Rodney L. Lass v. JASON WELLS , Warden

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 23-2880
R ODNEY L. LASS ,
Petitioner-Appellant,
v.
JASON WELLS , Warden,
Respondent-Appellee.
____________________
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 2:21-cv-00578-WED — William E. Duffin, Magistrate Judge.
____________________
A RGUED M AY 13, 2024 — DECIDED J UNE 26, 2024
____________________
Before S CUDDER , S T. EVE, and PRYOR , Circuit Judges.
S CUDDER , Circuit Judge. After Rodney Lass’s state court
trial on charges of misdemeanor domestic abuse ended in a
mistrial, prosecutors recharged the case and, the second time
around, added multiple felony counts. The second case ended
in a guilty verdict on all but one charge, leaving Lass to pur-
sue relief on direct appeal, in state post-conviction proceed-
ings, and then in federal court under 28 U.S.C. § 2254. All
along his primary contention has been that the second set of

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2 No. 23-2880
charges were the product of an unconstitutional vindictive
prosecution. The district court denied relief, and we affirm.
Even on the generous assumption that Lass has not forfeited
contentions he now presses on appeal, we see no way to read
the state court’s denial of post-conviction relief as reflecting
any unreasonable application of law or determination of fact.
I
A
The facts come from the record compiled in the Wisconsin
state court proceedings.
Rodney Lass faced misdemeanor domestic abuse-related
charges in Wisconsin’s Milwaukee County Circuit Court in
the summer of 2012. This first case ended in a mistrial when
the alleged victim, Lass’s former girlfriend, disregarded a
court order and made irrelevant and unduly prejudicial state-
ments to the jury. About a year later Assistant District Attor-
ney Jennifer Williams, who second chaired the first case but
did not make the misdemeanor charging decision, brought a
second round of charges, including nine felonies and two mis-
demeanors. These eleven counts incorporated the conduct
underpinning the original misdemeanor charges and also in-
cluded new allegations of misconduct dating back to 2008.
Lass saw the new case as vindictive—as violating his
rights under the Fourteenth Amendment’s Due Process
Clause—and asked the trial court to dismiss it. He contended
that the prosecutors leveled the expanded charges against
him in retaliation for his seeking and receiving a mistrial in
the misdemeanor case. Lass supported his motion with an af-
fidavit from Robert Haney, his counsel at the first trial.
Haney’s affidavit recounted statements ADA Williams made

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No. 23-2880 3
about what accounted for the broader charges in the second
case. According to Haney, “ADA Williams stated that alt-
hough her assignment within the Office of the District Attor-
ney [was] changing, she was not going to allow the case
against Mr. Lass to be assigned to another ADA. ADA Wil-
liams stated that even if she were to leave the District Attor-
ney’s Office and go into private practice, she would return
under the District Attorney’s pro bono program to personally
see to the prosecution of Mr. Lass.”
Haney’s statement got the trial court’s attention, with the
judge asking ADA Williams to explain the new wave of
broader, more serious felony charges against Lass. ADA Wil-
liams then appeared in open court and stated:
I learned about the history of domestic violence
from the victim in a face-to-face conversation at
some point in my interaction with her, I know
for a fact, in December, during—either before,
during, or after the misdemeanor trial.
When she told me about the incidents, I was not
aware whether police reports had been filed ….
At that point, I began to research whether or not
I could bring additional charges, whether they
were within the statute of limitations, which I
found out later they were, and then I also dis-
covered that there were police reports support-
ing what the victim was telling me. I don’t re-
member when I learned about the police re-
ports.
But I can tell the Court, in all candor, when I
heard about what he had done to her to inflict

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4 No. 23-2880
these injuries in the past during the course of
their relationship, considering my oath as a
prosecutor, I was almost convinced that I had
no choice but to file these charges. That explains
my rationale.
The trial court credited this explanation, finding that the
new charges were not vindictive because ADA Williams did
not learn of the full range of Lass’s criminal conduct until the
misdemeanor prosecution was underway. Even more specif-
ically, the court determined that the prosecutor could not
have charged Lass with the felony counts the first time
around because she did not yet have knowledge of the full
scope of his criminal conduct. So the trial court denied Lass’s
request to dismiss the second case.
The jury found Lass guilty of all charges, save for one of
the felony counts, with the trial judge later imposing a sen-
tence of 40 years’ imprisonment. Lass then began his pursuit
of post-conviction relief, first in Wisconsin state court and
later in federal court under 28 U.S.C. § 2254.
B
Lass’s post-conviction motion proceeded not before the
judge who tried the felony case, but instead before a different
member of the Milwaukee County Circuit Court. The court
denied Lass’s request for post-conviction relief. It did so by
renewing the reasoning underpinning the trial judge’s prior
rejection of the vindictive prosecution contention. Nor did the
court see any need for an evidentiary hearing given the prior
findings made in response both to attorney Haney’s affidavit
and ADA Williams’s explanation for broadened charges in
the second case. The court also denied Lass’s request for post-

