Dobek v. United States of America

Filing 32

ORDER DISMISSING CASE signed by Judge Pamela Pepper on 9/18/2018. 1 Petitioner's motion to vacate, set aside or correct sentence (2255) DENIED. 24 Petitioner's motion to amend petition DENIED. 29 Petitioner's motion for discovery/disclosure of grand jury material DENIED. The court DECLINES to issue certificate of appealability. Case DISMISSED with prejudice. (cc: all counsel, via mail to Ronald Dobek at Duluth Federal Prison Camp)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

RONALD A. DOBEK
a.k.a. ALEXANDER M. ROVEGNO,
Petitioner,
v.

Case No. 16-cv-1255-pp

UNITED STATES OF AMERICA,
Respondent.
ORDER DENYING MOTION TO VACATE, SET ASIDE, OR CORRECT
SENTENCE UNDER 28 U.S.C. §2255 (DKT. NO. 1); DENYING MOTION TO
AMEND PETITION (DKT. NO. 24); DENYING MOTION FOR DISCOVERY AND
MOTION FOR DISCLOSURE OF GRAND JURY MATERIALS (DKT. NO. 29);
DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY AND
DISMISSING CASE

On September 20, 2016, petitioner Ronald Dobek filed a motion to
vacate, set aside or correct his sentence under 28 U.S.C. §2255. Dkt. No. 1.
This court screened the petition, and allowed the petitioner to proceed on his
claims that his appellate counsel’s performance violated the Sixth Amendment.
Dkt. No. 8 at 2. Post-briefing, the petitioner made several requests for the court
to expedite the disposition of this case. See Dkt. Nos. 16, 17, 19. He also
notified the court that he had filed a petition for writ of mandamus with the
Seventh Circuit Court of Appeals. Dkt. No. 20. On April 5, 2018—
approximately eighteen months after filing his initial petition—the petitioner
filed a motion to amend it, dkt. no. 24, a request for discovery, dkt. no. 25, and
two requests to expand the record, dkt. nos. 26, 27. On June 20, 2018, the
1

petitioner filed a motion for discovery and for disclosure of grand jury
materials. Dkt. No. 29. Because the petitioner has not demonstrated that he is
entitled to relief under 28 U.S.C. §2255, the court will deny the petition to
vacate, set aside or correct his sentence and will deny the other pending
motions.
I.

Background
Several years ago, the government charged the petitioner in two federal

cases in this district—United States v. Dobek, 2012-cr-253-JPS, and United
States v. Dobek, 2013-cr-231-JPS. This petition asks the court to vacate or set
aside the conviction in the second case, 2013-cr-231, but in order to explain
the basis for that request, the court must recount facts relating to both
convictions.
A.

United States of America v. Ronald Dobek, Case No. 12-cr-253-JPS
On December 11, 2012, the grand jury charged the petitioner with two

counts of exporting defense articles—namely, F-16 canopy seals—to Venezuela
without a license. Case No. 12-cr-253-JPS at Dkt. No. 1. Count One of the
indictment charged an offense date of December 29, 2007; Count Two charged
an offense date of December 6, 2008. Id. at 1-2. The arraignment didn’t take
place until August 16, 2013; the minutes of that hearing indicate that the
petitioner was “serving a sentence on a case out of New York.” Id., Dkt. No. 9 at
p. 2. At that hearing, Magistrate Judge Joseph scheduled a final pretrial
conference for October 15, 2013, and set the trial for October 21, 2013 in front
of District Judge J. P. Stadtmueller. Id. at Dkt. Nos. 8, 9.
2

Though the petitioner asked for, id. at dkt. no. 13, and received an
extension of time to file pretrial motions, id. at September 3, 2013 order, he
filed no motions, and the case proceeded in a trial posture. On October 10,
2013, the parties submitted a final pretrial report in anticipation of the October
21, 2013 trial. Id. at Dkt. No. 21. Four days later, however, the government
filed a motion to adjourn the trial. Id. at Dkt. No. 22. The motion stated that a
government shut-down had begun on October 1, 2013, and was on-going. Id.,
Dkt. No. 22 at p. 2. It explained counsel had learned that day that because of
the fiscal impact of the shut-down, no one from “the agency which makes
I[nternational] T[raffic in] A[rms] R[egulations] licensing determinations” would
be able to make the final licensing determination by the scheduled trial date.
Id. Counsel represented that even if the government reopened that week, the
agency would need at least two weeks to make the final determination. Id. She
also explained that she had been trying to convince individuals from the
Departments of State, Justice and Defense to have the licensing work declared
excepted from the furlough requirements of the agencies, but that she hadn’t
been successful. Id. For all intents, there was no witness available to provide
critical testimony as to the licensing determination. Id. at pp. 2-3. The
government also noted that after October 17, 2013, the clerk’s office likely
would run out of funds to pay jurors for their jury service. Id. at 3.
At the October 15, 2013 final pretrial conference, Judge Stadtmueller
denied the motion to adjourn the trial and dismissed the indictment under
Federal Rule of Criminal Procedure 48(b), saying that dismissal was necessary
3

“as a result of the mismanagement of the case,” and that the dismissal
underscored the “reality that the Government shutdown has an extremely
negative effect on the administration of justice.” Id., Dkt. No. 25 at p. 2. Judge
Stadtmueller told the government that he would give them several hours—until
noon of that day—to provide him with an explanation of why the dismissal
should be without prejudice; he gave defense counsel until the close of
business to respond. Id., Dkt. No. 27, p. 7 at lines 6-10. Each side filed its
position papers. Id. at Dkt. Nos. 29 (defense) and 30 (government).
In a twenty-page order dated October 21, 2013, Judge Stadtmueller
dismissed the case without prejudice. Id. at Dkt. No. 31. The order recounted
the history of the case, and Judge Stadtmueller’s opinions about how the U.S.
Attorney’s Office had handled the case. Id. at 1-9. The order explicitly stated
that Judge Stadtmueller was not dismissing the case under the Speedy Trial
Act or the Sixth Amendment, id. at pp. 9-10; 15 n.3, but instead emphasized
that “the U.S. Attorney’s office’s multiple miscues in bringing this case to trial,”
id. at p. 9, led him to use his “substantial discretion,” id. at p. 11, to dismiss
the case under Rule 48(b).
As to Rule 48(b), Judge Stadtmueller observed:
[T]here is no specific test for determining whether a Rule 48(b)
dismissal should be with prejudice or without. Nonetheless, the
case law appears to make clear that a Rule 48(b) dismissal is
presumed to be without prejudice and should be with prejudice
only if the Court has previously made clear that the Government
faces dismissal with prejudice if they do not comply with a Court
order or if the defendant makes a very strong showing of prejudice.

4

Id. at p. 16. Without other guidance, Judge Stadtmueller found that the Speedy
Trial Act’s factors provided “a good framework” for his analysis. Id. at pp. 1617. He analyzed “the seriousness of the offense, the facts and circumstances
leading to dismissal, and the impact of re-prosecution on the administration of
justice[.]” Id.
As for seriousness of the offense, Judge Stadtmueller concluded that
“there can be little doubt that allegations of selling defense articles to a foreign
country are serious” and that “[i]n all, this factor weighs heavily in favor of
dismissal without prejudice.” Id. at p. 17. Judge Stadtmueller found that the
second factor, the “facts and circumstances leading to dismissal,” weighed in
favor of dismissing the case with prejudice. Id. He recounted that “[t]he Court
has amply voiced its dissatisfaction with the U.S. Attorney’s handling of this
case. To call it inept would, in the Court’ view, vastly understate the
seriousness of the problems that occurred.” Id. Finally, Judge Stadtmueller
concluded that the third factor, the “impact of re-prosecution on the
administration of justice,” was “more neutral.” Id. at 18. In making this
observation, Judge Stadtmueller commented that
. . . the Court also acknowledges that dismissal without prejudice
“is not a toothless sanction.” United States v. Taylor, 487 U.S. 326,
342 (1988). That is particularly true, here, where one of the
charges against Mr. Dobek has essentially been dismissed with
prejudice, because the U.S. Attorney will not have the ability to refile it against him, as it now stands barred by the applicable
statute of limitations.
Id. at 18-19. (In its motion arguing for dismissal without prejudice, the
government had argued that “[b]y virtue of dismissing the indictment, the
5

government will no longer be able to prosecute the defendant for the conduct
alleged in Count One, as the statute of limitations has now expired.” Id., Dkt.
No. 26 at p. 5.)
Judge Stadtmueller concluded that, while it was a close call, he was
going to dismiss the case without prejudice, “given the serious nature of the
offense and the general favor of dismissal without prejudice.” Id., Dkt. No. 31 at
p. 19. He explained that
[a]s the Court has continuously noted throughout this order, it
finds many shortcomings in the U.S. Attorney’s handling of this
case. The serious issues in that office should not be weighted so
heavily that it would deprive the American people of justice in a
case involving an accused international arms trafficker.
Id.
B.

