Loud Hawk v. United States of America

Filing 15

ORDER adopting 8 Report and Recommendation; overruling 14 Objection to Report and Recommendation. Signed by U.S. District Judge Karen E. Schreier on 7/24/2023. (JLS)

Case 5:20-cv-05045-KES Document 15 Filed 07/24/23 Page 1 of 12 PageID #: 84

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
BASIL LOUD HAWK,
Petitioner,
vs.
UNITED STATES OF AMERICA,

5:20-CV-05045-KES
ORDER ADOPTING REPORT AND
RECOMMENDATION AND
DISMISSING PETITIONER’S 28 U.S.C.
§ 2255 MOTION

Respondent.
Petitioner, Basil Loud Hawk, filed a motion to vacate, correct, or set aside
his conviction and sentence under 28 U.S.C. § 2255. 1 Docket 1. Loud Hawk
pleaded guilty to two counts of second-degree murder in violation of 18 U.S.C.
§§ 1111 and 1153 and one count of use of a firearm during the commission of
a crime of violence in violation of 18 U.S.C. § 924(c). See CR Docket 47. In
United States v. Davis, 139 S. Ct. 2319, 2336 (2019), the Supreme Court held
that the “residual clause” in the definition of crime of violence, 18 U.S.C.
§ 924(c)(3)(B), is void for vagueness. Loud Hawk argues that second-degree
murder is not a crime of violence under the remaining valid clause, the “force
clause” or “elements clause”, 18 U.S.C. § 924(c)(3)(A), defining crime of

The court cites to documents from this civil habeas file using the court’s
assigned document number. The court cites to documents from Loud Hawk’s
underlying criminal case, United States v. Loud Hawk, 5:99-CR-50001 (D.S.D.),
using the court’s assigned docket number preceded by “CR.”
1

Case 5:20-cv-05045-KES Document 15 Filed 07/24/23 Page 2 of 12 PageID #: 85

violence. Docket 1 at 2; Docket 2 at 2–7. Loud Hawk contends that his
conviction and sentence for the use of a firearm during the commission of a
crime of violence in violation of 18 U.S.C. § 924(c) violate his due process rights
and requests that the conviction and sentence be vacated under 28 U.S.C.
§§ 2255(a) and (b). Dockets 1, 2.
The matter was referred to Magistrate Judge Daneta Wollmann for a
recommended disposition under 28 U.S.C. § 636(b)(1)(B) and United States
District Judge Jeffrey L. Viken’s April 1, 2018, standing order. 2 The magistrate
judge recommended that Loud Hawk’s petition be dismissed with prejudice.
Docket 8 at 7. Loud Hawk objects to the report and recommendation. Docket
14. The United States does not object to the report and recommendation.
Docket 9. For the following reasons, the court adopts the report and
recommendation and orders that Loud Hawk’s motion to vacate his conviction
and sentence pursuant to 28 U.S.C. § 2255 be dismissed with prejudice.
FACTUAL BACKGROUND
Loud Hawk pleaded guilty to two counts of second-degree murder in
violation of 18 U.S.C. §§ 1111 and 1153 and one count of use of a firearm
during the commission of a crime of violence in violation of 18 U.S.C. § 924(c).
See CR Docket 47. Loud Hawk was sentenced to 60 years in prison on the
second-degree murder counts, to run currently, and 10 years in prison on the

The standing order is no longer in effect. D.S.D. Civ. LR 72.1.A.2(b), which
became effective on May 31, 2022, designates to the magistrate judge the duty
to prepare proposed findings and recommendations for the disposition of
habeas petitions.
2

