UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. JAMES JUSTIN WOODS, Defendant - Appellant.

------------------------------ CARL E. CORNWELL, II, Attorney - Appellee. No. 15-3304 (D.C. No. 5:11-CR -40046-JWL-1) (D. Kan.)

________________ _________________ 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 dism iss Woods’ motion.

* After examining the briefs and appellate record, th is 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 or der 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, fo r its persuasive value. See Fed. R. App. P. 32.1; 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### June 21, 2016
Elisabeth A. Shumaker Clerk of Court2 In 2012, a jury convicted Woods of c onspiring to distribute methamphetamine and distributing methamphetamine, and the dist rict court sentenced him to 30 years in prison. In 2013, we granted trial couns el’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 file d several pro se motions in his underlying criminal case, including tw o motions seeking a court order directing trial counsel to surrender the ca se 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, Wood s’ 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 releas ing the case file to Woods, trial counsel would run afoul of the U.S. Attorney’s O ffice’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 “tra ditional 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 possessi on of the defendant.” R. vol. 1, 46. The3 government maintained that its “understanding” with de fense counsel remained in effect “even though the case ha [d] concluded through direct appeal.” R. vol. 1, 47. Without citing a basis for its jurisdicti on, 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 ob ligated to turn over during trial but that he wasn’t entitled to materials the gove rnment 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 th e government provided during discovery as required by Fed. R. Crim. P. 16. But the court orde red trial counsel to exclude from the surrendered file any mate rials the government provided to trial counsel “as a matter of courte sy 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 ca se file so that he can prepare his § 2255 motion. 1 He argues that “neither th e United States Attorney’s [O]ffice[’s] . . . ‘rule’ or ‘t raditional process’ justifie s withholding . . . access to any of the material in trial couns el’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 motio n for a stay of the § 2255 statute of limitations. But we lack jurisdiction to consider these issues because they are beyo nd the scope of this appeal. Woods filed a separate notice of app eal as to these issues , and we separately dismissed that appeal fo r lack of prosecution.4 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 surrende r papers and property “to which the client is entitled,” suggesting his trial attorney is et hically 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 c ourt found an attorney’s cond uct 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 equitabl e tolling, but remanded for the district court to determine whethe r the prisoner also “exercised reasonable diligence in pursuing the matter” under those circumstances. In findi ng the attorney’s conduct egregious, the court noted, “[I]t se ems unrealistic to exp ect [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 tr ial counsel’s possession. Id. at 801. Finally, Woods argues, the district cour t premised its ruling on its mistaken belief that Woods’ trial counsel entere d into an explicit agreement with the government not to turn over Woods’ case f ile. 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. Ka n. 2000) (unpublishe d) to support its5 decision. Woods contends Butler is factually distinguishab le 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 consid ering 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’ fo rmer trial counsel who withdrew in 2013—to turn over a case file. Even a pro se appellant has an affirm ative obligation to inform us in the opening brief of the basis for th e district court’s jurisdiction. See Fed. R. App. P. 28(a)(4)(A) (requiring appellant’s brief to provide factual a nd 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 “o f all offenses against the laws of the United States.” But § 3231 by itself doesn’t give the district court jurisdiction over all post-conviction moti ons, particularly motions filed in anticipation of filing a § 2255 motion. See, e.g. , United States v. Asakevich , 810 F.3d6 418, 420-21 (6th Cir. 2016) (noting that prisoner hadn’t yet filed § 2255 motion and finding that § 3231’s grant of original juri sdiction didn’t “by itsel f provide [district court with] a basis for consid ering” 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 adjudi cation when prisoner hadn’t yet filed § 2255 motion, vacating district c ourt’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).
H ere, in anticipation of filing a § 2255 mo tion, Woods filed two pro se motions in a closed criminal proceeding seeking a court order directing a nonpart y, his former trial counsel, to turn over his case file. 2 Woods fails to offer any e xplanation or authority to support his suggestion that § 3231’s grant of original ju risdiction over the criminal proceedings empowered the district court to resolve his motions.

2 We recognize Woods’ desire to obtain th e 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 app eal, 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 disc overy 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 Pr oceedings for the United States District Courts.7 Because Woods fails to assert a valid basi s for the district court’s jurisdiction in his opening brief, see Fed. R. App. P. 28(a)(4)(A), we v acate 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 th at the issue of a stay wasn’t ripe because Woods ha dn’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 statut e 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 file d 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 br iefing on the motion fo r stay, it is better situated to consider the mo tion in the first instance. A ccordingly, we deny Woods’ pending motion for stay in this court.No. 15-3304, United States v. Woods HOLMES, J. , concurring in the judgment, joined by KELLY, J. 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 showingthereof)—could be reasonably read as endorsing the propriety of USAO’s socalled “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.