Oberg v. USA

Filing 19

ORDER DENYING Motion to Reconsider (Doc. 16). Denying Motion to Correct Error as unnecessary and on the merits to the extent it seeks an extension of the deadline to appeal (doc. 17). Denying Motion to Extend Time to Appeal (Doc. 18). Signed by Judge David W. Dugan on 5/22/2023. (dsw)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
KYLE W. OBERG,
Petitioner,
vs.
UNITED STATES OF AMERICA,
Respondent.

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Case No. 18-cv-2140-DWD

MEMORANDUM AND ORDER
DUGAN, District Judge:
This matter is before the Court on Petitioner Kyle W. Oberg’s Motion for Relief
from Judgment (Doc. 16) filed pursuant to Federal Rule of Civil Procedure 60(b)(1). Oberg
contends that through mistake or inadvertence, the Court overlooked his reply brief and
asks the Court to set aside its judgment denying his § 2255 motion. Oberg has also filed
motions seeking to extend his time to appeal (Docs. 17 and 18). For the reasons set forth
below, the motions are DENIED.
I.
A.

BACKGROUND

Underlying Criminal Case
Oberg came to the attention of police after his five-year-old daughter, A.O.,

reported that she was taking pictures of her dog because her father liked to take pictures
of her “private area.” United States v. Oberg, 877 F.3d 261, 262 (7th Cir. 2017). A police
search of Oberg’s home revealed that Oberg had 337 photos and three videos of his
daughter exposing her genitals. Id. “Two of the videos show A.O. seated with her legs

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spread, rubbing a clear gel onto her vagina; in the second video, the song “Sexy and I
Know It” plays in the background. In the third video, A.O. is lying on her back with her
legs spread, and a man's index finger enters her vagina.” Id.
On September 18, 2013, a superseding indictment was returned charging Oberg
with two counts of Sexual Exploitation of a Minor, in violation of Title 18, United States
Code, Section 2251(a) (Counts 1 and 2); and Possession of Visual Depictions of
Prepubescent Minors Engaged in Sexually Explicit Conduct (Count 3), in violation of Title
18, United States Code, Section 2252(a)(4)(B) (Criminal Case, 1 Doc. 14). On August 16,
2016, Oberg entered an open plea of guilty to all three counts of the superseding
indictment (Criminal Case, Doc. 76). The Court sentenced Oberg to a term of 360 months’
imprisonment on Counts 1 and 2, and a term of 240 months’ imprisonment on Count 3,
to run concurrently; a $ 600 fine; a lifetime term of supervised release on each count, to
run concurrently; and a $300 special assessment (Criminal Case, Docs. 98, 102). On
December 1, 2017, the Court of Appeals issued its opinion affirming Oberg’s sentence
(Criminal Case, Doc. 42).
B.

2255 Procedural Background
On December 4, 2018, Oberg timely filed a pro se Motion to Vacate, Set Aside, or

Correct Sentence pursuant to 28 U.S.C. § 2255 (Doc. 1). The Court found that Oberg’s
petition survived preliminary review under Rule 4 of the Rules Governing Section 2255
Proceedings, and the Government filed a timely response on February 22, 2019 (Doc. 8).

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United States v. Oberg, No. 3:13-cr-30182-DRH (S.D. Ill).

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Oberg filed a reply (Doc. 11) and submitted a character letter in support of his petition
(Doc. 13). On March 29, 2022, the Court denied Oberg’s § 2255 petition and entered
judgment (Docs. 14 and 15).
On May 20, 2022, 52 days after entry of judgment, 2 Oberg filed a Motion for Relief
from Judgment citing to Federal Rule of Civil Procedure 60(b)(1). Oberg contends that in
rendering judgment, the Court failed to consider his reply brief. Oberg does not
specifically identify any material argument contained in his reply brief that was
overlooked. Rather, he contends the Court overlooked his reply brief in its entirety.
On April 3, 2023, 371 days after entry of judgment, Oberg filed a Motion to Correct
Error (Doc. 17) and a Motion for Extension of Time to File an Appeal (Doc. 18). In his
Motion to Correct Error, Oberg contends that he did not receive notice of the Court’s
order of dismissal and entry of judgment until May 5, 2022 – 37 days after judgment had
been entered. The judgment and order Oberg received were dated as having been filed
on March 29, 2022. But Oberg misread the date as April 29, 2022. Because Oberg did not
receive the notice and order until May 5, 2022, the later filing date made sense to him.
Accordingly, when Oberg filed his Rule 60(b)(1) Motion for Relief from Judgment on May
20, 2022 (Doc. 16), he mistakenly believed the motion tolled the time to appeal

