Broadway v. USA
OPINION AND ORDER denying Motion to Vacate (2255) as to Marquis Kasimir Broadway (1). The Court DENIES the issuance of a certificate of appealability. Signed by Judge Jon E DeGuilio on 10/27/2015. (rmc)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
UNITED STATES OF AMERICA
MARQUIS KASIMIR BROADWAY
Case No. 3:12-CR-124 JD
Related Case No. 3:14-CV-1683 JD
OPINION AND ORDER
After pleading guilty, Marquis Kasimir Broadway was convicted of carjacking, in
violation of 18 U.S.C. § 2119(1) (Count 1), and carrying and brandishing a firearm during a
crime of violence, in violation of 18 U.S.C. § 924(c) (Count 2). On July 29, 2013, Mr.
Broadway was sentenced to 162 months of imprisonment, comprised of 78 months on the
carjacking charge (at the low end of the advisory guidelines range applicable to that count),
followed by the consecutive 84 months on the § 924(c) charge (the statutory mandatory
minimum term of imprisonment because the gun was admittedly brandished) [DE 60].
Mr. Broadway did not file a direct appeal, but filed a timely petition pursuant to 28
U.S.C. § 2255 [DE 63], asking the Court to either vacate one of his convictions, run the
sentences concurrently, or to allow him to renegotiate his plea agreement [DE 63 at 13]. He
attached a letter to the petition, written by his retained trial counsel, Mr. Thomas Strickler, in
which it is indicated in relevant part that Mr. Strickler advised Mr. Broadway that his sentence
would not exceed seven years [Id. at 17]. The government filed a response [DE 76], and
Attorney David Wemhoff was appointed on behalf of Mr. Broadway [DE 72]. Mr. Wemhoff
filed a reply in support of Mr. Broadway’s petition arguing only that an evidentiary hearing was
warranted [DE 75]. Accordingly, the Court held an evidentiary hearing on September 4, 2015,
during which counsel presented their evidence and argument.1 Having carefully considered the
entire record and for the reasons set forth below, the Court DENIES Mr. Broadway’s petition.
The § 2255 Petition
In Mr. Broadway’s original § 2255 pro se petition, he alleged that his retained trial
counsel, Mr. Thomas Strickler, provided ineffective assistance in the following ways: (1) by
advising him to consent to the transfer of his delinquency proceedings2 to an adult criminal
prosecution; (2) by not providing Mr. Broadway with a copy of his presentence investigation
report (PSR) prior to sentencing; (3) by advising Mr. Broadway that he would receive a sentence
of no more than 84 months’ imprisonment (which was the mandatory minimum sentence for
Count 2); and (4) by failing to advise Mr. Broadway of a binding plea offer the government
made for 120 months’ imprisonment in exchange for a plea of guilty to any one of the remaining
gun related charges (Counts 3-5). Mr. Broadway also alleged that his convictions for both
carjacking and a § 924(c) offense violated the Double Jeopardy Clause since the charges
originated from a single incident.3
Mr. Broadway’s evidentiary hearing was originally scheduled for July 2, 2015, however, it had to be continued so
defense counsel could brief an issue raised for the first time on the day of the hearing—that is, whether the defense
could call the prosecuting Assistant United States Attorney as a witness to determine when an alleged previous plea
offer had lapsed [DE 87]. However, the Court denied the defense’s request by way of a written order [DE 89], and
ultimately, the defense withdrew any claim relating to the existence of a previous plea offer.
Mr. Broadway was originally charged in case 3:12-cr-104 as a juvenile by way of an information which contained
the same six substantive charges as the indictment in this case, except under the rubric of juvenile delinquency. 18
U.S.C. § 5032.
The facts upon which Mr. Broadway pled guilty reveal that Mr. Broadway violently took a vehicle from two
individuals after poking one of the victims in the head with a loaded (and stolen) firearm and audibly chambering a
round, and was then caught by police driving the stolen vehicle at which point he claimed purchasing the car on
Mr. Wemhoff affirmed at the beginning of the evidentiary hearing that Mr. Broadway
was pursuing only one of his original claims—that Mr. Strickler provided ineffective assistance
by advising Mr. Broadway that his sentence would not exceed seven years.4 For purposes of the
record, Mr. Wemhoff explicitly dismissed each of the remaining § 2255 claims. The Court
accepted the dismissal of those claims and now proceeds to consider the remaining issue.
The Arraignment and Transfer
By way of history, after being charged as a juvenile in case 3:12-cr-104, on September
21, 2012, Mr. Broadway was arraigned before the undersigned. During the arraignment, Mr.
Broadway was represented by his then retained counsel, Mr. Andre Gammage, and was advised
of the charges, the elements of each charge, and the possible penalties of each charge whether
tried as a juvenile or an adult5. Mr. Broadway affirmed under oath that he understood the
charges and the possible penalties that he faced, and that he was satisfied with the representation
of Mr. Gammage. Eventually, Mr. Broadway terminated Mr. Gammage and hired new trial
counsel, Mr. Thomas Strickler, and a hearing was set on the government’s motion for mandatory
transfer to adult prosecution. Mr. Broadway, his mother, and Mr. Strickler, consented to adult
prosecution without a transfer hearing, and acknowledged that Mr. Broadway had been advised
of his charges and rights consistent with 18 U.S.C. § 5032 [case 3:12-cr-104, DE 34]. On
November 16, 2012, the Court held a hearing during which Mr. Broadway was placed under oath
For the first time, Mr. Wemhoff argued during the evidentiary hearing that the claim implicates Mr. Broadway’s
due process rights because he did not knowingly enter into the plea since he was not advised by competent counsel.
