Background
Khaled Waleed Khater appealed from a criminal case in the U.S. District Court for the Northern District of Texas. His appointed appellate attorney moved for leave to withdraw and filed a brief under Anders v. California and United States v. Flores, indicating that counsel found no nonfrivolous basis for the appeal.
Khater filed a response to counsel’s brief. The Fifth Circuit reviewed the brief, the relevant portions of the record identified in it, and Khater’s response.
The Court’s Holding
The Fifth Circuit dismissed the appeal as untimely. The court held that the dispositive circumstance was the government’s decision not to waive the appeal’s untimeliness.
The court granted appointed counsel’s motion to withdraw and excused counsel from further responsibilities in the appeal. The dismissal was without prejudice to any future motion Khater may file under 28 U.S.C. § 2255.
Key Takeaways
- An untimely criminal appeal is subject to dismissal when the government declines to waive the timeliness defect.
- The court granted withdrawal after reviewing counsel’s Anders brief, the identified portions of the record, and Khater’s response.
- The dismissal does not prevent Khater from later seeking collateral relief under 28 U.S.C. § 2255.
Why It Matters
The decision underscores that timeliness can dispose of a criminal appeal without review of potential merits issues when the government invokes the defect. It also distinguishes dismissal of the direct appeal from collateral review, expressly preserving Khater’s ability to pursue a future § 2255 motion.