2

Case 5:20-cv-05045-KES Document 15 Filed 07/24/23 Page 3 of 12 PageID #: 86

§ 924(c) count, to run consecutively with the sentence on the other counts. CR
Docket 56. Loud Hawk appealed his sentence to the Eighth Circuit Court of
Appeals, and the sentence was affirmed. United States v. Loud Hawk, 245 F.3d
667, 670 (8th Cir. 2001). Loud Hawk filed four previous motions to vacate, set
aside, or correct his sentence under 28 U.S.C. § 2255, all of which were denied.
Loud Hawk v. United States, 5:08-CV-05014-RHB (D.S.D. Apr. 1, 2008); Loud
Hawk v. United States, 5:14-CV-05006-LLP, Docket 6 (D.S.D. Mar. 17, 2014);
Loud Hawk v. United States, 5:16-CV-05037-LLP, Docket 5 (D.S.D. June 2,
2016); Loud Hawk v. United States, 5:18-CV-05078-KES, Docket 13 (D.S.D.
Oct. 17, 2019).
The Eighth Circuit granted Loud Hawk’s request for authorization to file
a successive habeas application under 28 U.S.C. § 2255. Docket 4-1 at 2. The
United States responded to Loud Hawk’s § 2255 motion and requested that the
petition be denied. Docket 5.
The magistrate judge’s report and recommendation relies on United
States v. Begay, 33 F.4th 1081 (9th Cir. 2022) (en banc) and Janis v. United
States, 5:20-CV-05043, 2022 WL 1500691, 2022 U.S. Dist. LEXIS 86034
(D.S.D. May 12, 2022). Docket 8 at 4–7. In Begay, the Ninth Circuit Court of
Appeals, sitting en banc, held that
[a] § 1111(a) conviction qualifies as a crime of violence because a
defendant who acts with the requisite mens rea to commit seconddegree murder necessarily employs force “against the person or
property of another,” and rather than acting with ordinary
recklessness, the defendant acts with recklessness that rises to the
level of extreme disregard for human life.

3

Case 5:20-cv-05045-KES Document 15 Filed 07/24/23 Page 4 of 12 PageID #: 87

33 F.4th at 1093. After the magistrate judge issued her report and
recommendation, the Supreme Court denied a petition for writ of certiorari in
Begay. Begay v. United States, 143 S. Ct. 340 (Oct. 11, 2022).
In Janis, United States District Court Judge Charles Kornmann
addressed the same issue Loud Hawk raises in his § 2255 motion and held
that “18 U.S.C. § 1111(a) is a proper predicate offense under the elements
clause of 18 U.S.C. § 924(c)(3)(A).” 2022 WL 1500691, at *6, 2022 U.S. Dist.
LEXIS 86034, at *16. Recently, the Eighth Circuit affirmed the denial of Janis’s
§ 2255 motion and held that “[h]omicides committed with malice aforethought
involve the ‘use of force against the person or property of another,’ so seconddegree murder is a crime of violence.” Janis v. United States, No. 22-2471,
2023 WL 4540528, at *7 (8th Cir. July 14, 2023). The Eighth Circuit reasoned
that the “malice aforethought” element means that second-degree murder “will
always clear th[e] bar” set by the Borden plurality to satisfy § 924(c)’s force
clause. Id. at *3.
DISCUSSION
I.

Standard of Review
The court’s review of the magistrate judge’s report and recommendation

is governed by 28 U.S.C. § 636(b)(1). The court reviews de novo any objections
to the magistrate judge’s recommendations with respect to dispositive matters
that are timely made and specific. 28 U.S.C. § 636(b)(1); Thompson v. Nix, 897
F.2d 356, 357–58 (8th Cir. 1990) (per curiam). In conducting its de novo
review, the court may “accept, reject, or modify, in whole or in part, the
4

Case 5:20-cv-05045-KES Document 15 Filed 07/24/23 Page 5 of 12 PageID #: 88

findings or recommendations made by the magistrate judge.” 28 U.S.C.
§ 636(b)(1); United States v. Craft, 30 F.3d 1044, 1045 (8th Cir. 1994).
II.