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No. 23-2880 5
conviction relief on an unrelated ground regarding the admis-
sion at trial of a personal journal Lass kept while receiving
anger management counseling.
The Wisconsin Court of Appeals affirmed. The court de-
termined that the lower court committed no error—either
during trial or in the post-conviction proceeding—in denying
Lass an evidentiary hearing because he failed to allege facts
that, if true, would establish a presumption of vindictiveness
or actual vindictiveness. Instead, the facts that Lass did allege,
the appellate court reasoned, were consistent with ADA Wil-
liams’s stated reason for bringing the array of felony charges
in the second case—in particular, the information she learned
during the prosecution of the first case about the duration and
extent of the domestic abuse.
The Wisconsin appellate court then made short work of
Lass’s separate claim for relief based on his trial counsel’s fail-
ure to object to the admission into evidence of his personal
journal. The court declined to consider the claim on the merits
because, contrary to requirements of Wisconsin law, Lass
made no effort to show any prejudice. The court likewise ap-
plied Wisconsin law in finding that Lass forfeited an alto-
gether new claim—raised for first time on appeal in the state
post-conviction proceedings—that the trial court violated his
Sixth Amendment rights by excluding his presence at side-
bars throughout the trial.
The Wisconsin Supreme Court then declined review.
C
Lass’s application for relief in federal district court under
28 U.S.C. § 2254 likewise fell short. As for the vindictive pros-
ecution claim, the district court seemed of the view that the

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6 No. 23-2880
Wisconsin Court of Appeals did not apply a presumption of
vindictiveness and that its declining to do so was neither con-
trary to nor reflected an unreasonable application of clearly
established U.S. Supreme Court precedent. This meant that
Lass failed to demonstrate entitlement to relief under
§ 2254(d)(1). From there the district court added that it saw
nothing unreasonable (or procedurally problematic) with the
Wisconsin trial court’s finding that ADA Williams offered le-
gitimate, non-vindictive reasons for bringing the felony
charges against Lass in the second case. The state court’s find-
ing, the district court reasoned, eliminated any need for an
evidentiary hearing in federal court.
The district court then declined to consider Lass’s two re-
maining claims, finding both procedurally defaulted. Con-
trary to clear requirements of Wisconsin law, Lass failed to
develop any facts on the prejudice prong of his ineffective as-
sistance of counsel claim regarding the admission of his per-
sonal journal at trial and waited until appeal to say anything
about the trial court’s handling of sidebar discussions.
We granted a certificate of appealability allowing Lass to
press all three grounds for relief on appeal.
II
Two of Lass’s contentions on appeal require little analysis,
as the district court was right to see both as procedurally de-
faulted.
Owing its existence to the independent and adequate state
law doctrine, see Michigan v. Long, 463 U.S. 1032 (1983), the
doctrine of procedural default limits state prisoners from re-
ceiving post-conviction relief in federal court, see Wainwright
v. Sykes, 433 U.S. 72, 81, 87 (1977). The doctrine precludes

