                                                                                      FILED
                                                                          United States Court of Appeals
                          UNITED STATES COURT OF APPEALS                          Tenth Circuit

                                 FOR THE TENTH CIRCUIT                            June 23, 2016
                             _________________________________
                                                                              Elisabeth A. Shumaker
                                                                                  Clerk of Court
UNITED STATES OF AMERICA,

       Plaintiff - Appellee,

v.                                                              No. 15-3304
                                                      (D.C. No. 5:11-CR-40046-JWL-1)
JAMES JUSTIN WOODS,                                               (D. Kan.)

       Defendant - Appellant.

------------------------------

CARL E. CORNWELL, II,

       Attorney - Appellee.
                        _________________________________

                                          ORDER
                             _________________________________

        At the direction of the panel, this matter is before the court, sua sponte, to amend

language in the concurrence filed with the Order & Judgment issued on June 21, 2016.

The Order and Judgment and amended concurrence are attached to this order, and shall

be filed nunc pro tunc to the original filing date.


                                               Entered for the Court



                                               ELISABETH A. SHUMAKER, Clerk
                                                                                    FILED
                                                                        United States Court of Appeals
                          UNITED STATES COURT OF APPEALS                        Tenth Circuit

                                 FOR THE TENTH CIRCUIT                          June 21, 2016
                             _________________________________
                                                                            Elisabeth A. Shumaker
                                                                                Clerk of Court
UNITED STATES OF AMERICA,
    Plaintiff - Appellee,

v.
                                                             No. 15-3304
JAMES JUSTIN WOODS,                                (D.C. No. 5:11-CR-40046-JWL-1)
    Defendant - Appellant.                                     (D. Kan.)

------------------------------

CARL E. CORNWELL, II,
    Attorney - Appellee.
                     _________________________________

                                 ORDER AND JUDGMENT*
                             _________________________________

Before KELLY, HOLMES, and MORITZ, Circuit Judges.
                  _________________________________

        James Woods appeals the district court’s partial denial of his motion for an

order directing his trial counsel to release his case file to him. Because Woods hasn’t

asserted a valid basis for the district court’s jurisdiction, we vacate the district court’s

order and remand to the district court with directions to dismiss Woods’ motion.

        *
        After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
submitted without oral argument. This order and judgment isn’t 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. See Fed. R. App. P. 32.1;
10th Cir. R. 32.1.
      In 2012, a jury convicted Woods of conspiring to distribute methamphetamine

and distributing methamphetamine, and the district court sentenced him to 30 years in

prison. In 2013, we granted trial counsel’s motion to withdraw and appointed

appellate counsel to represent Woods. We affirmed Woods’ conviction and sentence

on direct appeal. United States v. Woods, 764 F.3d 1242 (10th Cir. 2014), cert.

denied 135 S. Ct. 1866 (2015). In August 2015, Woods filed several pro se motions

in his underlying criminal case, including two motions seeking a court order directing

trial counsel to surrender the case file to him. Woods advised the court that he needed

his case file so he could prepare a habeas motion under 28 U.S.C. § 2255.

      In response to a show cause order, Woods’ trial counsel advised the court that

he was willing to release the case file to Woods. Further, trial counsel explained that

the U.S. Attorney’s Office has a “rule that all discovery is given as a matter of

courtesy,” and that by releasing the case file to Woods, trial counsel would run afoul

of the U.S. Attorney’s Office’s requirement “that no case file be given to a

defendant.” R. vol. 1, 33. The district court ordered the government to show good

cause why Woods’ trial counsel shouldn’t release the case file. In response, the

government advised the court that its “traditional process” was to provide defense

counsel “with a complete set of discovery with the understanding that none of the

discovery would be left in the possession of the defendant.” R. vol. 1, 46. The




                                           2
government maintained that its “understanding” with defense counsel remained in

effect “even though the case ha[d] concluded through direct appeal.” R. vol. 1, 47.

       Without citing a basis for its jurisdiction, the district court granted Woods’

motion in part and denied it in part. The court reasoned that Woods was entitled to

materials the government was obligated to turn over during trial but that he wasn’t

entitled to materials the government provided to trial counsel “as a matter of

courtesy.” R. vol. 1, 58. Thus, the court directed Woods’ trial counsel to surrender

the case file to Woods, including any materials the government provided during

discovery as required by Fed. R. Crim. P. 16. But the court ordered trial counsel to

exclude from the surrendered file any materials the government provided to trial

counsel “as a matter of courtesy with the express condition that those materials not be

left in [Woods’] possession.” R. vol. 1, 73-74.

       On appeal, Woods argues he is entitled to his entire case file so that he can

prepare his § 2255 motion.1 He argues that “neither the United States Attorney’s

[O]ffice[’s] . . . ‘rule’ or ‘traditional process’ justifies withholding . . . access to any

of the material in trial counsel’s possession.” Aplt. Br. 20. He quotes the Restatement

of the Law Governing Lawyers, asserting, “On request, a lawyer must allow a client


       1
        Woods also argues that the district court erred in denying his request for
appointed counsel and his motion for a stay of the § 2255 statute of limitations. But
we lack jurisdiction to consider these issues because they are beyond the scope of this
appeal. Woods filed a separate notice of appeal as to these issues, and we separately
dismissed that appeal for lack of prosecution.


