Unreported / Non-Citable
Background
Khaled Waleed Khater appealed from a criminal case in the U.S. District Court for the Northern District of Texas. His appointed appellate counsel moved for leave to withdraw and filed a brief under Anders v. California and United States v. Flores, representing that the appeal presented no nonfrivolous issue.
Khater filed a response. The Fifth Circuit reviewed counsel’s 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 because the government declined to waive the timeliness defect. Relying on United States v. Pesina-Rodriguez, the court treated that circumstance as dispositive.
The court granted 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
- The government’s refusal to waive an untimely criminal appeal was dispositive.
- The court dismissed the appeal after reviewing the Anders brief, the relevant record, and Khater’s response.
- The dismissal does not preclude Khater from later seeking collateral relief under 28 U.S.C. § 2255.
Why It Matters
The decision underscores that an untimely notice of appeal can end a federal criminal appeal when the government invokes the defect rather than waiving it. An Anders filing does not overcome that threshold procedural bar.
At the same time, the court preserved Khater’s ability to pursue an appropriate collateral challenge under § 2255.