panel issued an opinion in Mitchell‘s case in September of 2006 holding as a matter of law that Mitchell‘s untimely notice of appeal was not the result of excusable neglect and dismissing the appeal for lack of jurisdiction. Mitchell, 464 F.3d at 1149. As noted above, this matter is now before us on remand from the Supreme Court for reconsideration in light of Bowles v. Russell, 127 S.Ct. at 2360. Mitchell, 127 S.Ct. at 2973.
III. Effect of an Untimely Notice of Appeal
The time bar of the Federal Rules of Appellate Procedure for the filing of a notice of appeal in a criminal case was long
Nevertheless, the time bar in
We begin this analysis by noting that this area of the law has been in flux since Kontrick v. Ryan, 540 U.S. 443, 124 S.Ct. 906, 157 L.Ed.2d 867 (2004), and Eberhart v. United States, 546 U.S. at 12, first indicated the time limitations in the federal rules may not be jurisdictional under some circumstances. As a result, there is limited case law indicating how the courts should enforce those rules which are no longer jurisdictional. The question of whether a court may sua sponte raise timeliness under
Kontrick and Eberhart do not specifically speak to the issue of whether a court may sua sponte raise timeliness under non-jurisdictional federal rules. They generally indicate, however, that claim-processing rules must be raised by the parties. In Kontrick, which involved the time constraints of
In Eberhart, the Court expanded on its holding in Kontrick by ruling that
Both Kontrick and Eberhart, however, can be distinguished from the case before this court. Most notably, Kontrick and Eberhart involved rules that apply at the trial level where
The government relies on Day v. McDonough, 547 U.S. 198, 126 S.Ct. 1675, 164 L.Ed.2d 376 (2006), as support for its argument that despite Kontrick and Eber-
In reaching its holding, the Court explained why the usual practice of requiring the parties to plead all affirmative defenses did not apply under these circumstances. First, the Court drew parallels between AEDPA‘s time bar and other affirmative defenses unique to the habeas context such as exhaustion of state remedies, procedural default, and non-retroactivity, all of which may be raised by a court sua sponte under current precedent.8 Second, the Court recognized that “the considerations of comity, finality, and the expeditious handling of habeas proceedings that motivated AEDPA ... counsel against an excessively rigid or formal approach to the affirmative defenses.” Id. at 208 (footnote omitted). Third, the Court noted that consistent with the Rules of Civil Procedure and the statutes governing habeas petitions, the district court could have brought the matter of the limitations period to the attention of the state and entertained an amendment to the state‘s answer. Id. at 209. In light of this extant procedural avenue, the Court concluded it would elevate form over substance if it were to disallow district courts to raise the limitations issue sua sponte. Id.
At the core of the Court‘s opinion in Day is the notion that habeas proceedings are different from ordinary civil litigation and, as a result, our usual presumptions about the adversarial process may be set aside. See 547 U.S. at 202. The rationales offered by the Court in Day are therefore not necessarily applicable to the case before this court.
Thus, the rule set out in Day is tied to the unique balancing that must take place because of the existence of the writ of habeas corpus and the federalism inherent in our constitutional system. While
B.
No circuit court has directly addressed whether it is appropriate to sua sponte enforce the time limitations of
In cases where the power of the court to sua sponte enforce a claim-processing rule has been addressed, the results are mixed and do not necessarily apply to the case here. Some courts have interpreted Kontrick and Eberhart as permitting a district court to sua sponte raise a claim-processing rule, but these cases are not instructive because they contain no analysis of the issue and because the procedural posture is sufficiently different from the case before us.10 United States v. Leijano-Cruz, 473 F.3d 571, 572-73 (5th Cir.2006); United States v. Bryant, 186 Fed.Appx. 298, 299 (3rd Cir.2006) (unpublished); United States v. Fields, 194 Fed.Appx. 825, 826 (11th Cir.2006) (unpublished).
One court of appeals has indicated that it does not have the power to sua sponte enforce a claim-processing rule. Wilburn v. Robinson, 480 F.3d 1140, 1148 n. 12 (D.C.Cir.2007).11 The Wilburn court did not explain the basis for its conclusion, however, beyond rejecting the applicability of Day. Id. Furthermore, the holding was not unequivocal because the court also noted that even if Day did permit it to sua sponte enforce the time bar, it would not choose to do so. Id. Thus, there is almost no guidance on or analysis of the issue before us today from the circuit courts.
