                                                                                FILED
                                                                    United States Court of Appeals
                                      PUBLISH                               Tenth Circuit

                      UNITED STATES COURT OF APPEALS                         July 9, 2018

                                                                         Elisabeth A. Shumaker
                             FOR THE TENTH CIRCUIT                           Clerk of Court
                         _________________________________

UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                         No. 17-6209

TIZOC CHALCHIHUTLATON GARCIA-
HERRERA,

      Defendant - Appellant.
                      _________________________________

                     Appeal from the United States District Court
                        for the Western District of Oklahoma
                           (D.C. No. 5:16-CR-00116-HE-8)
                       _________________________________

Submitted on the briefs:*

Tizoc Chalchihutlaton Garcia-Herrera, pro se.

Robert J. Troester, Acting United States Attorney, and David McCrary, Assistant United
States Attorney, Oklahoma City, Oklahoma, for Plaintiff-Appellee.
                         _________________________________

Before PHILLIPS, McKAY, and O’BRIEN, Circuit Judges.
                   _________________________________

McKAY, Circuit Judge.
                         _________________________________


      *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially 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.
       Appellant 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 appeal.

       Apparently 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 219.)

       The 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




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order and remand with instructions to dismiss Mr. Garcia-Herrera’s motion for lack of

jurisdiction.1

       Our 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 motion).

United States v. Woods, No. 15-3304, 2016 WL 3457754, at *2 (10th Cir. June 23, 2016)

(alterations in original).

       1
        “Although the government did not file a cross-appeal, we can consider this
issue because it concerns the district court’s subject matter jurisdiction.” Lopez v.
United States, 823 F.3d 970, 975 n.6 (10th Cir. 2016).
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       While 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 F. App’x 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.” (citation

omitted)).

       We therefore VACATE the district court’s order and REMAND with directions

to dismiss Mr. Garcia-Herrera’s motion.




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