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Dobek v. United States

United States District Court, E.D. Wisconsin

November 1, 2019



          HON. PAMELA PEPPER Chief United States District Judge.

         On September 18, 2018, the court denied the petitioner's motion to vacate, set aside or correct sentence. Dkt. No. 32. A month later, on October 15, 2018, the petitioner filed a motion to reconsider, alter or amend the judgment. Dkt. No. 34. The court will deny the motion.

         1. Background

         The petitioner's September 2016 motion to vacate, set aside or correct sentence under 28 U.S.C. §2255 challenged his 2014 conviction on three counts related to exporting F-16 canopy seals to Venezuela. Dkt. No. 1; Dkt. No. 8 at 1. The court screened the petition and allowed the petitioner to proceed on his claim of ineffective assistance of appellate counsel. Dkt. No. 8 at 2. Post-screening, the petitioner filed various documents, including several requests for the court to expedite the disposition of the case. See Dkt. Nos. 16, 17, 19. He also notified the court that he had filed a petition for a writ of mandamus with the Seventh Circuit Court of Appeals. Dkt. No. 20.

         A. Order Dismissing §2255 Motion (Dkt. No. 32)

         The court's order dismissing the petition was forty-eight pages long. Dkt. No. 32. It discussed the facts behind the petitioner's claims-the grand jury indicted him in December 2012, id. at 2; the case was scheduled for trial on October 21, 2013, id. at 3; the government asked for an adjournment at the eleventh hour, citing the impact of the government shut-down, id.; the court granted the motion and dismissed the case without prejudice, id. at 3-4. Just over a month later, on November 26, 2013, the grand jury returned a new indictment (based on the same facts), id. at 6; the defendant moved to dismiss the second indictment on statute-of-limitations grounds, id. at 7; the magistrate judge recommended that the district court deny the motion, id. at 7-9; the district court adopted that recommendation and denied the motion to dismiss the indictment, id. at 9; the petitioner was convicted after a jury trial, id.; and the Seventh Circuit affirmed the conviction, id. at 9-10.

         The dismissal order then noted that the petitioner had buried his four arguments for relief at page fifty-one of his 116-page motion to vacate. Id. at 11. It reviewed each argument.

         1. Collateral Estoppel

         The court recounted:

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.

Dkt. No. 32 at 18. The court's order reviewed each of the four components of collateral estoppel, considering whether the order was a (1) ruling that (2) finally resolved an (3) ultimate issue after (4) the party had a full and fair opportunity to present it to the judge. Id. at 18-19 (citing Loera v. United States, 714 F.3d 1025, 1028-29 (7th Cir. 2013)). The court explained why Judge Stadtmueller's order dismissing the case without prejudice did not meet any of those four requirements. Id. at 20-28.

         2. Broadening and Amending

         The court summarized the petitioner's “broadening and amending” claim this way:

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 this issue should have been ...

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