United States v. Kirk Marsh

Citation: Not availableDocket: 18-4609

Court: Court of Appeals for the Fourth Circuit; December 8, 2019; Federal Appellate Court

Original Court Document: View Document

SummaryOriginalCytator Case TreatmentBackward CitatorAnalysis

EnglishEspañolSimplified EnglishEspañol Fácil

Kirk Russell Marsh was indicted on three charges: bank fraud, aggravated identity theft, and wire fraud, connected to his role as a loan officer at federally insured banks where he facilitated fraudulent loans. He entered a written plea agreement, pleading guilty to all counts, which included an appellate waiver, allowing him to appeal only on grounds of ineffective assistance of counsel. At sentencing on November 17, 2017, the district court imposed a total sentence of 78 months imprisonment and a three-year supervised release, but failed to inform Marsh of his right to appeal, violating Rule 32(j) of the Federal Rules of Criminal Procedure.

Marsh filed an appeal after the deadline set by Rule 4(b) of the Federal Rules of Appellate Procedure had expired. The government moved to dismiss the appeal as untimely. Marsh argued that the district court's failure to advise him of his appeal rights should excuse his late filing. The court ruled that the deadline in Rule 4(b) is mandatory and cannot be extended by equitable doctrines, thus affirming the dismissal of Marsh’s appeal. The court noted that while Rule 32(j) was not rendered ineffective, Marsh could address the district court's error through collateral proceedings.

After sentencing, the court is obligated to inform the defendant of their right to appeal, irrespective of the plea. In Marsh's case, judgment was entered on November 17, 2017, and he filed a pro se appeal 283 days later, on August 15, 2018, prompting the government to file a motion to dismiss the appeal as untimely. The court requested supplemental briefs to consider whether the district court's failure to comply with Rule 32(j) or principles of equitable tolling could excuse the delay. The government argued there was no Rule 32(j) violation because Marsh had waived his right to appeal in his plea agreement. However, the court found that Marsh’s plea agreement specifically preserved his right to appeal based on claims of ineffective assistance of counsel, which the district court was required to communicate per Rule 32(j)(1)(B). The Supreme Court has emphasized the necessity for district courts to adhere strictly to Rule 32, highlighting that even limited rights to appeal must be disclosed. Furthermore, even with an appeal waiver, a defendant retains the right to appeal on certain grounds, such as claims of exceeding statutory maximums or challenges to the validity of the waiver itself. Consequently, the district court's failure to inform Marsh of his appeal rights constituted a significant error that could not be overlooked, as it undermined the procedural protections intended by Rule 32.

The Court clarified that it is insufficient for a defendant to merely be informed of their right to appeal; such information must come directly from the court, as mandated by Rule 32(j). This requirement is essential because relying on defense counsel may not be effective due to potential communication issues after custody or strained attorney-client relationships. The Court emphasized that direct advisement from the district court alleviates a defendant's concerns about the implications of appealing on future interactions with the judge. 

In this case, the district court failed to inform Marsh of his right to appeal on certain grounds, thus not complying with Rule 32(j). The subsequent question addressed was whether this failure could excuse Marsh's late notice of appeal under Rule 4(b). The Court determined it could not, leading to the dismissal of Marsh’s appeal as untimely. Rule 4(b) stipulates a 14-day deadline for filing a notice of appeal after judgment, which can only be extended under specific conditions, none of which applied here since Marsh's notice was filed 283 days post-judgment. 

While Rule 4(b) is not jurisdictional, meaning it does not affect the Court's subject matter jurisdiction, it is classified as a nonjurisdictional claim-processing rule. The government raised the timeliness issue promptly, and Marsh did not dispute this. Importantly, the Court noted that even though Rule 4(b) is nonjurisdictional, late filings cannot be excused due to errors like those under Rule 32(j), as Rule 4(b) is considered a "mandatory" rule that must be strictly adhered to once raised by an opposing party. Consequently, equitable approaches, such as equitable tolling, do not apply to Rule 4(b)'s deadlines.

Marsh acknowledges that Rule 4(b) is a mandatory claim-processing rule but contends that the time limit may be excused due to an error under Rule 32(j) or equitable tolling, as he was not informed by the district court of his right to appeal. However, the court finds this argument unpersuasive. Citing the Supreme Court's decision in *Nutraceutical Corp. v. Lambert*, the court emphasizes that the 14-day appeal deadline for interlocutory appeals under Rule 23(f) is mandatory and not subject to equitable tolling. The Supreme Court's analysis focused on the rule's text, noting that a lack of flexibility within the rule indicates a mandatory nature. Specifically, Rule 26(b) allows extensions for filing deadlines but explicitly excludes certain deadlines, including notices of appeal under Rule 4. This creates a clear intent for strict enforcement of these deadlines. The court reiterates that it has previously recognized Rule 4(b) as a mandatory claim-processing rule and underscores that Rule 4's appeal filing deadline mirrors the same mandatory treatment as outlined in *Lambert*. Ultimately, the maximum period to file a criminal appeal under Rule 4(b) is 44 days post-judgment, reinforcing that equitable tolling is not permissible for late filings.