United States of America v. Ronald Dobek, Case No. 13-cr-231

Thirty-seven days later, on November 26, 2013, the grand jury returned
a new indictment against the petitioner. Case No. 13-cr-231-RTR at Dkt. No. 1.
Count One charged that between July 2007 and January 2009, the defendant
conspired to commit an offense against the United States by willfully exporting
F-16 canopy seals from the United States to Venezuela. Id. at pp. 1-4. Count
Two charged that on or about December 29, 2007, the defendant attempted to
export F-16 canopy seals from the United States to Venezuela. Id. at p. 5.
Count Three alleged that on or about December 6, 2008, the defendant
attempted to export F-16 canopy seals from the United States to Venezuela. Id.
at p. 6. The clerk’s office assigned this second case to Judge Rudolph T. Randa.
Id. at Dkt. No. 5.
6

The defendant filed a motion to dismiss the indictment, arguing that the
five-year statute of limitations under 18 U.S.C. §3282 barred prosecution on
the December 29, 2007 conduct (alleged in Count Two of the second
indictment). Id. at Dkt. No. 15.
1.

Judge Callahan’s February 10, 2014 Report and
Recommendation

Judge William E. Callahan, Jr., the assigned magistrate judge,
recommended that Judge Randa deny the motion. Id. at Dkt. No. 29. Judge
Callahan agreed with the defendant that “ordinarily Count Two would be
barred by the statute of limitations, which both parties agree is five years. See
18 U.S.C. §3282(a).” Id. at p. 4. The government, however, had argued that a
different provision in the statute of limitations, 18 U.S.C. §3288, extended the
limitations period after an indictment had been dismissed. Id. at pp. 4-5. Judge
Callahan recited the relevant portion of §3288, which read:
Whenever an indictment or information charging a felony is
dismissed for any reason after the period prescribed by the
applicable statute of limitations has expired, a new indictment may
be returned in the appropriate jurisdiction within six calendar
months of the date of the dismissal of the indictment or
information, . . . which new indictment shall not be barred by any
statute of limitations. This section does not permit the filing of a
new indictment or information where the reason for the dismissal
was the failure to file the indictment or information within the
period prescribed by the applicable statute of limitations, or some
other reason that would bar a new prosecution.
Id. at p. 5. The government argued that because the grand jury returned the
13-cr-231 indictment thirty-seven days after Judge Stadtmueller dismissed the
12-cr-253 indictment without prejudice, the statute of limitations did not bar
Count Two. Id. at p. 5.
7

Judge Callahan agreed that Count Two was not barred by the statute of
limitations. Id. at p. 10. Relying on numerous cases, he rejected the petitioner’s
argument that under the last sentence of §3288, he should conclude that
Judge Stadtmueller’s reason for dismissing the first case constituted “some
other reason that would bar a new prosecution.” Id. at pp. 6-9 (citing United
States v. Clawson, 104 F.3d 250, 252 (9th Cir. 1996); United States v. Shipsey,
363 F.3d 962, 968 (7th Cir. 2004); United States v. Burdix-Dana, 149 F.3d
741, 743 (7th Cir. 1998); United States v. Abu-Shawish, No. 07-CR-289, 2008
WL 2225687 (E.D. Wis. Mar. 17, 2008)).
The petitioner also argued that “Judge Stadtmueller relied on the
government’s assurance that [Count Two] would be barred by the statute of
limitations when he dismissed the original indictment without prejudice
pursuant to Rule 48(b) . . . .” Id. at p. 5. Judge Callahan found, however, that
the government had not promised that it would not charge the petitioner with
the December 29, 2007 conduct; it had mistakenly believed that it could not.
Id. at p. 9. He rejected the petitioner’s speculative argument that Judge
Stadtmueller might not have dismissed the 12-cr-253 indictment without
prejudice if not for the government’s statement that it could not re-indict the
petitioner for that conduct. Id.
The petitioner next contended that because the 13-cr-231 indictment
broadened and amended the charges by including a new charge—conspiracy
against the United States—the second indictment should not “relate back” to
the filing date of the original indictment. Id. at p. 5. Judge Callahan ruled that
8

he did not need to reach this argument, given his conclusion that Count Two
wasn’t barred by the statute of limitations. Id. at p. 10.
The petitioner objected to Judge Callahan’s report on February 25, 2014,
advancing the same arguments he’d made to Judge Callahan. Id. at Dkt. No.
31. Judge Randa summarily accepted Judge Callahan’s recommendation on
April 11, 2014, and denied the motion to dismiss the indictment. Id. at Dkt.
No. 34.
2.

Resolution of Case No. 13-cr-231 and Appeal

The case proceeded to trial before Judge Randa on June 2, 2014. Id. at
Dkt. No. 49. On June 4, 2014, the jury found the petitioner guilty of all three
charges. Id. at Dkt. No. 51. Three months later, Judge Randa sentenced the
petitioner to eighty-four months of imprisonment on each count, to run
concurrently to each other, followed by three years of supervised release. Id. at
Dkt. Nos. 66, 67. Nine days after Judge Randa entered the judgment, the
petitioner filed a notice of appeal in the Seventh Circuit Court of Appeals. Id. at
Dkt. No. 71.
The Seventh Circuit affirmed the conviction. United States v. Dobek, 789
F.3d 698 (7th Cir. 2015). Judge Posner’s decision indicated that the petitioner
had raised three issues: “the admissibility of an alleged co-conspirator’s emails,
the sufficiency of the evidence to convict him, and the validity of the jury
instruction on willfulness.” Id. at 699. The panel deemed the co-conspirator
statements admissible and the evidence “more than sufficient” to convict the
petitioner; it stated that “[t]he only ground for the appeal that has any possible
9

merit involves the jury instruction on willfulness.” Id. at 700. While finding
fault with the willfulness instruction, the court held that any error was
harmless. Id. at 702.
C.

United States v. Dobek, Case No. 16-cv-1255 (the current petition)

On September 20, 2016, almost a year and a half after the Seventh
Circuit affirmed his conviction, the plaintiff filed this 116-page §2255 motion,
dkt. no. 1, along with five pages of “endnotes,” dkt. no. 1-3, a ninety-nine-page
brief, dkt. no. 2, and 702 pages of appendices, dkt. nos. 2-1, 2-2. In its
screening order, the court did not wade into the nuances of the petitioner’s
hundreds of pages of argument. It simply noted that §2255(b) required it to
notify the U.S. Attorney’s Office of the petition unless “the motion and the files
and records of the case conclusively show that the prisoner is entitled to no
relief.” Dkt. No. 8 at 2. Because it was not “readily apparent” to the court that
the petitioner wasn’t entitled to relief, the court required the government to
respond. Id. The court allowed the petitioner to rely on his oversized filings, id.
at 3-4, but denied his request to expand the already-voluminous record, id. at
3. The government responded to the petition on January 19, 2017, dkt. no. 9,
and the petitioner filed a reply brief on February 9, 2017, dkt. no. 10.
Pages 1-12 of the petitioner’s motion are this district’s §2255 form. Pages
13 and 14 contain a “forward” section that does not advance any factual or
legal argument. Pages 15-39 contain the petitioner’s version of the facts, all the
way through his petition for certiorari with the United States Supreme Court.
Pages 39-41 recite law relating to §2255 petitions. On page 41, one gets a hint
10

of the grounds for the petitioner’s motion. On pages 41-43, he discusses the
standard for demonstrating ineffective assistance of counsel. At pages 43-50,
he shifts to a recitation of the law governing procedural default, and discusses
the impact of an ineffective assistance claim on that doctrine.
At page 51 of the petition, the petitioner finally states the grounds for his
motion. He says that he “intends to present and argue four subordinate claims
that appellate counsel abandoned during Dobek’s . . . appeal [of his conviction
in 13-cr-231].” Id. at 51. He enumerates those four claims as follows:
(1) a collateral estoppel violation, obvious and significant to the 12CR-253 cause and the 13-CR-231 cause;
(2) violations of 18 U.S.C. §§ 3282 and 3288’s due process notice
requirements and tolling requirements, by means of “materially
broadening and substantially amending” the 12-CR-253
reindictment under 13-CR-231;
(3) judicial estoppel violations—pursuant to Fed. R. Crim. P. 48(b),
that prevents the reclamation of allegations beyond the
prescribed limitations period, inhibiting the application of
section 3288—upon a “want” or “failure” to prosecute dismissal;
and
(4) an abused [sic] of discretion violation by the 13-CR-231 court—
by and through failing to observe circuit precedent and stare
decisis established under the Grady-Friedman judicial rule,
while conducting a review of section 3288 ‘materially
broadening and substantially amendment’ claims—during the
pretrial litigation in the 13-CR-231 cause.
Id. at 51 (citations to other portions of the petition omitted).
The petitioner restates the claims in the headings of the petition. He says
that his appellate counsel was ineffective because counsel ignored “obvious and
significant issues” relating to the dismissal of 12-cr-253 and the reindictment
in 13-cr-231. Id. at 52. He says that his appellate counsel was ineffective by
11

ignoring “18 U.S.C. §3282 due process violations and 18 U.S.C. §3288
statutory tolling violations.” Id. at 64. He says that his appellate counsel was
ineffective in ignoring the nature of the dismissal of 12-cr-253 and its
relationship to the statute of limitations period. Id. at 79. And he says that his
appellate counsel was ineffective in ignoring the argument that the district
court did not conduct a “Grady-Friedman required review” of his statute of
limitations claim in 13-cr-321. Id. at 97. In sum, the ninety-nine pages of the
petition present one ground for relief: that the lawyer who represented the
petitioner in his appeal to the Seventh Circuit provided ineffective assistance in
violation of the Sixth Amendment, by failing to raise certain claims.
The government responds that the court should dismiss the petition for
several reasons. Dkt. No. 9. First, the government asserts that the issues the
petitioner says his appellate lawyer should have raised are frivolous, and thus
appellate counsel was correct not to raise them. Id. at 5. Second, it argues that
even if the four claims weren’t frivolous, appellate lawyers are not required to
raise every conceivable argument. Id. at 6. Third, the government contends that
even if the arguments weren’t frivolous, they weren’t “dead-bang winners”
compared to the issue the Seventh Circuit found compelling—the challenge to
the willfulness instruction. Id. Last, the government argues that any deficiency
in the appellate lawyer’s performance wasn’t prejudicial, because while the jury
convicted the petitioner on three counts (including the one that he claims was
barred by the statute of limitations), Judge Randa imposed the sentences on

