Janis v. United States of America

Filing 18

ORDER denying 7 Motion for Default Judgment; granting 8 Motion for Extension of Time ; granting 11 Motion to Dismiss; and denying 16 Motion to Appoint Counsel. Signed by U.S. District Judge Charles B. Kornmann on 5/17/2022. Mailed to Plaintiff with post conviction appeal packet. (CLR)

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m ^ 7 im
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION

DARRELL JANIS,

5:20-CV-5047-CBK

Petitioner,

vs.

UNITED STATES OF AMERICA,

MEMORANDUM AND ORDER

Respondent.
I.

BACKGROUND

Darrell Janis ("petitioner") was found guilty by a jury of his peers of one count of

Abusive Sexual Contact, in violation of 18 U.S.C. §§ 1153, 2244(a)(1), 2246(3)(Count
I); and of Abusive Sexual Contact violative of 18 U.S.C. §§ 1153, 2244(a)(3), 2246(3)

(Count II). 5:I6-CR-50126-JLV,("CR")doc. 81.^ The underlying criminal proceedings
revolved around the petitioner's sexual assault of his 12-year-old granddaughter in late
2015. With an advisory guideline range for the two counts totaling 144 months (the
statutory maximum), United States District Court Judge Jeffrey Viken ultimately
sentenced Mr. Janis to 96-months on Count I, followed by five years of supervised
release; and 24-months on Count II, followed by five years of supervised release, with the
two counts to run concurrent.

The petitioner appealed his conviction to the United States Court of Appeals for
the Eighth Circuit, arguing namely (1)the District Court's purported failure to read a jury
instruction (which was more applicable to civil litigation than criminal proceedings); and

(2)challenging the government's forensic examiner's testimony concerning the victim's
truthfulness. See United States v. Janis. 898 F.3d 847(8th Cir. 2018). In a published

References to the underlying criminal proceeding's docket are referred to as "C.R. doc."

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opinion, the petitioner's convictions were affirmed. Id, at 852. However,the petitioner
would nevertheless find his incarceration ended far earlier than originally expected.

During the COVID-19 pandemic. Judge Viken granted the petitioner's motion for
compassionate release under the First Step Act of2018, 18 U.S.C. § 3582(c)(1)(A), in

light of his medical ailments that heightened risk of contracting the virus.

C.R. doc.

153. Having served just under half his sentence, the Court re-sentenced the petitioner to
time-served, and immediately placed him on five years of supervised release. See id. at
22, C.R. doc. 154. Petitioner's five years of supervised release continue to this day.
Petitioner moved,pro se, to vacate, set aside, or correct his sentence pursuant to
28 U.S.C. § 2255, under the Antiterrorism and Effective Death Penalty Act of 1996

("AEDPA"), arguing that the United States withheld exculpatory Bradv^ evidence from
his trial. Doc. 1. In subsequent briefing, the petitioner also sought relief for a purported
freestanding innocence claim.

Mr. Janis rightly notes that an FBI agent who testified in his criminal proceedings,
Mark Lucas, was repeatedly admonished by this Court for offering false testimony to a
grand jury and for inconsistencies between testimony, affidavits, reports, and audio
interviews. Judge Viken and United States Magistrate Judge Donetta Wollman both have
harshly criticized Agent Lucas for his conduct in three criminal matters unrelated to
Janis. See infra ll.C.l. Janis asserts that the government failed to hand over the

exculpatory evidence, which would have materially affected his underlying criminal

proceedings. However, Agent Lucas did not testify at the guilt phase of petitioner's trial;
rather, he only testified at the sentencing hearing concerning a disputed sentencing
enhancement under the United States Sentencing Commission's advisory guidelines.
Further, the government was not put on notice about Agent Lucas' transgressions until
after Janis was found guilty, albeit before he was sentenced.
The United States ("respondent") failed to file its answer or responsive pleading to
Janis' motion in the time ordered by this Court. See doc. 4. While the government was

' Brady v. Maryland. 373 U.S. 83(1963)

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ordered to file its responsive briefing on or before August 14, 2020, it seemingly forgot to

pursue its obligations in this matter. After the time allotted for the United States to brief
expired, with no request for an extension to file or any other communication to the Court,
the pro se litigant moved for defaultjudgment. Doc. 7. A fullfive days after the
petitioner moved for defaultjudgment,the United States finally entered the fi-ay, moving
this Court for an extension oftime to file its responsive briefing. Doc. 8. The

respondent's excuse: failure to "calendar" this matter. Memorandum in SUPPORT OF
Government's Motion for Extension of Time to File Response and Motion to

Deny Petitioner's Motion for Default Judgment, doc. 9 at 1. Almost a week after

moving for an extension oftime, the government filed its motion to dismiss for failure to
state a claim upon which relief can be granted and for (vexingly) insufficient subjectmatter jurisdiction over the petitioner's federal claim. Mr. Janis timely responded to the
government's motion. Doc. 14. The United States did not submit a reply brief. Later,
Mr. Janis moved this Court for the appointment of counsel, specifically Ms. Molly Quinn
of the United States Public Defender's Office for the Districts of South Dakota and North
Dakota. Doc. 16.

This Memorandum and Order tackles all outstanding motions before this Court.
For the reasons stated below,(1)the petitioner's motion to vacate, set aside, or correct
sentence pursuant to 28 U.S.C. § 2255, doc. 1., should be denied;(2)petitioner's motion
for defaultjudgment, doc. 2, should be denied;(3)the United States' motion for
extension oftime to file response and motion for order denying petitioner's motion for
defaultjudgment, doc. 7, should be granted;(4)the respondent's motion to dismiss for
failure to state a claim upon which relief can be granted, doc. 11, should be granted; and

(5)petitioner's motion to appoint counsel, doc. 16, should be denied.
II.