2 The Clerk’s Office received Oberg’s Motion for Relief from Judgment on May 27, 2022 and docketed it on
June 1, 2022. But when determining filing dates for prisoners, federal courts apply
the prisoner mailbox rule, which provides that a prisoner's document is deemed filed when it is placed in
the prison mail system. Ingram v. Jones, 507 F.3d 640 (7th Cir. 2007). Applying the prisoner mailbox rule,
Oberg’s Motion for Relief from Judgment was filed on May 20, 2022 – 52 days after entry of judgment.

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under Federal Rule of Appellate Procedure 4(a)(4). 3 Oberg did not realize his mistake
until he was reviewing his paperwork in March 2023 and observed that the order and
judgment were dated March 29, 2022 and not April 29, 2022. Oberg asks the Court to
correct his Rule 60(b)(1) motion to indicate that the judgment and order were entered on
March 29, 2022. He also asks the Court to grant him an extension to file a notice of appeal.
II.

DISCUSSION

A. Motion for Relief from Judgment
“[W]hether a motion filed within 28 days of the entry of judgment should be
analyzed under Rule 59(e) or Rule 60(b) depends on the substance of the motion, not on
the timing or label affixed to it.” Obriecht v. Raemisch, 517 F.3d 489, 493 (7th Cir.
2008) (emphasis in the original) (citing Borrero v. City of Chicago, 456 F.3d 698, 701-02 (7th
Cir. 2006) (clarifying that “the former approach-that, no matter what their substance, all
post-judgment motions filed within 28 days of judgment would be considered as Rule
59(e) motions – no longer applies”)). Nevertheless, a motion to reconsider filed more than
28 days after entry of the challenged order “automatically becomes a Rule 60(b) motion.”
Kiswani v. Phoenix Sec. Agency, Inc., 584 F.3d 741, 742-43 (7th Cir. 2009); see also Hope v.
United States, 43 F.3d 1140, 1143 (7th Cir. 1994).
In the instant case Oberg indicates that his Motion for Relief from Judgment is
brought pursuant to Federal Rule of Civil Procedure 60(b). And, given its date of filing
(52 days following the entry of judgment), that is the only way it can be construed. See

In general, the time to appeal a judgment is tolled when a Rule 60(b) motion or a Rule 59(e) motion is filed
within 28 days after the entry of judgment or order appealed from. Federal Rule of Appellate Procedure
4(a)(4).
3

