on the briefs:[*]
from the United States District Court for the Western
District of Oklahoma (D.C. No. 5:16-CR-00116-HE-8).
Chalchihutlaton Garcia-Herrera, pro se.
J. Troester, Acting United States Attorney, and David
McCrary, Assistant United States Attorney, Oklahoma City,
Oklahoma, for Plaintiff-Appellee.
PHILLIPS, McKAY, and O'BRIEN, Circuit Judges.
MCKAY, CIRCUIT JUDGE.
Tizoc Chalchihutlaton Garcia-Herrera was charged with
numerous counts relating to a drug conspiracy. He pled guilty
to one count pursuant to a plea agreement in which he waived
his right to appeal or challenge his conviction or sentence
with respect to all claims but claims of ineffective
assistance of counsel. The government dismissed the other
counts. Appellant was sentenced to 151 months'
imprisonment on the count of conviction. He did not file an
dissatisfied with counsel, Appellant filed a pro se
"Motion to Compel Former Attorney to Produce Record
File/Work Product Material" in his closed criminal case.
(R. at 219.) His motion demanded "all documents and work
regarding his case." (Id.) He did not identify
any potential substantive basis for relief. He did not state
that he intended to file a motion for relief pursuant to 28
U.S.C. § 2255. In fact, he asserted that he was
"not attempting a 'Fishing Expedition' into his
record to find 'Possible Errors.'" (R. at
219-20.) His only claim of motivation to seek the files was
his need "to have even the slightest chance at proving
any future claims before this Honorable Court." (R. at
district court granted partial relief and directed defense
counsel to provide Appellant with certain documents.
Appellant appealed that order, claiming a right to all of the
files. In response, the government argued that the district
court lacked jurisdiction to grant any part of the motion and
requested that this court vacate the district court's
order and remand with instructions to dismiss Mr.
Garcia-Herrera's motion for lack of
first duty in every case is to first determine our
jurisdiction. The only authority Appellant cites for federal
jurisdiction in this case is 28 U.S.C. §§ 1331 and
3231. Section 1331 provides that "[t]he district courts
shall have original jurisdiction of all civil actions arising
under the Constitution, laws, or treaties of the United
States." We do not see how this statute would give a
district court jurisdiction over a motion to compel filed in
a criminal case. As for Appellant's reliance on §
3231, in an unpublished opinion in a case essentially
identical to the one before us, we held:
Woods asserts that the district court had jurisdiction under
18 U.S.C. § 3231-a statute that provides district courts
with original jurisdiction "of all offenses against the
laws of the United States." But § 3231 by itself
doesn't give the district court jurisdiction over all
post-conviction motions, particularly motions filed in
anticipation of filing a § 2255 motion. See,
e.g., United States v. Asakevich, 810 F.3d 418,
420-21 (6th Cir. 2016) (noting that prisoner hadn't yet
filed § 2255 motion and finding that § 3231's
grant of original jurisdiction didn't "by itself
provide [district court with] a basis for considering"
post-appeal motion for extension of time to file § 2255
motion (quoting United States v. Lucido, 612 F.3d
871, 874 (6th Cir. 2010))); United States v.
Verners, 15 Fed.Appx. 657, 660 (10th Cir. 2001)
(unpublished) (concluding that § 2255 tolling motion
wasn't ripe for adjudication when prisoner hadn't yet
filed § 2255 motion, vacating district court's
denial of tolling motion, and remanding with directions to
dismiss); United States v. Chammout, No. CR-F-06-426
OWW, 2008 WL 1970813, at *2 (E.D. Cal. May 5, 2008)
(unpublished) (finding no basis in Federal Rules of Criminal
Procedure to grant motion for post-conviction discovery of
exculpatory evidence in anticipation of filing § 2255
United States v. Woods, No. 15-3304, 2016 WL
3457754, at *2 (10th Cir. June 23, 2016) (alterations in
we are not bound by that case we find it persuasive on this
point. We also note that its reasoning is in accordance with
the reasoning of our sister circuits. See, e.g.,
United States v. Wahi, 850 F.3d 296, 299-303 (7th
Cir. 2017) ("The district court's statutory original
criminal jurisdiction cannot support [the defendant's]
petition for expungement" because "the entry of
final judgment in the case ended the court's § 3231
jurisdiction."); Asakevich, 810 F.3d at 420
("[I]n the aftermath of a final judgment of conviction
and sentence and in the absence of a pending § 2255
motion, there was no action in the district court to which
the motion could apply."). Because Appellant has not
proffered any other support for jurisdiction over this matter
either here or in the district court, he has not met his
burden of establishing that the district court had
jurisdiction over his post-conviction motion to compel.
See Woods, 2016 WL 3457754, at *2 ("Even a pro
se appellant has an affirmative obligation to inform us in
the opening brief of the basis for the district court's
jurisdiction."); United States v. Benitez, 720
Fed.Appx. 509, 510 (10th Cir. 2018) ("As the movant, Mr.
Benitez bore the burden to establish the district court's
jurisdiction over his second and third motions to compel. He
failed to carry his burden, preventing the district court
from exercising jurisdiction over the motions."
therefore VACATE the district court's
order and REMAND with directions to dismiss