Monday, February 05, 2018

Tardy motion to dismiss, in response to tardy pro se notice of appeal, granted

US v. Hyman:  In this appeal, the Fourth Circuit considered whether to grant the government’s motion to dismiss an appeal due to the appellant’s failure to meet the requirement for timely filing.  Hyman, the defendant, had been convicted of one count of crack distribution, and received a sentence of fifty-seven months’ imprisonment on July 27, 2016.  On November 22, 2016, Hyman filed a notice of appeal challenging his sentence.  The Fourth Circuit appointed counsel to Hyman, and he filed his opening brief and joint appendix in February 2017.  The government subsequently filed its motion to dismiss and suspend briefing.  Hyman responded that the Court should allow his appeal because the government unnecessarily delayed filing its motion to dismiss until after Hyman filed his opening brief.  The Fourth Circuit scheduled the motion to dismiss for oral argument.  After oral argument, the Fourth Circuit granted the government’s motion to dismiss.

Because, the Fourth Circuit states, we are required to strictly apply claim-processing rules if they are raised timely, and because the local rules permit a party to raise timeliness at any time, it granted the government’s motion.  To hold otherwise, it argued, would be to sanction the government for adhering to the Fourth Circuit’s rule.  It dismissed Hyman’s appeal.

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