United States District Court, S.D. Illinois
DONALD L. WEIDENBURNER, Petitioner,
UNITED STATES OF AMERICA, Respondent.
MEMORANDUM AND ORDER
PHIL GILBERT DISTRICT JUDGE
matter comes before the Court on Petitioner Donald L.
Weidenburner's Motion (Doc. 1) to Vacate, Set Aside or
Correct his sentence pursuant to 28 U.S.C. § 2255. Also
before the Court are Petitioner's Motions to Expand the
Record Pursuant to Rule 7 (Docs. 6, 11, 12 & 13); Motion
for Leave of Court (Doc. 7); and Motion for Show Cause (Doc.
noted that on May 27, 2015, Petitioner filed a Motion for New
Trial in his criminal proceedings. See United States v.
Weidenburner, 02-cr-40053, Doc. 833. The
government's response (Doc. 843) argued that the Rule 33
motion fell within the scope of a petition pursuant to 28
U.S.C. § 2255 and the Court agreed. As such, the Court
allowed Mr. Weidenburner the opportunity to withdraw his
Motion for New Trial and warned him that his failure to
withdraw the motion would result in the Court construing the
motion as a motion pursuant 28 U.S.C. § 2255.
Id. at doc. 844.
Weidenburner motioned for an extension of time to file a
reply on May 29, 2015 and then filed a Notice of Appel on
June 8, 2016. Id. at docs. 845 & 846. The Court
then provided Mr. Weidenburner with additional time to
withdraw his motion for new trial, again advising him that
his failure to do so would result in the Court construing his
motion as a petition pursuant to 28 U.S.C. § 2255.
Id. at doc. 854. When Mr. Weidenburner failed to
withdraw this motion in the time allotted, the Court
construed his motion as a petition pursuant to 28 U.S.C.
§ 2255 resulting in the case at bar. Mr. Weidenburner
appealed the order construing the motion for new trial as a
§ 2255. Id. at docs. 858 & 860. The §
2255 matter was stayed pending the appeals. The United States
Court of Appeals for the Seventh Circuit denied both appeals
as premature. See United States v. Weidenburner,
15-227 and 15-2580, (7th Cir. Apr. 7, 2016). This
matter may now proceed.
March 29, 2012, Petitioner was tried by jury and found guilty
of conspiracy to manufacture and distribute 500 grams or more
of a mixture and substance containing methamphetamine, in
violation of 21 U.S.C. § 846. See United States v.
Weidenburner, Case No. 02-cr-40053 (Doc. 666).
Petitioner was sentenced on July 2, 2012, to 360 months
imprisonment; ten years supervised release; a $100 special
assessment; and a $400 fine. (Doc. 705, 02-cr-40053).
Petitioner appealed and his appointed counsel asserted that
any possible appellate claims were frivolous and sought to
withdraw. The United States Court of Appeals for the Seventh
Circuit granted counsel's motion to withdraw and
dismissed the petitioner's appeal. See United States
v. Weidenburner, 550 F.App'x 298 (7th Cir. 2013).
Certiorari was denied on June 9th, 2014 and
petitioner's motion was timely filed on February 17,
alleges the following:
a. That the government failed to disclose any and all
“written or recorded statements” and “any
written record containing the substance of any relevant oral
statement made by Defendant” in violation of Brady
v. Maryland, 83 S.Ct. 1194 (1963). Specifically,
petitioner alleges that the government failed to provide the
Indiana police report of Mr. Althoff that stated, “he
gave some information, a statement that could be used to
obtain a search warrant in Illinois.” Petitioner also
alleges that the government failed to provide him with the
statement of “the reliable informant that Mr. Don
Graskewicz speaks about in this complaint for a search
b. That the government failed to disclose material evidence
affecting the credibility of witnesses within the scope of
Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763,
31 L.Ed.2d 104 (1972) and Napue v. People of State of
Ill., 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217
(1959). Specifically, that the witness Mr. Hanisch knew the
location of certain reports and falsely testified that he did
not know their locations and provided false testimony with
regard to his interview with the petitioner in Indiana.
Further, that the prosecution was aware that the said
testimony was false and failed to correct it.
addition to this initial § 2255, Petitioner has three
motions to expand the record pursuant to Rule 7. Rule 7 of
the Rules Governing Section 2255 Proceedings for the United
States District Courts provides that, if the 2255 motion is
not dismissed, “the judge may direct the parties to
expand the record by submitting additional materials relating
to the motion.” At this time, the Court is deferring
ruling on these motion in order to allow the government an
opportunity to admit or deny their correctness as required by
Petitioner requests Leave of Court (Doc. 7) in order to
conduct discovery. Rule 6(b) of the Rules Governing Section
2255 Proceedings for the United States District Courts
requires that the requesting party, “include any
proposed interrogatories and requests for admission, and must
specify any requested documents.” Petitioner is
requesting the “alleged statements that led to the
Search warrant of James J. Wathen's residence.”
However, he also goes on to state that there are no such
statements, because he never made any statements. Petitioner
does not include any proposed interrogatories or requests for
admissions. Since the specific documents he requests are, by
his account non-existence, the Court believes that discovery
at this stage would not produce any evidence not previously
produced at petitioner's criminal proceedings and/or
subsequent Freedom of Information requests.
the Court is DEFERRING ruling on Petitioner's Motions to
Expand the Record Pursuant to Rule 7 (Docs. 6, 11, 12 &
13). The Government is DIRECTED to inform the Court of the
correctness of the documents contained in the
petitioner's motions on or before December 12, 2016.
Petitioner's Motion for Leave of Court (Doc. 7) is DENIED
and Motion for Show Cause (Doc. 8) is MOOT as the Court has
indicated that petitioner's § 2255 was timely filed.