DISCUSSION

A. Motions for Extension of Time, Default Judgment

First, the Court must take up the United States' motion for extension oftime to file

a response and petitioner's related motion for defaultjudgment. This Court has
previously ordered the United States to "serve and file an answer or responsive pleading

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to the motion, together with a legal brief or memorandum, on or before August 14,
2020." Order for Service, doc. 4 at 3. The government failed to do so.

Six days after the United States' answer was due, and still no filing before the
Court, Mr. Janis moved this Court for a default judgment. MOTION FOR DEFAULT

Judgment, doc. 7. Waiting a fullfive more days, the government moved for an
extension oftime to file a response and to contest petitioner's motion for default
judgment. Motion for Extension of Time to File Response and Motion for
Order Denying Petitioner's Motion for Default Judgment, doc. 8. Why?

Because the United States Attorney's Office did not "calendar" the matter. Id. at 1. This
Court makes clear its displeasure with the United States for failing to adequately prepare
and act in this matter.

However, petitioner failed to follow the clear requisite steps before moving this
Court for a defaultjudgment. "When a party has failed to plead or otherwise defend

against a pleading listed in Rule 7(a), entry of default under Rule 55(a) must precede
grant of a defaultjudgment under Rule 55(b)." Johnson v. Davton Elec. Mfg. Co., 140
F.3d 781, 783 (8th Cir. 1998)(internal quotation marks omitted). Here, Mr. Janis did not
perform the fu-st step on path to a default judgment, specifically, he "did not file a motion

for clerk's entry of default under Rule 55(a)... which is a prerequisite to and must
precede the grant of a defaultjudgment under Rule 55(b)." Cheeks v. Belmar. 331

F.R.D. 499, 506(E.D. Mo.2019). See also Wright & Miller, § 2682, ENTRY OF

Default Under Rule 55(a),(4th ed.). While the Court is cognizant the petitioner is
representing himselfpro se, that "[does] not entitle him to disregard the Federal Rules of
Civil Procedure." Bennett v. Dr. Pepper/Seven Up. Inc., 295 F.3d 805, 808 (8th Cir.
2002)(internal quotation marks omitted). See also Soliman v. Johanns. 412 F.3d 920,

922(8th Cir. 2005)("Even pro se litigants must comply with court rules and
directives."). Accordingly, the petitioner's motion for defaultjudgment should be
denied.

Next, the Court must take up the government's motion for an extension oftime

filed over a month after this Court ordered it to first file a response. Doc. 8. The Court
4

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only wonders how long it would have taken the United States to meaningfully litigate this
matter without the petitioner's motion for defaultjudgment. This Court'"may,for good
cause, extend the time' on a party's motion 'after the time has expired if the party failed
to act because of excusable neglect.'" Spirit Lake Tribe v. Jaeger. 5 F.4th 849,854(8th

Cir. 2021){quoting FED. R.CiV.PRO. 6(b)(1)(B)). This question is ultimately analyzed
under principles of equity. Id. at 854-55. This Court considers dangers of prejudice to
the petitioner, how long the delay was by the government,the reason for the respondent's
delay, and whether the United States is acting in good faith. Id. See also Chorosevic v.
MetLife Choices, 600 F.3d 934, 946 (8th Cir. 2010)("Excusable neglect is an 'elastic

concept' that empowers courts to accept,'where appropriate,... late filings caused by
inadvertence, mistake, or carelessness, as well as by intervening circumstances beyond
the party's control.'"){quoting Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P'ship.
507 U.S. 380, 392,388 (1993)).

Here, while vexed and frustrated by the respondent's inability to adhere to filing
deadlines because of failures to properly calendar obligations with this Court, the balance
of equities nevertheless leans in favor of allowing for the extension of time. There are no
indicia that the United States was acting in bad faith; rather, it operated under extreme
carelessness for its obligations in this matter. Respondent's response and subsequent
motion to dismiss were filed less than six weeks after the Court's initial deadline. While

seemingly pushed to act because of the diligence of a pro se litigant, the United States
nevertheless moved for its extension within the (outer bounds) of what would be

acceptable for this Court.
In its briefing for an extension of time, the United States rightly noted that the

United States Court of Appeals for the Eighth Circuit "favors adjudication on the merits."
Memorandum in Support of Government's Motion for Extension of Time to

File Response and Motion to Deny Petitioner's Motion for Default Judgment,

doc. 9 at 1. "Dismissal with prejudice is an extreme sanction and should be used only in
cases of willful disobedience of a court order or continued or persistent failure to
prosecute a complaint." Fletcher v. S. Farm Bureau Life Ins. Co., 757 F.2d 953, 956 (8th
5

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Cir. 1985)(internal quotation marks omitted). See also Swink v. City ofPagedale, 810
F.2d 791, 792 n.2(8th Cir. 1987)("There is a strong public policy, supported by concepts
offundamental fairness, in favor oftrial on the merits."). The petitioner's motion for

defaultjudgment should be denied and the respondent's motion for an extension oftime
should be granted.
B. Standard of Review

The United States filed its motion to dismiss pursuant to Federal Rule of Civil
Procedure 12(b)(6) and Rule 12(h)(3). Rule 12(h)(3) mandates dismissals of suit when
federal courts do not hold proper subject matter jurisdiction. Federal courts are courts of
limited jurisdiction and must be wary of adjudicating claims beyond its purview. See
Badgerow v. Walters, 142 S.Ct. 1310, 1315 (2022). "The requirement that jurisdiction be
established as a threshold matter springs from the nature and limits of the judicial power
ofthe United States and is inflexible and without exception." Godfrev v. Pulitzer Pub.
Co., 161 F.3d 1137, 1141 (8th Cir. 1998)(internal quotation marks and alterations
omitted).

