Janis v. United States of America

Filing 21

ORDER granting 20 Motion for Certificate of Appealability. Signed by U.S. District Judge Charles B. Kornmann on 7/8/22. (SLW)

filed
UNITED STATES DISTRICT COURT

Q g 2022

DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION

TIFFANY JANIS,

5:20-CV-5043-CBK

Petitioner,

vs.

UNITED STATES OF AMERICA,

ORDER

Respondent.

Tiffany Janis ("petitioner") moves this Court for a certificate of appealability on
whether her Second Degree Murder conviction, violative of 18 U.S.C. §§1111(a), 1153,
constitutes a crime of violence under 18 U.S.C. § 924(c)(3)(A)("the elements clause");

and Discharge of a Firearm During the Commission of a Crime of Violence, violative of
18 U.S.C. § 924(c)(l)(A)(iii), in United States District Court for the District of South
Dakota. 5:18-CR-50024-JLV. Because the applicability ofthe elements clause to the

federal Second Degree Murder charge remains a relatively open question, petitioner's
motion should be granted.

This Court may grant a certificate of appealability for Ms. Janis' habeas petition
pursuant to 28 U.S.C. § 2255 upon "a substantial showing of the denial of a constitutional
right." Clav v. Bowersox,628 F.3d 996, 998 (8th Cir. 2011)(per curiam){quoting 28
U.S.C. § 2253(c)(2)). Here, a "substantial showing ofthe denial of a constitutional right"
concerns "issues [that] are debatable among reasonable jurists." Bell v. Norris, 586 F.3d
624,632 n.3 (8th Cir. 2009)(internal quotation marks omitted).

While the Court in its previous Memorandum and Order, Doc. 18, held that the
federal Second Degree Murder statute, and its requisite mens rea of extreme recklessness,
satisfies § 924(c)(3)'s elements clause, this question remains open to debate among

reasonable jurists. Petitioner rightly points to a split en banc decision ofthe United

States Court of Appeals for the Ninth Circuit released nearly the same time as this
Court's opinion here, with the majority arriving at the same conclusion as this Court. See
United States v. Begav. 33 F.4th 1081 (9th Cir. 2022)(en banc). So has the United States
District Court for the Northern District Court of Oklahoma. See United States v. Kepler.

2021 WL 4027203(N.D. Okla. Sept. 3, 2021). But not all federal judges have arrived at
the same conclusion. In Begav. three judges dissented on this very question. See id. at
1098-1099(Wardlaw, J., dissenting in part); 1099-1107 (Ikuta, J.,joined by VanDyke,
J., dissenting in part). See id. at 1100 (Ikuta, J,joined by VanDyke, J., dissenting in part)
(While noting that "one judge recently argued that a contrary conclusion would make him
feel that he was 'taking crazy pills,'" nevertheless arguing the federal statute did not

constitute a crime of violence under binding U.S. Supreme Court precedent)(internal
citations omitted). Clearly, reasonable jurists can disagree.
This important question, whether the federal Second Degree Murder statute
constitutes a crime of violence under § 924(c)(3)'s elements clause, remains open to
debate among reasonable jurists and warrants a certificate of appealability.

IT IS HEREBY ORDERED that petitioner Tiffany Janis' Application for
Certificate of Appealability, Doc. 20, is granted.

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

Petitioner pleaded guilty to Second Degree Murder, in violation of 18 U.S.C. §§
111 1(a), 1153; and Discharge of a Firearm During the Commission of a Crime of
Violence, violative of 18 U.S.C. § 924(c)(l)(A)(iii), in United States District Court for
the District of South Dakota. 5:18-CR-50024-JLV. Petitioner filed a Motion to Vacate,

Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255, contending that Second

Degree Murder does not constitute a crime of violence under the elements clause

pursuant to 18 U.S.C. § 924(c)(3)(A) in light ofthe U.S. Supreme Court's fractured
holding in Borden v. United States. 141 S.Ct. 1817(2021). The United States moved to
2

dismiss the petitioner's claim pursuant to Federal Rule of Civil Procedure 12(b)(6), Doc.
11, which I granted. Doc. 18.

Pursuant to 28 U.S.C. § 2253, a certificate of appealability may issue only if the

applicant has made a substantial showing ofthe denial of a constitutional right. Because
this question remains on relatively uncharted ground, 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 ofthe United States' Motion to Dismiss the
petitioner's Motion pursuant to 28 U.S.C. § 2255.

DATED this ^"dav of July, 2022
BY THE COURT:

CHARLES B. KORNMANN

United States District Judge