12

each count to run concurrently, so the petitioner received the same sentence
he likely would have received had he been charged with only two counts. Id.
The petitioner filed a fifteen-page reply, dkt. no. 10, accompanied by
forty-six pages of exhibits, dkt. nos. 10-2, 10-3.
II.

Analysis
A.

Motion to Vacate, Set Aside, or Correct Sentence (Dkt. No. 1)
1.

Standard

Section 2555 provides that a federal prisoner
claiming the right to be released upon the ground that the
sentence was imposed in violation of the Constitution or laws of
the United States, or that the court was without jurisdiction to
impose such sentence, or that the sentence was in excess of the
maximum authorized by law, or is otherwise subject to collateral
attack, may move the court which imposed the sentence to vacate,
set aside or correct the sentence.
28 U.S.C. §2255(a). “Relief under §2255 is available ‘only in extraordinary
situations, such as an error of constitutional or jurisdictional magnitude or
where a fundamental defect has occurred which results in a complete
miscarriage of justice.’” United States v. Coleman, 763 F.3d 706, 708 (7th Cir.
2014) (quoting Blake v. United States, 723 F.3d 870, 878-79 (7th Cir. 2013)). If
“the motion and the files and records of the case conclusively show that the
prisoner is entitled to no relief[,]” the court need not hold an evidentiary
hearing. 28 U.S.C. §2255(b); Sandoval v. United States, 574 F.3d 847 (7th Cir.
2009) (“The court should grant an evidentiary hearing on a §2255 motion when
the petitioner ‘alleges facts that, if proven, would entitle him to relief.’”)

13

The petitioner asserts that his appellate counsel’s performance was
unconstitutionally defective under the Sixth Amendment. The Sixth
Amendment provides that “[i]n all criminal prosecutions, the accused shall
enjoy the right . . . to have the Assistance of Counsel for his defence.” U.S.
CONST. amend. VI. There are two components to an ineffective assistance claim:
first, the petitioner must show that “counsel’s performance was deficient,” and
second, he must show “that the deficient performance prejudiced the defense.”
Strickland v. Washington, 466 U.S. 668, 687 (1984).
To show deficient performance, a petitioner must demonstrate that
“counsel made errors so serious that counsel was not functioning as the
‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id.
To satisfy the prejudice prong of the Strickland standard, the petitioner
must show that “there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.”
Thomas v. Clements, 789 F.3d 760, 771 (7th Cir. 2015) (quoting Cullen v.
Pinholster, 563 U.S. 170, 189 (2011)). “It is not enough to show that counsel’s
performance had an effect on the outcome or that ‘it is possible a reasonable
doubt might have been established if counsel acted differently.” Id. (quoting
Harrington v. Richter, 562 U.S. 86, 111 (2011)). The “reasonable probability” is
one “sufficient to undermine confidence in the outcome,” which means that
there has to be a “substantial” likelihood of a different outcome. Cullen, 563
U.S. at 189 (quoting Richter, 562 U.S. at 111-112).
The Seventh Circuit summarizes the two-part inquiry it this way:
14

As for the performance prong, because it is all too easy to conclude
that a particular act or omission of counsel was unreasonable in
the harsh light of hindsight, Strickland directs courts to adopt a
strong presumption that counsel’s conduct falls within the wide
range of reasonable professional assistance. The prejudice prong
requires the defendant or petitioner to show that there is a
reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceedings would have been different.
Laux v. Zatecky, 890 F.3d 666, 674 (7th Cir. 2018) (internal quotations and
citations omitted).
The petitioner makes a specific sort of ineffective assistance of counsel
claim: that his appellate counsel—who also represented the petitioner at the
trial level—failed to select the best issues to present on appeal. In Suggs v.
United States, 513 F.3d 675 (7th Cir. 2008), the Seventh Circuit provided a
framework for analyzing a claim that appellate counsel erred in failing to raise
a particular issue:
To evaluate [the petitioner’s] claim, we must first analyze the
trial court record to determine whether his appellate attorney, in
fact, ignored significant and obvious issues. We must then
compare each neglected issue to, in this case, the issues actually
raised on appeal.
Only if an ignored issue is ‘clearly stronger’ than the
arguments raised on appeal will the attorney’s performance be
considered constitutionally deficient (thereby satisfying the first
prong of the Strickland test). To establish prejudice—the other
component of the Strickland test—[the petitioner] must show that
there is a reasonably probability that, but for the deficient
performance of his attorney, the result of his appeal would have
been different.
Suggs, 513 F.3d at 678. “[A]ppellate counsel . . . need not (and should not)
raise every nonfrivolous claim, but rather may select from among them in order
to maximize the likelihood of success on appeal.” Smith v. Robbins, 528 U.S.
15

259, 288 (2000) (citing Jones v. Barnes, 463 U.S. 745 (1983)). While “it is still
possible to bring a Strickland claim based on counsel’s failure to raise a
particular claim, . . . it is difficult to demonstrate that counsel was
incompetent.” Id.
Before turning to the four claims that the petitioner asserts his appellate
lawyer should have raised, the court notes that the petitioner spent pages 4350 of the petition laying out case law relating to the doctrine of “procedural
default.” “Procedural default” refers to the rule that “[a] claim cannot be raised
for the first time in a § 2255 motion if it could have been raised at trial or on
direct appeal.” McCoy v. United States, 815 F.3d 292, 295 (7th Cir. 2016)
(citing Sandoval, 574 F.3d at 850). “A federal prisoner cannot bring defaulted
claims on collateral attack unless he shows both cause and prejudice for the
default.” Id. (citations omitted).
The court suspects that the petitioner discussed procedural default out
of a concern that the government would argue that because he didn’t raise the
four issues he thinks his lawyer should have raised on appeal, he is barred
from raising the ineffective assistance claim in his §2255 petition. The
government, however, has not argued procedural default; it has argued the
merits of the petitioner’s ineffective assistance claims. And given that the
petitioner asserts the reason he didn’t raise these four issues on appeal was
because his counsel ineffectively failed to raised them, a finding in his favor
might constitute cause for the default. Accordingly, the following analysis does

16

not analyze procedural default, or cause; the court directly analyzes the merits
of the petitioner’s Sixth Amendment claims.
2.

Analysis

The petitioner alleges that his appellate counsel should have raised four
arguments on appeal. The government correctly notes that it is difficult to pin
down the exact nature of the four arguments, because of the voluminous and
rambling nature of the petitioner’s arguments. The government characterized
the four arguments as best it could, and as far as the court can tell, those
characterizations appear correct. Below, however, the court provides its own
characterizations of the arguments.
a.

Argument Number One: Collateral Estoppel

The heading of the petitioner’s first argument, pared down, says that
appellate counsel failed to raised issues of “judicial bar under collateral
estoppel” that the dismissal of the 12-cr-253 case raised in the 13-cr-231 case.
Dkt. No. 1 at 52. In the text under that heading, the petitioner mentions
“double jeopardy’s offshoot of collateral estoppel,” id., and says that “[a]
collateral estoppel claim is grounds for an immediate appeal, applying if a
defendant’s claim that a prior jeopardy attaching proceeding—where an issue
of ultimate fact was determined in the defendant’s favor—was impermissibly
adopted and reapplied in the instant proceeding, then Double Jeopardy Clause
would foreclose the prosecution,” id. at 54. But for the most part, he repeats
that his appellate counsel should have raised a “collateral estoppel” claim.
Despite the length of the petition, he does not lay out the law on collateral
17

estoppel, and he doesn’t say what action in 12-cr-253 estopped what action in
13-cr-231.
In his brief, the petitioner cites numerous cases involving double
jeopardy and collateral estoppel. Dkt. No. 2 at 4-11. On page 12, he gets to the
heart of the matter; he argues that once 12-cr-253 “[was] determined [in favor
of Dobek] by a valid final judgement [(the 12-CR-253 dismissal)],” it couldn’t be
litigated “between the same parties in any future [] [prosecution] . . .” Id. at 12
(brackets and parentheses in the original). It appears that the petitioner is
saying that his appellate lawyer should have invoked the collateral estoppel
doctrine to argue that Judge Stadtmueller’s order dismissing 12-cr-253
constituted a final decision on the merits, and that the statute of limitations
barred the government from re-charging him with the December 29, 2007
conduct. This argument, the petitioner believes, would have convinced the
Seventh Circuit to invalidate his conviction in 13-cr-231. And because the
lawyer who represented him on appeal also represented him in both 12-cr-253
and 13-cr-231, the petitioner thinks that this issue should have been obvious
to his lawyer. Dkt. No. 1 at 65-66. Finally, he argues that this “collateral
estoppel” argument was stronger than any of the three claims his lawyer raised
on appeal. Id. at 66-74.
The doctrine of collateral estoppel holds that:
a judge's ruling on an issue of law or fact in one proceeding binds
in a subsequent proceeding the party against whom the judge had
ruled, provided that the ruling could have been (or was, but
unsuccessfully) challenged on appeal, or if not that at least it was
solid, reliable, and final rather than “intended to be tentative.”
Lummus Co. v. Commonwealth Oil Refining Co., 297 F.3d 80, 89 (2d
18