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No. 23-2880 7
federal court review of “claims that the state court denied
based on an adequate and independent state procedural
rule.” Davila v. Davis, 582 U.S. 521, 527 (2017). Stated in more
practical terms, this means that, in the absence of a showing
of cause and prejudice to excuse the procedural default, we
cannot reach the merits of “a question of federal law decided
by a state court if the decision of that court rests on a state law
ground that is independent of the federal question and ade-
quate to support the judgment.” Coleman v. Thompson, 501
U.S. 722, 729 (1991).
These principles find straightforward application here.
The Wisconsin Court of Appeals relied entirely on state pro-
cedural law in determining that Lass altogether failed in seek-
ing state post-conviction relief to identify any prejudice he ex-
perienced from his trial counsel’s failure to challenge the ad-
mission into evidence of the personal journal he kept while
receiving anger management counseling. See State v. Pettit,
492 N.W.2d 633, 645 (Wis. Ct. App. 1992) (applying Wis. Stat.
§ 805.18(2), the state procedural law barring relief from harm-
less errors). That procedural failure precludes any federal
consideration of this claim. See Rogers v. Wells, 96 F.4th 1006,
1013 (7th Cir. 2024) (“To preserve a claim for federal habeas
review, a state prisoner must fairly present the operative facts
and legal principles controlling the claim through a full round
of state court review.”).
So, too, for Lass’s contention that the Wisconsin trial court
violated the Sixth Amendment by excluding him from sidebar
discussions. Lass raised this contention for the first time in the
Wisconsin Court of Appeals, thereby forfeiting it. See State v.
Dowdy, 808 N.W.2d 691, 694 (Wis. 2012) (“[I]ssues not raised
in the circuit court will not be considered for the first time on

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8 No. 23-2880
appeal.”); see also Flint v. Carr, 10 F.4th 786, 794 (7th Cir. 2021)
(recognizing that state forfeiture rules are “almost always” an
adequate and independent state law ground for denying fed-
eral habeas review).
Lass has made no attempt to identify any ground on
which to excuse either procedural default. In short, he has left
us no choice but to affirm the district court’s disposition of
these two claims.
III
We now turn to the only preserved issue in this appeal:
Lass’s contention that the state charging him with multiple
felony counts following and indeed in response to the misde-
meanor mistrial was the product of a vindictive prosecution.
Our review of this claim is highly deferential. Congress has
given us the authority to grant habeas relief from a judgment
only when the state court’s adjudication of a claim was “(1)
contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Su-
preme Court … or (2) was based on an unreasonable determi-
nation of facts in light of the evidence presented in the State
court proceeding.” 28 U.S.C. § 2254(d).
Lass anchors his vindictive prosecution claim, as he did in
the Wisconsin courts, in ADA Jennifer Williams’s explanation
for bringing the expanded array of charges against him in the
second case. Recall that Lass’s trial counsel, Robert Haney,
stated that ADA Williams told him that she was personally
committed to pursuing the felony charges, allegedly saying
that even if she went into private practice, she would return
to the District Attorney’s office pro bono to see a felony pros-
ecution through. Lass views this explanation as vindictive

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No. 23-2880 9
because ADA Williams used words laden with personal ani-
mosity and chose to press the slew of felony charges only after
he succeeded in having the initial misdemeanor case declared
a mistrial.
Framed this way, Lass urges us to hold that the Wisconsin
Court of Appeals should have applied a presumption of vin-
dictiveness under a modest extension of U.S. Supreme Court
precedent holding that such presumption arises when de-
fendants who successfully appeal a conviction come to face
charges carrying increased sentencing exposure in a second
case. See, e.g., United States v. Goodwin, 457 U.S. 368, 375–77
(1982).
In advancing this position, however, Lass overlooks an ex-
press observation of the Wisconsin Court of Appeals—the last
state court to consider his vindictiveness claim on the merits.
See Greene v. Fisher, 565 U.S. 34, 38 (2011). The Court of Ap-
peals explained that it was willing to assume that “the pre-
sumption [of vindictiveness] could apply when a defendant
alleges that a prosecutor added new felony charges to retali-
ate against a defendant for a successful mistrial motion.”
Given this statement, it is difficult to credit Lass’s suggestion
that the Wisconsin court’s decision reflected a broad legal er-
ror.
Lass’s remaining arguments anchor themselves much
more in the facts underpinning his contention that ADA Wil-
liams acted vindictively by bringing the felony charges
against him in the second prosecution. As best we can tell,
Lass advances these arguments under the legal standard of
§ 2254(d)(1) with the dual, interrelated aim of establishing ac-
tual vindictiveness and convincing us that the Wisconsin
Court of Appeals’ decision reflected an unreasonable