C.
Although there is limited authority discussing sua sponte application of the time bars in claim-processing rules, these time bars can be analogized to traditional affirmative defenses. Kontrick indicates such a time bar may be akin to an affirmative defense and therefore must be pleaded by the party benefitting from its application. 540 U.S. at 458-59, 124 S.Ct. 906 (analogizing the time bar in
In general, a statute of limitations may not be raised sua sponte and all circuits to consider this issue have held so explicitly. Eriline Co. S.A., 440 F.3d at 653-54; Haskell v. Wash. Twp., 864 F.2d 1266, 1273 (6th Cir.1988); Davis v. Bryan, 810 F.2d 42, 45 (2d Cir.1987); Wagner v. Fawcett Publ‘ns, 307 F.2d 409, 412 (7th Cir.1962). Statutes of limitations have traditionally been construed as benefitting the litigants, not the court. For example, “[s]tatutes of limitations are primarily designed to assure fairness to defendants.” Turgeau v. Admin. Review Bd., 446 F.3d 1052, 1058 (10th Cir.2006) (quoting Burnett v. N.Y. Cent. R.R. Co., 380 U.S. 424, 428, 85 S.Ct. 1050, 13 L.Ed.2d 941 (1965)). Statutes of limitations “promote justice by preventing surprises through the revival of claims that have been allowed to slumber until evidence has been lost, memories have faded, and witnesses have disappeared.” Id. (quoting Am. Pipe & Const. Co. v. Utah, 414 U.S. 538, 554, 94 S.Ct. 756, 38 L.Ed.2d 713 (1974)).
Although affirmative defenses must usually be pleaded by the party in the first responsive pleading, the Supreme Court has fashioned some exceptions to this general rule. Specifically, the Court has indicated it may be appropriate for a court to raise a preclusion defense sua sponte when “special circumstances” exist. Arizona v. California, 530 U.S. 392, 412, 120 S.Ct. 2304, 147 L.Ed.2d 374 (2000). Res judicata is an affirmative defense which must usually be pleaded by the parties pursuant to
The Court declined to find special circumstances in that case and thereby significantly narrowed the field of what might constitute “special circumstances.” Id. The State parties in Arizona argued the allegedly precluded issue could have been presented in an earlier proceeding, but deliberately was not. Id. at 407-08, 120 S.Ct. 2304. Thus, there was no contention a court had previously decided the issue presented. Id. at 412, 120 S.Ct. 2304. The Court explained “[w]here no judicial resources have been spent on the resolution of a question, trial courts must be cautious about raising a preclusion bar sua sponte, thereby eroding the principle of party presentation so basic to our system of adjudication.” Id. at 412-13, 120 S.Ct. 2304.
Similarly, in Link v. Wabash R.R. Co., 370 U.S. 626, 630-31, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962), the Supreme Court upheld a district court‘s sua sponte dismissal for failure to prosecute. 370 U.S. 626, 630-31, 82 S.Ct. 1386. The Court, noting that courts have always had the power to dismiss for failure to prosecute, explained “[t]he power to invoke this sanction is necessary in order to prevent undue delays in the disposition of pending cases and to avoid congestion in the calendars of the District Courts.” Id. at 629-30, 82 S.Ct. 1386. This authority is an inherent power “governed not by rule or statute but by the control necessarily vested in courts to manage their own affairs so as to achieve the orderly and expeditious disposition of cases.” Id. at 630-31, 82 S.Ct. 1386.
D.
Ours is an adversarial system of justice. The presumption, therefore, is to hold the parties responsible for raising their own defenses. See Eriline Co. S.A., 440 F.3d at 654. A narrow exception may exist, however, when the issue implicates the court‘s power to protect its own important institutional interests. See Arizona, 530 U.S. at 412; Link, 370 U.S. at 629-31. This principle was at work in Day where the court looked to the important values the habeas scheme was designed to protect and determined they went beyond the interests of the parties. 547 U.S. at 205, 126 S.Ct. 1675. It also underlies Kontrick where, in an initial step in its analysis, the Court examined the purposes of the Bankruptcy Rule at issue and determined the rule functioned as an affirmative defense for the debtor.12 540 U.S. at 456, 124 S.Ct. 906. Together, these cases suggest that when a rule implicates judicial interests beyond those of the parties, it may be appropriate for a court to invoke the rule sua sponte in order to protect those interests. See Arizona, 530 U.S. at 412; Link, 370 U.S. at 629-31.