One such avenue for jurisdiction is via a "federal question." 28 U.S.C. § 1331.

Federal question jurisdiction exists where the plaintiff brings forth a "non-frivolous claim
of a federal right or remedy is sufficient to invoke federal question jurisdiction." Stanko
V. Qglala Sioux Tribe, 916 F.3d 694,698 (8th Cir. 2019)(internal quotations and
alterations omitted). Here, petitioner Janis brings forward his motion pursuant to 28
U.S.C. § 2255 before the Court that handed down the purportedly improper sentence. In
so doing, this Court is vested with subject matter jurisdiction over the matter.
Accordingly, the proper standard ofreview is pursuant to Rule 12(b)(6) for failure to
state a claim upon which relief can be granted.
The government's motion to dismiss for failure to state a claim is applicable to
§ 2255 habeas proceedings so long as its procedural commands do not conflict with
habeas statutes or the Rules Governing Section 2255 Cases in the United States District
Courts. Because it is consistent, the ordinary standard of review for motions under

12(b)(6) is applicable. See Wolfe v. United States. 2021 WL 5095953, at *5 (D.S.D.

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Sept. 20,2021)(explaining interplay between Rule 12(b)(6) and motions to vacate under
28 U.S.C. § 2255).

When reviewing a motion to dismiss under Rule 12(b)(6), the Court assumes that
all facts in the petitioner's motion to vacate are true and construes any reasonable
inferences from those facts in the light most favorable to the nonmoving party. Mondav
Rests. V. Intrepid Ins. Co., — F.4th —,2022 WL 11940000, at *1 (8th Cir. Apr. 26,
2022). See Bell Atl. Corp. v. Twomblv, 550 U.S. 544, 550(2007); Ashcroft v. Iqbal, 556
U.S. 662,678(2009). "In deciding a motion to dismiss, courts ordinarily do not consider
matters outside the pleadings." Gillick v. Elliott. 1 F.4th 608, 610 n.2(8th Cir. 2021).
However, courts may consider materials "necessarily embraced by the pleadings,
including exhibits attached to the complaint and matters of public record." LeMav v.
Mavs, 18 F.4th 283, 289(8th Cir. 2021)(internal quotation marks omitted). The

complaint must contain "enough facts to state a claim to relief that is plausible on its
face." Spagna v. Phi Kappa Psi. Inc.. 30 F.4th 710, 715 (8th Cir. 2022){quoting
Twomblv, 550 U.S. at 570). The factual allegations must be enough to raise specificity
"above the speculative level." Richardson v. BNSF Rv. Co.. 2 F.4th 1063, 1068 (8th Cir.
2021)(internal quotation marks omitted).

Nevertheless, courts "are not bound to accept as true a legal conclusion couched as

a factual allegation." Stoebner v. Opportuntiv Fin.. LLC.909 F.3d 219,225-26 (8th Cir.

2018){quoting Iqbal. 556 U.S. at 678). When assessing the merits of a complaint
challenged under Rule 12(b)(6), a court should "begin by identifying pleadings that,
because they are no more than conclusions, are not entitled to the assumptions oftruth."
McDonough v. Anoka Cntv.. 799 F.3d 931, 945-46(8th Cir. 2015)iquotins Iqbal. 556
U.S. at 679).

It is well known that complaints by pro se plaintiffs must "be given liberal
construction." Solomon v. Petrav. 795 F.3d 111, 787(8th Cir. 2015); accord Sandknop
V. Missouri Den't of Corr.. 932 F.3d 739, 741-742(8th Cir. 2019).

"[A] pro se complaint, however inartfully pleaded, must be held to less stringent

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standards than formal pleadings drafted by lawyers." Erickson v. Pardus, 551 U.S. 89, 94
(2007).

That said,pro se litigants must still present cognizable legal claims to this Court.

Although the Court must take as true any well-pleaded facts, the Court need not accept
"threadbare recitations of the elements of a cause of action supported by mere conclusory
statements." Zink v. Lombardi, 783 F.Sd 1089, 1098 (8th Cir. 2015)(quotins Iqbal, 556
U.S. at 678)."When we say that a pro se complaint should be given liberal construction,
we mean that ifthe essence of an allegation is discernible ... then the district court

should construe the complaint in a way that permits the layperson's claim to be
considered within the proper legal framework." Solomon,795 F.Sd at 787 (internal

quotation marks omitted). But "the court need not act as a clairvoyant, trying to read the
tea leaves of a pro se motion to determine what the movant actually seeks. A litigant,
even a pro se one, bears some responsibility for advocating for himself." In re Hevl,609
B.R. 194, 202(B.A.P. 8th Cir. 2019).
C. Whether the Statute of Limitations can be Tolled

Typically, petitioners have one year after their underlying conviction becomes
final to file their motions for collateral review pursuant to 28 U.S.C. § 2255. See United

States V. Mclntosh, 332 F.Sd 550, 550(8th Cir. 2003)(per curiam)(outlining typical one
year statute of limitations to file motion, barring applicable exceptions). Mr. Janis'
judgment became final 90 days following the United States Court of Appeals for the

Eighth Circuit's mandate on his direct appeal, the timeframe for him to petition for
certiorari before the United States Supreme Court. See United States v. Sanchez-

Gonzalez. 643 F.Sd 626,629(8th Cir. 2011)(explaining when judgments become final).
Here, petitioner received the appellate court's mandate in his original proceedings on
September 18, 2018. C.R. doc. 134. 90 days later, on December 17, 2018, the judgment
became final. So, Janis' original deadline to file a § 2255 motion was December 17,

