United States v. Muhammed, No. 10-3138 (3d Cir. 2012)
Annotate this CaseMuhammud pleaded guilty to conspiracy to distribute controlled substances (21 U.S.C. 846); possession of a firearm in furtherance of drug trafficking (18 U.S.C. 924(c)); and possession of a firearm by a convicted felon (18 U.S.C. § 922(g)(1)) and waived his right to appeal or collaterally attack the conviction. He was sentenced to 90 months. He did not file a notice of appeal within 10 days of entry of the final judgment, as then required by Rule 4(b)(1)(A)(i), but about a year later filed a pro se motion under 28 U.S.C. 2255, asserting several bases of ineffective assistance of counsel. The district court enforced the waiver and dismissed the petition. Muhammud filed, pro se, a notice of appeal with respect to dismissal of the 2255 petition. The Third Circuit denied a certificate of appealability. More than two years after his sentencing, Muhammud filed a notice of appeal. The government, mistakenly believing that he was appealing denial of his 2255 petition, moved to enforce the waiver but failed to assert untimeliness of an appeal from conviction. The Third Circuit denied an appeal, holding that the government could initially raise untimeliness in its merits brief to the appeals court.
This opinion or order relates to an opinion or order originally issued on September 28, 2012.
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