Cir. 1961)). And provided also that the ruling was necessary to the
validity of the final judgment in the case, as otherwise there would
be little incentive to challenge it on appeal, and that it had been
made only after the party later complaining about it had had an
opportunity for a full and fair hearing . . . .
Loera v. United States, 714 F.3d 1025, 1028-29 (7th Cir. 2013) (citing Taylor v.
Sturgell, 553 U.S. 880, 892 (2008) and other cases). The doctrine applies in
criminal cases, where “it operates much like the rule against double jeopardy .
. . .” Id. But collateral estoppel also is a common-law principle, so it is
“applicable in a criminal proceeding without reference to the double jeopardy
clause . . . .” Id. (citations omitted).
While the petitioner refers to the Double Jeopardy clause in his brief, and
cites cases discussing violations of that clause, that clause and its protections
do not apply to him. Judge Stadtmueller dismissed 12-cr-253 before jeopardy
had attached—at a pre-trial hearing on a motion to adjourn the trial date. But,
“[j]eopardy doesn’t attach until the jury is sworn or, in a bench trial, evidence
is introduced.” Id. And because jeopardy hadn’t attached, the only possible
basis for the petitioner’s claim that Judge Stadtmueller’s decision barred the
13-cr-231 indictment (or part of it) is the common-law doctrine of collateral
estoppel.
Collateral estoppel is also known as “issue preclusion.” United States v.
Salerno, 108 F.3d 730, 740 (7th Cir. 1997). What are the components of
collateral estoppel, or issue preclusion? First, a judge must have ruled on the
particular issue of fact or law. Loera, 714 F.3d at 1028; Salerno, 108 F.3d at
741 (the issue must have been “determined”). Second, that ruling must be
19

final. Loera, 714 F.3d at 1028 (ruling must be “solid, reliable, and final rather
than ‘intended to be tentative’”); Salerno, 108 F.3d at 741 (judgment must be
“valid and final”). Third, the ruling must involve an “ultimate issue”—
“necessary to the validity of the final judgment in the case,” Loera, 714 F.3d at
1028, and “an issue that must be proven beyond a reasonable doubt,” Salerno,
108 F.3d at 741 (citing United States v. Bailin, 977 F.2d 270, 280 (7th Cir.
1992)). Fourth, the judge must have issued the ruling “only after the party later
complaining about it had had an opportunity for a full and fair hearing.” Loera,
714 F.3d at 1029.
In making their determinations, “courts should not apply the collateral
estoppel rules in a hypertechnical manner, but rather should examine the
pleadings, evidence, charge, and other relevant matter” in the record.” Salerno,
108 F.3d at 741 (citing Bailin, 977 F.2d at 280). The defendant—in this case,
the petitioner—bears the burden of showing that the previous ruling finally
decided the “ultimate issue.” Id.
The petitioner’s collateral estoppel argument has no merit. Judge
Stadtmueller’s order dismissing the 2012 case does not meet any of the four
requirements listed above.
i.

There was no “ruling” that the statute of
limitations barred re-indictment on the
December 2007 conduct.

Judge Stadtmueller did not “rule” that the statute of limitations had
expired on the December 29, 2007 conduct. The government filed a motion to
adjourn the trial; that motion made no mention of the statute of limitations. All
20

it did was ask Judge Stadtmueller to adjourn the trial. Case No. 12-cr-253 at
dkt. no. 22. At the hearing on that motion, Judge Stadtmueller made exactly
one reference to the timing related to the December 29, 2007 charge. In
recounting the history of the case, he said, “We begin by taking a look at the
two charges embodied in the indictment, the first of which relates to conduct
that occurred back in 2007, now soon to be six years ago.” Id., Dkt. No. 27 at
p. 5. He criticized the fact that although investigative authorities appeared to
have been involved in the case since late spring 2010, they had not determined
“whether or not the subject matter of this prosecution were or were not
licensable in the context of a criminal prosecution,” but he said nothing about
the statute of limitations. Id. at p. 6. No one—not Judge Stadtmueller, not the
prosecutor, not the defense attorney—mentioned the statute of limitations at
this hearing. The only “rulings” the judge made at this October 15, 2012
hearing were his ruling denying the government’s motion to adjourn the trial,
and his sua sponte (made on his own initiative, without anyone asking him to)
ruling dismissing the case.
Judge Stadtmueller gave the government approximately three hours and
thirteen minutes (from the end of the hearing at 8:47 a.m. until noon) to file a
brief explaining why the dismissal should be without prejudice. The
government met that deadline; it filed a pleading entitled “Motion Requesting
that Any Possible Dismissal Be Without Prejudice.” Id. at Dkt. No. 26. This
motion did not ask the court to rule on whether the statute of limitations would

21

bar re-indictment of the December 29, 2007 conduct. It asked the court only to
order that its earlier dismissal of the case be without prejudice. Id. at p. 5.
In making that request, the government analyzed the three factors the
Speedy Trial Act requires judges to consider when deciding whether to dismiss
a case with or without prejudice for a violation of that statute. Id. at p. 3. The
last of those three factors is “the impact of re-prosecution on the
administration of the Speedy Trial Act and on the administration of justice.” Id.
In arguing that that factor weighed in favor of dismissal without prejudice, the
government said, “[b]y virtue of dismissing the indictment, the government will
no longer be able to prosecute the defendant for the conduct alleged in Count
One, as the statute of limitations has now expired.” Id. at 5. The government
did not ask Judge Stadtmueller to decide whether the statute of limitations had
expired; it assumed (wrongly) that the limitations period had expired.
The defense also filed a motion; it asked the court to dismiss the case
with prejudice. Id. at Dkt. No. 29. This motion did not ask the court to rule that
the statute of limitations barred re-indictment on the December 29, 2007
conduct; it did not mention the statute of limitations at all. It asked only that
the court dismiss the 2012 case with prejudice based on Speedy Trial Act
considerations.
Judge Stadtmueller issued his decision on October 21, 2013. Id. at Dkt.
No. 31. The words “statute of limitations” appear for the first time in this order.
Id. at 3. After a three-page recitation of the history of the government’s
investigation, Judge Stadtmueller said:
22

All of this begs the question: if the U.S. Attorney’s Office
in this district was not adequately prepared to follow through
with making discovery available at the time of the arraignment,
even after having over eight months to prepare, then why did
they even present the charge to the grand jury so much earlier?
The answer, of course, lies in the fact that the statute of
limitations would have otherwise expired on the conduct
charged against Mr. Dobek in Count One of the underlying
indictment.
That fact, in itself, also begs the question of why the U.S.
Attorney did not bring the charges against Mr. Dobek in a more
timely fashion so as to avoid any issues with the statute of
limitations.
Id. at 3-4 (emphasis in the original). Judge Stadtmueller went on with his
critique of the government’s investigation from there.
Some fifteen pages later, Judge Stadtmueller considered the third factor
of the Speedy Trial Act’s “with or without prejudice” test—the impact of the
dismissal on the administration of justice. Id. at 19. Judge Stadtmueller
acknowledged that even a dismissal without prejudice was not a “toothless”
sanction, particularly “here, where one of the charges against Mr. Dobek has
essentially been with prejudice, because the U.S. Attorney will not have the
ability to re-file it against him, as it now stands barred by the applicable
statute of limitations.” Id. Judge Stadtmueller observed, “This is a very serious
sanction, in and of itself.” Id.
The conclusion of the order—the part that actually “ordered”
something—said, “IT IS ORDERED that, pursuant to Rule 48(b) of the Federal
Rules of Criminal Procedure together with the Court’s supervisory powers, this
case be and the same stands DISMISSED without prejudice.” Id. at 20.

23

In sum, Judge Stadtmueller made three rulings over the course of that
third week of October 2013. He denied the government’s motion to adjourn the
trial. He sua sponte dismissed the case. And he granted the government’s
request that the dismissal be without prejudice (impliedly denying the defense
request for a dismissal with prejudice). He did not rule that the statute of
limitations had run on the December 29, 2007 conduct. Judge Stadtmueller’s
comment “was not the resolution of a dispute[.]” Loera, 714 F.3d at 1030.
ii.