While the Court analyzes the claim under Strickland v. Washington, 466 U.S. 668 (1984), regardless of how the
claim is characterized, the result is the same based on the factual determinations.
Mr. Broadway does not contend that during this hearing he was improperly advised as to the maximum possible
and explicitly confirmed his understanding of his rights and the penalties of the charges whether
tried as a juvenile or as an adult. The Court accepted his consent.6
The Plea Agreement
On the day his jury trial was set to begin, March 11, 2013, Mr. Broadway decided to
plead guilty. Mr. Broadway entered into a plea agreement, wherein he agreed to plead guilty to
Counts 1 and 2 of the Indictment charging him with carjacking, in violation of 18 U.S.C. §
2119(1) (Count 1), and carrying and brandishing a firearm during a crime of violence, in
violation of 18 U.S.C. § 924(c) (Count 2).
In his plea agreement, Mr. Broadway represented that he had told his attorney, Mr.
Strickler, about the facts and circumstances surrounding the charges, that he believed Mr.
Strickler was fully informed as to the nature of the charges, and that Mr. Strickler had counseled
Mr. Broadway about his possible defenses [DE 38 at ¶ 5]. Mr. Broadway further represented
that he believed Mr. Strickler had “done all that anyone could do to counsel and assist [him],”
and Mr. Broadway confirmed that he was offering his plea of guilty “freely and voluntarily and
of [his] own accord” and no promises were made to him other than those contained in the plea
agreement. Id. at ¶¶ 11-12.
With respect to the penalties faced by Mr. Broadway, the plea agreement indicated in
relevant part that Mr. Broadway faced a penalty of “a maximum of 15 years imprisonment” for
the carjacking offense, and “a mandatory minimum of 7 years up to a maximum of life
imprisonment (consecutive to any other sentence of imprisonment).” Id. at ¶ 9(c). Mr. Broadway
In an order dated November 19, 2012, the Court determined that even absent defendant’s consent, transfer was
mandatory under 18 U.S.C. § 5032, given Mr. Broadway’s age, the charges he faced, and his criminal history [case
3:12-cr-104, DE 36].
also “agree[d] that the Court ha[d] jurisdiction and authority to impose any sentence within the
statutory maximum set for [his] offense(s) as set forth in this plea agreement” and that his
“sentence [would] be determined in accordance with the statutory maximums and mandatory
minimums listed above.” Id. at ¶ 9(d). The agreement also contained a waiver provision which
stated, in part:
I expressly waive my right to appeal my conviction, my sentence and any
restitution order to any Court on any ground, including any claim of ineffective
assistance of counsel. I also agree not to contest my conviction, my sentence, any
restitution order imposed, or the manner in which my conviction, the sentence or
restitution order was determined or imposed on any ground including any alleged
ineffective assistance of counsel in any appeal under Title 18, United States Code,
Section 3742 or in any post-conviction proceeding, including but not limited to, a
proceeding under Title 28, United States Code, Section 2255.
Id. at ¶ 9(d).
The Change of Plea Hearing
At the change of plea hearing, Mr. Broadway was placed under oath [DE 77]. Initially,
Mr. Strickler advised the Court that he needed additional time to consider the plea agreement
because Mr. Broadway did not realize that the § 924(c) charge carried a statutory mandatory
minimum of seven years, rather than five years, on account of Mr. Broadway’s having
brandished the weapon [DE 77 at 5]. After an approximately fifty-five minute recess, Mr.
Broadway chose to proceed with his change of plea hearing. During the hearing, Mr. Broadway
confirmed that he read, understood, and reviewed the plea agreement with his attorney. Id. at 32.
He also confirmed that there were no promises outside the plea agreement that he was relying on
to plead guilty, and that he was satisfied with Mr. Strickler’s representation. Id. at 14, 32.
Before changing his plea to guilty on Counts 1 and 2, Mr. Broadway was advised of the
nature of the charges [DE 77 at 14-29] and the possible penalties [DE 77 at 29-31]. With respect
to the maximum penalties for imprisonment, the government stated that “Congress has said that
the maximum that Mr. Broadway could receive – the absolute maximum would be, on Count 1,
up to fifteen years’ imprisonment” and “[w]ith respect to the 924(c) count in Count 2, . . .
carrying a firearm during a crime of violence and brandishing that firearm, Congress has said
that the minimum that a person can receive, the mandatory minimum, is seven years, and
because Congress has set no maximum, the courts have interpreted that as a possible maximum
of up to life.” Id. at 29-30. The undersigned then specifically confirmed that the 924(c)
mandatory minimum term of seven years ran consecutive to the sentence in Count 1. Id. at 30.
Following this exchange, Mr. Broadway acknowledged his understanding of the possible
penalties. Id. at 31.
Mr. Broadway also confirmed that he and Mr. Strickler had discussed the sentencing
guidelines and that he understood the actual guideline range could not be determined until
probation prepared a PSR [DE 77 at 37-38]. Mr. Broadway explicitly acknowledged that he
knew his sentence could be greater or lesser than the advisory guideline sentencing range and
could be different than predicted by Mr. Strickler:
THE COURT: Do you understand that the sentence ultimately imposed may be
different from any estimate that Mr. Strickler has given you?
THE DEFENDANT: What do you mean "different," like from -THE COURT: Any sentence that I give you might not be the same sentence that
Mr. Strickler predicts I might give or he's telling you that you might qualify for.