Analysis
In his objection to the magistrate judge’s report and recommendation,

Loud Hawk acknowledged that “[b]ecause Janis also involves the issue of
whether federal second-degree murder qualifies as a ‘crime of violence’ under
the § 924(c) force clause, the Eighth Circuit’s opinion will likely resolve the
legal issue in the present case.” Docket 14 at 2. The court agrees that the
Eighth Circuit’s decision resolves the issue raised in Loud Hawk’s § 2255
motion and requires that the court dismiss the motion with prejudice.
A.

The Eighth Circuit’s Janis Decision

In Janis, the Eighth Circuit considered whether federal second-degree
murder in violation of 18 U.S.C. §§ 1111 and 1153 is a crime of violence under
18 U.S.C. § 924(c). Janis, 2023 WL 4540528, at *1. Loud Hawk was convicted
and sentenced for the same crimes. See CR Docket 47; CR Docket 56.
Section 924(c) defines “crime of violence” using a “force” or “elements” clause
and a “residual clause”:
[T]he term “crime of violence” means an offense that is a felony and—
[Force Clause] (A) has as an element the use, attempted use, or
threatened use of physical force against the person or property of
another, or
[Residual Clause] (B) that by its nature, involves a substantial risk
that physical force against the person or property of another may be
used in the course of committing the offense.

5

Case 5:20-cv-05045-KES Document 15 Filed 07/24/23 Page 6 of 12 PageID #: 89

Janis, 2023 WL 4540528, at *1 (alterations in original) (quoting 18 U.S.C.
§ 924(c)(3). In Davis, the Supreme Court invalidated § 924(c)’s residual clause
as unconstitutionally vague. Id. (citing Davis, 139 S. Ct. at 2336). After Davis,
federal second-degree murder must satisfy the force clause to qualify as a
crime of violence. Id. (citing McCoy v. United States, 960 F.3d 487, 489 (8th Cir.
2020)).
To determine whether second-degree murder qualifies as a crime of
violence under the force clause, the Eighth Circuit applied the categorical
approach described in United States v. Taylor, 142 S. Ct. 2015, 2020 (2022),
comparing the elements of second-degree murder with the force clause’s
requirements. Janis, 2023 WL 4540528, at *1. “ ‘The only relevant question is
whether the federal felony at issue always requires the government to prove—
beyond a reasonable doubt, as an element of its case—the use, attempted use,
or threatened use of force’ against the person or property of another.” Id.
(quoting Taylor, 142 S. Ct. at 2020).
The Eighth Circuit explained that in Borden v. United States, the
Supreme Court, in a plurality opinion, found that crimes only requiring an act
be done “recklessly” do not qualify as violent felonies under the force clause of
§ 924(e), a statute with near identical language to § 924(c). Id. at *2 (citing
Borden v. United States, 141 S. Ct. 1817, 1827 (2021)). Applying the reasoning
of the Borden plurality, the Eighth Circuit explained that “§ 924(c)’s force
clause requires directing or targeting force at another person or their

6

Case 5:20-cv-05045-KES Document 15 Filed 07/24/23 Page 7 of 12 PageID #: 90

property[,]” which is not satisfied when a person acts only recklessly. See id. at
*2–3 (citing Borden, 141 S. Ct. at 1825).
Second-degree murder has two elements: (1) unlawful killing of a human
being with (2) malice aforethought. Id. at *2 (citing United States v. Iron Crow,
970 F.3d 1003, 1009 (8th Cir. 2020)). The Eighth Circuit analyzed the history
of the “malice aforethought” requirement and concluded that “[t]he history and
definition of ‘malice aforethought’ demonstrate that federal-second degree
murder satisfies § 924(c)’s force clause. The phrase ‘malice aforethought’
necessarily denotes the oppositional conduct that the force clause requires[.]”
Id. at *4 (citation omitted). Thus, federal second-degree murder qualifies as a
“crime of violence” under § 924(c)(3)(A). Id.
B.

Loud Hawk’s Objections

In Janis, the Eighth Circuit specifically discussed and rejected each of
the arguments Loud Hawk raises in his objection to the magistrate judge’s
report and recommendation. See 2023 WL 4540528, at *3–7.
1.

