United States District Court, D. Kansas
MEMORANDUM & ORDER
W. Lungstrum United States District Judge.
2011, a jury convicted Mr. Dyke of various drug trafficking
crimes, including conspiracy to intentionally manufacture,
distribute and possess with intent to distribute more than 50
grams of methamphetamine. The court sentenced Mr. Dyke to a
235-month term of imprisonment and the Tenth Circuit affirmed
Mr. Dyke's conviction. United States v. Dyke,
718 F.3d 1282 (10th Cir. 2013). Thereafter, the court denied
Mr. Dyke's § 2255 petition and the Circuit denied
Mr. Dyke's request for a certificate of appealability and
dismissed Mr. Dyke's appeal of that memorandum and order.
In February 2015, the court reduced Mr. Dyke's sentence
to 210 months under Amendment 782.
November 2015, Mr. Dyke filed a pro se motion for a court
order directing Mr. Dyke's trial counsel to release his
case file to him. The court directed trial counsel to respond
to the motion and to indicate whether he maintained a case
file with respect to Mr. Dyke and whether and to what extent
that file contained materials to which Mr. Dyke was entitled.
Specifically, the court noted that Mr. Dyke would be entitled
to the case file as long as he was otherwise entitled to the
materials contained in it and that, by way of example, he
would not be entitled to materials produced to his trial
counsel by the government as a matter of courtesy if those
materials were produced subject to an agreement between the
government and defendant's trial counsel that trial
counsel not provide a copy of the materials to Mr. Dyke.
Dyke's trial counsel responded that Mr. Dyke's case
file contained both discovery provided to counsel by the
government as a matter of courtesty (which was provided with
the understanding that a copy of the discovery not be
provided to the defendant) and material outside the scope of
that agreement. Trial counsel represented that he forwarded
to Mr. Dyke those materials that were outside the scope of
the agreement with the government and Mr. Dyke acknowledged
receipt of those materials. Despite the court's ruling
that Mr. Dyke was not entitled to a copy of discovery that
had been provided to his counsel as a matter of courtesy by
counsel for the government because those materials were
produced subject to an agreement between the government and
trial counsel that trial counsel not provide a copy to Mr.
Dyke, counsel for the government agreed that it would not
oppose the release of non-sensitive discovery materials to
Mr. Dyke even if Mr. Dyke was not otherwise entitled to those
materials. In February 2016, then, the court granted in part
and denied in part Mr. Dyke's motion for order and
directed Mr. Dyke's trial counsel and counsel for the
government to review the discovery materials and for trial
counsel to send to Mr. Dyke any discovery that the government
agreed could be released. With the agreement of government
counsel, Mr. Dyke's trial counsel released non-sensitive
discovery materials to Mr. Dyke in early April 2016.
August 2017, Mr. Dyke filed a motion asking the court to
order trial counsel to resend the discovery materials
because, according to Mr. Dyke, the discovery was sent to him
in a form that he was not permitted to possess in custody.
The court dismissed that motion for lack of jurisdiction in
light of United States v. Woods, 2016 WL 3457754, at
*2 (10th Cir. June 21, 2016), an intervening case in which
this court had directed the defendant's trial counsel to
release his case file to him and in which the Circuit vacated
the court's order with directions to dismiss the motion
because the defendant had not identified a basis for the
court's jurisdiction to order a nonparty-the
defendant's former trial counsel-to turn over a case
file. In light of the Circuit's opinion in
Woods, then, this court dismissed Mr. Dyke's
motion because Mr. Dyke had not identified a basis for the
court's jurisdiction to order the resending of the
discovery materials. And, as indicated earlier, the initial
order concerning the sending of non-sensitive discovery
material to Mr. Dyke was based on the agreement of
counsel-the court had held that Mr. Dyke was not entitled to
matter is again before the court in light of Mr. Dyke's
continued efforts to obtain his case file and the discovery
materials that the government had agreed to provide to him.
Specifically, Mr. Dyke has filed a motion (and an amended
motion) to obtain those materials in anticipation of filing
what he describes as a “Rule 52(b) Motion in light of
Molina-Martinez.” As the government argues in
its response, these motions must be dismissed for lack of
jurisdiction just as the court dismissed Mr. Dyke's
August 2017 motion. In his reply, Mr. Dyke identifies two
possible bases for the court's jurisdiction over his
motions for discovery. First, Mr. Dyke contends that this
court's February 2016 order granting in part and denying
in part the motion to release the case file provides
jurisdiction for the court to render a ruling on his current
motions. According to Mr. Dyke, he is simply asking the court
to require counsel to follow through on what the court
ordered counsel to do back in February 2016. But as the court
has explained, the court's February 2016 order was issued
prior to the Woods decision and, as reflected in the
Woods opinion, was improvidently entered. The court
clearly should have dismissed that motion for lack of
jurisdiction and refrained from opining on the merits of the
motion. The court, then, cannot assert jurisdiction over Mr.
Dyke's present motions based solely on its mistaken
assertion of jurisdiction over Mr. Dyke's prior motion.
See Tokoph v. United States, 774 F.3d 1300, 1305
(10th Cir. 2014) (“federal courts are courts of limited
jurisdiction, possessing only that power authorized by
Constitution and statute”).
second basis identified by Mr. Dyke in support of his
assertion that this court may exercise jurisdiction over his
motions is the Supreme Court's decision in Hicks v.
United States, 137 S.Ct. 2000 (Mem) (2017). Mr. Dyke
contends that the Hicks decision stands for the
principle that a defendant may challenge the integrity of
criminal proceedings under the plain error doctrine at any
time and, accordingly, that this court necessarily has
jurisdiction to hear Mr. Dyke's plain error arguments at
any time. Contrary to Mr. Dyke's suggestion, the
Hicks decision does not indicate that this court may
exercise jurisdiction over Mr. Dyke's discovery motions.
The Court in Hicks, in light of the government's
concession of the first two elements of the plain error test
and its request that the Court remand the case to the Fifth
Circuit for it to resolve the latter two elements in the
first instance, vacated the judgment of the Fifth Circuit and
remanded for further consideration. The Hicks
decision was a memorandum opinion that merely reported the
court's conclusion without elaboration, although Justice
Gorsuch wrote a brief concurring opinion and Chief Justice
Roberts, joined by Justice Thomas, wrote a brief dissenting
opinion. Mr. Dyke's reliance on Hicks, then, is
end, because Mr. Dyke has not made a proper showing of
jurisdiction, the court dismisses his motions for discovery.
IS THEREFORE ORDERED BY THE COURT THAT Mr.
Dyke's motions for discovery (docs. 401 and 403) are
IS SO ORDERED.
 With the benefit of hindsight provided
by the Woods opinion, the court did not have
jurisdiction to consider the merits of Mr. Dyke's
November 2015 motion seeking the release of his case file. It
should have dismissed that motion ...