2019. The question here is whether this deadline may be tolled. Two such exceptions are
outlined below.

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The Court must ask which provision of 28 U.S.C. § 2255(f) applies: § 2255(f)(2)
concerning violations ofthe Constitution or laws ofthe United States by the government;
or § 2255(f)(4) for the date new facts could reasonably have been discovered? Both are
addressed in turn. But first, an insight into Agent Lucas' testimony related to other
matters before this Court around the same time as the underlying criminal proceedings is
necessary.
1. Pertinent Facts

On September 9, 2019, Judge Viken made clear that F.B.I. Special Agent Mark
Lucas "testified falsely" before a federal grand jury in another sexual assault matter.
United States v. Gregg. 2019 WL 4256374, at *3(D.S.D. Sept. 9, 2019). There, Agent

Lucas "falsely told the grand jury" that the defendant, Gregg, admitted to(1)raping the
victim;(2)the victim was "crying and yelling and demanding to be taken home after the
alleged assault;" and(3)that Gregg saw the bruise on the victim's face. Id (internal
quotation marks omitted). Egregiously,"[t]he prosecutor did not correct or clarify
[Agent] Lucas' false statements." Id. But that is not all. Nine days later. Judge Wollman

authored a scathing Report & Recommendations in a wholly separate matter, United
States V. Featherman. There, Lucas' affidavit and written report concerning the alleged
transgressions of Featherman contained "inconsistencies." United States v. Featherman,

2019 WL 7811373, at *4(D.S.D. Sept. 18, 2019). The defendant there "alleged

discrepancies [] between [Agent] Lucas' grand jury testimony, two affidavits, 302 report^
summarizing the interview with Mr. Featherman, and the audio interview with Mr.

Featherman." Id at *2. The government elected "not [to] address these inconsistencies"
before Judge Wollman. Id at *4. Judge Wollman made bare that "[t]his is not the first

allegation of[Agent] Lucas providing inaccurate testimony before a grand jury." Id at
*5. She went on to cite Judge Viken's opinion in Gregg, writing that "[t]his court

previously held that grand jury testimony provided by [Agent] Lucas in an alleged rape

indictment was at worse a lie and at best extremely misleading." Id (internal quotation

'
A "302" is a standard shorthand for FBI interview summaries written on FD-302 forms.
9

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marks omitted). The Judge went on to note that "[t]his court further determined that

[Agent] Lucas' testimony in response to attorney questioning in Gregg was misleading at

worse and unresponsive at best." Id.(internal quotation marks omitted).'*
Mr. Janis became aware ofthe transgressions surrounding Lucas before this Court

through an article in the Lakota Times published on July 11, 2019. See Brandon Ecoffey,
Judges Rule FBILied to Secure Indictment, Lakota Times, June 11, 2019, available at
https://www.lakotatimes.com/articles/judges-rule-fbi-lied-to-secure-indictment/. The
Lakota Times reported on these allegations after the first round of briefing in Gregg and
after the evidentiary hearing took place, but before Judge Viken and Judge Wollman
handed down their respective opinions. In both instances, the misconduct by Lucas
occurred before this case went to trial.

2. Whether Statute ofLimitations can be Tolled Because ofGovernment's Violation of
Constitution/Laws ofthe United States

Pursuant to 28 U.S.C. § 2255(f)(2), petitioners' one year statute of limitations does

not begin to run until "the date on which the impediment to making a motion created by
governmental action in violation ofthe Constitution or laws ofthe United States is
removed, if the movant was prevented from making a motion by such governmental

action." The petitioner's argument rests on the impeachment evidence concerning Agent
Lucas and his admonitions by this Court. Janis argues that this information was withheld
in violation of his rights under Bradv and its progeny. For this matter, then,(1) was there
an impediment by the government violative of Janis' constitutional or statutory rights;
and(2)if so, when was that impediment removed? This question can be disposed on the
first question.

From what this Court can decipher traversing dockets of other cases where Lucas
has testified (since the respondent failed to substantively address this matter in its

briefing), is the United States first was put on notice about Agent Lucas' at times casual

* Petitioner rightly notes a co-defendant ofFeatherman raised similar troubling concerns which were disposed of in
near identical fashion by Judge Wollman. See United States v. Red Owl. 2019 WL 7811359(D.S.D. Sept. 18,
2019).
10

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relationship with the truth on July 31,2017. Tolin Gregg was the first defendant to raise
this matter in his criminal proceedings, moving for disclosure of grand jury testimony

where the agent falsely testified. See CR 17-50044-JLV, docs. 51 & 52. Mr. Gregg's
motion was filed with this Court, where the United States was served as the adversarial

party, on July 31, 2017. This Court, through Judge Wollman, first addressed the matter
on October 13, 2017, albeit in a sealed docket entry that petitioner would not have had
access to reading. CR 17-50044-JLV, doc. 70. The first public record of when the

government was on notice that there may be significant impeachment evidence
surrounding one of its witnesses in this matter, then, was on July 31, 2017. But Mr.
Janis' trial ended on May 11, 2017. C.R. doc. 81. However, Janis was not sentenced
until September 5, 2017. C.R. doc. 103. This means that in between being found guilty
on May 11, 2017, and being sentenced on September 5, 2017, the government first
became aware of potential Bradv material relevant to this matter.
So,then,(1)was there a Bradv obligation on the part ofthe government to

disclose such exculpatory evidence to a defendant following a finding of guilty but before
being sentenced; and (2)ifthe answer to the former is in the affmnative, was there a
violation here? Ifthe government's Bradv obligation terminated at the time ofthe
verdict, and not at the time of sentencing, then the United States held no obligation to

provide such exculpatory evidence. See Dist. Attomev's Off, of Third Judicial Dist. v.
Osbome. 557 U.S. 52,68(2009)(holding that prosecutors do not hold a Due Process