Second-Degree Murder Does Not Require Conduct
Directed or Targeted at Another Individual

Citing United States v. Black Elk, 579 F.2d 49, 51 (8th Cir. 1978) (per
curiam), Loud Hawk argues that because reckless and wanton conduct and a
gross deviation from a reasonable standard of care of such a nature that a jury
can infer that the defendant was aware of a serious risk of death or serious
bodily harm can establish malice, second-degree murder can be committed
without the use, attempted use, or threatened use of force required by

7

Case 5:20-cv-05045-KES Document 15 Filed 07/24/23 Page 8 of 12 PageID #: 91

§ 924(c)’s force clause. Docket 14 at 3–4. In Janis, the Eighth Circuit noted
that in Borden, the Supreme Court reserved judgment on crimes involving
mental states, such as extreme recklessness, between knowledge and
recklessness. Janis, 2023 WL 4540528, at *4 (citing Borden, 141 S. Ct. at 1825
n.4). “Black Elk’s context shows that the standard it articulates is close to
knowledge and far from ordinary recklessness.” Id. at *5. The Eighth Circuit
agreed with every other circuit that has considered the issue after Borden and
held that “ ‘malice aforethought’ conduct satisfies § 924(c)’s force clause.” Id.
(citations omitted).
Loud Hawk, like the petitioner in Janis, cites out-of-circuit drunk driving
cases as examples of conduct sufficient to constitute federal second-degree
murder that he contends do not involve directed or targeted use of force.
Docket 14 at 5–6. The Eighth Circuit rejected this argument, stating that “[i]t
would overstate the holding of Borden to require that every use of force against
the person of another must purposefully target the specific person who is
victimized.” Janis, 2023 WL 4540528, at *6 (citing Restatement (Second) of
Torts § 8A, cmt. B, illus. 1). All of the drunk driving cases the petitioner in
Janis relied on “involved egregiously dangerous conduct with such a high
probability of harm and such a callous and wanton disregard of human life
that a jury could infer the existence of malice aforethought.” Id.
In his objection, Loud Hawk cites an unpublished Fifth Circuit case that
the Eighth Circuit did not discuss or cite in Janis. See Docket 14 at 5. In
United States v. Escobedo-Moreno, the Fifth Circuit held that instructing an
8

Case 5:20-cv-05045-KES Document 15 Filed 07/24/23 Page 9 of 12 PageID #: 92

individual to hide in a compartment under a truck bed that could not be
opened from inside and failing to inform law enforcement officers that the
individual was in the compartment “crossed the extreme-recklessness
threshold.” 781 F. App’x 312, 318 (5th Cir. 2019) (per curiam). Notably, in
Escobedo-Moreno, the Fifth Circuit held that the defendant’s conduct “was at
least as reckless as the conduct we held to be extremely reckless in LemusGonzalez[,]” id. at 317, which is one of the cases the Eighth Circuit discussed
in Janis. See Janis, 2023 WL 4540528, at *6. Loud Hawk’s reliance on
Escobedo-Moreno, as well as United States v. Lemus-Gonzalez, 563 F.3d 88, 93
(5th Cir. 2009) and United States v. Fleming, 739 F.2d 945, 948 (4th Cir. 1984),
cannot be reconciled with the Eighth Circuit’s holding that convictions that
require malice aforethought always involve directed or targeted force and
constitute a “crime of violence” under § 924(c)’s force clause. See Janis, 2023
WL 4540528, at *3. Loud Hawk’s objection that second-degree murder does not
require conduct directed or targeted another individual is overruled.
2.

