Sua sponte application of FRAP Rule 4(b) is inappropriate where there is no waste of judicial resources and no inordinate delay

APPEAL United States v. Mitchell, No. 05-2052, _ F.3d _ (10th Cir. Feb. 29, 2008)(New Mexico). Opinion on remand from Supreme Court in appeal of conviction for possession of more than 100 kilograms of marijuana with intent to distribute in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B). HELD: (1) While Rule 4(b) of Federal Rules of Appellate Procedure, which requires filing notice of appeal within ten days of judgment, is similar to a statute of limitations, the time bar imposed by the rule is not necessarily for exclusive benefit of litigants as are statutes of limitation. Rule 4(b) differs from other time bars such as statutes of limitation in that it plays important role in ensuring finality of criminal conviction and finality serves interests of judicial administration and society. Because Rule 4(b) implicates important judicial interests beyond those of the parties, court of appeals may raise its time bar sua sponte. This power, however, is limited and should not be invoked when judicial resources and administration are not implicated and the delay has not been inordinate. (2) Defendant’s notice of appeal was one day late. The violation of Rule 4(b), however, did not cause any waste of judicial resources, nor did it constitute an inordinate delay in appellate claim processing. Therefore, raising the rule’s time bar sua sponte would be inappropriate. Read the opinion here.