UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. CROSBY POWELL, Defendant - Appellant. No. 16-1019 (D.C. No. 1:11-CR-00036-KHV-1) (D. Colo.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before HOLMES , BALDOCK , and MORITZ , Circuit Judges.

________________ _________________ In August 2012, a jury found Crosby Lincoln Powell guilty on seventeen counts of possessing stolen mail in violation of 18 U.S.C. § 1708, and eleven co unts of uttering or possessing forged checks in violation of 18 U.S.C. § 513(a). Powell appealed only the § 513(a) convictions. This court affirmed “as to Counts 10, 13, and 20,” but remanded the case to the district court w ith instructions to vacate the other eight convictions and to resentence Powell. See United States v. Powell , 767 F.3d 1026, 1037 (10th Cir. 2014)

* After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not ma terially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### October 4, 2016
Elisabeth A. Shumaker Clerk of Court2 (concluding that the eight § 513(a) convictions failed for lack of an interstate-commerce connection). After Powell was resentenced, he again appealed. But he later dismissed the appeal, and in August 2015 , he moved for a new trial. 1 In support of the motion, Powell provided the unsigned affidavit of a “Ro llin D. Meadows,” who claimed that he (Meadows) (1) saw Cheston Foster, a “key w itness” against Powell, alter payee names on stolen checks; (2) was told by Foster that U.S. Postal Insp ectors had sought his help in convicting Powell; (3) saw Foster alter a $19,21 6 stolen check used to open a UMB Bank account; and (4) never saw Powell involved with Foster in cashing checks. R., Vol. I at 445-46. On November 18, 20 15, the district court denied the motion, reasoning that while a new trial based on newly discovered eviden ce could be filed as late as three years post-verdict, see Fed. R. Crim. P. 33(b)(1), the Me adows affidavit was inadmissible as it was not signed, and it provided insufficient evidence to unde rmine the verdict given the “overwhelming evidence against” Powell. R., Vol. I at 534-35. On December 24, 2015, Powell sought an extension of time to appeal, specifying that he inte nded to appeal the November 18 order to the Tenth Circuit, but he did not learn of the order until December 23. While the motion for an extension wa s pending, Powell filed a formal notice of appeal on January 15, 2016, challenging the denial of a new trial.

1 Powell amended his new-tria l motion in October 2015.3 On March 4, 2016, the district court found that Powell had shown good cause for an extension of time to appeal: the U.S. Po stal Service had not delivered the November 18 order. Accordingly, the district court extended Powell’s appeal period to December 24, 2015—the date on which the mo tion for an extension was filed.
D ISCUSSION I. Timeliness of Notice of Appeal The government argues that Powell’s appe al is late because the district court extended the appeal period only to December 24, 2015, and Powe ll didn’t file a notice of appeal until January 15, 2016. 2 The government is incorre ct, as Powell’s motion for an extension qualifies as a notice of appeal and was timely filed. First, a motion for extension of time to appeal is the functional equi valent of a notice of appeal if it identifies three elements: (1) the name of the appea ling party; (2) the judgment or order being appealed; and (3) the court to wh ich the appeal will be taken. See United States v. Smith , 182 F.3d 733, 735 (10th Cir. 1999). Powell’ s motion clearly provided notice of these elements. Second, Powell’s motion was filed within the time pres cribed for appealing. Specifically, while Fed. R. App. P. 4(b)(1) requi res that a notice of appeal be filed within 14 days after entry of the order or judgment being appealed, as many as 30 extra days may be added to the end of that period under Fe d. R. App. P. 4(b)(4) if the district court