Clause obligation to "comply with the principles of[Brady]" in the postconviction
setting); see id.("A criminal defendant proved guilty after a fair trial does not have the
same liberty interests as a free man."). See also Watkins v. Rubenstein, 802 F.3d 637,

642(4th Cir. 2015)("And, of course, the Supreme Court has made clear that Bradv only

protects a defendant before trial")(emphasis in original)(internal quotation marks
omitted). But see Runningeagle v. Rvan,686 F.3d 758,772 n.6 (9th Cir. 2012)("After a

criminal conviction isfinal on direct appeal, prosecutors have no further duty under
Bradv to produce exculpatory evidence to a defendant.")(emphasis added); United States
V. Szczerba, 897 F.3d 929, 942(8th Cir. 2018)("Under the rule in our circuit Bradv does
11

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not require pretrial disclosure, and due process is satisfied ifthe information is furnished
before it is too late for the defendant to use it at trial")(emphasis added)(internal

quotation marks omitted).
Case law is grey on the clear delineation of when the defendant parts way with his
Brady right, whether that be when found guilty, at sentencing, when the final appeal has

been exhausted, or at some other juncture. But since this matter can be disposed of on
whether there was actual prejudice to the petitioner assuming he was still vested with the
rights owed under Brady, the Court's analysis can stop there. Additionally, it is critical to
note that Lucas was not put on as a witness during the guilt phase ofhis trial, but rather as
a witness during the sentencing process accompanied by an audio recording of a second
victim.

Under Brady and its progeny,"[t]he government must disclose evidence favorable
to a defendant whether requested or not." United States v. Anwar, 880 F.3d 958, 969
(8th Cir. 2018)(internal quotation marks omitted). Three components define a Brady
violation;(1)"[t]he evidence at issue must be favorable to the accused, either because it

is exculpatory, or because it is impeaching;(2)that evidence must have been suppressed
by the State, either willfully or inadvertently; and(3)prejudice must have ensued." Id.
(quotins Strickler v. Greene. 527 U.S. 263, 281-82(1999)). "Evidence is material if
there is a reasonable probability that, had the evidence been disclosed to the defense, the

result ofthe proceeding would have been different... A reasonable probability of a
different result is shown when the government's failure to disclose undermines

confidence in the outcome ofthe trial." White v. Steele, 853 F.3d 486,490(8th Cir.
2017)(internal quotation marks omitted). Further,"Brady does not require pretrial
disclosure as long as ultimate disclosure is made before it is too late for the defendant to

make use of any benefits ofthe evidence." United States v. Kime,99 F.3d 870, 882(8th

Cir. 1996)(internal quotation marks omitted). Nor does it encompass evidence that was
available to the defendant via other sources. See Helmig v. Fowler, 828 F.3d 755, 761-

62(8th Cir. 2016).

12

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Here, even if a Brady right exists post-conviction but pre-sentencing, when the

government puts forward a witness before this Court while on notice of concerning
allegations, the first two elements are readily met. First, this evidence was undoubtedly
favorable to Mr. Janis: if a government witness has a penchant to stray from the truth
before this Court, that could be critical for cross-examination. Second, the evidence was

either willfully or inadvertently withheld. The United States Attorney's Office for the
District of South Dakota was first made aware, in a legal filing, of allegations

surrounding Agent Lucas' veracity on July 31, 2017, in the Gregg matter, several months
before Janis' sentencing. The failure to disclose need not be willful; mere inadvertence
on the part ofthe Gregg prosecution to not relay matters to Janis' prosecutors would
suffice. See Anwar. 880 F.3d at 969. With the first two elements satisfied, assuming

such a Bradv right exists, the Court next addresses the prejudice prong.
Agent Lucas was called to testify concerning the petitioner's objection to the fivelevel enhancement to his advisory guideline range pursuant to engaging in a pattern of
activity involving prohibited sexual conduct pursuant to U.S.S.G. §4B1.5. The objection

centered around disputes by the petitioner ofengaging in sexually prohibited conduct
towards his daughter, Caroline Janis (the mother ofthe victim in the underlying

proceedings), years prior when she herself was an adolescent. This was uncharged

conduct but was put forth by the government in requesting the enhancement under
§4B1.5. At the sentencing hearing, it was clear from the transcript that the entirety ofthe
dispute concerning the applicability ofthe five-level enhancement was whether Caroline
Janis experienced prohibited sexual conduct by the petitioner. See Redacted Public
Transcript OF Sentencing, C.R. doc. 131 at 13. The United States' sole witness to

argue its point was Agent Lucas. At the hearing. Agent Lucas alluded to his recent
interview with Caroline about the alleged transgression years prior. After explaining how
that interview was recorded, a clip ofthe recording was played for the Court. While
defense counsel cross-examined Agent Lucas where other documents and 302 reports
were discussed (which could have been more effectively attacked with awareness of the
potential impeachment evidence), see id. at 14-16, 20-22,the crux ofthe sentencing
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Court's overruling of Janis' objection clearly centered on Caroline's testimony. Neither
the record before this Court nor petitioner's briefmg allude to any role Agent Lucas had
on the guilt-phase of the trial.