My sentence might be higher or it might be lower. He can only make an estimate
of what he thinks what your sentence might be.
THE DEFENDANT: Yes.
THE COURT: Do you understand that?
THE DEFENDANT: Yes.
[DE 77 at 38-39].
The undersigned twice informed Mr. Broadway that the probation department would
prepare a PSR and that Mr. Broadway and his attorney would have the opportunity to review the
PSR and indicate whether any errors, including miscalculations of the guidelines, were contained
in the report [DE 77 at 38, 46]. Again, Mr. Broadway confirmed that he understood these things.
Finally, the undersigned specifically drew Mr. Broadway’s attention to the waiver
provision located in paragraph 9(d) of his plea agreement and explained to Mr. Broadway that if
he was found guilty after a trial he would have the right to appeal with the assistance of counsel,
but by pleading guilty he would not be able to appeal his conviction or sentence to any court on
any ground—and Mr. Broadway affirmed that he understood what his waiver entailed [DE 77 at
36, 41]. In fact, Mr. Broadway confirmed that he understood all of the terms of his plea
agreement and that he was entering the plea voluntarily. Id. at 32.
The Sentencing Hearing
At the sentencing hearing Mr. Broadway was placed under oath. Both he and Mr.
Strickler confirmed that they had reviewed and discussed the final PSR prior to the sentencing
hearing [DE 78 at 4-5].
The undersigned reiterated the maximum penalties for each count [DE 78 at 12-13]. In
addition, the undersigned advised Mr. Broadway and counsel that the guideline range for Count
1 was 78-97 months of imprisonment,7 with Count 2 having a guideline sentence equal to the
mandatory minimum term required by statute, or 84 months, “to be served consecutively to any
sentence imposed on Count 1.” [DE 78 at 13]. After announcing the guideline calculations
(which were properly reflected in the PSR, [DE 52 at ¶ 95]), Mr. Strickler confirmed that the
defense had no objection to the PSR [DE 78 at 15], albeit Mr. Strickler was still recommending a
In calculating the guidelines, the Court declined to impose a six level enhancement, as pursued by the government,
under guideline section 2B3.1(b)(2)(B) for Mr. Broadway’s use of the firearm to commit the carjacking. The Court
reasoned that 18 U.S.C. § 924(c) already punished Mr. Broadway’s admitted possession, use, and brandishing of the
firearm by employing a mandatory minimum sentence of seven years, and application note 4 of guideline section
2K2.4 prohibited a guideline’s increase in the sentence for an underlying offense “for the same weapon and the same
conduct that underlie the § 924(c) conviction.” See United States v. Katalinic, 510 F.3d 744, 747 (7th Cir. 2007).
sentence of only 84 months total imprisonment which was consistent with his recommendation
in his sentencing memorandum [DE 59]. Even after the Court announced the proposed sentence
of 162 months of imprisonment (which “consist[ed] of 78 months on Count 1, at the low end of
the advisory guideline range, and a term of 84 months on Count 2, the 924(c) offense, to be
served consecutively to the sentence imposed on Count 1 as required by the statute”), Mr.
Strickler advised that he had no objection to the sentence [DE 78 at 34, 43-44], which was then
Prior to completing the sentencing hearing, the Court referred Mr. Broadway to
paragraph 9(d) of his plea agreement [DE 78 at 44] and confirmed he understood the terms of his
appeal waiver. Mr. Broadway did not file a direct appeal, but he has now petitioned this Court to
vacate his sentence under 28 U.S.C. § 2255.
The § 2255 Evidentiary Hearing
At the evidentiary hearing, defense counsel called Mr. Broadway, Mr. Strickler, and Mr.
Bernard Broadway, Jr. (the Defendant’s brother).
Mr. Strickler noted his experience as a criminal defense attorney since 1984. He testified
he had sufficient time (including an almost hour break at the outset of the change of plea
hearing), to explain the plea agreement and its consequences to Mr. Broadway. Specifically, Mr.
Strickler discussed with Mr. Broadway the maximum penalties of the charges contained in the
plea agreement and the consecutive nature of the seven year sentence on the 924(c) charge,
which was properly denoted in the plea agreement. Before Mr. Broadway pled guilty, Mr.
Strickler also explained to his client on several occasions the application of the guidelines and
the potential guideline sentencing range for the carjacking charge. And at some point, prior to
the change of plea hearing, Mr. Strickler had also made handwritten notes on a copy of Mr.
Broadway’s arrest warrant which indicated the February final pretrial conference date, the March
trial date, and the fact that the § 924(c) charge carried a seven year mandatory minimum
sentence, while the § 2119 carjacking charge carried a potential guideline sentencing range of
44-51 months (which would ultimately depend on the total adjusted offense level) [Gov’t Exh.
12]. Mr. Strickler testified that prior to the change of plea hearing, he had advised Mr.
Broadway consistent with his handwritten notations and promised only that he would ask the
Court “to impose as low of a sentence as it possibly could”.
Thus, it was Mr. Strickler’s opinion that when Mr. Broadway entered into the plea
agreement and participated in the change of plea hearing, he fully understood the maximum
penalties for the charges contained in his plea agreement, the consecutive nature of the
mandatory minimum sentence required by the 924(c) charge, and the application of the
guidelines with respect to the carjacking charge. And while Mr. Strickler recalled an
“understanding” with the government that the sentence on the 924(c) charge was not going to
exceed seven years, he never suggested to Mr. Broadway that the total sentence would not
exceed seven years, nor did Mr. Broadway indicate to Mr. Strickler that he was expecting a
sentence of only seven years.