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10 No. 23-2880
application of Supreme Court precedent. See United States v.
Spears, 159 F.3d 1081, 1086 (7th Cir. 1998) (explaining that vin-
dictiveness requires a showing of “objective evidence” that
the prosecutor brought additional charges based on some-
thing other than “the usual determinative factors” a responsi-
ble prosecutor would consider before bringing charges).
This presentation confuses us, however, because Lass does
very little, if anything, to identify the precise legal error the
Wisconsin Court of Appeals committed in its reasoning. At
points he hints back to his contention that the Wisconsin court
should have afforded him an express presumption of vindic-
tiveness. But he never identifies where he sees that error in
the Wisconsin Court of Appeals’ opinion or, even more, how
it prejudiced him. So we have a hard time seeing any basis for
relief on these grounds under § 2254(d)(1).
In the main, Lass devotes his brief to trying to persuade us
that the Wisconsin Court of Appeals’ view of the facts was
incomplete and thus that the proper course is to remand with
directions to the district court to hold an evidentiary hearing.
Here, too, though, the position confuses more than it clarifies.
The argument has all the earmarks of a fact-based contention
pressed under 28 U.S.C. § 2254(d)(2), specifically that the Wis-
consin Court of Appeals denied post-conviction relief based
on an unreasonable view of the facts. Yet nowhere in the dis-
trict court or before us has Lass ever mentioned § 2254(d)(2).
So it sure seems that, at least in our court, he has forfeited ar-
guments based on that provision. But the forfeiture point
need not consume us. Given the consideration the Wisconsin
Court of Appeals gave to the factual contentions underpin-
ning Lass’s vindictive prosecution claim, and the respect fed-
eral courts owe to that factual assessment, the district court

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No. 23-2880 11
was right to see no basis for an evidentiary hearing. See Wilson
v. Sellers, 584 U.S. 122, 125 (2018) (“[A] federal habeas court
simply reviews the specific reasons given by the state court
and defers to those reasons if they are reasonable.”). Even on
the generous view that the argument is before us, and without
deciding whether Lass’s argument is forfeited, we see nothing
unreasonable about the Wisconsin Court of Appeals’ view of
the facts and, by extension, no basis for an evidentiary hear-
ing.
Most important on the factual front is to return to what
happened in the Wisconsin trial and post-conviction proceed-
ings. Lass’s contention that the felony prosecution was vin-
dictive—exposing him to substantial prison time and coming
as it did on the heels of the misdemeanor case ending a mis-
trial—did not fall on deaf ears. To the contrary, the Wisconsin
trial court required ADA Williams to come to court and ex-
plain on the record the basis for the felony charges. The court
did so fully aware of defense counsel Robert Haney’s affidavit
recounting ADA Williams’s statements about her personal re-
solve to see that Lass face felony charges. The trial judge then
made an express finding that there was no evidence showing
that the state brought the felony charges against Lass to retal-
iate against or punish him for moving for and receiving a mis-
trial in the initial misdemeanor prosecution. Put most simply,
the trial court found ADA Williams’s explanation credible.
It was that precise finding that the Wisconsin trial court
returned to in denying Lass’s request for post-conviction re-
lief. By then Lass’s case had been reassigned to a new judge,
who, upon reviewing the record, saw no reason to revisit or
second guess the prior finding crediting ADA Williams’s ex-
planation that she brought the felony charges in the second

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12 No. 23-2880
case because of information she learned in connection with
the initial misdemeanor case.
The Wisconsin Court of Appeals then affirmed, expressly
recounting this procedural history and, even more, identify-
ing no basis for questioning the trial judge’s finding that ADA
Williams offered a credible explanation for bringing the fel-
ony charges. The same reasoning drove the court’s conclusion
that the trial court, both as an initial matter and in the state
post-conviction proceedings, committed no error in declining
to hold an evidentiary hearing. The trial court’s express find-
ing that the felony prosecution was not vindictive, the appel-
late court explained, meant that an evidentiary hearing at this
point would be little more than a “fishing expeditio[n].”
In the final analysis, we see no basis for federal habeas re-
lief under § 2254(d) on Lass’s vindictive prosecution claim.
No aspect of the Wisconsin Court of Appeals’ rationale is con-
trary to or reflects an unreasonable application of clearly es-
tablished U.S. Supreme Court precedent. And, perhaps more
to the point, the record shows that the Wisconsin courts—the
trial court and the Wisconsin Court of Appeals—considered
and reasonably rejected the precise fact-based arguments Lass
presses in his pursuit of federal habeas relief. It is not enough
for Lass to disagree with findings of those courts or to argue
that more could have been done in an evidentiary hearing to
allow him to explore and test ADA Williams’s credibility. See
Brumfield v. Cain, 576 U.S. 305, 314 (2015) (requiring substan-
tial deference to the state trial court’s factual findings on
§ 2254(d)(2) review because mere disagreement about a fac-
tual finding is insufficient for relief).
For these reasons, we AFFIRM.

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