The document emphasizes the strict adherence to appellate rules regarding the timeliness of filing a notice of appeal. Rule 3 mandates that appeals must be initiated by filing a notice within the timeline specified in Rule 4. Although Rule 2 allows for the suspension of procedural rules for good cause, this is subject to the limitations outlined in Rule 26(b), which explicitly prohibits extensions for the notice of appeal deadline unless authorized by Rule 4. This interpretation aligns with previous case law, including Lambert and Robinson, which establish that untimely notices, whether in civil or criminal contexts, cannot be excused or extended by equitable tolling principles.

Marsh's late filing cannot be justified through equitable doctrines, even in light of the serious implications of a criminal appeal. Marsh attempts to invoke a "unique circumstances" exception, arguing that the district court's failure to inform him of his right to appeal constitutes such an exception. However, the court rejects this claim, clarifying that the unique circumstances doctrine is narrowly defined and requires a specific erroneous assurance from the district court, which was not present in Marsh's case. The district court's omission did violate Rule 32, but this does not meet the criteria for the unique circumstances exception that would allow for an extension of the appeal filing deadline.

The unique circumstances exception to the timely filing requirement has been narrowly interpreted, as demonstrated in cases like Alston v. MCI Commc’ns Corp. and Panhorst v. United States, where courts rejected claims of untimeliness due to a lack of specific assurances from the district court. The Supreme Court's application of this exception, established in the 1960s in Harris Truck Lines and Thompson v. INS, excused late filings only when litigants relied on explicit judicial assurances regarding deadlines. However, the Supreme Court later overruled aspects of these decisions in Bowles v. Russell, clarifying that the unique circumstances exception cannot override jurisdictional rules. While the Court has left open the possibility for its application to nonjurisdictional rules, it has described the exception in very limited terms, requiring concrete assurances from a judge that would justify a delay in filing. In the present case, although the district court erred regarding Rule 32(j) and failed to inform the appellant, Marsh, of his appellate rights, there was no misleading information or assurance provided that would justify applying the unique circumstances exception to extend the appeal deadline.

The unique circumstances doctrine does not apply to Marsh's untimely appeal as it requires a party to take a step that the district court incorrectly endorses, a situation that does not exist here. Marsh claimed he was misled by the district court’s statement during the plea colloquy regarding his waiver of appeal rights. However, the court's warning was appropriate to emphasize the seriousness of the waiver, without error regarding the timeliness of any appeal. At sentencing, the court was obligated to clarify remaining appeal rights, but this did not extend to the plea colloquy where the focus was on the broader implications of the waiver. Marsh argues that without a mechanism to excuse his late appeal, the requirements of Rule 32(j) become meaningless, creating a paradox where a failure to advise leads to dismissal rather than a remedy for the violation. However, the Supreme Court has established that a Rule 32(j) violation can be remedied through collateral review, as seen in Peguero v. United States, where the failure to advise did not prejudice the petitioner who had knowledge of his appeal rights. If a defendant lacks such knowledge, the government bears the burden to prove harmlessness in any subsequent 2255 motion, as articulated in Soto v. United States.

Loss of the right to appeal constitutes the necessary prejudice for obtaining collateral relief, as established by case law. A petitioner does not need to demonstrate meritorious grounds for an appeal under Peguero; instead, a district court's failure to inform a defendant of their right to appeal, coupled with the defendant’s lack of knowledge and failure to exercise this right, leads to the loss of an important federal right warranting collateral relief. This principle aligns with previous rulings regarding ineffective assistance claims where the failure to file an appeal at a defendant’s request results in established prejudice. The case highlights that errors related to Rule 32(j) have historically led to vacated convictions in collateral proceedings due to the failure to advise defendants of their right to appeal. Although Marsh's notice of direct appeal was untimely, if he seeks habeas relief citing the district court’s Rule 32(j) error, he could obtain relief if the government cannot prove he had prior knowledge of his limited right to appeal his sentence. The suggestion that a failure to object to a Rule 32(j) error could bar collateral relief contradicts Peguero's precedent. The adjudication of a 2255 petition is deemed the most appropriate forum for determining the facts surrounding a petitioner’s knowledge of their appeal rights. Consequently, Marsh's appeal is dismissed as untimely. Chief Judge Gregory concurs in part and dissents in part, emphasizing that the district court violated two rules: the obligation to inform the defendant of their right to appeal and the requirement for timely filing a notice of appeal. He argues that the majority's decision enforces a procedural deadline despite the trial court's role in causing the delay, which conflicts with the acknowledgment of the importance of Criminal Rule 32(j).