This Court has listened to the audio recording of the interview. Any help the
defense would have garnered through the potentially exculpatory impeachment evidence
is vastly outweighed by the audio recording of Caroline during her interview with Agent
Lucas. Assuming a Bradv right existed at the time of sentencing, Janis was not

adequately prejudiced. Further, had he been meritorious on his objection, his guideline
range would not have changed. Janis had a Criminal History Category of11. The fivepoint enhancement brought his Total Offense Level firom 34 to 39. A Total Offense
Level of 39, and a Criminal History Category ofII, leads to a guideline range of292-365
months. However, the statutory maximum for the two convicted offenses was 144

months. Accordingly, his guideline range moved to 144 months. Had Janis' objection
been sustained, the adjusted guideline range (with a Total Offense Level of34 and a

Criminal History Category ofII), would tentatively be 168-210 months. But again, it
would be altered to the statutory maximum of 144 months. And to go further, the Court
ultimately sentenced Janis to 96 months(which was further reduced to less than half of
that sentence on compassionate release). Whatever gain the defense would have had with

Agent Lucas' alleged transgressions (as laid out by Gregg's motion,the only docketed
filing at the time of sentencing in this matter), and assuming a Bradv obligation existed

upon the government at sentencing, the impeachment evidence would not ultimately have
changed the sentencing court's overruling of petitioner's objection to the enhancement
under U.S.S.G. §4B 1.5(b). Accordingly, the statute of limitations cannot be tolled

pursuant to 28 U.S.C. § 2255(f)(2). But it can under § 2255(f)(4).
3. Whether Statute ofLimitations may be Tolled for Newly Discovered Evidence

Another exception to the standard one-year statute of limitations applies for

petitioners who can "show [1] the existence of a new fact, while also [2] demonstrating
that he acted with diligence to discover the new fact." Ingram v. United States, 932 F.3d

1084, 1088-89 (8th Cir. 2019)(internal quotation marks omitted). The diligence on the
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part ofthe petitioner "does not require a prisoner to undertake repeated exercises in
futility or to exhaust every imaginable option," but it does "require that a prisoner make
reasonable efforts to discover the facts supporting his claims." Aniulo-Lopez v. United
States, 541 F.3d 814, 818 (8th Cir. 2008)(internal quotation marks omitted)(emphasis in

original). Under § 2255(f)(4), the petitioner has one year to file his motion from the time
reasonable efforts would have made the existence ofthe new fact discoverable. See

generallv Keller v. Pringle, 867 F.3d 1072, 1075 (8th Cir. 2017)(explaining how

§ 2255(f)(4)"provides that the one-year limitation period may begin to run on the date on
which the factual predicate ofthe claim or claims presented could have been discovered

through the exercise of due diligence.")(internal quotation marks omitted).^
Petitioner is tasked with (1)showing this Court the existence of a new fact; and (2)
that he pursued reasonable diligence in discovering this fact. Ingram, 932 F.3d at 108889. Here, the new fact is the testifying agent's lack of candor in unrelated matters before
this Court. Mr. Janis' trial began on May 9,2017, meaning any newly discovered
information concerning the veracity ofLucas' testimony before this Court must have

taken place prior to May 9, so that it would have been within the realm of critical
impeachable evidence. In the Gregg matter. Agent Lucas falsely testified before the grand
jury on March 21, 2017, months prior to Janis' trial. And in Featherman, the troubling
inconsistencies stem from;(1)his 302 report filed on November 18, 2016(5:16-CR50163-04, doc. 358-1);(2)his affidavit pertaining to the original complaint against the
defendant on November 21,2016 (id. doc. 1-1); and (3)the affidavit pertaining to the
amended complaint filed on November 22, 2016(id. doc. 6-1). All these documents were
filed before this Court prior to March 21, 2017, which the respondent received as the

adversarial party. Accordingly, this "new fact," i.e., that there are serious concerns in the
testifying agent's testimony before this Court, was in existence prior to Janis' trial, but
not reasonably knowable to him at the time.

'
While the Keller Court was writing about 28 U.S.C. § 2244(d)(1)(D), which pertains to federal claims of collateral
review for state prisoners, its phrasing and case law are analogous to matters under § 2255(f)(4). See Keller v.
Pringle. 867 F.3d 1072, 1075 (8th Cir. 2017)("Section 2255 sets time limits similar to those applicable to state
prisoners under § 2244(d).").
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Second, the petitioner was reasonably diligent in his search for this newly
discoverable evidence. Again, Mr. Janis could not have found this information about the

false testimony and evidence presented by Lucas that occurred prior to his trial until after
he was found guilty by his peers. Only through the subsequent litigation in the Gregg

and Featherman matters and publicity that it received^ could he have been aware and
discover such information through reasonable diligence. And thanks to such reasonable
diligence he did find out. Through the Lakota Times' article on July 11, 2019, Mr. Janis
discovered the troubling allegations laid against Agent Lucas.
Petitioner filed this action on July 13, 2020, from prison. While this is just past a
year between the first publication of the concerns surrounding Lucas, first reported on

July 8, 2020, Janis was incarcerated at the time and could not have discovered the
information any sooner. In an environment where instantaneous access to the internet or

news publications is nonexistent and mail is often delayed, the petitioner writes he
learned about the article around July 20, 2019. MEMORANDUM IN SUPPORT OF
Petitioner's Response to Government's Motion to Dismiss & Reply to

Government's Answer,doc. 15 at 1.^ Simply put, for Mr. Janis, whose briefing
denotes he was residing at FCl Beaumont in Texas at the time of filing this action and
may have been in Texas when the article was first published, to have learned about this
matter between July 8, 2019, and July 12, 2019(the time ofthe first news story and his
filing ofthe § 2255 motion), stretches beyond credulity. See Jimerson v. Pavne, 957 F.3d

916,927(8th Cir. 2020)("Diligence can be shown by prompt action on the part ofthe

® The Rapid City Journal also reported, on July 8,2019, about the accusations laid against Agent Lucas. See Arielle
Zionts, In 'Exceedingly Rate'Move, Two Federal Judges Say FBI Agent Gave False Testimony, Rapid City J., July
8, 2019, available at https://rapidcityjoumal.com/news/local/crime-and-courts/in-exceedingly-rare-move-twofederal-judges-say-fbi-agent-gave-false-testimony/article_a71222dc-aa53-55cb-a225-c8ee3flb4b0a.html.