This court, therefore, should look to the purposes of
Because
IV. Constitutionality of the Search of Mitchell‘s Vehicle
“When reviewing an order granting a motion to suppress, we accept the trial court‘s factual findings unless clearly erroneous, and we view the evidence in the light most favorable to the district court‘s finding.” United States v. Little, 60 F.3d 708, 712 (10th Cir.1995) (quotations omitted). The issue of Fourth Amendment reasonableness, however, is reviewed de novo. Id.
Mitchell argues his arrest was in violation of the Fourth Amendment because, after the initial inspection, the officers had no reasonable suspicion Mitchell had committed an offense. In particular, Mitchell contends the inspection of the inside of the trailer was unlawful because
This court has previously held the commercial trucking industry is a closely regulated industry. United States v. Vasquez-Castillo, 258 F.3d 1207, 1210 (10th Cir.2001). As a result, whether New Mexico‘s regulatory scheme is a sufficient substitute for a warrant is determined by the three-part test articulated in New York v. Burger, 482 U.S. 691, 702, 107 S.Ct. 2636, 96 L.Ed.2d 601 (1987). Under Burger, a warrantless inspection made pursuant to a regulatory scheme governing a pervasively regulated business is reasonable if it meets three criteria. Id. at 702. First, the regulatory scheme must be informed by a substantial government interest. Id. Second, warrantless inspections must be necessary to further the regulatory scheme. Id. at 702-03. Third, the inspection program must provide a constitutionally adequate substitute for a warrant in terms of the certainty and regularity of its application. Id. at 703.
Mitchell acknowledges this court has previously considered the constitutionality of the New Mexico regulatory scheme governing commercial carriers and held the statute was constitutional. Vasquez-Castillo, 258 F.3d at 1211-12; see also United States v. Gwathney, 465 F.3d 1133, 1139-40 (10th Cir.2006). He contends, however, that Vasquez-Castillo is distinguishable on its facts and therefore should not be applied here. Mitchell‘s contention is incorrect as a matter of law. Vasquez-Castillo analyzed the constitutionality of New Mexico‘s regulatory scheme using the three-prong test laid out in Burger and held that the scheme satisfied all three prongs. 258 F.3d at 1211-12. As this court has noted, “the Burger criteria are applied generally to a statutory scheme, not to a given set of facts arising under that scheme.” Gwathney, 465 F.3d at 1140. Under the established precedent of this circuit, the New Mexico statutory scheme meets the requirements of the
Mitchell also argues the officer‘s order to unlock the trailer exceeded the scope of the permissible
There is no meaningful distinction under this statutory scheme between inspection of the contents of a vehicle and inspection of a vehicle to confirm there are no contents. If an operator could escape inspection by giving a verbal statement that the trailer was empty, New Mexico‘s ability to conduct meaningful inspections would be seriously compromised. This is particularly true where, as here, the officer has reason to believe the operator has not provided accurate information. New Mexico‘s statutory scheme contemplates the inspection of trailers to confirm compliance with New Mexico‘s laws and this authorization extends to inspections to confirm an operator‘s assertion that he or she carries no cargo.
Because we hold that the officer‘s inspection of the inside of the trailer did not violate the Fourth Amendment, Mitchell‘s argument that his consent to examine the contents of the boxes was tainted fails. The district court found, and Mitchell does not directly contest, that he consented to the search of the boxes. Absent any Fourth Amendment violation, this consent was valid and justified a warrantless search. United States v. Jackson, 381 F.3d 984, 988 (10th Cir.2004).
V. Conclusion
The judgment of the district court is AFFIRMED.
LUCERO, Circuit Judge, dissenting.