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Federal Rule of Civil Procedure 6(b)(2) (barring courts from extending the time within
which a party may move to alter or amend a judgment under Rule 59(e) or 60(b)).
Rule 60(b) allows relief from judgment on the grounds of mistake, surprise, newly
discovered evidence, fraud, misconduct by the opposing party, and other bases justifying
relief. Fed. R. Civ. P. 60(b). But only if the movant has demonstrated exceptional
circumstances. Banks, 750 F.3d at 668; Kathrein v. City of Evanston, 752 F.3d 680, 690 (7th
Cir. 2014).
In his Motion for Relief from Judgment, Oberg contends the Court failed to
consider his reply brief in its entirety. Oberg indicates that his reply “squarely addresses
the Government’s Response for each ground in-turn and should have been included in
the Court’s review prior to final judgment.” Oberg’s position, though mistaken, is more
than understandable. In the subject order, the Court mistakenly indicated that Oberg
“failed to file” a reply. This was a typographical error. Immediately after making this
statement, the Court cited to Oberg’s reply, noting that it was filed at Doc. 11. (Doc. 14,
p. 2). The Court’s opinion also included the following discussion pertaining to Oberg’s
reply:
Numerous additional undeveloped arguments are peppered throughout
Oberg’s Petition and his reply briefing. These claims include, but are not
limited to, the following: (1) lack of meaningful access to the courts; (2)
erroneous calculations; (3) due process violation in an uninformed plea, and
(4) matters relating to a presentence investigation report waiver, nolo
contendere plea, conditional plea, and pre-plea presentence investigation
report. As the case law clearly states, it is the responsibility of the defendant
to present “specific acts or omissions” as to how his lawyer was ineffective
in order to overcome the presumption that his counsel “rendered
reasonably effective assistance.” See Strickland, 466 U.S. at 690. Because
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Oberg fails to meet this standard, these claims will not be addressed by the
Court.
(Doc. 14, pp. 15-16).
In his Reply, Oberg notes that, prior to sentencing, he participated in
numerous medical examinations and provided counsel with his medical
records. He claims that FPD Kavanaugh and/or Attorney Butts were
ineffective for failing to compile his medical information and present it at
sentencing in support of mitigation (Doc. 11, pp. 8-10). As with other
arguments raised by Oberg, this argument is underdeveloped. It is unclear
what specific medical record or records he claims should have been
presented at sentencing or how the records would have altered the outcome
of his sentencing. Moreover, Oberg fails to demonstrate how any decision
not to present medical evidence in mitigation at his sentencing was
anything other than a reasonable strategic choice.
(Doc. 14, p. 15, n.4)
In his Reply, Oberg indicates that he volunteered to take a polygraph exam
to “prove [he] was not aroused while the images and videos were taken.”
(Doc. 11, p. 10).
(Doc. 14, p. 15, n.5)
This demonstrates that the Court did consider Oberg’s reply, and that the Court’s
statement regarding the absence of a reply was merely a typographical order.
Nonetheless, after reviewing the order of dismissal and Oberg’s reply, the Court finds
that there is no basis for granting relief from judgment. Accordingly, Oberg’s Motion for
Relief from Judgment (Doc. 16) is DENIED.
B. Motion to Correct Error and Motion for Extension of Time to Appeal
Oberg asks the Court to extend his time for filing a notice of appeal or,
alternatively, to deem his Rule 60(b)(1) motion as having been filed within 28 days of

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entry of judgment. For the following reasons, the Court finds it is without authority to
grant the requested relief.
A motion for relief from judgment under Rule 59 or Rule 60 will toll the deadline
to appeal if “filed no later than 28 days after the judgment is entered.” FED. R. APP. P.
4(a)(4)(A)(vi). Because Oberg’s Rule 60 motion was filed 52 days after entry of judgment,
it did not toll the time to appeal. Oberg claims he did not receive notice of the order and
judgment of dismissal until May 5, 2022 – 37 days after it had been entered. Accordingly,
through no fault of his own, Oberg was unable to file a time-tolling motion within 28
days of entry of judgment. But as is discussed more fully below, the Court is without
authority to extend the time for filing a time-tolling motion.
The Federal Rules of Civil Procedure, while allowing enlargements of time to
perform many acts, see FED. R. CIV. P. 6(b), provide that, a “court must not extend the time
to act under Rule[ ] …60(b).” FED. R. CIV. P. 6(b)(2). Further, Federal Rule of Civil
Procedure 4 provides that a Rule 60b motion only tolls the time to file an appeal if it “is
filed no later than 28 days after the judgment is entered.” FED. R. APP. P. 4(a)(4)(A). “The
taking of an appeal in a civil case within the time prescribed by statute is “mandatory
and jurisdictional.” Bowles v. Russell, 551 U.S. 205, 205 (2007). Further, the Court “has no
authority to create equitable exceptions to jurisdictional requirements.” Id. Accordingly,
to the extent that Oberg asks the Court to deem his Rule 60 motion as having been filed
within 28 days of entry of judgment, thereby tolling his time to appeal, the Court lacks
the authority to provide the requested relief. See United States v. 109 Derr Ave., Laramie
Cnty., Cheyenne, Wyoming, 758 F. App'x 646, 649 n.5 (10th Cir. 2018) (finding that litigant’s
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request for the court to equitably toll the time to appeal because he did not receive timely
notice of the district court’s judgment “must” be rejected).
Oberg also contends that the 37-day delay “automatically remov[ed] his right to
appeal and his ability to file a timely notice.” This is not accurate. In the instant case,
because the United States is a party, Oberg had 60 days from entry of judgment to file his
appeal. FED. R. APP. P. 4(a)(1)(B)(i). Thus, when Oberg received the order and judgment
of dismissal, he had 23 days remaining before his 60-day appeal period expired.
Additionally, he had 53 days remaining to seek an extension of the time to appeal. See
FED. R. APP. P. 4(a)(5)(A) (a district court may extend the time for filing a notice of appeal
if, inter alia, “a party so moves no later than 30 days after the time prescribed by this Rule
4(a) expires”). Thus, when Oberg received the order and judgment of dismissal, he still
had time to file a timely notice of appeal or motion to extend the deadline to appeal.
Oberg failed to do so, not because of a mail delay, but because he misread the date
judgment was entered. 4 And Oberg’s mistake does not provide a basis for extending the
time to appeal. See Khor Chin Lim v. Courtcall Inc., 683 F.3d 378, 381 (7th Cir. 2012) (“The
judiciary is not entitled to add time just because a litigant fails to open or read his mail—
or for any other extra-statutory reason.”).
The Court next considers whether Federal Rule of Appellate Procedure 4(a)(5) or
4(a)(6) provides an avenue for relief. As noted above, under Rule 4(a)(5), a district court