^ In his memorandum in support of petitioner's response to government's motion to dismiss and reply to
government's answer, Mr. Janis writes he leamed about the article "on or about July 20, 2019." Doc. 15 at 1.
Altematively, in his memorandum in support of motion under 28 U.S.C. § 2255 to vacate, set aside, or correct
sentence by person in federal custody, he wrote he leamed ofthe article "[o]n or about July 21,2019." Doc. 2 at 2.
The Court assumes the earlier date of July 20, 2019, is correct.
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petitioner as soon as he is in a position to realize that he has an interest in challenging the

prior conviction."){quoting .Johnson v. United States. 544 U.S. 295, 308 (2005)).^
Additionally, no court released a public order depicting allegations concerning
Agent Lucas until Judge Viken published his order on September 9, 2019, in the Gregg
matter. If the petitioner's reasonable diligence alternatively began when a court first
made bare the concerns surrounding Agent Lucas, then Janis' motion was timely filed
within a year ofthe Gregg decision. Either way,this matter is timely filed within the
statutory deadline proscribed in 28 U.S.C. § 2255(f)(4). Finding that this Court can
entertain petitioner's motion, it must now turn to the substance of this matter; whether a
new trial is warranted.

D. Petitioner's Converted Motion for Re-Sentencing

Having established that the Court can entertain the petitioner's motion for a new
trial, it may now turn to its substance. However, as the Court has explained, any possible

attacks on Agent Lucas' testimony would only relate to sentencing, not to guilt.
Accordingly, the petitioner's motion for a new trial should be converted into a motion for
re-sentencing. First, the proper standard for determining whether Mr. Janis is owed resentencing must be established.

"When newly discovered evidence is the ground for a § 2255 motion, the district
court should apply the same substantive test which governs a motion for a new trial under
[Federal Rule of Criminal Procedure] 33 premised upon the same ground." Weaver v.
United States, 793 F.3d 857, 863 (8th Cir. 2015)(internal quotation marks omitted). But
since Lucas only testified at sentencing, and not at the trial itself(and the record holds no
indication of what role Lucas could have had at the guilt-phase), the petitioner's motion
should be converted into a request for re-sentencing, not for a new trial under Rule 33.

Since this is not an attack on the execution ofthe sentence, which requires redress under
28 U.S.C. § 2241, but rather its imposition, § 2255 is the proper vehicle to entertain such
a motion.

® While Jimerson concerns the similarly worded § 2244(d)(1)(D), as the Court has previously explained, supra, the
principles squarely fall under § 2255(f)(4) as well.
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"A critical error made by the sentencing court in fixing the sentence may be
corrected through a § 2255 proceeding." Kortness v. United States. 514 F.2d 167, 170

(8th Cir. 1975). 28 U.S.C. § 2255 states petitioners may seek relief
[UJpon 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.

As the Eighth Circuit has noted,"Section 2255 offers potential remedies in several
circumstances, including cases shown to contain jurisdictional errors, constitutional

errors, and errors of law. The first two types of errors are readily cognizable under §
2255. But when it comes to errors oflaw,the permissible scope of a § 2255 [petition] is
severely limited." Ravmond v. United States, 933 F.3d 988,991 (8th Cir. 2019)(internal

citations omitted)(alteration in original). Here, when construing the pleadings liberally,
it appears that the petitioner is arguing for constitutional error via Brady. And as
previously analyzed in detail, supra, whether such a Bradv right stood at the time of
sentencing remains an open question. Regardless of its answer,though, Janis is not

entitled to relief. No resentencing is necessary when there was no underlying prejudice
against Janis.

While this Court can entertain the petitioner's motion to vacate his sentence
pursuant to the tolling granted under 28 U.S.C. § 2255(f)(4), the motion on its merits

must fall when any purported Bradv right at the time of sentencing fails because there
was no reasonable probability that, had the impeachment evidence been disclosed to

Janis, the result of the sentencing would have been different. Accordingly, the
petitioner's motion to vacate, set aside, or correct sentence should be denied, and the

United States' motion to dismiss should be granted.
E. Janis' Claim of Actual Innocence

To the extent the petitioner is asserting actual innocence as a vehicle for relief, it

quickly falls short. Janis conclusively, without any substantiation, asserts in his response
to the United States' motion to dismiss and his "reply to government's answer," that
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"should the Court rule in [his] favor, he then will move to dismiss all underlying

indictments in light of... his actual innocence." Doc. 14 at 1. There is a stark difference

between justifying a gateway through AEDPA's procedural impediments because of
purported actual innocence and a freestanding innocence claim itself. Where the
miscarriage ofjustice exception allows procedurally barred issues to be litigated on
collateral review, freestanding claims of actual innocence reach even higher. See Barton
V. Stange. 959 F.3d 867, 872(8th Cir. 2020)(per curiam)(explaining actual innocence
gateway around procedural default). The United States Supreme Court tackled the

possible existence of a freestanding innocence claim in Herrera v. Collins, 506 U.S. 390

(1993), but the Court has never concluded whether such a hypothetical freestanding claim
does exist, and if so, what must be demonstrated to warrant relief. See Dansbv v. Hobbs.

766 F.3d 809, 816(2014)("The threshold, if it exists, would require more convincing
proof than the gateway standard that allows for consideration of otherwise defaulted

constitutional claims upon a showing of actual innocence ... Thus, on a freestanding
claim of actual innocence, it is not sufficient that a petitioner shows even that it is more
likely than not that no reasonable juror would have found petitioner guilty beyond a
reasonable doubt.")(internal quotations omitted).