The dissenting opinion emphasizes the intent of procedural rules, asserting that they should not favor judges over vulnerable defendants. The author agrees with the majority on several points: the Government's claim of no error under Criminal Rule 32(j) is incorrect, both parties recognize Appellate Rule 4(b) as a non-jurisdictional claim-processing rule, and both rules contain exceptions. The dissent diverges on the interpretation of these rules' interplay, particularly regarding the ability to seek remedies for violations of Criminal Rule 32(j) on direct appeal. The majority concludes that Marsh's untimely filing cannot be excused due to the district court's error, as Appellate Rule 4(b) must be strictly enforced. The dissent argues that procedural rules are not jurisdictional and can be relaxed at the court's discretion to serve justice. The author contends that the record does not sufficiently support the majority's refusal to apply equitable doctrines, which could unjustly penalize the defendant for the judge's mistake. The dissent calls for remanding the case for an evidentiary hearing to explore whether equitable doctrines should apply. Additionally, the dissent reiterates that time limits under Appellate Rule 4(b) are subject to equitable exceptions, contrasting them with rigid jurisdictional rules.

Nonjurisdictional rules, including claim-processing rules, are generally presumed to be subject to equitable tolling. The distinction between jurisdictional and nonjurisdictional rules is significant; while Congress defines the jurisdictional limits of federal courts, it can also set the conditions for hearing cases. Courts cannot alter jurisdictional time limits set by Congress, as this is a legislative prerogative. In contrast, nonjurisdictional rules, such as those concerning appellate procedures, are designed to facilitate court operations rather than limit authority. 

Specifically, Appellate Rule 4(b) is classified as a nonjurisdictional, mandatory claim-processing rule, which the majority argues cannot be subject to equitable tolling if properly raised by the government. However, this reasoning is questioned, particularly regarding the implications for defendants unaware of their right to appeal due to a lack of information. The categorization of a rule as "mandatory" does not inherently preclude equitable exceptions, and historical interpretations by the Supreme Court indicate that mandatory rules can still allow for equitable considerations. The discussion emphasizes that the question of whether equitable grounds could soften strict limitations of such rules remains unresolved.

Mandatory claim-processing rules are enforceable if properly invoked but can be waived or forfeited. Courts may still hear cases despite nonjurisdictional deadlines, even if these deadlines are critical or framed in mandatory terms. However, equitable tolling is discretionary and depends on the specific facts of each case, as it lacks rigid rules. Courts must consider the circumstances when deciding to toll deadlines, and such tolling is warranted only in rare situations where enforcing the deadline would lead to gross injustice due to external factors.

The reliance on Nutraceutical Corp. v. Lambert is deemed misplaced, as that case indicated that the deadline for filing an interlocutory appeal under Civil Rule 23(f) was not subject to equitable tolling. The Lambert decision emphasized that mandatory claim-processing rules should be strictly enforced, but it did not imply that these rules override all other requirements of the Federal Rules. Notably, Criminal Rule 32(j) should be considered, as it mandates that a court inform a defendant of their right to appeal after sentencing. The analysis suggests that Criminal Rule 32(j) presents a competing mandatory rule, and the absence of compliance with this rule does not inherently preclude tolling. Thus, the case should be remanded to assess if the circumstances justify equitable tolling.

Federal Rule of Criminal Procedure 2 emphasizes the importance of just determinations, simplicity, and fairness in criminal proceedings, suggesting an equitable approach. The Supreme Court has historically maintained that procedural rules are not jurisdictional and can be relaxed at the Court's discretion to serve justice. However, there is a contention that the Rules indicate a strict enforcement of Appellate Rule 4(b) when Criminal Rule 32(j) is violated, despite the absence of language mandating such a harsh interpretation.

Significant distinctions exist between Appellate Rule 4(b) and Civil Rule 23(f), particularly in their treatment of notices of appeal versus petitions for permission to appeal. Appellate Rule 26(b) allows for extensions of time for notices of appeal but prohibits extensions for petitions, highlighting the different tones and emphatic nature of the rules. The express exceptions in Appellate Rule 26(b) contrast with the rigid treatment of Civil Rule 23(f), which lacks such allowances.

Additionally, Appellate Rule 2 permits courts to suspend rules for "good cause," although no clear standard for good cause is established. A judicial violation causing a defendant to lose a statutory right may warrant suspension of a rule more compellingly than the lenient good cause standard. This suggests that while rigorous enforcement of mandatory claim-processing rules may be appropriate under typical circumstances, exceptions should exist for rare cases where enforcing limitations would result in significant injustice.

