Jimmy Davis v. James Cross, Jr.
Filed opinion of the court PER CURIAM. AFFIRMED. Richard A. Posner, Circuit Judge; Michael S. Kanne, Circuit Judge and Diane S. Sykes, Circuit Judge. [6855998-1]  [15-3681]
United States Court of Appeals
For the Seventh Circuit
JIMMY T. DAVIS,
JAMES CROSS, JR.,
Appeal from the United States District Court for the
Southern District of Illinois.
No. 15‐cv‐169‐CJP — Clifford J. Proud, Magistrate Judge.
ARGUED JULY 6, 2017 — DECIDED JULY 24, 2017
Before POSNER, KANNE, and SYKES, Circuit Judges.
PER CURIAM. In 1997, a jury in the District of Kansas
found Jimmy Davis guilty of robbing a bank, 18 U.S.C.
§ 2113(a), possessing a firearm as a felon, id. § 922(g)(1), and
aiding and abetting his confederate’s use of a firearm during
the robbery, id. § 924(c). Years later, he filed a habeas corpus
petition under 28 U.S.C. § 2241, contending that he is inno‐
cent of the § 924(c) offense because he lacked advance
knowledge that his confederate would use a firearm, as re‐
quired for aiding and abetting liability, see Rosemond v. Unit‐
ed States, 134 S. Ct. 1240 (2014). The district court disagreed,
concluding that the evidence presented at trial established
that Davis was not entitled to relief under Rosemond. Because
we conclude that a properly instructed jury could not rea‐
sonably have doubted his guilt, we affirm.
One day in 1996, Davis and Steven Haslip entered a Kan‐
sas bank together and robbed it. Davis walked up to one of
the bank’s two teller windows and asked the teller, Alicia
Ashenfelter, to change a ten‐dollar bill for two rolls of dimes.
The teller at the adjacent window, Peggy Anderson, asked
Haslip, who she later testified had been “kind of lingering
back,” if he needed help. Haslip then quickly stepped to
Anderson’s window, drew a handgun, and demanded “all
of the money.” Ashenfelter had turned to ask Anderson for
rolls of change and saw that Haslip had trained a gun on
Anderson. When she turned back she found Davis—
unarmed—next to her. Davis told her to open the drawers at
both teller stations and put the money in a bag he held.
Haslip then instructed Anderson to help a customer at the
bank’s drive‐thru window and told the third employee
working that day, Christine Burt, to retrieve money from the
vault. After Ashenfelter opened the drawers at the two teller
stations for Davis, Haslip directed the employees to get into
the vault while Davis, according to Ashenfelter, “just hung
back a little bit.” Haslip closed the vault door, and the em‐
ployees pressed an alarm switch inside. Haslip and Davis
fled in a stolen car but were captured later. Police recovered
about $13,000 and two handguns from the car.
At trial Davis proposed a jury instruction regarding lia‐
bility for aiding and abetting Haslip’s use of a firearm under
18 U.S.C. § 924(c), specifying that “knowledge that a gun
would be carried or used would be required … to convict.”
The district court did not adopt this instruction and instead
provided a general instruction about the elements of aiding
and abetting for any of the crimes charged. The jury found
Davis guilty of each count of the indictment, and he was sen‐
tenced to 322 months’ imprisonment (60 months of which
was a consecutive term for the § 924(c) offense). His convic‐
tion was affirmed on appeal, see United States v. Davis,
No. 97‐3322, 1999 WL 29160 (10th Cir. Jan. 26, 1999), and his
subsequent motion under 28 U.S.C. § 2255 was unsuccessful,
see United States v. Davis, 19 F. App’x 775 (10th Cir. 2001).
The aiding and abetting instruction was not at issue in either
the direct appeal or the collateral attack.
In 2014, the Supreme Court in Rosemond overruled a line
of cases in the Tenth Circuit, see, e.g., United States v. Wise‐
man, 172 F.3d 1196, 1217 (10th Cir. 1999), that understood
aiding and abetting a § 924(c) crime to require mere
knowledge that a confederate in a crime of violence was us‐
ing or carrying a firearm. Rosemond, 134 S. Ct. at 1244–45. In‐
stead, the Court concluded, aiding and abetting in this con‐
text requires advance knowledge that a confederate would
use or carry a gun. Id. at 1243.
Afterwards, Davis filed this petition under 28 U.S.C.
§ 2241, arguing that his conviction under § 924(c) must be set
aside because he did not have advance knowledge that
Haslip would use a firearm during the robbery, as required
by Rosemond. According to Davis, Haslip exploited his “di‐
minished capacity”1 and “duped” him into participating
1 Davis was found incompetent to stand trial in two earlier, unrelated
cases (in 1993 and 1995)—his incapacity stemming from injuries suffered
without telling him that the robbery would be armed. Davis
added that he could not raise this argument in his original
collateral attack under § 2255 because that case pre‐dated
Rosemond, and he could not bring a second § 2255 motion
because Rosemond is a case of statutory interpretation.
The district court denied the petition. Assuming that
§ 2255 was inadequate or ineffective to challenge Davis’s de‐
tention, as required to bring a petition under § 2241,
see § 2255(e), the court concluded that the evidence present‐
ed at trial was sufficient for a jury to find that Davis was
guilty of aiding and abetting Haslip’s use of a firearm, even
in light of Rosemond. The court cited Rosemond’s observation
that “if a defendant continues to participate in a crime after a
gun was displayed or used by a confederate, the jury can
permissibly infer from his failure to object or withdraw that
he had such [advance] knowledge” that the gun would be
used. 134 S. Ct. at 1250 n.9. To that end, the court reasoned
that when Haslip pulled the gun Davis had not yet initiated
the robbery and could have walked away if he had not in‐
tended the bank robbery to be armed.
