Broadway v. USA
OPINION AND ORDER: Because the Court has no authority to consider the unauthorized successive petition, the Motion to Vacate under 28 U.S.C. § 2255 is DISMISSED for want of jurisdiction. A certificate of appealability will not be issued.. Signed by Judge Jon E DeGuilio on 7/26/16. (jld)
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 Nos. 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], which the Court denied in an extensive decision on the merits [DE 93] after holding an
evidentiary hearing [DE 91]. Thereafter, Mr. Broadway, represented by the Federal Community
Defenders’ office, filed a second motion to vacate pursuant to 28 U.S.C. § 2255 [DE 97], along
with an application seeking authorization from the Seventh Circuit to file the successive § 2255
motion, pursuant to 28 U.S.C. § 2244(b)(3). The Seventh Circuit denied Mr. Broadway’s request
and determined that the classification of federal carjacking as a crime of violence is unaffected
by Johnson v. United States, 135 S.Ct. 2551 (2010). Broadway v. United States, No. 16-2646,
doc. 5 (7th Cir. July 21, 2016).
Section 2255 gives a federal prisoner one opportunity to challenge a conviction and
sentence following a direct appeal. See 28 U.S.C. § 2255(a), (h). If a prisoner seeks to challenge
his conviction or sentence a second time, he must persuade a court of appeals to certify the
motion and authorize the district court to hear it. See 28 U.S.C. §§ 2244(a)–(b), 2255(h).
Without authorization from the court of appeals, the district court has no jurisdiction to hear the
petition. Suggs v. United States, 705 F.3d 279 (7th Cir. 2013) (citing Burton v. Stewart, 549 U.S.
147, 152–53 (2007)); Nunez v. United States, 96 F.3d 990, 991 (7th Cir. 1996) (“From the
district court’s perspective, it is an allocation of subject-matter jurisdiction to the court of
appeals. A district court must dismiss a second or successive petition, without awaiting any
response from the government, unless the court of appeals has given approval for its filing. Even
an explicit consent by the government to beginning the case in the district court would be
ineffectual; the power to authorize its commencement does not reside in either the district court
or the executive branch of government. A second or successive collateral attack may no more
begin in the district court than a criminal prosecution may commence in the court of appeals.”).
Here, Mr. Broadway is challenging the same conviction and resulting sentence a second
time via § 2255 without authorization from the Seventh Circuit. Because the Court has no
authority to consider the unauthorized successive petition, it is DISMISSED for want of
jurisdiction [DE 97], and a certificate of appealability will not be issued.
ENTERED: July 26, 2016
/s/ JON E. DEGUILIO
United States District Court
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