After Mr. Broadway entered his plea of guilty but prior to sentencing, Mr. Strickler
testified that he had sufficient time to review the PSR with Mr. Broadway and to discuss with
Mr. Broadway and Mr. Broadway’s family the plan to recommend the lowest sentence possible
for the carjacking offense. Mr. Strickler admittedly conveyed his hope or optimism, but not
expectation, to Mr. Broadway and his family that Mr. Broadway’s sentence would be close to the
seven years required by the § 924(c) charge, which was consistent with the argument Mr.
Strickler posed in his brief sentencing memorandum [DE 59] and the notes Mr. Strickler had
written down to remind him of the sentence he would recommend at sentencing [Def’s Exh. 7].
And while his sentencing memorandum did not reference the carjacking count or acknowledge a
possible sentence for that count [DE 59], Mr. Strickler explained that his memorandum reiterated
the point he was hoping to make, which was to ask the Court to use its discretion to impose a
sentence as low as it could possibly go, without any expectation that the total sentence would be
only seven years. Mr. Strickler confirmed that if he felt that he could have made a
recommendation of “zero” on the carjacking charge, then he would have provided that
recommendation in the memorandum.
Mr. Strickler then explained that it wasn’t until sometime well after sentencing that Mr.
Broadway demonstrated great disappointment and almost shock at his sentence, when Mr.
Strickler felt bad for Mr. Broadway and questioned whether Mr. Broadway fully understood the
plea. As a result, on May 20, 2014, and in an effort to appease him, Mr. Strickler wrote a letter
at Mr. Broadway’s request stating:
I have reservations regarding the question of whether Marquis Broadway fully
understood all of the components of his case . . . including most particularly his
comprehension of the plea, presentence and sentencing procedures. This was due
in large part to the lack of sufficient time for me to discuss and explain these
matters with him . . . It was my understanding that the sentence would not exceed
7 years and accordingly advised Marquis of the same.”
[Def’s Exh. 1]. Mr. Strickler acknowledged that the letter did not contain sufficient details, and
that in reality, he had properly advised Mr. Broadway prior to his pleading guilty that the
sentence of seven years was only for the § 924(c) count. With respect to the carjacking count,
Mr. Strickler reiterated that he had only conveyed his hope that he could identify enough
mitigating factors under 18 U.S.C. § 3553 so as to convince the Court to impose a total sentence
close to seven years. Mr. Strickler acknowledged that at the time of sentencing he was not
familiar with United States v. Roberson, 474 F.3d 432 (7th Cir. 2007)8, but even so, Mr. Strickler
testified that it would have ‘flown in the face of all his rational powers’ to have suggested to Mr.
Broadway that his sentence would not exceed seven years given the consecutive nature of the §
924(c) charge and all of the prior proceedings wherein the proper penalties were identified.
Thus, regardless of Mr. Strickler’s misguided optimism for a sentence close to zero months on
the carjacking charge, Mr. Strickler confirmed that he never promised Mr. Broadway the precise
sentence that would be imposed. As with all of his criminal defense clients, he only provided an
estimation. Moreover, Mr. Strickler indicated that he never directed Mr. Broadway to sign the
plea agreement, rather it has been his practice for thirty years to let his clients decide whether to
take a case to trial or to plead.
Contrary to Mr. Strickler’s assertions, Mr. Broadway testified that Mr. Strickler advised
him that his sentence would be only seven years, and Mr. Strickler provided no explanation that
his total sentence could be greater, or that the sentences on both counts had to run consecutively.
Mr. Broadway testified that he knew he could get a sentence higher than what Mr. Strickler
predicted, although he did not think the sentence would be more than seven years or as high as
the ultimate sentence imposed. Mr. Broadway also testified that despite what he said under oath
at the change of plea hearing, he did not understand any of the Court’s questions because he was
only nineteen years old and he simply provided the responses at the advice of Mr. Strickler so the
plea would be accepted.
However, on cross-examination, Mr. Broadway acknowledged that he had in fact read
and discussed the plea agreement with Mr. Strickler before signing it, that ultimately he wanted
to sign the plea at the time, that he voluntarily entered into the plea absent any promises not
Roberson held that it was error to reduce the sentence on an underlying offense based on the statutorily required
mandatory minimum sentence for a conviction under § 924(c).
noted in the plea agreement, and that he was not forced or threatened into pleading guilty. Mr.
Broadway then contradicted himself later by testifying that he did not read the portion of the plea
agreement that contained his appeal waiver, nor did he discuss the appeal waiver with Mr.
Strickler or understand what the waiver meant—despite telling the Court otherwise during the
change of plea hearing (again, supposedly following the advice of Mr. Strickler).
Mr. Broadway’s brother testified that it was his understanding, based on alleged
representations made by Mr. Strickler, that Mr. Broadway would be facing no more than five
years’ imprisonment if he accepted the plea agreement.
II. STANDARD OF REVIEW
Section 2255(a) of Title 28 provides that a federal prisoner may claim “the right to be
released upon the ground that the sentence was imposed in violation of the Constitution or laws
of the United States, or that the court was without jurisdiction to impose such sentence, or that
the sentence was in excess of the maximum authorized by law, or is otherwise subject to
collateral attack, [and] may move the court which imposed the sentence to vacate, set aside or
correct the sentence.” 28 U.S.C. § 2255(a). The Seventh Circuit has recognized that § 2255
relief is appropriate only for “an error of law that is jurisdictional, constitutional, or constitutes a
fundamental defect which inherently results in a complete miscarriage of justice.” Harris v.