                                              3
or former client to inspect and copy any document possessed by the lawyer relating

to the representation, unless substantial grounds exist to refuse.” Aplt. Br. 14. Woods

also cites a model rule that requires a lawyer to surrender papers and property “to

which the client is entitled,” suggesting his trial attorney is ethically obligated to

surrender the entire case file. See Model Rules of Prof’l Conduct r. 1.16(d) (Am. Bar

Ass’n 1983). Additionally, Woods relies on Spitsyn v. Moore, 345 F.3d 796, 801-02

(9th Cir. 2003), where the court found an attorney’s conduct in failing to prepare and

file a § 2255 motion and in subsequently ignoring a prisoner’s requests to surrender

the case file “sufficiently egregious” to warrant equitable tolling, but remanded for

the district court to determine whether the prisoner also “exercised reasonable

diligence in pursuing the matter” under those circumstances. In finding the attorney’s

conduct egregious, the court noted, “[I]t seems unrealistic to expect [defendant] to

prepare and file a meaningful petition on his own within the limitations period”

without access to the case file that remains in his trial counsel’s possession. Id. at

801.

       Finally, Woods argues, the district court premised its ruling on its mistaken

belief that Woods’ trial counsel entered into an explicit agreement with the

government not to turn over Woods’ case file. Woods argues that because there is no

evidence of such an agreement, the court mistakenly relied on United States v. Butler,

No. 99-40069-02-RDR, 2000 WL 134697 (D. Kan. 2000) (unpublished) to support its



                                             4
decision. Woods contends Butler is factually distinguishable because, unlike this

case, Butler involved an express agreement between defense counsel and the

government not to provide the defendant with copies of all discovery documents

during the defendant’s ongoing trial.

       Unlike the district court, we decline to wade into the merits of these arguments

without first considering jurisdiction. See Niemi v. Lasshofer, 728 F.3d 1252, 1259

(10th Cir. 2013) (noting our affirmative obligation to question our jurisdiction and

district court’s jurisdiction). And we question whether the district court had

jurisdiction to order a nonparty—Woods’ former trial counsel who withdrew in

2013—to turn over a case file.

       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. See Fed. R. App. P.

28(a)(4)(A) (requiring appellant’s brief to provide factual and legal basis for district

court’s jurisdiction); Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 841 (10th

Cir. 2005) (noting that pro se litigants must follow Rule 28’s requirements).

       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



                                             5
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 F. App’x 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).

       Here, in anticipation of filing a § 2255 motion, Woods filed two pro se motions in

a closed criminal proceeding seeking a court order directing a nonparty, his former trial

counsel, to turn over his case file.2 Woods fails to offer any explanation or authority to

support his suggestion that § 3231’s grant of original jurisdiction over the criminal

proceedings empowered the district court to resolve his motions.

       2
         We recognize Woods’ desire to obtain the entire case file so he can file a
meaningful § 2255 motion. See Spitsyn, 345 F.3d at 801. Notably, the record shows
that in April 2016, after filing this appeal, Woods actually filed a § 2255 motion.
Moreover, the government acknowledged in its response brief that if Woods filed a
§ 2255 motion, he could move the district court for a discovery order pursuant to that
motion. Thus, it appears Woods now has an avenue to request the information he seeks.
See Rule 6, Rules Governing Section 2255 Proceedings for the United States District
Courts.


                                              6
       Because Woods fails to assert a valid basis for the district court’s jurisdiction in

his opening brief, see Fed. R. App. P. 28(a)(4)(A), we vacate the district court’s order and

remand with directions to dismiss Woods’ motion.3




                                               Entered for the Court


                                               Nancy L. Moritz
                                               Circuit Judge




       3
         Woods filed two motions in this appeal seeking a stay of the § 2255 statute of
limitations. We denied the first motion in December 2015, noting that the issue of a
stay wasn’t ripe because Woods hadn’t actually filed a § 2255 motion. See Verners,
15 F. App’x at 660 (explaining that a motion for stay is ripe “only when a § 2255
motion has actually been filed and the statute of limitations has been raised by the
respondent or the court sua sponte”). In March 2016, Woods filed a second motion to
stay the limitation period and that motion remains pending. While Woods hadn’t filed
a § 2255 motion at the time he filed his most recent motion to stay in this court, as
we have noted, Woods subsequently filed a § 2255 motion in district court and
simultaneously moved the district court to stay the § 2255 statute of limitations.
Because the district court has ordered briefing on the motion for stay, it is better
situated to consider the motion in the first instance. Accordingly, we deny Woods’
pending motion for stay in this court.


                                              7
No. 15-3304, United States v. Woods

HOLMES, J., concurring in the judgment, joined by KELLY, J., who concurs in
the order and judgment and Judge Holmes’ concerns about any conditional
discovery policy. *

      I respectfully concur only in the judgment. Though this is not the proper

setting in which to definitively opine on these matters, suffice it to say that I

harbor significant concern regarding the ethical or legal propriety vel non of what

the government’s counsel represented to the district court was the “traditional

process employed in criminal cases” by the United States Attorney’s Office for

the District of Kansas (“USAO”) of conditioning the delivery to defense counsel

of “a complete set of discovery” on “the understanding that none of the discovery

would be left in the possession of the defendant.” R. at 46 (emphasis added). I

do not believe that the majority’s opinion—which turns on the procedural

question of jurisdiction (or, more precisely, the lack of a proper showing

thereof)—could be reasonably read as endorsing the propriety of USAO’s so-

called “traditional process” (i.e., its conditional-discovery policy). However,

even the remote possibility that the majority’s opinion might be construed in this

manner leads me to concur only in the judgment, not the majority’s reasoning.




      *
       Judge Kelly also agrees with Judge Holmes that this order and judgment
could not be reasonably read to endorse such a policy.
