Stewart v. USA

Filing 5

OPINION AND ORDER denying FOR LACK OF JURISDICTION 3 Petition for Reconsideration and Annulment or Modification of Judgment; denying 4 Motion for Extension of Time to File Notice of Appeal or in the Alternate a Stay, or Notice of Appeal. Signed by Judge Rudy Lozano on 3/11/15. cc: Stewart (mc)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
UNITED STATES OF AMERICA,
Plaintiff/Respondent,
vs.
JOVAN DEMONT STEWART,
Defendant/Petitioner.

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NO. 2:09-cr-43
2:13-CV-454

OPINION AND ORDER
This matter is before the Court on the: (1) Petition for
Reconsideration and Annulment or Modification of Judgment, filed by
Petitioner, Jovan Demont Stewart, on March 3, 2015 (DE #610); and
(2) Motion for Extension of Time to File Notice of Appeal or in the
Alternate a Stay, or Notice of Appeal, filed by Petitioner, Jovan
Demont Stewart, on March 6, 2015 (DE #611).

The Petition for

Reconsideration (DE #610) is DENIED FOR LACK OF JURISDICTION.

The

motion for extension of time to file a notice of appeal, or in the
alternative a stay, or a notice of appeal (DE #611), is also
DENIED.

BACKGROUND
On January 7, 2015, this Court entered an opinion and order
denying Stewart’s motion under 18 U.S.C. § 2255, denying his

request for an evidentiary hearing, and declining to issue a
certificate of appealability.

(DE #601).

In the current motion

for reconsideration, Stewart rehashes many arguments he made in the
voluminous briefing of his section 2255, as well as attaches an
exhibit which purports to be a letter from S.K. dated January 2,
2010 (DE #610, pp. 18-24). Although Stewart seems to claim that he
attached this letter as an exhibit to the Court earlier, the Court
has scoured the docket (including DE #543, 578, and 559), and notes
that the letter was not previously submitted to the Court.

DISCUSSION
When a motion is brought requesting reconsideration of a final
judgment, a court must first determine whether it has jurisdiction
to entertain the motion. Under certain circumstances, a motion for
reconsideration motion must be treated as a successive habeas
petition.

See Dunlap v. Litscher, 301 F.3d 873, 875-76 (7th Cir.

2002); Harris v. Cotton, 296 F.3d 578, 579-80 (7th Cir. 2002)
(citations omitted) (“Prisoners are not allowed to avoid the
restrictions that Congress has placed on collateral attacks on
their convictions . . . by styling their collateral attacks as
motions for reconsideration under Rule 60(b).”)

If a motion for

reconsideration is in effect a second or successive petition, a
district court lacks jurisdiction to consider it unless the court
of appeals has granted the petitioner permission to file such a

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petition.

See 28 U.S.C. § 2255(h); 28 U.S.C. § 2244; Dunlap, 301

F.3d at 875 (noting that 28 U.S.C. section 2255, paragraph 8, is
“clear and bar[s] a district court from using Rule 60(b) to give a
prisoner broader relief from a judgment rendered by the court in
the prisoner’s [2255] proceeding.”).

The Seventh Circuit has

explained the Supreme Court’s position on such motions as follows:
Gonzalez [v. Crosby, 545 U.S. 524 (2005)]
holds that a motion under Fed.R.Civ.P. 60(b)
must be treated as a collateral attack when
the prisoner makes a ‘claim’ within the scope
of § 2244(b).
This means, the Court
concluded, that a procedural argument (say,
one about the statute of limitations) raised
using Rule 60(b) is not a new collateral
attack, but that an objection to the validity
of the criminal conviction or sentence is one
no matter how it is couched or captioned. See
also, e.g., Melton v. United States, 359 F.3d
855 (7th Cir. 2004); United States v. Evans,
224 F.3d 670 (7th Cir. 2000). The reasoning
of Gonzalez does not depend on which rule the
prisoner
invokes;
its
approach
is
as
applicable to post-judgment motions under
Fed.R.Crim.P. 6(e) as it is to motions under
Rule 60(b).
U.S. v. Scott, 414 F.3d 815, 816 (7th Cir. 2005).
In this case, Stewart does not argue that there were any
procedural defects in the proceedings related to the Court’s
decision to deny relief under section 2255.1

Rather, his motion

for reconsideration again attempts to challenge the validity of his

1

To the extent Stewart claims this Court wrongfully did not
address the letter he attaches to his motion (DE #610, p. 7),
Stewart did not previously provide it to the Court. It cannot be
considered new evidence, either, as it is dated January 2, 2010.
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sentence, arguing (as he has done before) that his counsel was
incompetent for, inter alia,

not using an entrapment defense, for

not moving for a severance, and for failing to investigate.
Additionally, he makes the Batson challenge (as his did in the
section 2255 motion), insists there was insufficient evidence to
convict him, and reiterates his argument that perjured testimony
was presented to the grand jury.

As such, Stewart’s motion is a

successive claim for relief under section 2255, for which he must
obtain leave to file from the Seventh Circuit Court of Appeals. 28
U.S.C. § 2255(h).

This Court lacks jurisdiction to hear Stewart’s

motion for reconsideration, and it must be DISMISSED.
This

Court

appealability.

has

already

denied

Stewart

a

certificate

of

(DE #601, pp. 22.) A certificate of appealability

may only issue if the petitioner “has made a substantial showing of
the denial of a constitutional right.”
Because

this

motion

is

an

28 U.S.C. § 2253(c)(2).

unauthorized

successive

collateral

attack, this Court cannot treat it as a notice of appeal, and
cannot issue a certificate of appealability.
403 F.3d 447 (7th Cir. 2005).

See Sveum v. Smith,

Moreover, to the extent Stewart

requests an extension of time to file a notice of appeal, the Court
cannot grant that request.2
2

Moreover, Federal Rule of Appellate Procedure states in a
criminal case, a defendant’s notice of appeal must be filed in
the district court within 14 days after the entry of the judgment
or order being appealed. Fed. R. App. P. R4(b)(1)(A). Even if
the Court could find excusable neglect or good cause, a district
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CONCLUSION
The Petition for Reconsideration (DE #610) is DENIED FOR LACK
OF JURISDICTION. The motion for extension of time to file a notice
of appeal, or in the alternative a stay, or a notice of appeal (DE
#611), is also DENIED.

DATED:

March 11, 2015

/s/ RUDY LOZANO, Judge
United States District Court

Court may only extend the time to file a notice of appeal for a
period not to exceed 30 days from the expiration of the time
otherwise prescribed by Rule 4. Stewart has exceeded that time
limit.
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