Gigena v. Nielson

• Court: Court of Appeals for the Tenth Circuit
• Decided: March 27, 2026
• Docket: 25-4071
• Status: Unpublished

Opinion

Appellate Case: 25-4071 Document: 23 Date Filed: 03/27/2026 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT March 27, 2026 _________________________________ Christopher M. Wolpert Clerk of Court GABRIEL OMAR GIGENA,

Plaintiff - Appellant,

v. No. 25-4071 (D.C. No. 2:24-CV-00805-DBB) HOWARD C. NIELSON, JR.; UNITED (D. Utah) STATES OF AMERICA,

Defendants - Appellees. _________________________________

ORDER AND JUDGMENT * _________________________________

Before BACHARACH, McHUGH, and ROSSMAN, Circuit Judges. _________________________________

Gabriel Omar Gigena was charged with assault on a federal officer during an

arrest stemming from a child-custody dispute. While his criminal proceedings were

pending in the United States District Court for the District of Utah, he filed a petition

for a writ of mandamus in the same district, seeking dismissal of his criminal

proceedings on speedy-trial grounds. Instead, the district court dismissed his

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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. Appellate Case: 25-4071 Document: 23 Date Filed: 03/27/2026 Page: 2

mandamus petition for lack of jurisdiction. Proceeding pro se, 1 Mr. Gigena appeals

the dismissal.

In his mandamus petition, Mr. Gigena asked one federal judge to direct

another federal judge to dismiss his criminal case. He invoked 28 U.S.C. § 1361,

which provides: “The district courts shall have original jurisdiction of any action in

the nature of mandamus to compel an officer or employee of the United States or any

agency thereof to perform a duty owed to the plaintiff.”

The magistrate judge recommended a dismissal without prejudice for lack of

jurisdiction. The linchpin for the recommendation was Trackwell v. United States

Government, 472 F.3d 1242 (10th Cir. 2007)—a dispositive case from our circuit

holding that § 1361 “does not apply to courts or to court clerks performing judicial

functions.” Id. at 1243. Mr. Gigena objected to the report and recommendation. He

argued the magistrate judge should not have relied on Trackwell and criticized the

reasoning underlying Trackwell. The district court overruled his objections. It

reasoned that it could not disregard or overrule binding Tenth Circuit precedent, so it

lacked jurisdiction. Accordingly, it adopted the report and recommendation and

dismissed the case without prejudice.

1 Because Mr. Gigena proceeds without the assistance of counsel, we construe his pleadings liberally. Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005). We make some allowances for deficiencies, such as unfamiliarity with pleading requirements, failure to cite appropriate legal authority, and confusion of legal theories. Id. But we will not assume a role as his advocate. See id. 2 Appellate Case: 25-4071 Document: 23 Date Filed: 03/27/2026 Page: 3

Mr. Gigena’s appellate brief continues his critique of Trackwell. He disagrees

that the district court lacked jurisdiction under Trackwell but says if that is true, this

court should instead transfer the case to the Tenth Circuit and exercise appellate

jurisdiction under 28 U.S.C. § 1651.

This court cannot provide Mr. Gigena any effectual relief, so his case is moot.

See Off. of Thrift Supervision v. Overland Park Fin. Corp. (In re Overland Park Fin.

Corp.), 236 F.3d 1246, 1254 (10th Cir. 2001) (“A case is moot when it is impossible

for the court to grant any effectual relief whatever to a prevailing party.” (internal

quotation marks omitted)). His criminal proceedings are over. A jury convicted

Mr. Gigena in April 2025, and the district court sentenced him to 15 months in

prison, with 36 months of supervised release, and entered judgment in August 2025.

See United States v. Gigena, No. 2:24-cr-00228 (D. Utah), Dkt. Nos. 79, 136, 138;

see also United States v. Ahidley, 486 F.3d 1184, 1192 n.5 (10th Cir. 2007)

(explaining that we have discretion to take judicial notice of publicly filed court

records concerning matters that directly relate to our case). Indeed, his direct

criminal appeal is currently pending in this court. See United States v. Gigena,

No. 25-4112 (10th Cir. filed Aug. 27, 2025). Even if we reversed the district court’s

ruling, the district judge could not compel the other district judge to dismiss the

criminal case on speedy-trial grounds because the case is over. Nor could we do so

under § 1651.

Accordingly, we dismiss this appeal as moot. We deny Mr. Gigena’s Motion

for Judicial Conflicts of Interests, and Judicial Obligations to Recuse and Abstention

3 Appellate Case: 25-4071 Document: 23 Date Filed: 03/27/2026 Page: 4

from Assignment on this Appellate Panel (Dkt. No. 8), which seeks recusal of

any judicial officers and judges who are members of the Church of Jesus Christ of

Latter-day Saints.

Entered for the Court

Carolyn B. McHugh Circuit Judge