United States, 366 F.3d 593, 594 (7th Cir. 2004) (citation omitted). Further, “a Section 2255
motion is neither a recapitulation of nor a substitute for a direct appeal.” Olmstead v. United
States, 55 F.3d 316, 319 (7th Cir. 1995) (citation omitted). Relief under § 2255 is extraordinary
because it seeks to reopen the criminal process to a person who has already had an opportunity of
full process. Almonacid v. United States, 476 F.3d 518, 521 (7th Cir. 2007) (citing Kafo v.
United States, 467 F.3d 1063, 1068 (7th Cir. 2006)). If a motion is not dismissed, the judge may
direct the parties to expand the record and conduct a hearing after giving the attorneys adequate
time to investigate and prepare. See Rules 7 and 8 of the Rules Governing Section 2255
Proceedings for the United States District Courts.
Marquise Broadway seeks to vacate his sentence (and at least one of his convictions)
under 28 U.S.C. § 2255, which permits a court to vacate a judgment where “there has been such
a denial or infringement of the constitutional rights of the prisoner as to render the judgment
vulnerable to collateral attack.” 28 U.S.C. § 2255(b). At the evidentiary hearing, Mr. Wemhoff
characterized Mr. Broadway’s Strickland ineffectiveness claim as a violation of due process,
essentially arguing that his plea agreement was not intelligently and voluntarily executed because
Mr. Strickler provided ineffective assistance by improperly advising Mr. Broadway that his
sentence would not exceed seven years if he pled guilty. However, as further detailed below, the
Court finds that Mr. Strickler did not promise Mr. Broadway a sentence of seven years and that
Mr. Broadway understood the possible penalties of his plea. So Mr. Broadway’s claim fails on
the merits whether characterized as one under the Fifth or Sixth Amendment. In addition, the
government seeks to enforce Mr. Broadway’s appeal waiver, despite a recent change in U.S.
Department of Justice policy concerning waivers for claims of ineffectiveness. Thus, the Court
first considers the waiver of Mr. Broadway’s right to file the instant petition, then addresses the
merits of the claim.
Waiver of the Right to File a § 2255 Petition
In this case, the plea agreement’s waiver was clear and unambiguous, and it is being
enforced by the government over defense counsel’s objection. By waiving “any claim of
ineffective assistance of counsel” and waiving “any alleged ineffective assistance of counsel” via
direct appeal or post-conviction proceedings, Mr. Broadway waived every manner of
ineffectiveness claims. See Keller v. United States, 657 F.3d 675, 681 (7th Cir. 2011) (“A
defendant may validly waive both his right to a direct appeal and his right to collateral review
under § 2255 as part of his plea agreement.”) (citing Jones v. United States, 167 F.3d 1142,
1144-45 (7th Cir. 1999)). Thus, except for cases in which the plea agreement was involuntary,
the district court “relied on a constitutionally impermissible factor (such as race),” the “sentence
exceeded the statutory maximum,” or the defendant claims “ineffective assistance of counsel in
connection with the negotiation of [the plea] agreement”, the Seventh Circuit has held that
appeal waivers are permissible and enforceable. Id.
Although Mr. Broadway indicated for the first time while testifying at the § 2255
evidentiary hearing that he did not read or discuss the appeal waiver with Mr. Strickler and he
did not understand what the waiver meant, Mr. Broadway also confirmed that he had told the
Court differently during his change of plea colloquy. Mr. Broadway explained that he provided
such false responses during his plea colloquy at the direction of his counsel and because he
didn’t understand the questions. Essentially, Mr. Broadway would like the Court to believe his
sworn testimony during the course of the § 2255 evidentiary hearing, as opposed to the
statements he made under oath at the change of plea hearing, in order to demonstrate that he did
not fully understand the implications of his waiver. However, the Court is unable to do so in this
Rather, the Court finds that Mr. Broadway is willing to now lie under oath to escape his
plea and sentence, and that his testimony at the § 2255 evidentiary hearing was painfully
unbelievable. Mr. Broadway often changed his story throughout the § 2255 evidentiary hearing.
At one point, Mr. Broadway acknowledged reading the entire plea agreement, but thereafter he
incredibly resolved that he hadn’t in fact read the waiver provision nor discussed it with his
attorney. He also testified that he didn’t understand any of the questions posed to him during the
change of plea hearing because he was too young, but later Mr. Broadway indicated that he did
understand certain identified questions (believing of course that the responses provided to those
particular questions wouldn’t undermine his § 2255 claims).
The undersigned concludes that Mr. Broadway did understand the Court’s questions, and
whenever he was confused, Mr. Broadway asked for and received clarification from the Court.
Mr. Broadway’s testimony at the § 2255 evidentiary hearing with respect to his understanding of
the waiver provision not only flies in the face of his more credible sworn statements from the
change of plea hearing, but it even contradicts Mr. Broadway’s sworn statements at his
sentencing, when Mr. Broadway again confirmed without hesitation his understanding of the
import of his waiver—representations which were made by Mr. Broadway after the Court had
imposed the sentence of 162 months of imprisonment. Additionally, Mr. Strickler’s credible
testimony during the § 2255 evidentiary hearing further corroborates that the entire plea
agreement had been reviewed by him with Mr. Broadway, which necessarily would have
included the waiver provision. Ultimately, the Court does not believe that Mr. Broadway
provided false testimony at his change of plea hearing and it rejects Mr. Broadway’s current
inconsistent claims that he didn’t understand the import of the waiver provision, whether on
account of his attorney’s advice, his age, or some other reason Mr. Broadway might fabricate.