There was no “final” ruling.

Even if one could construe Judge Stadtmueller’s assumption that the
statute of limitations had run on the December 29, 2007 conduct as a “ruling,”
it was not “final.” In Loera, Judge Posner described a “final” order or ruling as
one that “could have been (or was, but unsuccessfully) challenged on appeal, or
if not that at least it was solid, reliable, and final rather than ‘intended to be
tentative.’” Loera, 714 F.3d at 1028. The “could have been challenged on
appeal” description is helpful; as a court in the Northern District of Illinois
explained,
Principles of res judicata and collateral estoppel preclude the
same parties from relitigating identical issues in courts of
first impression partly because an appellate process exists to
correct legal error committed below. Unless parties are
accorded the right to appeal the judgment of a judicial
officer, the decision is not final and collateral estoppel and
res judicata principles do not apply.
United States v. Savides, 658 F. Supp. 1399, 1404 (N.D. Ill. 1987).
Judge Stadtmueller ordered the dismissal of the indictment without
prejudice in October 2013. Less than a year later, on September 8, 2014, the
24

Seventh Circuit held that “dismissal of the indictment without prejudice was
not a final order” in United States v. Davis, 766 F.3d 722, 734 (7th Cir. 2014),
rev’d en banc, 739 F.3d 712 (7th Cir. 2015). While the court later reversed that
ruling in an en banc decision, it appears that at the time Judge Stadtmueller
dismissed the petitioner’s 2012 case, his order would not have been considered
a final, appealable order under Seventh Circuit law. If the order dismissing the
indictment without prejudice was not subject to appeal, then comments that
the judge made in reaching that decision were not subject to appeal. The
government had no way to appeal Judge Stadtmueller’s assumption that the
statute of limitations had run on the December 29, 2007 conduct—at least not
in the 2012 case. And again, Judge Stadtmueller did not rule that the
limitations period had expired. He assumed that it had.
iii.

Judge Stadtmueller’s statements were not
necessary to the validity of the final
judgment.

When arguing the motion to dismiss the indictment in the 2013 case, the
petitioner relied heavily on Judge Stadtmueller’s statement that
one of the charges against Mr. Dobek has essentially been
dismissed with prejudice, because the U.S. Attorney will not have
the ability to re-file it against him, as it now stands barred by the
applicable statute of limitations.
Case No. 13-cr-231, Dkt. No. 15 at p. 9. He argued that Judge Stadtmueller
had “seized” on the “assurance” by the government that “consequences had
been sustained in that one of the counts was dismissed per the statute of
limitations.” Id. He speculated that “[t]his representation by the government

25

may very well have convinced the Court to dismiss the indictment without
prejudice.” Id. The petitioner argued that Count Two of the 2013
indictment charged “the same exact conduct” that the government “had
assured the Court in 12CR253 was time barred and was dismissed with
prejudice.” Id. at 10-11. He stated that, in telling Judge Stadtmueller that it
wouldn’t be able to re-indict the petitioner for the December 29, 2007 conduct,
“[i]n effect, the government was promising the Court it would not prosecute
Dobek for the activities alleged in count two of the instant indictment and
count one of the indictment in 12CR253.” Id. at 14. He claimed that the
government had “misled” Judge Stadtmueller into believing that he was
dismissing that conduct with prejudice, and that if the government hadn’t
misled Judge Stadtmueller, he “may have issued a decision dismissing both
count one and count two with prejudice.” Id.
In recommending that Judge Randa deny the motion to dismiss the
indictment, Judge Callahan rightly dismissed this argument out of hand. Id.,
Dkt. No. 29 at 9. He stated, “[t]o be sure,” the government had not promised
that it would not re-indict the petitioner for the December 29, 2007 conduct.
Id. He rightly concluded that the petitioner was speculating when he posited
that Judge Stadtmueller might have dismissed both counts with prejudice if he
had known that the statute of limitations had not run on that conduct. Id. And
he pointed out that the petitioner’s argument ignored Judge Stadtmueller’s
reliance on the presumption that dismissals should be without prejudice, and
his discussion of the seriousness of the crime. Id. Judge Callahan rightly
26

characterized the government’s single statement that it would not be able to
prosecute the petitioner on the December 2007 conduct as a “mistake.” Id.
When the court considers the transcript of the October 2013 hearing at
which Judge Stadtmueller dismissed the case, and the entire twenty-page
opinion deciding that the dismissal should be without prejudice, it is clear that
he did not base his decision solely on his mistaken belief that the dismissal of
the December 2007 conduct was, effectively, a dismissal with prejudice. Did his
mistaken belief factor into his reasoning? It did. Was it necessary to his
decision to dismiss the indictment? No. And again, the “final judgment” here
was Judge Stadtmueller’s order dismissing the case without prejudice, not an
order finding that the statute of limitations had run on the December 2007
conduct.
iv.

The parties did not have a full and fair
opportunity to litigate the issue.

Finally, Judge Stadtmueller’s October 21, 2013 statement about the
statute of limitations having expired was not the result of a full and fair hearing
on that question. Neither he nor either of the parties even mentioned 18 U.S.C.
§3282(a), which prescribes the limitations period. Neither he nor either of the
parties mentioned or discussed 18 U.S.C. §3288, which extends that
limitations period after an indictment is dismissed. Neither party asked Judge
Stadtmueller to decide whether the limitations period had run. The judge did
not ask the parties to brief the issue—he asked only for their positions on
whether his dismissal should be with or without prejudice. Judge Stadtmueller

27

gave the government only three hours and thirteen minutes to file its brief on
that question, and he gave the defense some five hours to craft its response.
In contrast, in 13-cr-231, the parties had a full and fair opportunity to address
the statute of limitations issue directly, and Judge Callahan provided a
thoughtful, reasoned analysis in response.
In sum, the petitioner has not met his burden of demonstrating that
collateral estoppel precluded the government from indicting him in 13-cr-231.
Because collateral estoppel did not bar the indictment, it would have been
frivolous for the petitioner’s appellate counsel to raise the issue in the Seventh
Circuit when appealing his conviction in that case. The petitioner fails to state
a Sixth Amendment claim that his counsel was ineffective for failing to raise
this issue.
b.

Argument Number Two: Interpretation of the
Limitations Statutes

The heading of the second argument in the petition refers to the two
statutes Judge Callahan interpreted in concluding that the statute of
limitations did not bar the 2013 indictment. Case No. 16-cv-1255, Dkt. No. 1 at
p. 64. The petitioner argues that his appellate counsel should have argued that
the 2013 indictment impermissibly “materially broadened and amended” the
charges in the 2012 indictment, rendering the application of 18 U.S.C. §3288
(the statute that extended the statute of limitations) inapplicable. Id., Dkt. No.
2 at 67 (citing United States v. Italiano, 894 F.2d 1280, 1283 (11th Cir. 1990);
United States v. Grady, 544 F.2d 598, 602 (2d Cir. 1976); United States v.
Friedman, 649 F.2d 199, 204 (3d Cir. 1981)). The petitioner again argues that
28

this issue should have been obvious to his appellate counsel, id. at 66, and
says that it is a stronger argument that the three counsel did raise on appeal,
id. at 68-73.
The petitioner made this argument to Judge Callahan, who addressed it
in a footnote: he remarked that the plain language of §3288 did not require the
government to bring identical charges in the new indictment as in the original
indictment. Case No. 13-cr-231, Dkt. No. 29 at 10 n.6.
“A statute-of-limitations defense . . . reflects a policy judgment by the
legislature that the lapse of time may render criminal acts ill-suited for
prosecution.” Smith v. United States, 568 U.S. 106, 112 (2013) (citing Toussie
v. United States, 397 U.S. 112, 114-15 (1970)). “[Statutes of limitations] are
‘designed to protect individuals from having to defend themselves against
charges when the basic facts may have become obscured by the passage of
time and to minimize the danger of official punishment because of acts in the
far-distant past.’” United States v. Ross, 77 F.3d 1525, 1537 (7th Cir. 1996)
(quoting Toussie, 397 U.S. at 114-15).
However, once an indictment has been timely filed, the
defendant is notified of the charge against him and may begin to
prepare his defense. The mere restatement or superficial
amendment of the charge in a subsequent indictment does not
further prejudice the defendant and thus does not offend the
purposes underlying the limitation period. Therefore, a
superseding indictment that supplants a still-pending original
indictment relates back to the original indictment’s filing date so
long as it neither materially broadens nor substantially amends
the charges initially brought against the defendant.
Id. at 1537.

