Kieffe v. United States of America

FILED
NAY 1 2 2022
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
CHARLES KIEFFE, 5;I9-CV-5067-CBK
Petitioner,
vs.
UNITED STATES OF AMERICA, MEMORANDUM AND ORDER
Respondent.
I. BACKGROUND
Petitioner Charles Kieffe ("petitioner") pleaded guilty in 2018 to Discharge of a
Firearm During the Commission of a Crime of Violence, in violation of IS U.S.C.
§ 924(c)(I)(A)(iii). See 5:18-CR-50051-JLV.' The underlying crime of violence for the
petitioner's conviction was Assault with a Deadly Weapon. See 18 U.S.C. § 113(a)(3).
In March 2019, United States District Court Judge Jeffrey Viken sentenced Mr. Kieffe to
120-months custody, followed by three years of supervised release, and $3,854.54 in
restitution. C.R. doc. 62. Six months following his sentencing, petitioner moved this
Court to vacate his conviction and sentence, arguing that his sentence under
§ 924(c)(3)(B) was unconstitutionally vague, and thus violative of his Fifth Amendment
Right to Due Process.^ Doc. 1.
The United States resists and has moved to dismiss the petitioner's claim for lack
of subject-matter jurisdiction and failure to state a claim. Doc. 9. After filing his "reply"
to the United States' motion, petitioner obtained counsel, who filed a memorandum in
support ofthe motion to vacate/set aside/correct the sentence. Doc. 16. Kieffe focuses
on the "residual clause" of § 924(c)(1)(B), which was struck down as unconstitutionally
'References to Mr. Kieffe's original criminal matter will be referred to as "C.R."
^ Petitioner also has two pending motions for early release pursuant to the First Step Act which are not relevant to
this matter. See C.R. docs 67, 73.
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vague in Davis v. United States. 139 S.Ct. 2319(2019). However, petitioner was
eonvicted under the '^element elause" of§ 924(c)(3)(A), not § 924(c)(3)(B), which
remained intact following Davis.
As this matter remained pending, the United States Supreme Court released a
fractured opinion in Borden v. United States, providing further insight into the debate of
unconstitutional vagueness. S^ 141 S.Ct. 1817(2021). In Borden, Justice Kagan,
writing for a four-justice plurality joined in the judgment by Justice Thomas, held that the
element clause (under which Kieffe was convicted), can only stand when the underlying
felony requires a mens rea higher than recklessness, i.e., must include intentional or
purposeful conduct. So, this Court must tackle three questions:(1)does this Court have
subject-matter jurisdiction to hear this dispute, as the United States contends it does not;
(2)can this Court apply Borden to final judgments where a timely habeas petition was
pending when the new interpretation of 18 U.S.C. § 924(e)(3)(A) was issued; and (2)if
so, does it affect Kieffe's conviction? Answering affirmatively to the first two questions,
Kieffe's conviction should not be altered because the petitioner's underlying "crime of
violence" was Assault with a Deadly Weapon, in violation of 18 U.S.C. § 113(a)(3),
which requires the actor to intentionally commit the statutorily prohibited conduct.
Accordingly, the United States' motion should be granted for failure to state a claim and
the petitioner's motion to vacate should be denied.
11. DISCUSSION
A. 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. Nuevos
Destinos. LLC v. Peck. 999 F.3d 641,646 (8th Cir. 2021). "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.
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Pulitzer Pub. Co.. 161 F.3d 1137, 1141 (8th Cir. 1998)(internal quotations 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. Oglala Sioux Tribe. 916 F.3d 694,698(8th Cir. 2019)(internal quotations and
alterations omitted). Here, petitioner Kieffe 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 of review is pursuant to Rule 12(b)(6) for failure to
state a claim.
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.
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. Spagna v.