Thus, based on the discussion at the change of plea hearing and the record evidence, it is
clear that despite Mr. Broadway’s recent protestations to the contrary, Mr. Broadway made a
knowing and voluntary decision to waive his right to contest his conviction and sentence in an
appeal or a post-conviction proceeding. See Mendoza v. United States, 755 F.3d 821, 828 (7th
Cir. 2014) (noting that credibility determinations are “especially within the province of the
district court and can virtually never be clear error”) (citation omitted); Thompson v. United
States, 732 F.3d 826, 829 (7th Cir. 2013) (“a motion that can succeed only if the defendant
committed perjury at the plea proceedings may be rejected out of hand unless the defendant has a
compelling explanation for the contradiction.”) (citations omitted). It simply cannot be said that
Mr. Broadway didn’t understand the import of the waiver provision, and as a result, Mr.
Broadway is bound by his waiver. See United States v. Smith, 759 F.3d 702, 706-07 (7th Cir.
2014) (“When the defendant pursuant to the plea agreement has knowingly and voluntarily
waived his appellate rights, and the terms of that waiver are express and unambiguous, we will
enforce those terms.”); United States v. Linder, 530 F.3d 556, 561 (7th Cir. 2008) (indicating that
the court will enforce a plea agreement’s appellate waiver if its terms are clear and unambiguous
and the record shows that the defendant knowingly and voluntarily entered into the agreement).
The Court acknowledges that a recent change in policy by the U.S. Department of Justice
indicates that federal prosecutors should no longer enter into plea agreements containing blanket
waivers for ineffective assistance, and should decline to enforce such existing waivers under
certain circumstances. [Gov’t Exh. 13, Office of the Deputy Att'y Gen., Memorandum for all
Federal Prosecutors: Dep't Policy on Waivers of Claims of Ineffective Assistance of Counsel
(Oct. 14, 2014) (stating that “[f]ederal prosecutors should no longer seek in plea agreements to
have a defendant waive claims of ineffective assistance of counsel . . . [f]or cases in which a
defendant’s ineffective assistance claim would be barred by a previously executed waiver,
prosecutors should decline to enforce the waiver when defense counsel rendered ineffective
assistance resulting in prejudice or when the defendant’s ineffective assistance claim raises a
serious debatable issue that a court should resolve.”)]; in a case in which the DOJ Memo was
inapplicable as there was no claim for ineffective assistance, see United States v. Roach, 600 F.
App’x 472, 473 (7th Cir. 2015) (“for existing waivers that would bar a claim of ineffective
assistance, the Attorney General has simply directed that the government should decline to
enforce the waiver to block that claim.”). However, at least one circuit court has concluded that
the DOJ policy does not prohibit enforcement of the waiver on collateral attack. Demello v.
United States, No. 14-14106, 2015 WL 4663934, at *3 (11th Cir. Aug. 7, 2015). And another
circuit court enforced the defendant’s waiver to bring a collateral attack for a claim of ineffective
assistance, without further discussing how the DOJ’s change in policy affected the outcome—
now the subject of the pending petition for writ of certiorari. See Hardin v. United States, 595 F.
App’x 460, 463 n.3 (6th Cir. 2014) (J. White, dissenting), petition for cert. filed (No. 15-101)
(presenting the question of whether “it [is] permissible under the Sixth Amendment guarantee of
right to counsel to require a defendant to waive a possible future claim of ineffective assistance
of counsel as a condition in a plea agreement.”). Despite the policy announced by the DOJ on
October 14, 2014, the government has specifically requested that the Court enforce Mr.
Broadway’s waiver. The Court has concluded that the waiver is valid on its face and would
serve as a bar to this claim, but has insufficient evidence upon which to conclude that the DOJ
memo precludes enforcement of the waiver. Regardless, the Court finds that the claim fails on
Sixth Amendment Right to Counsel
Mr. Broadway’s claim is brought under the alleged violation of his right to the assistance
of counsel, as guaranteed by the Sixth Amendment.9 The Sixth Amendment provides that “[i]n
all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel
for his defence.” U.S. Const. amend. VI.
Again, even if characterized as a due process claim, the facts of this case lead to the same result.
The two-part Strickland v. Washington test applies to challenges to guilty pleas based on
ineffective assistance of counsel. Hill v. Lockhart, 474 U.S. 52, 57-59 (1985) (citing Strickland v.
Washington, 466 U.S. 668 (1984)). In other words, to prevail on an ineffective assistance claim,
a petitioner must establish that his “counsel’s performance was deficient” and that “the deficient
performance prejudiced the defense.” Koons v. United States, 639 F.3d 348, 351 (7th Cir. 2011)
(quoting Strickland, 466 U.S. at 687).
To show deficient performance, the defendant must show “that counsel’s representation
fell below an objective standard of reasonableness.” Id. “This means identifying acts or
omissions of counsel that could not be the result of professional judgment. The question is
whether an attorney’s representation amounted to incompetence under prevailing professional
norms, not whether it deviated from best practices or most common custom.” Id. (citing Sussman
v. Jenkins, 636 F.3d 329, 349 (7th Cir. 2011)). The reasonableness of counsel’s performance
must be evaluated “from counsel’s perspective at the time of the alleged error and in light of all
the circumstances.” See Kimmelman v. Morrison, 477 U.S. 365, 381 (1986).
