United States of America v. Eugene Parker

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 08-3376
_____________
UNITED STATES OF AMERICA
v.
EUGENE PARKER,
Appellant
Appeal from the United States District Court
for the Eastern District of Pennsylvania
(Crim. No. 05-00702-01)
District Judge: Hon. R. Barclay Surrick
Submitted Pursuant to Third Circuit LAR 34.1(a)
Monday, January 24, 2011
Before: McKEE, Chief Judge, SMITH, Circuit Judge,
and STEARNS,* District Judge
(Opinion Filed: March 1, 2011)
OPINION
McKEE, Chief Judge.
* Honorable Richard G. Stearns, District Court Judge, United States District Court for the
District of Massachusetts, sitting by designation.

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2
Eugene Parker appeals the district court’s order denying the habeas petition he
filed pursuant to 28 U.S.C. § 2255 as time-barred. For the reasons that follow, we will
reverse.
We write primarily for the parties and therefore need not recite the underlying
facts or procedural history of this appeal except to note that Parker filed his petition on
March 27, 2008, and the district court thereafter dismissed it as untimely. To its very
substantial credit, the government now concedes that the petition was not time-barred,
and that the Assistant U.S. Attorney erred in arguing that the petition was untimely. See
Appellee’s Br. at 10 (“[u]pon consideration of the matter, the government believes that its
position before the district court was in error, and now agrees with Parker’s view.”). We
agree. See 28 U.S.C. § 1254, and Latham v.United States, 527 F.3d 651 (7th Cir. 2008).
As the government so candidly states: “there is no known precedent for the proposition
that a criminal defendant who seeks voluntary dismissal of an appeal is foreclosed from
filing a petition for certiorari challenging the dismissal.” Appellee’s Br. at 14.
Accordingly, we will vacate the order of the district court dismissing the
Appellant’s petition as untimely. In doing so, we note that the government’s handling of
this appeal is truly exemplary and in the best tradition of prosecutor as an officer of the
court and the legal representative of all of the people of the United States, including those
convicted of crimes.

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