Phi Kappa Psi. Inc.. — F.4th —,2022 WL 1009465, at * 1 (8th Cir. April 5, 2022). See
Bell Atl. Corp. v. Twomblv. 550 U.S. 544, 550(2007); Ashcroft v. Iqbak 556 U.S. 662,
678(2009). "In deciding a motion to dismiss, courts ordinarily do not consider matters
outside the pleadings." Gilliek 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 quotations omitted). The complaint "must contain sufficient
factual matter, accepted as true, to state a claim to relief that is plausible on its face."
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Faulk V. City of St. Louis. Missouri, —F.4th —,2022 WL 1020050, at *2(8th Cir. April
6, 2022){quoting Iqbal, 556 U.S. at 678). 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 quotations 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 of truth."
McDonough v. Anoka Cntv.. 799 F.3d 931, 945-46 (8th Cir. 2015)(quotins Iqbal, 556
U.S. at 679).
B. Analysis
Since Mr. Kieffe has filed his motion to vacate, there has been ample change in
the judicial foundations of interpreting elements and residual clauses for unconstitutional
vagueness. Petitioner pled guilty to Discharge of a Firearm During the Commission of a
Crime of Violence, in violation of 18 U.S.C. § 924(c)(l)(A)(iii). Here, the underlying
crime of violence was Assault with a Dangerous Weapon, in violation of 18 U.S.C.
§ 113(a)(3). While the Assault count was ultimately dismissed pursuant to Kieffe's plea
deal with the United States, he admitted to the underlying conduct for the Assault,
specifically that "he intentionally discharged the firearm at the victims' vehicle."
Section 924(c) has a litigious past. 18 U.S.C. § 924(e)(1)(A) makes it criminal
offense for an individual to use or carry a firearm in furtherance of a "crime of violence."
But what is a "crime of violence?" Two avenues make up a crime of violence, the
"elements clause" definition and the "residual clause" definition, both defined in short
order.
In United States v. Davis. 139 S.Ct. 2319(2019), decided after Kieffer's
sentencing, the United States Supreme Court held that § 924{c){3)(B), the "residual
clause," is unconstitutionally vague. 139 S.Ct. 2319, 2323-33 (2019). The residual
clause defined a crime of violence as a federal felony offense that "by its nature, involves
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a substantial risk that physical force against the person or property of another may be
used in the course of committing the offense." 18 U.S.C. § 924(c)(3)(B). "[A] vague law
is no law at all." Davis, 139 S.Ct. at 2323. Applying the categorical approach of
interpretation, the Davis Court struck down the residual clause, one oftwo definitions for
a "crime of violence." See United States v. Bolevn, 929 F.3d 932, 936-37 (8th Cir.
2019)(explaining the categorical approach to statutory interpretation). However, Kieffe
was not convicted under § 924(c)(3)(B), but rather § 924(c)(3)(A), the "elements clause."
See United States v. Martin, 15 F.4th 878, 884-85 (8th Cir. 2021)(dissecting the
elements clause under the similarly structured Armed Career Criminal Act).
The elements clause defines a "crime of violence" as a federal felony offense that
"has an element the use, attempted use, or threatened use of physical force against the
person or property of another." 18 U.S.C. § 924(c)(3)(A). After this case was briefed,
the Supreme Court released another opinion analyzing the elements clause defining a
"violent felony" under this provision's neighbor in 18 U.S.C. § 924(e), a subsection
whose language is nearly identical to a "crime of violence" as written in § 924(c)(3)(A).
In Borden v. United States, 141 S.Ct. 1817 (2021), Justice Kagan, writing for a four-
justice plurality with Justice Thomas concurring in the judgment, held that the underlying
statutory offense giving way for the § 924(c)(3)(A) charge must require a mens rea of
acting purposely or with knowledge. 141 S.Ct. 1817, 1825 (plurality opinion); 1835
(Thomas, J., concurring in the judgment). This means that statutes which permit felonies
to be performed with mere recklessness cannot be a "violent felony" under the elements
clause of ACCA. See United States v. Martin 15 F.4th 878, 883 (8th Cir. 2021). Similar
logic commands that the elements clause of § 924(c)(3)(A) cannot be satisfied by a
statute that allows for its commission under mere recklessness. Instead, Mr. Kieffe's
underlying offense must only be satisfied by a higher mens rea, such as a statute only
satisfied through the actual intentional act or attempt by the perpetrator. See United
States V. Thompson,2022 WL 138524, at *2-3(D. Minn. Jan. 14, 2022)(explaining
Borden's effects on §924(c)(3)(A)). Fatal for Kieffe, though, is that the underlying
felony for his § 924(c)(3)(A) conviction clearly demands an intentional action.