In the context of a guilty plea, a showing of prejudice means that there is a reasonable
probability that the defendant would have insisted on going to trial. Koons, 639 F.3d at 351;
Bethel v. United States, 458 F.3d 711, 716 (7th Cir. 2006); Tezak v. United States, 256 F.3d 702,
712 (7th Cir. 2001). In other words, the prejudice prong focuses on whether counsel’s deficient
performance was a decisive factor in the defendant's decision to plead guilty rather than pursuing
other options. See Wyatt v. United States, 574 F.3d 455, 458 (7th Cir. 2009) (citing Julian v.
Bartley, 495 F.3d 487, 498 (7th Cir. 2007)). To make that showing, the petitioner must do more
than simply allege “that he would have insisted on going to trial”; he must also come forward
with objective evidence that he would not have pled guilty. Hutchings v. United States, 618 F.3d
693, 697 (7th Cir. 2010) (citations omitted).
Failure to satisfy either the performance or the prejudice prong of the Strickland test is
fatal to a defendant’s ineffectiveness claim. Velarde v. United States, 972 F.2d 826, 828 (7th Cir.
1992); see Strickland, 466 U.S. at 687 (reasoning that “[u]nless a defendant makes both
showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary
process that renders the result unreliable”).
During the § 2255 evidentiary hearing, Mr. Broadway testified that he pled guilty based
on the misrepresentation made by Mr. Strickler that he would be sentenced only to seven years
imprisonment10 and that Mr. Strickler never told him that his sentences would run consecutively.
Mr. Broadway’s brother also testified that Mr. Broadway only entered into the plea agreement
because he was told by Mr. Strickler that his sentence would be no more than five years. Of
course, Mr. Strickler’s letter written over a year after Mr. Broadway pled guilty, also indicates
that he had advised Mr. Broadway that his sentence would not exceed seven years [Def’s Exh.
1]; however, Mr. Strickler clarified during the § 2255 evidentiary hearing that this letter did not
accurately characterize the advice that he actually provided to Mr. Broadway before he pled
guilty and was written to appease Mr. Broadway. According to Mr. Strickler, he accurately
advised Mr. Broadway as to the maximum penalties and consecutive nature of the charges to
which he was pleading, and his advice in this respect was consistent with the terms of the plea
agreement that he had also reviewed with Mr. Broadway. Mr. Strickler further discussed with
It is true that there was some initial misunderstanding by Mr. Broadway that his sentence on Count 2 would be a
mandatory five years’ imprisonment, rather than the required seven years’ imprisonment since the firearm was
brandished. 18 U.S.C. § 924(c)(1)(a)(ii). However, the record makes clear that prior to pleading guilty, Mr.
Broadway and Mr. Strickler took the time necessary to discuss and verify that Mr. Broadway understood the
application of the mandatory seven year term of imprisonment that applied to Count 2.
Mr. Broadway the application of the guidelines and the potential guideline sentencing range for
the carjacking charge. Mr. Strickler was adamant that as with all of his clients, he never
promised Mr. Broadway a particular sentence, but rather conveyed an optimism (unlikely as it
may have been) to Mr. Broadway and his family that the ultimate sentence could be close to
The Court would first note that Mr. Broadway and his brother’s assertions concerning
Mr. Strickler’s promise of a seven year sentence (or less, per Mr. Broadway’s brother) are simply
not credible. For the reasons previously detailed, it was clear that during the course of the §
2255 evidentiary hearing, Mr. Broadway was willing to lie under oath in order to escape his plea
and sentence, and his brother was similarly willing to do the same given that Mr. Broadway
acknowledges that even he knew five years was not an option. Moreover, in order to believe Mr.
Broadway now, would mean that his representations in the plea agreement and his admissions at
the change of plea hearing with respect to his understanding of the sentencing consequences
were all lies—which the Court does not accept.
Recall that the plea agreement itself clearly stated Mr. Broadway could be sentenced up
to fifteen years of imprisonment on Count 1 and that he faced a mandatory minimum of seven
years up to a maximum of life imprisonment “consecutive to any other sentence of
imprisonment” on Count 2. The plea agreement also made clear that the Court had jurisdiction
and authority “to impose any sentence within the statutory maximum set for my offense(s) as set
forth in this plea agreement.” In addition, during Mr. Broadway’s change of plea hearing,
counsel for the government pointed out that Mr. Broadway could be sentenced up to fifteen years
on Count 1 and up to life in prison on Count 2. Mr. Broadway explicitly acknowledged that he
understood the potential punishment he faced as a result of pleading guilty.
Further recall that it was made clear during the change of plea hearing that the Court
would not be able to determine Mr. Broadway’s actual guideline sentence until after the PSR had
been completed, upon which he and his attorney could challenge the contents of the PSR. While
under oath during the change of plea hearing, Mr. Broadway acknowledged his understanding.
The undersigned also advised Mr. Broadway that, regardless of the sentence predicted or pursued
by Mr. Strickler, the Court could ultimately impose a more severe sentence, to which Mr.
Broadway affirmed that his guilty plea was not in reliance of a particular sentence and he was
not relying on any promises made to him other than those contained in the plea agreement. Mr.
Broadway’s repeated acknowledgements coincided with Mr. Strickler’s testimony that he had
discussed with Mr. Broadway the consecutive nature of the seven year mandatory sentence on
the §924(c) charge and the potential guideline sentencing range for the carjacking charge. Mr.
Strickler’s testimony in turn, was consistent with his handwritten notes made before the change
of plea hearing which reflected his understanding of the potential sentencing repercussions.
