United States v. Widjaja ( 2008 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS August 27, 2008
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
Nos. 07-1368 and 08-1079
v. (D.C. No. 07-cr-111-EWN)
(D. Colo.)
MARTINO WIDJAJA,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before O’BRIEN, McKAY, and GORSUCH, Circuit Judges.
This case consolidates two appeals by pro se Defendant Martino Widjaja.
Defendant appeals both the criminal judgment against him, for which he filed an
untimely appeal, and the district court’s subsequent denial of his request for an
extension of time in which to file his appeal.
A magistrate judge found Defendant guilty of possessing a firearm on
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
After examining the briefs and the appellate record, this panel has
determined unanimously that oral argument would not materially assist 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..
Veterans Administration property in violation of 38 C.F.R. § 1.218(b)(37). The
district court affirmed the judgment on August 9, 2007. Defendant filed his
motion to appeal on September 9, 2007, well past the ten-day deadline for filing
an appeal, but within the time allowed to move for an extension of time to appeal.
See Fed. R. App. P. 4 (b)(1)(A)(i), 4(b)(4). This court partially remanded the
case to the district court to permit Defendant an opportunity to show good cause
or excusable neglect for his failure to file a timely appeal. On December 13,
2007, the district court gave Defendant until January 3, 2008 to make this
showing.
On January 2, 2008, Defendant filed a document the court construed as
Defendant’s motion to show good cause or excusable neglect in order to seek an
extension of time. In the motion, Defendant stated that he was late in filing his
notice of appeal because a court employee referred him to the court website for
information, and he read on the website that he had forty days to file an appeal.
The district court did not question Defendant’s good faith apparent misreading of
the website’s accurate information but concluded that the error did not constitute
excusable neglect and thus denied Defendant’s motion. Defendant thereafter filed
a “Motion to Present Evidence of Motive,” which this court construed as a
misdirected notice of appeal.
We review a district court’s order refusing to grant an extension of time for
abuse of discretion. See Bishop v. Corsentino, 371 F.3d 1203, 1206 (10th Cir.
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2004). A district court should not extend the time for filing an appeal unless
presented with “circumstances that are unique and extraordinary.” Id. at 1207(internal quotation marks omitted).
We conclude the district court did not abuse its discretion when deciding
neither Defendant’s ignorance of the law nor his good faith error in misreading
the court’s website constituted good cause or excusable neglect for his untimely
filing. For substantially the reasons listed in the district court’s order and
memorandum of decision, we AFFIRM the district court’s decision not to grant
Defendant an extension of time for filing. We therefore DISMISS his original
appeal as untimely.
Entered for the Court
Monroe G. McKay
Circuit Judge
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