2 Although the time limit for appealing in a criminal case is not jurisdictional, it must be enforced if it is asserted by a party. See United States v. Garduno , 506 F.3d 1287, 1290-91 (10th Cir. 2007).4 finds excusable neglect or good cause. Here , the district court found good cause for a Rule 4(b)(4) extension up to December 24, wh ich was just 22 days af ter expiration of the Rule 4(b)(1) period. See United States v. Dotz , 455 F.3d 644, 647 (6 th Cir. 2006) (“[A] district court has the discretion to consider a motion to extend the time for appeal beyond the [14]-day deadline if and only if it is filed within 30 days after the [14]-day deadline, or [44] days from the date of entry of judg ment.” (emphasis and internal quotation marks omitted)); see also United States v. Espinosa-Talamantes , 319 F.3d 1245, 1246 (10th Cir. 2003) (indicating that an extension motion file d within the Rule 4(b)(4) 30-day extension period is timely). As Powell’s motion was filed within the extension period, and it qualifies as the functional equivalent of a notic e of appeal, this appeal is timely despite the fact that he filed a formal notice of appeal outside the extension period. See Smith , 182 F.3d at 734-35 (finding appeal timely wh ere appellant’s notice of appeal was filed beyond the 30-day extension period but appe llant’s extension motion was filed within that period and qualified as a notice of appeal); 16A Charle s Alan Wright & Arthur R. Miller, Federal Practice and Proc edure § 3950.9 (4th ed. 2 008) (stating that it “makes sense to construe a Rule 4(b)(4) motion as a notice of appeal if no formal notice was filed within the permissible extension period, so long as the motion is the substantial equivalent of a notice of appeal”). We therefore proceed to the merits. II. Motion for New Trial “We review the denial of a motion for new trial based on newly discovered evidence for an abuse of discretion.” United States v. Jordan , 806 F.3d 1244, 1252 (10th Cir. 2015), cert. denied , 136 S. Ct. 1700 (2016). In do ing so, we review the district5 court’s “legal conclusions de novo and any factual findings for clear error.” Id. (internal quotation marks omitted). “A motion for a new trial based on newl y discovered evidence is not favorably regarded and should be granted only with great caution.” Id. (internal quotation marks omitted). To obtain a new trial, “a defe ndant must prove: (1) the evidence was discovered after trial, (2) the failure to lear n of the evidence was not caused by his own lack of diligence, (3) the new evidence is not merely impeach ing, (4) the new evidence is material to the principal issues involved, and (5) the new eviden ce is of such a nature that in a new trial it would probab ly produce an acquittal.” Id. (internal quotation marks omitted). Because Powell “proceed s pro se, we liberally construe his filing[s] but do not assume the role of advocate.” See United States v. Viera , 674 F.3d 1214, 1216 n.1 (10th Cir. 2012) (internal quotation marks omitted). Powell challenges the denial of his new-tr ial motion on the grounds that (1) he had a signed copy of Meadows’ affidavit, but it was destroyed by the sheriff’s department; and (2) the affidavit shows that “Cheston Fost er made false statement[s] and commit[t]ed perjury.” Aplt. Opening Br. at 3. Even if we overlook the eviden tiary deficiency in Meadows’ affidavit, see 28 U.S.C. § 1746 (indicating that an unsworn affidavit must be “subscribed . . . as true under penalty of perjury”), nothing in that document suggests Powell probably would have been acquitted based on Meadows’ statements. Significantly, Meadows does not assert that Foster committed any of the § 513(a) crimes6 that this court upheld on appeal. 3 And as the district c ourt observed, “[n]umerous witnesses testified regarding stolen checks th at had been deposited into [Powell’s]” bank accounts, and they indicated th at “[Powell] did not have a ny authority or permission to possess the checks or deposit them in his account s.” R., Vol. I at 527. At most, the affidavit shows Foster was also engaged in illegal check activity. But a new trial cannot be granted where the ne w evidence would merely impeach a witness. See Jordan , 806 F.3d at 1252. The district court di d not abuse its discre tion in denying Powell’s motion for a new trial. 4 III. Appointment of Counsel Powell complains that he “should [have] been appointed counsel to assist him in presenting the” motion for a new trial in the di strict court. Aplt. Opening Br. at 4. Whether counsel should be appointed in a co llateral proceeding is left to the sound

3 Indeed, the Meadows affidavit suggests that Foster committed only one of the § 513(a) crimes charged agai nst Powell. That crime, charged in count 8 of the superseding indictment, was invalidated on direct app eal. Thus, whether Foster rather than Powell committed that crime has no bearing on Powell’s motion for a new trial. To the extent Powe ll complains that he was orde red at resentencing to pay restitution on count 8, his reply brief in this appeal is not the proper vehicle to assert such a claim.

4 To the extent Powell co mplains that the district court denied his motion because it was filed eight da ys beyond the three-year li mit of Fed. R. Crim. P. 33(b)(1), we note that the district court expressly declined to enforce the time limitation because “the government ha[d] not rais ed [it].” R., Vol. I at 531-32 n.3. In its response brief, the government perf unctorily “asks that [we] address the [timeliness] issue.” Aplee Br . at 8 n.5. Given that we generally decline to address perfunctory appellate arguments, see United States v. Wooten , 377 F.3d 1134, 1145 (10th Cir. 2004), and that we conclude the district court di d not abuse its discretion in denying the motion for a new trial, we need not reach the timeliness issue.7 discretion of the district court. See Engberg v. Wyoming , 265 F.3d 1109, 1122 (10th Cir. 2001); see also United States v. Berger , 375 F.3d 1223, 1226-27 (11th Cir. 2004) (stating that “a post-conviction, post-app eal Rule 33 motion is consider ed a collateral challenge to which the Sixth Amendment right to counsel does not attach”) (emphasis omitted). We conclude that the district court did not ab use that discretion give n that Powell’s motion did not present complex issues and clearly lacked merit. IV. Recusal Finally, Powell states that the district court “show[ed] extreme bias and prejudice towards [him] . . . by permitting his defense counsel to tr[y] the case without having suffi[c]ient time to prepar e the . . . defense.” Aplt. Openi ng Br. at 4. The district court declined to recuse its elf because Powell failed to submit a recusal affidavit, as required by 28 U.S.C. § 144, and he faile d to identify any partiality, bi as, or prejudice that would disqualify the court under 28 U.S.C. § 455. Powell provides no support for his perfunctory recusal assertion, a nd we conclude that the distri ct court’s refusal to recuse was not an abuse of discretion. See Wooten , 377 F.3d at 1145 (“The court will not consider . . . issues adverted to in a perfunc tory manner, unaccompanied by some effort at developed argumentati on.” (internal quotation marks omitted)); ClearOne Commc’ns,
Inc. v. Bowers , 651 F.3d 1200, 1217 (10th Cir. 2011) (“Generally speaking, we review for abuse of discretion the denial of a motion for recusal.”).8 C ONCLUSION The judgment of the district court is affirmed.

Entered for the Court
Nancy L. Moritz Circuit Judge