S. Ct. Civ. No. 2008-0076

In an appeal from denial of a petition for the writ of habeas corpus, the Superior Court's April 4, 2008 order is reversed and the case is remanded with instructions to issue the writ. Petitioner pled guilty to second degree murder after allocution by the Superior Court. Prior to sentencing, petitioner moved to withdraw his guilty plea, but the motion was denied and he was sentenced to a period of incarceration; he never appealed from the denial of his motion to withdraw his guilty plea, but later brought this habeas corpus petition, averring among other things that his guilty plea was not given knowingly as required under the Constitution. The Superior Court denied the habeas corpus petition. While the petitioner filed this appeal several months after the Superior Court entered its order denying the petition, timeliness under Rule 5 is a claims processing rule but not a jurisdictional requirement, and the Government waived its right to challenge the timeliness of this appeal by filing numerous motions to dismiss and failing to raise the timeliness issue in any of them - only raising the issue three years after the appeal was filed. Thus its objection to untimeliness of this appeal was waived. Even though the petitioner never raised his present argument in the Superior Court and it would usually be deemed waived for that reason, it is nevertheless addressed on appeal because the Government suffers no prejudice from reaching the merits of petitioner's argument - the petitioner could simply file a new petition alleging the same error and consume additional court and government resources only to achieve a determination of a legal question that is squarely presented in the instant appeal. On the merits, because the Superior Court failed to instruct the petitioner on the direct consequences of his plea, specifically the mandatory minimum sentence for second degree murder, his guilty plea to that charge was not knowingly made, and therefore acceptance of that plea violated due process. The Superior Court's denial of the writ of habeas corpus is reversed and the case is remanded with instructions to issue the writ and to permit petitioner to withdraw his guilty plea.