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

                             FOR THE TENTH CIRCUIT                          April 7, 2016
                         _________________________________
                                                                        Elisabeth A. Shumaker
                                                                            Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                         No. 15-2120
                                                 (D.C. No. 2:09-CR-00760-RB-1)
FRANK L. GUTIERREZ,                                         (D. N.M.)

      Defendant - Appellant.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before TYMKOVICH, Chief Judge, BACHARACH and MORITZ, Circuit Judges.
                 _________________________________

      Frank L. Gutierrez was convicted in 2010 of possessing with intent to

distribute more than 50 grams of methamphetamine. See United States v. Gutierrez,

498 F. App’x 786 (10th Cir. 2012) (affirming conviction). In March 2014, he filed a

motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. The

district court denied the motion in a final order from which Mr. Gutierrez did not

appeal. Some four months later, Mr. Gutierrez filed a “Motion to Enforce Order and

for Immediate Disclosure of Favorable Information,” in which he alleged the

      *
        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. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
prosecution had suppressed evidence involving police misconduct in violation of

Brady v. Maryland, 373 U.S. 83 (1963). Noting that Mr. Gutierrez’s criminal

prosecution and § 2255 proceeding were both closed, the district court dismissed the

motion for lack of jurisdiction. The court specifically declined to treat it as a § 2255

motion, because it would be second or successive and had not been authorized

pursuant to 28 U.S.C. § 2255(h) and 28 U.S.C. § 2244(b)(3). Mr. Gutierrez then

commenced this appeal. We affirm.1

      Mr. Gutierrez continues to disavow any reliance on § 2255 as a vehicle for his

Brady allegations. Rather, he insists he was seeking enforcement of a discovery

order issued in his original criminal prosecution, which he contends the district court

retained inherent authority to enforce through contempt. But he cites no authority

holding criminal discovery orders remain directly enforceable to vindicate Brady

claims after final termination of the underlying prosecution. Indeed, such a holding

would conflict with the exclusivity of the § 2255 remedy, which Mr. Gutierrez has

not shown to be “inadequate or ineffective” for presenting a post-conviction Brady

claim. 28 U.S.C. § 2255(e); see Brace v. United States, 634 F.3d 1167, 1169

(10th Cir. 2011) (noting “§ 2255 will rarely be an inadequate or ineffective remedy”

      1
         The government contends we lack jurisdiction over this appeal because the
district court lacked jurisdiction over Mr. Gutierrez’s motion. The government cites
no authority for this novel contention, which would deny our well-established
jurisdiction to review de novo questions regarding the district court’s jurisdiction,
see, e.g., United States v. Baker, 769 F.3d 1196, 1198 (10th Cir. 2014); Mires v.
United States, 466 F.3d 1208, 1209 (10th Cir. 2006). Of course, if we hold that the
district court lacked jurisdiction, we cannot reach the merits of the underlying matter
(here, Mr. Gutierrez’s Brady allegations), see Harline v. Drug Enforcement Admin.,
148 F.3d 1199, 1202 (10th Cir. 1998), and we do not purport to do so here.
                                           2
and that prisoner bears the burden to demonstrate such circumstances); see also, e.g.,

Brown v. Berkebile, 572 F. App’x 605, 608 (10th Cir. 2014) (noting “allegation that

the prosecution withheld exculpatory evidence and violated due process rights under

Brady” was claim that “plainly could have been brought under § 2255”), cert. denied,

135 S. Ct. 1012 (2015); United States v. Fuller, 421 F. App’x 642, 645 (7th Cir.

2011) (holding Brady claim could not be brought in motion for new trial “because it

constitutes a collateral attack on a conviction that must be brought in a motion under

28 U.S.C. § 2255”). Whether or not it is his intention, Mr. Gutierrez is attempting to

circumvent established procedures for asserting Brady claims after a conviction has

become final. As the district court indicated, the proper course would be to seek

authorization from this court to file a second or successive § 2255 motion, which

Mr. Gutierrez may of course still do.

       The order of the district court is affirmed. We grant Mr. Gutierrez’s request to

proceed in forma pauperis on appeal and remind him that he must continue making

partial payments until the entire filing fee is paid in full.


                                              Entered for the Court
                                              Per Curiam




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