Appellate Rule 26(b) defers to Appellate Rule 4 regarding notices of appeal, indicating that Rule 4 is the primary governing rule due to its flexibility compared to Rule 26. The advisory committee's notes for Rule 4 emphasize the concept of "toll" significantly, suggesting a more lenient approach to its enforcement. In contrast, the absence of such terminology in the advisory notes for Civil Rule 23 implies stricter enforcement due to the rule’s purpose of ensuring timely interlocutory appeals, which are exceptions to the final judgment rule. Interlocutory appeals differ from final judgment appeals, as the latter grants a direct right to appeal, while the former allows for additional opportunities to appeal later. Thus, the limitations on interlocutory appeals are intentionally stringent. The case of Lambert does not negate the possibility of equitable tolling for criminal appeals, particularly if a judge's actions contributed to missing a deadline. The majority's dismissal of Marsh's argument regarding "unique circumstances" diverges from the Supreme Court's recognition that certain exceptions to claim-processing rules may apply, particularly when misleading actions by a district court are involved.

A "unique circumstances" exception exists for cases where a trial judge misleads a party, potentially preventing timely action. However, in this instance, the petitioner’s delay was not due to any district court mistake, thus the exception was not applicable. The Supreme Court has not clearly defined this exception, but appellate courts have broadly interpreted it. Cases such as Hollins and Sidebottom illustrate its application when a party was misled by court representations. The rationale behind the doctrine is rooted in fairness, preventing dismissal when a court contributes to a party's failure to appeal. The exception is akin to estoppel, suggesting a court should not penalize a party for procedural disruptions caused by its own actions. The record indicates a potential basis for applying this exception if the district court was indeed responsible for Marsh’s failure to file a timely appeal notice. Marsh's plea agreement included a waiver of the right to appeal, which was confirmed during the Rule 11 plea colloquy where he acknowledged understanding and agreeing to the waiver of appeal rights.

The district court informed Marsh that it was not constrained by the Sentencing Guidelines or government recommendations, potentially leading Marsh to perceive that he was subject to arbitrary sentencing without recourse. This situation highlights the importance of Criminal Rule 32(j), which allows a defendant to appeal a sentence believed to be unlawful. Marsh contends that he did not file a timely appeal due to the court's failure to communicate this right. The majority opinion disagrees, asserting that the doctrine regarding misleading information applies only when a judge explicitly misstates the appeal timeline, not when a judge simply fails to mention the right to appeal. Furthermore, the majority does not find the district court's statements during the plea colloquy misleading, arguing that providing too much information at that stage could confuse defendants. The dissent critiques this view, arguing that neglecting to inform a defendant of their appellate rights constitutes a significant error. It suggests that the unique circumstances doctrine should apply when a court's misleading actions lead to a defendant's failure to appeal. The dissent also expresses confusion regarding how the majority would handle cases where a judge incorrectly states that a defendant has no right to appeal.

A statement regarding the timeliness of a potential appeal is not central to the unique circumstances doctrine, leading the majority to likely view this case as outside that doctrine's applicability. It is suggested that the case should be remanded to assess whether the unique circumstances doctrine is relevant. The majority acknowledges a long-standing practice of addressing errors under Criminal Rule 32(j), emphasizing the trial judge's duty to inform defendants of their right to appeal. Numerous appellate decisions over decades highlight the necessity for strict adherence to Rule 32 requirements, with violations warranting remand for resentencing and reinstatement of appeal rights. The initiation of appeal deadlines is contingent upon defendants being duly notified of their rights.

The discussion points to a significant inquiry regarding whether collateral relief is the sole means for addressing Criminal Rule 32(j) errors, as opposed to direct appeal. The distinction is drawn between earlier cases where notice of appeal deadlines were treated as jurisdictional versus more recent interpretations that suggest flexibility in procedural rules. Appellate Rule 4(b) is recognized as a procedural guideline, and the court has the authority to grant relief as sought by Marsh, with the implication that failure to comply with mandatory rules should not limit access to relief mechanisms, including direct appeal.

Petitioners seeking collateral relief face a significantly higher burden than those pursuing direct appeals, as established in United States v. Frady. The principle that individuals whose right to appeal has been violated should not encounter additional hurdles is reiterated, emphasizing the need for equitable treatment among appellants. Collateral challenges should not replace traditional appeals, especially when limiting relief to habeas petitions places undue burdens on defendants due to judicial errors. Moreover, petitioners often navigate these challenges without legal counsel, as the right to appointed counsel only extends to the first appeal of right. The Constitution does not mandate counsel for defendants contesting judgments under 28 U.S.C. § 2255. The dissenting opinion argues against the majority's stance that redress is limited solely to habeas petitions, advocating for the necessity to address the violation directly.