* After examining the briefs and the record, we have concluded that oral argument is

unnecessary. Thus, the appeal is submitted on the briefs and the record. See F ED

. R. A PP

. P.

34(a)(2). 

# United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted February 25, 2009 *

Decided March 23, 2009

Before

FRANK H. EASTERBROOK, Chief Judge

ILANA DIAMOND ROVNER, Circuit Judge

TERENCE T. EVANS, Circuit Judge

No. 08

‐ 1738

UNITED STATES OF AMERICA,

Plaintiff

‐ Appellee,

v.

FRANCISCO ANTONIO VILLALOBOS,

Defendant

‐ Appellant. Appeal from the United States District

Court for the Central District of Illinois.

No. 06

‐ CR

‐ 20067

Michael P. McCuskey,

Chief Judge

.

O R D E R

Nine months following his criminal conviction Francisco Villalobos asked the district

court to order his defense attorney to send him his case file. The court denied the request on

the merits and then rejected Villalobos’s motion to reconsider the denial. Villalobos appeals

the court’s denial of his motion to reconsider, and we affirm.

Villalobos pleaded guilty to kidnapping, see 18 U.S.C. § 1201, and firing a gun during

the offense, see 18 U.S.C. § 924(c)(1)(A)(iii), and was sentenced to two consecutive terms 

### NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

Fed. R. App. P. 32.1No. 08

‐ 1738 Page 2

totaling 382 months’ imprisonment. He filed a notice of appeal, but later voluntarily

dismissed his appeal. See F ED

. R. A PP

. P. 42(b); United States v. Villalobos

, No. 07

‐ 2045 (7th

Cir. May 22, 2007) (unpublished order).

About nine months after the entry of his final judgment of conviction, Villalobos

asked the district court to order his attorney to provide him with his entire case file,

including discovery. He explained that he wanted the discovery material to “compare the

strength of the government’s case against the advice of counsel to plead guilty and dismiss

the appeal,” and to “make a good faith determination” whether to file a collateral attack

under 28 U.S.C. § 2255. After directing the government and Villalobos’s attorney to

respond, the court denied the request, explaining that discovery material should not be

available to prisoners for uncontrolled use in prison. Furthermore, the court continued,

Villalobos had not offered sufficient reasons to justify disclosure of the remainder of the

lawyers’ file. Villalobos did not appeal that ruling.

Two months later, Villalobos asked for reconsideration of his earlier request for the

case file, reiterating his desire for the materials to explore “any potential issues of merit that

may be raised in a collateral proceeding.” The district court denied that motion too, on

March 14, 2008. The court stated that Villalobos was simply seeking to “conduct a fishing

expedition” and had not shown that he is entitled to the information. The court further

commented that if Villalobos files a § 2255 motion, he may then petition the court for

discovery under Rule 6 of the Rules Governing Section 2255 Proceedings.

Villalobos’s appeal is timely only as to the order denying reconsideration. See F ED

. R.

A PP

. P. 4(b)(1)(A)(i). Villalobos, however, misunderstands the scope of his appeal. In his

appellate brief he contends only that the government violated the Jencks Act, 18 U.S.C.

§ 3500, by failing to provide him with witnesses’ statements after they testified at his

sentencing hearing. But Villalobos voluntarily dismissed his direct appeal where he might

have challenged the sentence on that ground. He cannot circumvent that choice now by

using the guise of this appeal to attack his sentence under the Jencks Act. And his failure to

make any argument challenging the court’s denial of his motion for reconsideration—the

only order before us—means that any relevant argument has been waived. See Argyropoulos

v. City of Alton

, 539 F.3d 724, 738

‐ 39 (7th Cir. 2008); Garg v. Potter

, 521 F.3d 731, 736 (7th Cir.

2008). In any case, Villalobos gave the district court no valid reason to disturb its earlier

ruling denying him the case file, and the court did not err in denying the motion for

reconsideration.

Accordingly, the decision of the district court denying Villalobos’s motion for

reconsideration is AFFIRMED.