Ultimately, Mr. Broadway has provided no believable explanation for overriding his
sworn statements made when entering his guilty plea and he cannot create an issue of fact as to
his counsel’s advice (or as to the voluntariness of his plea for that matter) by simply
contradicting these admissions now. As reasoned in Hutchings, “[j]ustice would be ill-served,
and the utility of the Rule 11 colloquy would be undermined, by allowing [defendant] to renege
on his representations under oath to the district court that there were no promises made to him to
induce his guilty plea.” Hutchings v. United States, 618 F.3d 693, 699 (7th Cir. 2010); see also,
Wyatt v. United States, 574 F.3d 455, 458-59 (7th Cir. 2009); United States v. Peterson, 414 F.3d
825, 827 (7th Cir. 2005) (rejecting defendant’s claim that his attorney promised him that his
federal sentence would be concurrent with his state sentence, and stating “[j]udges need not let
litigants contradict themselves so readily; a motion that can succeed only if the defendant
committed perjury at the plea proceedings may be rejected out of hand unless the defendant has a
compelling explanation for the contradiction.”). In light of the record evidence, including Mr.
Strickler’s credible testimony that he accurately advised Mr. Broadway as to the consecutive
nature of his sentences and never promised Mr. Broadway a particular sentence (let alone
promised him a sentence of seven years), Mr. Broadway cannot now believably complain that his
plea was based on representations by Mr. Strickler that he would receive a sentence of only
In concluding, the Court notes again that in his claim Mr. Broadway seeks alternative
relief: to run his sentences concurrently, vacate one of his sentences (and presumably one of his
convictions), or allow him to “re-negotiate his plea” [DE 63 at 13]. In turn, Mr. Broadway’s
attorney originally asked that Mr. Broadway be sentenced to a lesser term, or that his plea be
vacated and Mr. Broadway simply be set free with all charges dismissed despite no alleged
wrongdoing on the part of the government. However, defense counsel provided no legal support
for such relief, and later acknowledged that the Court would likely be limited to vacating the plea
of guilty on both counts and starting from square one with all of the charges contained in the
indictment. See e.g., Julian v. Bartley, 495 F.3d 487, 500 (7th Cir. 2007) (announcing that where
there has been a finding of ineffective assistance of counsel in a § 2255 proceeding, the remedy
“should be tailored to the injury suffered from the constitutional violation and should not
unnecessarily infringe on competing interest” including the competing interest of preserving
society’s interest in the administration of criminal justice) (citation omitted). In any event, the
failure to show that Mr. Strickler promised Mr. Broadway a sentence of seven years or that Mr.
Broadway entered into the plea agreement in reliance on a particular sentence or didn’t
understand the penalties is fatal to Mr. Broadway’s claim (whether characterized as one under
the Fifth or Sixth Amendment). Thus, Mr. Broadway’s request for relief under § 2255 must be
IV. CERTIFICATE OF APPEALABILITY
Pursuant to Rule 11 of the Rules Governing Section 2255 Proceedings for the United
States District Courts, the Court must “issue or deny a certificate of appealability when it enters a
final order adverse to the applicant,” and the Rule permits the Court to hear further argument on
whether a certificate of appealability should issue. A certificate of appealability may be issued
“only if the applicant has made a substantial showing of the denial of a constitutional right.” 28
U.S.C. § 2253(c); Rule 11, Rules Governing Section 2255 Proceedings for the United States
District Courts. The substantial showing standard is met when “reasonable jurists could debate
whether (or, for that matter, agree that) the petition should have been resolved in a different
manner or that the issues presented were adequate to deserve encouragement to proceed further.”
Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quotation marks omitted) (quoting Barefoot v.
Estelle, 463 U.S. 880, 893 & n.4 (1983)); see Young v. United States, 523 F.3d 717 (7th Cir.
2008). A defendant is not required to show that he will ultimately succeed on appeal. Miller-El
v. Cockrell, 537 U.S. 322, 342 (2003) (stating that the question is the “debatability of the
underlying constitutional claim, not the resolution of that debate”).
Additional argument is not necessary here because based upon the factual determination
made by the Court and absent credible evidence of a promised sentence made to Mr. Broadway
or that Mr. Broadway did not understand the consequences of his guilty plea, nothing before the
Court suggests that jurists of reason could debate the correctness of the Court’s rulings herein,
nor could there be a debate about whether the issues presented deserve further proceedings. As a
result, the Court declines to issue Mr. Broadway a certificate of appealability.
The Court advises Mr. Broadway that pursuant to Rule 22(b) of the Federal Rules of
Appellate Procedure, when the district judge denies a certificate of appealability, the applicant
may request a circuit judge to issue the certificate. The Court further advises Mr. Broadway that
Rule 4(a) of the Federal Rules of Appellate Procedure governs the time to appeal an order
entered under the rules governing § 2255 proceedings. See Rule 11(b), Rules Governing Section
2255 Proceedings for the United States District Courts. Under Rule 4(a), when the United States
is a party in a civil case, any notice of appeal may be filed by any party within 60 days after the
judgment or order appealed from is entered. Fed. R. App. P. 4(a); Guyton v. United States, 453
F.3d 425, 427 (7th Cir. 2006) (stating that “the time to contest the erroneous denial of [the
defendant’s] first § 2255 motion was within 60 days of the decision”).
For the reasons set forth above, the Court DENIES Marquis Kasimir Broadway’s § 2255
petition and DENIES the issuance of a certificate of appealability.
ENTERED: October 27, 2015
/s/ JON E. DEGUILIO
United States District Court
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