United States District Court, W.D. Wisconsin
TIMOTHY G. WHITEAGLE, Petitioner,
UNITED STATES OF AMERICA, Respondent.
OPINION AND ORDER
WILLIAM M. CONLEY District Judge
August 2012, after an 8-day trial, a jury found petitioner
Timothy Whiteagle guilty of twelve counts relating to bribing
and conspiring to bribe a Ho-Chunk Nation legislator to
secure favorable treatment for three different vendors
wishing to do business with the Nation. United States v.
Whiteagle, Case No. 11-cr-65-wmc-1. On October 24, 2012,
this court sentenced him to serve 120 months in prison, to be
followed by 3 years of supervised release. Petitioner filed
and lost motions for acquittal, a new trial, resentencing,
and a direct appeal. He has now filed a motion for
post-conviction relief under 28 U.S.C. § 2255, arguing
that his conviction should be vacated for numerous reasons.
Because none of petitioner's challenges support
overturning his conviction, the court will deny the motion.
petitioner seeks relief under 28 U.S.C. § 2255, which
“is reserved for extraordinary situations, ”
Prewitt v. United States, 83 F.3d 812, 816 (7th Cir.
1996), involving “errors of constitutional or
jurisdictional magnitude, or where the error represents a
fundamental defect which inherently results in a complete
miscarriage of justice.” Kelly v. United
States, 29 F.3d 1107, 1112 (7th Cir. 1994) (quotations
omitted). In his petition, Whiteagle identifies four separate
grounds for relief: (1) the court and prosecutors lacked
jurisdiction over the case under the “tribal exhaustion
doctrine”; (2) the government maliciously and
vindictively prosecuted petitioner because it was embarrassed
after an earlier acquittal of a defendant in a bribery case
in Minnesota; (3) the government selectively prosecuted
petitioner because he is a tribal member, but failed to
prosecute similar high profile cases; and (4) the government
misled the court and jury regarding the Ho-Chunk Nation's
Code of Ethics Act.
initial matter, all of Whiteagle's claims are barred by
the doctrine of procedural default. Under that doctrine, a
claim is defaulted for purposes of a motion under § 2255
if the petitioner failed to raise the claim at trial or on
direct appeal. McCoy v. United States, 815 F.3d 292,
295 (7th Cir. 2016) (“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.”) A petitioner
cannot bring defaulted claims in a motion under § 2255
unless he shows both cause and prejudice for the default, or
he shows that he is “actually innocent” of the
crimes of which he was convicted. Id. Here,
Whiteagle could have raised each of his claims at trial or on
direct appeal, but failed to do so. Moreover, he has not
demonstrated cause or prejudice; nor has he shown that he is
actually innocent of the crimes for which he was convicted.
Therefore, his claims are procedurally defaulted.
sake of completeness, however, the court will briefly address
the merits of Whiteagle's four new claims below.
Tribal Exhaustion Doctrine
argues that the government lacked jurisdiction to prosecute
him, and the court lacked jurisdiction over the case, under
the “tribal exhaustion doctrine.” Under that
doctrine, he argues that the Ho-Chunk Nation had the
sovereign authority to choose whether to prosecute him
civilly or criminally for the charged offenses and, until the
Ho-Chunk Nation took any action, neither the prosecutors nor
federal court had any authority to act.
tribal exhaustion doctrine is a judicially created rule that
counsels federal court abstention in certain cases involving
Indian tribes. In particular, the rule “requires
litigants, in some instances, to exhaust their remedies in
tribal courts before seeking redress in federal
courts.” Stifel, Nicolaus & Co. v. Lac du
Flambeau Band of Lake Superior Chippewa Indians, 807
F.3d 184, 195 (7th Cir. 2015), as amended (Dec. 14, 2015).
Thus, in certain situations in which a litigant would have
tribal court remedies, a federal court may choose to abstain
from the case under principles of comity. Id. The
tribal exhaustion doctrine, however, is not
addition, petitioner has cited no authority for his argument
that the tribal exhaustion doctrine could prohibit a federal
prosecution or conviction of a federal crime. Certainly,
“Indian tribes have power to enforce their criminal
laws against tribe members.” United States v.
Wheeler, 435 U.S. 313, 322 (1978), superseded in
other aspects by statute, 25 U.S.C. §§
1301-1303 (internal quotation marks omitted). “Their
right of internal self-government includes the right to
prescribe laws applicable to tribe members and to enforce
those laws by criminal sanctions.” Id. There
are also some crimes over which a tribal court may have
jurisdiction under the Indian Country Crimes Act, 18 U.S.C.
§ 1152. However, federal jurisdiction extends to
all general crimes over which there would be federal
jurisdiction regardless whether a tribal member or tribal
interests are involved. See Wheeler, 435 U.S. at
the crimes of conspiracy and bribery for which petitioner was
convicted are federal crimes subject to federal jurisdiction
regardless the identity of the victim or perpetrator, or the
location of the criminal activity. Therefore, the United
States had exclusive jurisdiction to prosecute them. For all
these reasons, petitioner's arguments regarding the
tribal exhaustion doctrine do not entitle him to relief.
Claims of Malicious, Vindictive and Selective
second and third grounds for relief are based on the
assertions that the charges against him were the result of
prosecutorial misconduct, vindictiveness and selectivity. In
particular, he points out that charges were filed against him
after the government failed to obtain a conviction in a
similar case against another individual (Craig Potts) in
Minnesota. He also suggests, without providing any details,
that the government prosecuted him because he is a tribal
member, but chose not to prosecute other, unspecified, high
profile and serious crimes.
vague allegations do not demonstrate malicious, vindictive or
selective prosecution in this instance. To demonstrate
malicious or vindictive prosecution, a defendant “must
affirmatively show through objective evidence that the
prosecutorial conduct at issue was motivated by some form of
prosecutorial animus, such as a personal stake in the outcome
of the case or an attempt to seek self-vindication.”
United States v. Jarrett, 447 F.3d 520, 525 (7th
Cir. 2006) (quoting United States v. Falcon, 347
F.3d 1000, 1004 (7th Cir. 2003). Likewise, a claim of
selective prosecution requires a defendant to show that he
was “singled out for prosecution where others were not
and that the selection was based on an impermissible ground,
such as race or religion.” United States v.
Fletcher, 34 F.3d 395, 406-07 (7th Cir. 2011) (citations
omitted). The evidence in this case neither supports a
finding that the charges filed against petitioner were
motivated by prosecutorial animus, nor that he was singled
out for prosecution for any improper reason. On the ...