29

Ross involved superseding indictments—indictments brought while the
original indictment is pending—as opposed to “new” indictments filed after a
dismissal without prejudice. Id. The petitioner cites two other cases involving
the question of whether the statute of limitations bars superseding
indictments: Grady, 544 F.2d at 602 and Friedman, 649 F.2d at 204. These
two decisions are not binding on this court. This court is bound by decisions
from the Seventh Circuit Court of Appeals; these decisions come from the
Second and Third Circuits.
As Judge Callahan noted, it does not appear that the Seventh Circuit has
ruled on whether it would apply the reasoning in Ross to new indictments
brought under §3288. Case No. 13-cr-231, Dkt. No. 29 at 10 n.6. The
petitioner cites Italiano, 894 F.2d at 1283, for the proposition that in cases
involving a new indictment filed under §3288, “the limitations period will only
be tolled if the charges and allegations in the new indictment are substantially
the same as those in the original indictment.” The petitioner argues that in 13cr-231, the charges were not substantially the same as those in the 2012
indictment, and so he did not receive “the notice considerations that permit
tolling” under §3288.
Italiano is not binding on this court—it is a decision from the Eleventh
Circuit Court of Appeals, not the Seventh Circuit. The court does not know
whether the Seventh Circuit would decide the issue the same way. But even if
this court assumes that the Seventh Circuit would decide the issue the same
way the Eleventh Circuit did, the petitioner’s argument fails.
30

The 2013 “new indictment” did not materially broaden or substantially
amend the charge in Count One of the original indictment—the charge relating
to the December 29, 2007 conduct. Count One of the 12-cr-253 indictment
alleged that the petitioner knowingly and willfully exported F-16 canopy seals
from the United States to Venezuela on December 29, 2007. Case No. 12-cr253 at Dkt. No. 1. Count Two of the 13-cr-231 indictment contained a similar
allegation: that the petitioner knowingly and willfully attempted to export F-16
canopy seals from the United States to Venezuela on December 29, 2007. Case
No. 13-cr-231 at Dkt. No. 1. The petitioner had notice from December 11, 2012
that he was being accused of having committed the December 29, 2007
offense. He had notice within the five-year time limitations period mandated by
18 U.S.C. §3282.
The petitioner, however, doesn’t argue that the government changed, or
broadened, the charge relating to the December 29, 2007 conduct. Instead, he
argues that the government added a new count in the 13-cr-231 indictment
that it had not charged in the 2012 indictment. Count One of the 2013
indictment charged the petitioner with conspiracy to commit an offense against
the United States, “namely, to willfully export F-16 canopy seals” without a
license, from July 2007 through January 2009. Case No. 13-cr-231 at Dkt. No.
1. The petitioner argues that the addition of this new count “broadened” or
“substantially amended” the otherwise-time-barred charge, such that he was
not placed on notice of the charge he’d have to defend.

31

There is no support for this theory in Italiano, or in Ross, or in §3288.
The fact that the government timely charged him with an additional count does
not impact whether the petitioner had sufficient notice that he’d be called to
account for the December 29, 2007 conduct. If the government had changed
something about the December 29, 2007 charge—perhaps charged him with
exporting some other articles on that date, or charged him with exporting the
canopies to a different country on that date, or charged him with committing a
different statutory offense on that date—the petitioner would have a basis for
his relation-back argument. Under these circumstances, he does not.
This argument also ignores the fact that the defendant was aware, before
Judge Stadtmueller dismissed the 2012 indictment, that the government
planned to add the conspiracy charge. In his dismissal order, Judge
Stadtmueller recounted how the government had submitted a jury instruction
for conspiracy ahead of the planned trial date. Case No. 12-cr-231, Dkt. No. 31
at p. 5. Judge Stadtmueller explained that he thought this was a mistake, until
he learned the next day in a phone conversation with the prosecutor that “the
Government planned to re-indict Mr. Dobek on Tuesday, October 15, 2013—
the day of the final pretrial conference and less than a week before trial was
scheduled to commence—to add a conspiracy charge.” Id. Judge Stadtmueller
went on to say that the petitioner’s counsel had informed him that counsel
received word of the proposed plan to add the conspiracy charge “only
moments before the parties submitted their pretrial report to the Court.” Id.
The docket shows that the parties submitted their joint pretrial report to the
32

court on October 10, 2013, id. at dkt. no. 21, meaning that the petitioner had
notice regarding a possible conspiracy charge for five days before the court
dismissed the 2012 case, and over a month before the grand jury returned the
2013 indictment. And, as the government noted in the 2013 case, the
conspiracy charge “circumnavigated,” or included, the two substantive charges.
Id., Dkt. No. 24 at p. 13.
Because the petitioner’s statute-of-limitations argument has no merit, it
would have been frivolous for his appellate counsel to raise it. The petitioner
has not stated a Sixth Amendment claim with regard to his counsel’s failure to
raise this argument.
c.

Argument Number Three: Rule 48(b) Judicial Estoppel

The heading of the third argument isn’t helpful in identifying the
argument—it mentions “Fed. R. Crim. P. 49(b) dismissal,” and its “judicial and
discretionary effects and bar that prevents the reclamation of allegations
beyond the prescribed limitations period . . . .” Dkt. No. 1 at 79. Rule 49(b) is
the rule that governs service of motions in criminal cases; the arguments
following the heading demonstrate that the petitioner meant to refer to Fed. R.
Crim. P. 48(b), the rule under which Judge Stadtmueller dismissed the 2012
indictment. The crux of the petitioner’s third argument appears on page 82 of
the petition, where he argues that the dismissal of an indictment under Rule
48(b) “establishes a judicial estoppel bar, that prevents the reclamation of
allegation beyond section 3282 . . . .” Dkt. No. 1 at 82. The petitioner again
asserts that this claim should have been obvious to his appellate counsel,
33

saying that “[a] pedestrian surface review of the 13-CR-231 record denotes a
bounty of pretrial litigation and issue preservation” regarding the claim.1 Id. at
80. And he argues that this argument was stronger than any of the three that
appellate counsel did raise. Id. at 84-91.
In support of his Rule 48(b) “judicial estoppel” claim, the plaintiff cites
United States v. DiStefano, 347 F. Supp. 442, 444-45 (S.D.N.Y.2 1972). Dkt.
No. 1 at 82. This short, forty-six-year-old case from a district court in New York
does not mention Rule 48(b). Nor does it mention judicial estoppel. In
DiStefano, the district court dismissed an indictment based on the
government’s failure to prosecute. Id. at 443. The circumstances were a bit
similar to the circumstances in the petitioner’s 2012 case before Judge
Stadtmueller—the district court dismissed the case because “it was of the
opinion that seven months was a reasonable time within which to require the
government to locate its witness.” Id. at 444. The government appealed the
dismissal, and while that appeal was pending, the statute of limitations
expired. Id. About a week later, the missing witness surfaced in another
country; a couple of weeks later, the government asked the court for the ability
to reargue the dismissal of the indictment. Id. The court denied the motion,
and the government petitioned the court of appeals for a writ of mandamus,

Oddly, the petitioner also acknowledges that the claim is “novel.” Dkt. No. 1 at
83.
1

The petitioner’s cite attributes the DiStefano decision to the Second Circuit
Court of Appeals. Dkt. No. 1 at 82. It is actually a decision from the district
court for the Southern District of New York.
2

34

directing the district court to reinstate the indictment. Id. The court of appeals
denied the mandamus petition and dismissed the appeal. The government then
filed a motion with the district court, asking it to reinstate the indictment. Id.
The district court concluded that it couldn’t grant the motion, because
the statute of limitations had run some five months earlier. Id. Citing 18 U.S.C.
§§3288 and 3289, the court said, “[w]hen an indictment is dismissed because
of technical defects or irregularity in the grand jury, a new indictment may be
returned within six months of the date of dismissal even though the statute of
limitations has run or might run in the interim.” Id. The court went on to say,
however, that “where the indictment has been dismissed for failure to
prosecute, reindictment is not possible once the statute of limitations expires.”
Id.
The petitioner’s DiStefano argument has no merit for a couple of reasons.
First, and more minor, DiStefano—as a district court decision from another
circuit—is not binding on this court. Second, and of more importance, the fact
that DiStefano was decided almost fifty years ago means that it relied on the
version of 18 U.S.C. §3288 that was in effect in 1972. At that time, the statute
read,
Whenever an indictment is dismissed for any error, defect, or
irregularity with respect to the grand jury . . . after the
period prescribed by the applicable statute of limitations has
expired, a new indictment may be returned in the
appropriate jurisdiction within six calendar months of the
date of the dismissal of the indictment or information . . .
which new indictment shall not be barred by any statute of
limitations.