If such a claim does exist, the Supreme Court has cautioned it would be an
"extraordinarily high" bar to meet. Herrera, 506 U.S. at 417. Further, petitioners with far
stronger claims than here have failed under review from the United States Court of

Appeals for the Eighth Circuit. See Feather v. United States. 18 F.4th 982, 986-87(8th

Cir. 2021)(rejecting freestanding actual innocence claim where petitioner brought

forward affidavits from four victims reasserting prior recantations; experts questioning
the qualifications, examination techniques, and medical conclusions of government's trial
expert on pediatric assault; and evidence ofjuror bias for still failing to meet the high

burden). It is so high, in fact, that it has never been reached. At the very least, it is a
higher standard than that required ofa "gateway" innocence claim to trump procedural
default raised by AEDPA.

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Assuming the petitioner is asserting actual innocence as a gateway around
procedural default of his § 2255 claims, this is ultimately mooted because the Court did

grant equitable tolling pursuant to § 2255(f)(4)to entertain the underlying substantive
claim. Alternatively, if the petitioner is arguing for a freestanding Herrera innocence
claim, he also falls far short.

The asserted value of the impeachment evidence for the petitioner would not have
borne fruit at trial when the government had not yet been put on notice of Agent Lucas'
misconduct before this Court. Accordingly, this lack of impeachment evidence could not
have altered the finding of guilt rendered by the jury. Mr. Janis does not come close to
meeting this extraordinarily high burden in professing his actual innocence, when faced

with a deluge of evidence against him. The petitioner faced testimony from his daughter,
Caroline Janis, the victim herself, Ms. Brandi Tonkel(who only testified briefly, which
was the target of the petitioner's direct appeal). Nurse Mary Nielsen, as well as several
exhibits introduced by the United States. Any freestanding innocence claim must fail.
Critically, the Eighth Circuit has explicitly in this matter held that "there was substantial

evidence of guilt through the testimony ofthe victim, which the jury found credible."
Janis. 898 F.3d at 852.

Whether freestanding innocence claims under Herrera exist at all, or are merely

an endangered species, is an open question. But this is no such matter where the question
must be further explored when the jury had ample evidence before them to find the
petitioner guilty.
F. No Evidentiary Hearing is Required

Petitioner is "entitled to an evidentiary hearing '[ujnless the motion and the files
and records of the case conclusively show that [he] is entitled to no relief.'" Jackson v.

United States, 956 F.3d 1001, 1006 (8th Cir. 2020)(alterations in original) {quoting 28
U.S.C. § 2255(b)). See also Love v. United States. 949 F.3d 406,411 (8th Cir. 2020)("A

§ 2255 motion can be dismissed without a hearing if (1) the petitioner's allegations,
accepted as true, would not entitle the petitioner to relief, or(2)the allegations cannot be
accepted as true because they are contradicted by the record, inherently incredible, or
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conclusions rather than statements offact.")(internal quotations omitted). No evidentiary
hearing is required because(1) Mr. Janis's allegations, when accepted as true, would still
not entitle him to relief; and (2) to the extent petitioner seeks an evidentiary hearing to
assert his conclusory assertion ofa freestanding iimocence claim, it is inherently incredible
and wholly contradicted by the record. Accordingly, no evidentiary hearing is required.
G. Petitioner is not Entitled to Court Appointed Counsel

Finally, the petitioner moves this Court for the appointment of counsel,
specifically Ms. Molly Quinn, to represent him in this litigation. Doc. 16. Because Mr.

Janis is not entitled to relief, and because he has no right to court appointed counsel in
civil matters, the motion should be denied.
ni.

CONCLUSION

No doubt, Agent Lucas' false testimony and inconsistencies in Gregg.
Featherman. and Red Owl could constitute exculpatory impeachment evidence in future
proceedings. But in this matter, assuming Mr. Janis had a Bradv right to newly
discovered evidence acquired by the government after he was found guilty but before he
was sentenced - where Agent Lucas testified - any inadvertent failure to disclose would

not have been prejudicial when there was no reasonable probability that it could have
undermined the trial court's findings on the applicability ofthe sentencing enhancement
pursuant to U.S.S.G. §4B1.5, when faced with the audio testimony presented by Caroline
Lucas. Further, Janis' challenge to the enhancement ultimately would not have changed
his advisory guideline range of 144 months, even if his objection were sustained.
Additionally, any purported Herrera claim readily falls when there was "substantial
evidence of guilt" at trial. Jams, 898 F.3d at 852. Accordingly, the petitioner's motion to
vacate, set aside, or correct his sentence should be denied.

No evidentiary hearing is necessary because Mr. Janis is not entitled to relief.

Because the petitioner is not entitled to relief, his motion for the appointment of counsel
also should be denied.

While the United States failed to adhere to its obligations before the Court in this
matter, and only acted when pushed by the pro se petitioner, its motion for an extension
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oftime should nevertheless be granted. And it must follow that Mr. Janis' motion for

defaultjudgment should be denied. Going forward, the Court expects greater diligence
on the part ofthe United States. Nothing less will be tolerated.

IT IS HEREBY ORDERED that petitioner Darrell Janis' motion to vacate, set

aside or correct sentence pursuant to 28 U.S.C. § 2255, Doc. 1, is denied.
IT IS FURTHER ORDERED that petitioner Darrell Janis' motion for default

judgment. Doc. 7, is denied.
IT IS FURTHER ORDERED that the United States' motion for extension oftime

to file response and motion for order denying petitioner's motion for defaultjudgment.
Doc. 8, is granted.
IT IS FURTHER ORDERED that the United States' motion to dismiss for failure

to state a claim upon which relief can be granted. Doc. 11, is granted.
IT IS FURTHER ORDERED that petitioner Darrell Janis' motion to appoint
counsel. Doc. 16, is denied.

DATED this / / "^av of May,2022
BY THE COURT:

CHARLES B. KORNMANN

United States District Judge

22