United States v. Boose

Loud Hawk argues that United States v. Boose, 739 F.3d 1185 (8th Cir.
2014), “shows that the Eighth Circuit treats ordinary and extreme recklessness
the same under the force clause.” Docket 14 at 7. Loud Hawk’s objection
misconstrues the holding in Boose. In Boose, the Eighth Circuit, relying on a
decision from the Arkansas Supreme Court, held that first-degree battery
under Arkansas law could be committed with a mental state of ordinary
recklessness, although the Arkansas statute included a requirement that a
9

Case 5:20-cv-05045-KES Document 15 Filed 07/24/23 Page 10 of 12 PageID #: 93

defendant manifest “extreme indifference to the value of human life[.]” 739 F.3d
at 1188 (quotation omitted). When the Eighth Circuit discussed and rejected
this same argument in Janis, the court noted that Boose analyzed the mens rea
required by an Arkansas statute, not the mens rea required by the federal
second-degree murder statute. Janis, 2023 WL 4540528, at *5. Thus, the
Eighth Circuit rejected the argument that Boose “require[s] a result
incongruous with the circuit consensus.” Id. Loud Hawk’s objection based on
Boose is overruled.
3.

United States v. Flute

Finally, Loud Hawk objects to the magistrate judge’s report and
recommendation “[b]ecause the federal second-degree murder statute reaches
purely prenatal conduct . . . [and] is broader than the § 924(c) force clause.”
Docket 14 at 8. In Janis, the Eighth Circuit specifically considered and rejected
this argument, which is based on United States v. Flute, 929 F.3d 584 (8th Cir.
2019). Janis, 2023 WL 4540528, at *7. In Flute, a divided panel held that a
mother could be convicted of involuntary manslaughter for prenatal conduct.
Id. In McCoy v. United States, 960 F.3d 487, 490 (8th Cir. 2020), the Eighth
Circuit declined to extend the rationale of Flute to voluntary manslaughter, and
the petitioner in Janis cited no authority to support her argument that Flute
would be extended even further to convict a mother of second-degree murder
based on prenatal conduct. Janis, 2023 WL 4540528, at *7. Loud Hawk’s
objection to the magistrate judge’s report and recommendation based on Flute
is overruled.
10

Case 5:20-cv-05045-KES Document 15 Filed 07/24/23 Page 11 of 12 PageID #: 94

CERTIFICATE OF APPEALABILITY
When a district court denies a petitioner’s § 2255 motion, the petitioner
must first obtain a certificate of appealability before an appeal of that denial
may be entertained. Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003). This
certificate 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)(2). A “substantial
showing” is one that proves “reasonable jurists would find the district court’s
assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel,
529 U.S. 473, 484 (2000). Stated differently, “[a] substantial showing is a
showing that issues are debatable among reasonable jurists, a court could
resolve the issues differently, or the issues deserve further proceedings.” Cox v.
Norris, 133 F.3d 565, 569 (8th Cir. 1997). The Eighth Circuit’s decision in
Janis v. United States, 2023 WL 4540528 (8th Cir. July 14, 2023) is directly on
point and controlling. Loud Hawk has not made a substantial showing that his
claims are debatable among reasonable jurists, that another court could
resolve the issues raised in his claims differently, or that a question raised by
his claims deserves additional proceedings. Thus, a certificate of appealability
is not issued.
CONCLUSION
Thus, it is ORDERED that:
1.

Loud Hawk’s objection (Docket 14) to the report and
recommendation (Docket 8) is overruled.

11

Case 5:20-cv-05045-KES Document 15 Filed 07/24/23 Page 12 of 12 PageID #: 95

2.

The report and recommendation (Docket 8) is adopted in full as
modified by this opinion.

3.

Loud Hawk’s motion to vacate his conviction and sentence
pursuant to 28 U.S.C. § 2255 (Docket 1) is denied with prejudice;
his petition is dismissed.

4.

For the reasons set forth herein and pursuant to Fed. R. App. P.
22(b), the court finds that Loud Hawk has not made a substantial
showing of the denial of a constitutional right. 28 U.S.C.
§ 2253(c)(2). Thus, a certificate of appealability is denied.

DATED July 24, 2023.
BY THE COURT:
/s/ Karen E. Schreier
KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE

12