35

Pub. L. No. 88-520, 62 Stat. 828 (codified as amended at 18 U.S.C. §3288
(1964)). See also, United States v. Moriarty, 327 F. Supp. 1045, 1047 (E.D.
Wis. 1971). So at that time, §3288 extended the limitations period only if the
reason the indictment was dismissed was because of an “error, defect, or
irregularity with the grand jury.” See Moriarty, 327 F. Supp. at 1047-48
(“Section 3288 is specific in its requirement that an otherwise time-barred
count can be allowed only if the earlier dismissal related to irregularities
occurring in connection with grand jury proceedings.”) In contrast, the current
version of the statute, in effect since 1988 and when Judge Stadtmueller
dismissed the 2012 indictment, extends the limitation period if the indictment
was dismissed for “any reason.”
The petitioner knows that DiStefano relied on an old version of §3288,
but he claims that the reason Congress amended the statute was “to close a
technical loop-hole related to 18 U.S.C. §§3161-3174 (Speedy Trial Act (“STA”)
and the averting section 3288 reindictment.” Dkt. No. 1 at 83. He argues that
nothing in the amendment “foreclose[s] the effects of a Fed. R. Crim. P. 48(b)
dismissal,” which he argues is “non-constitutional and directly associated with
the inherent powers of the court.” Id., see also Dkt. No. 2 at 72 (extended
argument on this topic.) Despite the many pages the petitioner devotes to his
argument that the “non-constitutional” nature of a Rule 48(b) dismissal has
some sort of preclusive effect, the court does not understand this argument.
DiStefano does not say that a Rule 48(b) dismissal establishes a “judicial

36

estoppel bar.” No other case that this court can find says that Rule 48(b)
creates some sort of estoppel.
All of the petitioner’s talk of “judicial estoppel” or an “estoppel bar”
amounts to an argument that dismissal under Rule 48(b) somehow functions
as a dismissal with prejudice. The petitioner has not cited any cases that say
this. He points to no language in the rule that supports this argument. Rule
48(b) simply says that the court may dismiss an indictment if “unnecessary
delay” occurs in, among other things, bringing a defendant to trial. Further, the
petitioner’s argument—unsupported by any case law or authority—ignores the
fact that Judge Stadtmueller asked the parties to brief the question of whether
dismissal should be with or without prejudice, and it ignores Judge
Stadtmueller’s ultimate ruling specifically stating that he was dismissing the
2012 case without prejudice. “Dismissal without prejudice” means “that the
defendant can be reindicted.” United States v. Janik, 723 F.2d 537, 546 (7th
Cir. 1983).
The petitioner’s insistence that a Rule 48(b) dismissal is somehow
preclusive also feeds into his reiteration of the claim he made in the 2013 case
that a Rule 48(b) dismissal is a dismissal for “some other reason that would
bar a new prosecution” under the last sentence of §3288. Judge Callahan
rejected this argument, and Judge Randa adopted that recommendation. Judge
Callahan cited several cases analyzing the last sentence of §3288—Clawson,
104 F.3d at 252 (finding that the last sentence applied in cases where the
“other reason” was not capable of being cured); Shipsey, 363 F.3d at 962
37

(reiterating that conclusion); United States v. Sorcher, 498 F. Supp. 2d 603,
613 (E.D.N.Y. 2007) (which found that the legislative history of §3288
supported the Clawson court’s conclusion). Case No. 2013-cr-231, Dkt. No. 29
at pp. 6-7. Judge Callahan also cited a Seventh Circuit decision that “seem[ed]
to agree” that “§ 3288 is broadly applicable.” Id. at 7 (citing Burdix-Dana, 149
F.3d at 743).
The petitioner insists, however, that a dismissal “under the S[peedy]
T[rial] A[ct] holds a constitutional basis, while that of Rule 48(b) is a
discretionary [one] crafted at the control of the Court, with only considerations
of the Sixth Amendment woven into its fabric.” Dkt. No. 2 at 64. For this
reason, he maintains that a dismissal under Rule 48(b) is a dismissal for “some
other reason that would bar a new prosecution” under §3288. Although the
petitioner devotes pages of his petition and brief to his argument that the “nonconstitutional” nature of a Rule 48(b) dismissal makes it one of those “other
reasons,” the court is not persuaded by his arguments.
A Rule 48(b) dismissal does not constitute one of those “other reasons”
that bars reindictment under the last sentence of §3288. The first sentence of
the statute—the version that was in effect when Judge Stadtmueller dismissed
the petitioner’s 2012 case—says that “whenever” a felony indictment is
dismissed “for any reason,” a “new indictment may be returned” within six
calendar months of the date of dismissal. 18 U.S.C. §3288. It also says that a
“new indictment” “shall not be barred by any statute of limitations.” Id. The last
sentence carves out two exceptions: the government can’t file a new indictment
38

(1) where “the reason for the dismissal was the failure to file the indictment or
information within the period prescribed by the applicable statute of
limitations,” or (2) “some other reason that would bar a new prosecution.” Id.
The first exception does not apply in the petitioner’s case; the grand jury
returned the 2012 indictment just shy of three weeks before the statute of
limitations would have expired on the December 29, 2007 conduct.
The second exception applies when a court dismisses an indictment for
“some other reason that would bar a new prosecution.” Id. The statute does not
single out dismissals under Rule 48(b). The statute also does not say that the
government can’t re-indict when the dismissal was for “delay in bringing the
defendant to trial.” It says that the government can’t re-indict when the
dismissal was “for some other reason that would bar a new prosecution.” Id.
(emphasis added). And a dismissal without prejudice does not bar a new
prosecution.
One of the cases Judge Callahan cited in his decision recommending
denial of the motion to dismiss the 2013 indictment looked at the statute’s
legislative history to find out what Congress may have meant by “some other
reason that would bar a new prosecution.” In Sorcher, 498 F. Supp. at 613 n.7,
the district court for the Southern District of New York explained:
The legislative history of 18 U.S.C. § 3288 supports this
court's conclusion, in keeping with Clawson's analysis, that
the government is entitled to a six-month period to reindict
defendants. Prior to the 1988 amendments, the statute
provided, in relevant part:
Whenever any indictment is dismissed for any error,
defect, or irregularity with respect to the grand jury,
39

or ... is found otherwise defective or insufficient for
any cause after the period prescribed by the
applicable statute of limitations has expired, a new
indictment may be returned in the appropriate
jurisdiction within six calendar months of the date of
the dismissal of the indictment ... which new
indictment shall not be barred by any statute of
limitations.
In United States v. Peloquin, 810 F.2d 911, 912 (9th
Cir.1987), the Ninth Circuit interpreted (former)18 U.S.C. §
3288 as precluding the government from reindicting the
defendant to cure a violation of the Speedy Trial Act because
such an error did not render the indictment “defective or
insufficient.” Writing for the Court, Judge Kennedy, now
Justice Kennedy, stated, “[t]he government argues that there
are policy reasons for not giving defendants the chance to
wiggle off the hook because of Speedy Trial Act dismissals.
This may be so. But we are not in the business of drafting
statutes. This task we leave to Congress.” Id. at 913.
In 1988, apparently in direct response to Peloquin, Congress
amended § 3288, including the addition of the last sentence.
See 134 Cong. Rec. S17360-02 (daily ed. Nov. 10, 1988). In
setting forth a detailed analysis of the Anti-Drug Abuse Act
of 1988, of which this change to § 3288 was a part, Senator
Joseph Biden, then Chairman of the Senate Judiciary
Committee, stated, “[t]he reason a charge is dismissed
(unless the reason for the dismissal would independently bar
further prosecution such as a dismissal on grounds of
double jeopardy or a dismissal ‘with prejudice’ under a
statute) should not determine whether the government is
given additional time to bring a new prosecution.” Id.
In light of Senator Biden’s explanation, a dismissal without prejudice
under Rule 48(b) would not constitute one of those “other reasons,” because
Rule 48(b) does not independently bar further prosecution. If the petitioner
believes that the Sorcher and Peloqin decisions provide a basis for arguing that
a Rule 48(b) dismissal is qualitatively different from a dismissal under the
Speedy Trial Act, the court is not convinced. The Sixth Amendment to the
40

Constitution guarantees a defendant the right to a speedy trial. U.S. CONST.
amend. VI. The Speedy Trial Act is a statutory protection of that right, and
provides a mechanism for remedying a violation of the right. See 18 U.S.C.
§§3161-3174. Rule 48(b) is a procedural mechanism that provides a court with
discretion to sanction delays in bringing a defendant to trial. Fed. R. Crim. P.
48(h). The petitioner’s argument, that the 1988 amendment to §3288 allows
the government to reindict after a Speedy Trial dismissal without prejudice but
does not allow it to reindict after a Rule 48(b) dismissal without prejudice, is
illogical.
Given that the petitioner represents himself, the court also will construe
his argument liberally as a general judicial estoppel argument. “The doctrine of
judicial estoppel prevents a party from prevailing on an argument in an earlier
matter and then relying on a contradictory argument to prevail in a subsequent
matter.” Wells v. Coker, 707 F.3d 756, 760 (7th Cir. 2013) (citing New
Hampshire v. Maine, 532 U.S. 742, 749 (2001)). “[W]here a party assumes a
certain position in a legal proceeding, and succeeds in maintaining that
position, he may not thereafter, simply because his interests have changed,
assume a contrary position, especially if it be to the prejudice of the party who
has acquiesced in the position formerly taken by him.” Maine, 532 U.S. at 749
(quoting Davis v. Wakelee, 156 U.S. 680, 689 (1895)). Courts look at three
factors to determine whether a party is judicially estopped from raising an
argument: whether the party’s positions in the different proceedings were
“clearly inconsistent,” whether the party was successful in persuading the
41

court in the earlier proceeding to accept the earlier position, and whether the
party would “derive an unfair advantage if not judicially estopped.” Coker, 707
F.3d at 760.
The government did not assert “clearly inconsistent” positions in the
2012 and 2013 cases. In the 2012 case, it stated that it would not be able to
re-indict the petitioner on the conduct charged in Count One of the 2012
indictment, because the statute of limitations had expired. Case No. 12-cr-253,
Dkt. No. 26 at p. 5. In the 2013 case, the government admitted that it had
“erroneously stated that Count One of the original indictment would be barred
by the statute of limitations.” Case No. 13-cr-231, Dkt. No. 24 at p. 11. It noted
in the 2013 case that “[o]rdinarily, Count Two of the instant indictment would
be barred by the statute of limitations,” but it argued that, post-dismissal,
§3288 extended the limitations period. Id. at pp. 10-11. These two positions are
not “clearly inconsistent.” The government made a mistaken assumption in the
2012 case, which it admitted to and explained in the 2013 case. That is not
asserting two “clearly inconsistent” positions.
Finally, even if there is an argument to be made, somehow, that a Rule
48(b) dismissal without prejudice has some preclusive effect, or constitutes one
of those “other reasons” barring reindictment under §3288, the petitioner
cannot show that his counsel was constitutionally ineffective in failing to raise
it. He cannot demonstrate that if his lawyer had raised this issue at the
Seventh Circuit, there is a substantial probability that the outcome of the
appeal would have been different. Even if that court accepted the argument
42

and vacated the conviction on Count Two of the 2013 indictment, the petitioner
advanced no argument on which that court could have invalidated his
conviction on the other two counts.
d.

