Brewer v. United States of America

Filing 27

MEMORANDUM AND ORDER granting 23 Motion for Certificate of Appealability. Signed by U.S. District Judge Lawrence L. Piersol on November 22, 2022. (DLC)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
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THOMAS JOSEPH BREWER,

CIV 20-5042

Petitioner,
MEMORANDUM
AND ORDER

vs.

UNITED STATES OF AMERICA,

Respondent.
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Pending before the Court is Petitioner's Motion for a Certificate ofAppealability,(Doc.23),
which the Government resists(Doc.26). For the reasons set forth helow,the court grants Petitioner's
Motion.

I. Background

In 2017,Petitioner pleaded guilty to Voluntary Manslaughter, 18 U.S.C. §§I 112,1153,and
to discharge of a firearm during a crime of violence, IS U.S.C. § 924(c)(l)(A)(iii). He was
sentenced to consecutive terms of97 months for the manslaughter and 120 months for the firearms

offense. His appeal to the Eighth Circuit was dismissed on December 15, 2017.
In 2020, Brewer filed a motion to reduce sentence, citing United States v. Davis,

U.S. ,139 S.Ct. 2319 (2019), which deemed the residual clause of 18 U.S.C. § 924(c)(3)
unconstitutionally vague,rendering convictions under that section constitutional only ifthey fit the
force clause(elements clause)ofthat statute. In the following ease ofBorden v. United States, the
Court held that reckless conduct does not satisfy the element of force under 18 U.S.C.
§ 924(e)(3)(A). 141 S.Ct. 1817(2021).

In United States v. McCoy, which preceded Borden, the Eighth Circuit held that Voluntary

Manslaughter is a crime of violence. 960 F.3d 487, 490 (8th Cir. 2020). Therefore, despite the
intervening decision in Borden, this Court relied on Eighth Circuit precedent, and held that for
purposes of the enhanced penalty under § 924(e), Voluntary Manslaughter is a crime of violence

when the reeklessness involved in the offense establishes the "depraved heart" state of mind.(Doc.
21).

As noted in Petitioner's brief, however, not all jurists have accepted this conclusion. In

United States v. Begay,33 F. 4th 1081,1090(9th Cir. 2022){en banc),threejudges dissented from
the court's holding that Voluntary Manslaughter is a crime of violence. 33 F. 4th at 1098-99

(Wardlaw, J., dissenting); id. at 1099-1107(Ikuta, J.,joined by Vandyke, J., dissenting).

2. Legal Standard

The standard for the issuance ofa certificate ofappealability requires a "substantial showing

ofthe denial ofa constitutional right." 28 U.S.C. § 2253(c). The Supreme Court has held that when

a district court has rejected a petitioner's claims on the merits, the petitioner must show that
"reasonablejurists" would find the district court's assessment ofthe constitutional claims "debatable

or wrong." Feather v. United States, 2020 WL 5517198, *16 (D.S.D. 2020)(quoting Slack v.
McDaniel, 529 U.S. 473, 484(2000)).

Furthermore, a certificate of appealability will not be granted simply because a petitioner

meets a standard ofgood faith and argues a non-frivolous issue.See Kramer v. Kemna,21 F.3d 305,

307 (8th Cir. 1994). The movant must show that the issues to be raised on appeal are "debatable
among reasonable jurists," that different courts "could resolve the issues differently," or that the
issues otherwise "deserve further proceedings." Winters v. United States, 2016 WL 4703651, *3
(D.S.D. 2016)(quoting Cox v. Norris, 133 F.3d 565, 569(8th Cir. 1997)).

The Government argues a Certificate of Appealability is inappropriate in this case(Doe.26)

because an Eighth Circuit panel cannot overrule precedent. Owsley v. Luebbers,281 F.3d 687,690

(8th Cir. 2002). The Court recognizes that authority but does not view it as precluding issuance of
a COA that complies with the standard of 28 U.S.C. § 2253.

3. Analysis

In Brewer's § 2255 proceeding this Court concluded as follows:"The elements of Voluntary

Manslaughter are an intentional killing in the heat ofpassion with a state ofmind more culpable than

ordinary recklessness, such as depraved heart or extreme recklessness. Therefore, Voluntary
Manslaughter is a crime of violence under 18 U.S.C. § 924(c)(3)(A)."(Doc. 21).

In its analysis,the Court referred to Janis v. United States,2022 WL 1500691 (D.S.D.2022)
(Second-degree Murder) and United States v. Thompson, 2022 WL 138524 (D. Minn. 2022)
(Voluntary Manslaughter), in which the courts had reached similar conclusions on similar facts
following the decision in Borden. The Court notes that a COA issued from the court in Janis,2022
WL 2656747 (D.S.D. 2022), although in Thompson, the court declined to issue one. This Court

concurs with the reasoning oiJanis that a COA is appropriate to enable the Eighth Circuit to resolve
any remaining question whether Voluntary Manslaughter is a crime of violence under § 924(c)(3)
because the issue is "debatable among reasonable jurists."

Accordingly, IT IS ORDERED that Petitioner Thomas Joseph Brewer's Motion for a
Certificate of Appealability(Doc. 23)is granted.

TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT:

Petitioner pleaded guilty to Voluntary Manslaughter, in violation of 18 U.S.C. §§ 1112, 1153, and
Discharge of a Firearm During the Commission of a Crime of Violence, 18 U.S.C.
§ 924(c)(l)(A)(iii) in the United States District Court for the District of South Dakota,
5:16-cr-50174. Petitioner filed a Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28

U.S.C. § 2255, contending that Voluntary Manslaughter is not a crime of violence under the
elements clause of 18 U.S.C. § 924(c)(3)(A)following the decision in Borden v. United States, 141

S.Ct. 1817(2021). This Court granted the Government's Motion to Dismiss Petitioner's claim,
F.R.C.P. 12(b)(6). (Doc. 21).

In accordance with 28 U.S.C. § 2253, a certificate of appealability may issue only if the

applicant has made a substantial showing ofthe denial ofa constitutional right. Because the question
in Petitioner's § 2255 proceeding remains debatable among reasonable jurists, the Petitioner has
made the requisite substantial showing of the denial of a constitutional right.

IT IS HEREBY CERTIFIED that there exists probable cause of an appealable issue with

respect to the Court's granting of the United States' Motion to Dismiss the Petitioner's Motion
pursuant to 28 U.S.C. § 2255.

Dated this

of November, 2022.
BY THE COURT:

[.awrenee L. Piersol
ATTEST:
MATTHEW W. THELEN,CLERK

United States District Judge