The Court further notes that, under Federal Rule of Civil Procedure 77(d), “[l]ack of notice of the entry
does not affect the time for or relieve – or authorize the court to relieve – a party for failing to appeal within
the time allowed, except as allowed by Federal Rule of appellate Procedure (4)(a).” FED. R. CIV. P. 77(d).
4

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may extend the time to file notice of appeal if a party so moves no later than thirty days
after the original deadline for the filing of notice of appeal, and that party shows
“excusable neglect or good cause.” FED. R. APP. P. 4(a)(5). Alternatively, under Rule
4(a)(6), a district court may reopen the time to appeal upon finding that: (1) the appealing
party did not receive notice of the entry of judgment within 21 days after its entry; (2) the
appealing party moved to reopen the time for appeal within 180 days after the judgment
was entered, or 14 days after the party receives notice of the judgment, which ever is
earlier; and (3) no party will be prejudiced. FED. R. APP. 4(a)(6). Because these
requirements are statutory, compliance is “mandatory and jurisdictional.” Bowles, 551
U.S. at 209. Here, the Court is without authority to grant relief under either provision. To
be eligible for an extension under Rule 4(a)(5), Oberg’s motion must have been filed no
later than June 27, 2022. Oberg’s motions seeking to extend his deadline to appeal were
filed on April 3, 2023. His motions are also untimely under Rule 4(a)(6). Oberg alleges he
received notice on May 5, 2022. Thus, 14 days after receipt of notice (14 days after receipt
of notice would be May 19, 2022 and 180 days after entry of judgment would be
September 26, 2022) is the earlier date by which a motion to reopen must have been filed.
Accordingly, even construed as a motion to reopen, Oberg’s motions are untimely. 5 For
these reasons, Oberg’s motions, whether construed as a request to extend the deadline to
file an appeal or as a request to reopen the time to appeal, must be denied. 6

As previously noted, when Oberg received notice on May 5, 2022, he still had time left to file a notice of
appeal. Accordingly, the Court questions whether Rule 4(a)(6) could be applied to the motions filed on
April 3, 2023.
6 One final note, in Oberg’s Motion to Correct Error (Doc. 17), he indicates that he mistakenly argued in his
Motion for Relief from Judgment that the order and judgment of dismissal were entered on April 29, 2022.
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III.

Conclusion

For the reasons set forth herein, the Motion for Relief from Judgment (Doc. 16) is
DENIED. The Motion to Correct Error (Doc. 17) is DENIED and the Motion for Extension
of Time to File Notice of Appeal (Doc. 18) is DENIED.
SO ORDERED.
Dated: May 22, 2023

_____________________________
DAVID W. DUGAN
United States District Judge

He asks the Court to correct the record to reflect that the order and judgment of dismissal were entered on
March 29, 2022. The Court appreciates Oberg’s desire to correct his Motion for Relief from Judgment. There,
however, is no need to take further action. This order sufficiently addresses and clarifies any confusion in
that regard.

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