Argument Number Four: Abuse of Discretion

Finally, the petitioner argues that Judges Callahan and Randa abused
their discretion in denying the motion to dismiss the 2013 indictment, “by
failing to properly observe the Seventh Circuit’s standards controlling the
review of section 3288 claims.” Dkt. No. 2 at 87. He argues that they “failed to
observe and conduct a review pursuant to the Grady-Friedman and Italiano
standards long since accepted by the Seventh Circuit[,]” and that, in doing so,
the judges misapplied and failed to recognize controlling precedent. Id. at 89.
He also asserts that the district court ignored United States v. Daniels, 387
F.3d 636 (7th Cir. 2004), Ross, 77 F.3d 1525 (7th Cir. 1996), and United States
v. Schimmel, 950 F.2d 432 (7th Cir. 1991), as well as something he refers to
repeatedly as “Gillespie, 666 F. Supp. at 1141 (1987).” Id. at 90.
As the court already has noted, Grady, Friedman and Italiano are
decisions from other circuits. They did not bind Judge Callahan and Judge
Randa. They do not bind the Seventh Circuit, for “neither [the Seventh Circuit]
nor the district courts of [the Seventh Circuit] give the decisions of other courts
of appeals automatic deference . . . .” Colby v. J.C. Penny Co. Inc., 811 F.2d
1119, 1123 (7th Cir. 1987).
The petitioner also alleges that Judge Callahan abused his discretion by
failing to follow several district court cases from within the Seventh Circuit,
43

namely United States v. Lytle, 658 F. Supp. 1321 (N.D. Ill. 1987); United States
v. Roth, 669 F. Supp. 1386, 1390 (N.D. Ill 1987); and United States v. Gillespie,
666 F. Supp. 1137 (N.D. Ill. 1987). But “district judges in this circuit must not
treat decisions by other district judges, in this and a fortiori in other circuits, as
controlling, unless of course the doctrine of res judicata or collateral estoppel
applies. Such decisions will normally be entitled no more weight than their
intrinsic persuasiveness merits.” Id. at 1124.
Although Daniels, Ross and Schimmel are Seventh Circuit decisions, and
were binding on Judge Callahan and Judge Randa, they did not create the
precedent that the petitioner claims. In Daniels, as in Ross, the Seventh Circuit
considered the question of whether the statute of limitations barred a
superseding indictment, and concluded that “‘a superseding indictment that
supplants a still-pending original indictment relates back to the original
indictment’s filing date so long as it neither materially broadens nor
substantially amends the charges initially brought against the defendant.’”
Daniels, 387 F.3d at 642; Ross, 77 F.3d at 1537. As the court already has
noted, the Seventh Circuit might apply the same reasoning to new indictments
under §3288 (the Eleventh Circuit did in Italiano), but it hasn’t yet said so.
Regardless, the court has found that the 2013 indictment did not materially
broaden or substantially amend the December 29, 2007 charge.
Schimmel involved a second petition to revoke probation—not a “new
indictment.” Schimmel, 950 F.2d at 436. There was no reason for Judge
Callahan or Judge Randa to consider—or apply—Schimmel to the facts before
44

them, because the case before them did not involve facts similar to those in
Schimmel. The petitioner cannot show that either Judge Callahan or Judge
Randa failed to adhere to the principles of precedent or stare decisis, because
they did not. For the petitioner’s appellate lawyer to have raised such a claim
would have been frivolous. The petitioner has not demonstrated that his
appellate counsel was constitutionally ineffective in failing to raise this
argument.
B.

Motion To Amend Petition (Dkt. No. 24)

On April 5, 2018—some eighteen months after he filed the petition—the
petitioner filed a motion asked the court to allow him to amend the petition
under Fed. R. Civ. P. 15(a)(2). Dkt. No. 24. He wanted to add a fifth claim to the
four arguments in the original petition, alleging criminal contempt against the
United States Attorney’s Office for the Eastern District of Wisconsin under 18
U.S.C. §401(3). Id. at 1. The court will deny that motion.
Rule 15(a)(2) says that if more than twenty-one days have passed since
the other side filed its answer, a party needs leave of court to amend his
pleadings. It says that “[t]he court should freely give leave when justice so
requires.” Id. Justice does not require that leave under these circumstances.
The petitioner wants to add a “criminal contempt” claim under 18 U.S.C.
§401(3), which says that “[a] court of the United States shall have power to
punish by fine or imprisonment, or both, at its discretion, such contempt of its
authority, and none other, as—(3) Disobedience or resistance to its lawful writ,
process, order, rule, decree, or command.” 18 U.S.C. §401(3). Section 401(c) is
45

a criminal statute. “Criminal statutes, which express prohibitions rather than
personal entitlements and specify a particular remedy other than civil
litigation, are . . . poor candidates for the imputation of private rights of
action.” Chapa v. Adams, 168 F.3d 1036, 1038 (7th Cir. 1999) (citations
omitted). The government, not private citizens, prosecutes crimes. A private
citizen cannot sue for damages under a criminal statute unless Congress
provides for a private right of action. Universities Research Ass’n, Inc. v. Coutu,
450 U.S. 754, 770 (1981).
Further, this particular statute gives the court the right to punish
contempt of its authority. If the court believes that the U.S. Attorney’s Office
has disobeyed a court order, the court can punish that behavior under §401(3).
The petitioner cannot.
Finally, as the court has explained above, the U.S. Attorney’s Office did
not violate a court order by indicting the petitioner in the 2013 case. Judge
Stadtmuller did not prohibit the government from re-indicting the petitioner; he
specifically dismissed the case without prejudice, which meant that the
government could re-indict the petitioner. The court denies this motion.
C.

Consolidated Request for Discovery and Disclosure of Grand Jury
Materials (Dkt. No. 29)

The petitioner has filed a motion to conduct discovery on his proposed 18
U.S.C. §401(3) criminal contempt claim, and has asked for the “grand jury

46

materials” in the 2012 and 2013 cases in relation to that claim. Dkt. No. 29.3
This motion is an attempt to collect information to support his claim that the
government committed criminal contempt in violation of 18 U.S.C. §401(3)
when it indicted him in the 2013 case. The court will deny the motion—the
petitioner cannot bring a claim under a criminal statute.
III.

Certificate of Appealability
Under Rule 11(a) of the Rules Governing Section 2254 Cases (which

apply in cases filed under 28 U.S.C. §2255), the court must consider whether
to issue a certificate of appealability. A court may issue a certificate of
appealability only if the applicant makes a substantial showing of the denial of
a constitutional right. See 28 U.S.C. §2253(c)(2). The standard for making a
“substantial showing” is whether “reasonable jurists could debate whether (or,
for that matter, agree that) the petition should have been resolved in a different
manner or that the issues presented were adequate to deserve encouragement
to proceed further.” Slack v. McDaniel, 529 U.S. 472, 484 (2000) (internal
quotation marks omitted).
The court declines to issue a certificate of appealability, because no
reasonable jurist could debate that the petitioner has not stated a valid Sixth
Amendment claim of ineffective assistance of appellate counsel.

He also has filed a request for discovery, dkt. no. 25; a request to expand the
record, dkt. no. 26; and a second request to expand the record, dkt. no. 27.
The clerk’s office did not docket these “requests” as motions; if it had, the court
would have denied them, for the same reason it denies the motion for discovery
and grand jury disclosure.
3

47

IV.

Conclusion
The court ORDERS that the petitioner’s motion to vacate, set aside, or

correct his sentence under 28 U.S.C. §2255 is DENIED. Dkt. No. 1.
The court DENIES the petitioner’s motion to amend the petition. Dkt. No.
24.
The court DENIES the petitioner’s motion for discovery and motion for
disclosure of grand jury materials. Dkt. No. 29.
The court DECLINES to issue a certificate of appealability.
The court ORDERS that this case is DISMISSED with prejudice.
Dated in Milwaukee, Wisconsin this 18th day of September, 2018.
BY THE COURT:
_____________________________________
HON. PAMELA PEPPER
United States District Judge

48