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Before tackling the merits of Kieffe's claim, the Court must first identify whether
this § 2255 motion is the proper vehicle to entertain the petitioner's attack on
§ 924(c)(3)(A). Borden was published after petitioner filed his motion to vacate, but
prior to this Court announcing its decision in this matter. While Teague v. Lane, 489
U.S. 288(1989), generally bars a "new constitutional rule of criminal procedure" from
being applied during pending collateral motions, Borden was not announcing such rules.
United States v. Rvan. 227 F.3d 1058, 1062(8th Cir. 2000)(quotins Teague v. Lane,489
U.S. 288, 310-11 (1989)). "The Court has made clear, however, that Teague does not
apply in those cases in which the Court determines the meaning of a criminal statute
enacted by Congress, because such a decision involves the substantive reach of a federal
statute, not a new rule of criminal procedure." Id. Accordingly, Borden can be applied to
Kieffe's motion.
However, while this Court can entertain the effects of Borden in this matter, it
ultimately does little for the petitioner. On August 31, 2018, Mr. Kieffe pleaded guilty to
Count 1 of the indietment, which states:
On or about March 23,2018, in Oglala Lakota County, In Indian country, in
the Distriet of South Dakota, the defendant, Charles Kieffe, an Indian, did
unlawfully assault Paige Grooms, with a dangerous weapon, namely, a
firearm, with the intent to do bodily harm, all in violation of 18 U.S.C.
§§113 (a)(3) and 1153, and did knowingly discharge a firearm during and
in relation to a crime of violence for which he could be prosecuted in a
court of the United States, that is. Assault with a Dangerous Weapon, In
violation of 16 U.S.C. § 113(a)(3): all In violation of 18 U.S.C.
§ 924(c)(l)(A)(iil).
Following his guilty plea, U.S. Magistrate Judge Daneta Wollman filed her Report and
Recommendations on the plea of guilty. C.R. doc. 37. On September 5, 2028, U.S.
District Court Judge Jeffrey Viken adopted Judge Wollman's Report and
Recommendation on the petitioner's guilty plea. C.R. doc. 41. The underlying felony.
Assault with a Dangerous Weapon, is clear on its requisite mens rea. 18 U.S.C.
§ 113(a)(3) defines assault with a dangerous weapon as one who holds an ''intent to do
bodily harm." (emphasis added). The statute could not be clearer that it requires intent,
not mere recklessness. See United States v. LeCompte. 108 F.3d 948,952(8th Cir.
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1997)("An assault is any intentional and voluntary attempt or threat to do injury to the
person of another ...")(emphases added). Accordingly, Kieffe's attack on his
conviction for unconstitutional vagueness must fail.
III. CONCLUSION
While the legal landscape eonceming unconstitutional vagueness has dramatically
shifted since Mr. Kieffe first filed his petition, it has not altered enough to affect his
conviction. Because the petitioner was convicted under the elements clause of 18 U.S.C.
§ 924(c)(3), and because his underlying violent offense required an intentional action,
and not mere recklessness, Keiffe's conviction stands, and the United States' motion
should be granted.
IT IS HEREBY ORDERED that the United States' motion to dismiss. Doc. 9, is
granted.
IT IS FURTHER ORDERED that Mr. Charles Kieffe's motion to vacate. Doc. 1,
is denied.
DATED this	IS day of '2022
BY THE COURT:
CHARLES B. KORNMANN
United States District Judge
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