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Motion to Vacate Filed One Day Late, Appeal Denied

By George Khoury, Esq. on April 12, 2018 | Last updated on March 21, 2019

The First Circuit Court of Appeals clearly cares about deadlines. Just ask Samuel Dixon, who just lost his sentencing appeal because his motion was filed one day too late.

In Dixon's recent sentencing appeal, despite the fact that the district court didn't even bother to address the timeliness question when dismissing the appellant's motion to vacate his sentence, that's all the First Circuit even looked at. The court explained that even giving the appellant the longest available statute of limitations, he missed it by one day.

A Single Day Matters

While even most attorneys reading this may think that missing a deadline by one day should be excusable, the First Circuit wanted candor on the subject, and it didn't get it. The opinion explains that Dixon didn't even bother to address the timeliness issue, despite the fact that it was raised both at the district court level, and on appeal, by the prosecution.

The appellate court explained that despite the availability of equitable tolling, without any basis for its application, the court would not apply it. The court stated: "even where a court has the raw power to invoke equitable tolling, that power should be exercised 'sparingly.' "

Lesson: Always Address Timeliness

If attorneys can learn any lesson from this appeal, it would be that timeliness should always be addressed if it is an issue, especially in the First Circuit. Just because the lower court didn't consider it, on appeal, it can still be considered. If the record is silent as to why a filing was late, a court will likely be glad to take a procedural exit from the case and knock one more matter off their docket.

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