To the extent my respected colleagues recognize that we have discretion to dismiss, sua sponte, an appeal as untimely under
I
Given that we have discretion to dismiss an untimely appeal, we need only determine precisely how we should exercise that discretion. According to the majority, we should sua sponte dismiss an admittedly untimely appeal only in “limited” circumstances, never invoking the power unless: (1) the delay in filing the appeal has been “inordinate,” and (2) concerns of “judicial resources and administration” are implicated. Maj. Op. at 750-51. In most cases—including the one at bar—the majority would rely on the appellee to raise the timeliness issue, and if forfeited by that party, would address the merits of the appeal. See id. at 749-51. This places an appellee‘s forbearance in control of our docket, and both principle and pragmatism counsel against any such rule.
As a matter of principle, the rules governing timely filing of notices of appeal are of sufficient importance that this court should take notice of their violation. As the majority recognizes,
Relatedly, the majority‘s decision to reach the merits of Mitchell‘s appeal can only have the effect of allowing future parties also to file untimely notices of appeal. As I see it, we should require dili-
come before the court. In light of our adversarial system of justice, appellees will likely invoke Rule 4(b)‘s time limitations to bar an untimely appeal in the vast majority of cases. See Eberhart, 546 U.S. at 18 (recognizing that “the Government is unlikely to miss timeliness defects very often“). When they do so, we have an obligation to dismiss the appeal. Id. at 19; United States v. Garduño, 506 F.3d 1287, 1290-91 (10th Cir.2007).
As a matter of practicality, I am concerned with the ambiguity inherent in the majority‘s two-factor test for determining when we should exercise our discretion, as well as that test‘s bias in favor of hearing untimely appeals. With respect to the first factor, the majority offers no definition for what exactly constitutes an “inordinate” delay in the filing of a notice of appeal. We know from this case that one day is not inordinate, but what about ten days? Or thirty days? Or even one hundred days? Clearly the question is one of reasonable debate that will have to be addressed in each individual case. But absent any concrete definition, future parties (and future panels of this court) will be uncertain as to whether the failure to timely file a notice of appeal will ultimately result in dismissal, at least where an appellee has forfeited its timeliness objection.
The second factor, whether concerns of judicial resources and administration are implicated, raises a separate, yet equally relevant concern. See Maj. Op at 750-51. Under the majority‘s definition, a waste of resources might occur when we are called upon to decide an issue that we have previously adjudicated in the same case. See Maj. Op. at 750-51 (citing Arizona v. California, 530 U.S. 392, 412-413, 120 S.Ct. 2304, 147 L.Ed.2d 374 (2000) (recognizing that sua sponte dismissal of an argument might be appropriate when a court is faced with “the prospect of redoing a matter once decided“)). According to this theory, before we can decide whether it is appropriate to sua sponte dismiss an appeal as untimely, we must first take a peek at the merits of the case and entertain arguments from the parties as to whether, in fact, we have already addressed the issues presented. But that strikes me as only adding an extra layer of legal inquiry—and a potentially messy one—to what should be a fundamentally straightforward question: Was the notice of appeal timely or not? Moreover, in the context of direct criminal appeals, the only cases to which
II
In contrast to the majority, I would dismiss almost all untimely appeals, regardless of whether an appellee forfeits its objection by not properly raising it. Unless an appellant comes forward with extraordinary circumstances to justify the failure to file a timely notice of appeal in a criminal case, the court should exercise its discretion to enforce the plain terms of
Cezer MORRIS, individually, and on behalf of all others similarly situated, Plaintiff-Appellant, v. TRAVELERS INDEMNITY COMPANY OF AMERICA, a Connecticut corporation, Defendant-Appellee.
No. 06-1331.
United States Court of Appeals, Tenth Circuit.
Feb. 29, 2008.
III
Because this case does not present extraordinary circumstances warranting an exception to
Notes
Upon a finding of excusable neglect or good cause, the district court may—before or after the time has expired, with or without motion and notice—extend the time to file a notice of appeal for a period not to exceed 30 days from the expiration of the time otherwise prescribed by this Rule 4(b).
Federal habeas corpus principles must inform and shape the historic and still vital relation of mutual respect and common purpose existing between the States and the federal courts. In keeping this delicate balance we have been careful to limit the scope of federal intrusion into state criminal adjudications and to safeguard the States’ interest in the integrity of their criminal and collateral proceedings.