On appeal, Davis defends his ability to seek relief under
§ 2241 because the government disputes that he can demon‐
strate that § 2255 is inadequate or ineffective. See 28 U.S.C.
§ 2255(e). We have laid out three requirements for showing
that § 2255 is inadequate or ineffective: (1) the petitioner
in a 1993 car accident. See Davis, 1999 WL 29160, at *2. The trial court
here found Davis was competent after ordering psychiatric examinations
and hearing testimony by two psychologists. Id. On direct appeal the
Tenth Circuit found no clear error in that finding. Id. at *5–6.
must rely on a case of statutory interpretation (because in‐
voking such a case cannot secure authorization for a second
§ 2255 motion); (2) the new rule must be previously unavail‐
able and apply retroactively; and (3) the error asserted must
be grave enough to be deemed a miscarriage of justice, such
as the conviction of an innocent defendant. Montana v. Cross,
829 F.3d 775, 783 (7th Cir. 2016); In re Davenport, 147 F.3d
605, 610–11 (7th Cir. 1998).
Of these requirements, neither Davis nor the government
belabors the first two. We have confirmed that Rosemond is a
case of statutory interpretation and is retroactive. See Mon‐
tana, 829 F.3d at 783–84. Further, because Davis was convict‐
ed in the Tenth Circuit, whose line of cases interpreting aid‐
ing and abetting liability for a § 924(c) offense was overruled
in Rosemond, it would have been futile to argue earlier that
he did not have advance knowledge of the firearm; the law
of that circuit “was squarely against him” when he filed his
original § 2255 motion. Webster v. Daniels, 784 F.3d 1123, 1136
(7th Cir. 2015) (en banc). Davis and the government disagree
about the third requirement, which is tied with the merits of
his claim that erroneous instructions led the jury to convict
him despite his innocence. To proceed Davis must show that
“more likely than not any reasonable juror would have rea‐
sonable doubt” that he was guilty of aiding and abetting
Haslip’s use of the gun in the robbery. House v. Bell, 547 U.S.
518, 538 (2006); see also Schlup v. Delo, 513 U.S. 298, 327
To that end, Davis first contends that he may not have
learned about the gun until late in the robbery, after he had
already begun assisting it. He suggests that the evidence at
trial permitted a reasonable inference that his and Haslip’s
actions were uncoordinated and that he did not notice that
Haslip had pulled a gun on Anderson until he was already
behind the teller window with Ashenfelter. After all, Davis
says, Haslip was at the other teller window and did not an‐
nounce his gun, and Davis did not say anything to Ash‐
enfelter about a weapon when he came up behind her and
made his demands.
We are not persuaded by this first argument because no
one would think that Davis did not notice what Haslip was
doing. They were not on opposite sides of a large bank; there
were just two adjacent teller windows, and Davis and Haslip
were standing close to each other from the moment they
walked in until Haslip went behind Ashenfelter’s teller sta‐
tion. And the pair’s actions were coordinated: Davis dis‐
tracted Ashenfelter with his sham request for change while
Haslip pulled the gun on Anderson, and the tellers’ resulting
shock enabled the unarmed Davis to drop the bank‐
customer pretense, cross over to the tellers’ workspace, and
make his demands up close.
Davis next argues that, even if he learned about the gun
when Haslip pulled it out, a jury still could doubt his guilt of
aiding and abetting. Haslip took advantage of his “mental
infirmity,” Davis says, and got him to participate without
informing him that it would be an armed robbery; by the
time Davis saw the gun in Haslip’s hand, he could not realis‐
tically walk away. “[W]hen an accomplice knows nothing of
a gun until it appears at the scene … he may at that late
point have no realistic opportunity to quit the crime. And
when that is so, the defendant has not shown the requisite
intent to assist a crime involving a gun.” Rosemond, 134 S. Ct.
at 1249. And Davis says that Haslip would have been a dan‐
gerous person to cross (being armed, physically larger, and a
convicted murderer), so leaving the bank could have in‐
creased the risk of gun violence—a consideration relevant to
the feasibility of quitting the crime, see id. at 1251.
But whether leaving the bank was a realistic option for
Davis matters only if he did not anticipate Haslip’s posses‐
sion of a gun beforehand. See United States v. Adams, 789 F.3d
713, 714–15 (7th Cir. 2015) (“If he did [anticipate the gun],
then he was culpable; if he did not, then it mattered whether
he had a chance to stop assisting the criminal venture (i.e., to
walk away) after learning that someone else was packing.”).
The fact that the robbery involved an evident plan to take
the bank over—i.e., no mere demand‐note robbery—using
coordinated action between the two partners dispels any
reasonable doubt about Davis’s foreknowledge of the gun.
As discussed earlier, Davis and Haslip acted in concert to
take the bank by force: Once Haslip produced the gun, Davis
quickly took advantage of the tellers’ shock to invade their
workspace. It is unlikely that Davis’s decision to rush behind
the counter was simply an on‐the‐fly adjustment once he
“discovered” that Haslip was armed; rather, the pair’s ac‐
tions suggested that they “had a division of labor already
mapped out,” United States v. Lawson, 810 F.3d 1032, 1041
(7th Cir. 2016) (internal quotation marks omitted). And a
takeover robbery would be expected to involve arms. As we
observed in Lawson, which involved the armed robbery of a
post office and a partner drawing a gun upon entry, “[i]t is
implausible that such a mid‐day robbery plan would not
have included a firearm designed to influence and threaten
the employees or patrons that are sure to be there.” Id.
Davis disputes the accuracy of Lawson’s observation
about the plausibility of a mid‐day robbery being unarmed
and points to statistics that many bank robberies, despite oc‐
curring during the day, are unarmed and involve demand
notes passed to tellers, not necessarily displays of weaponry.
See FED. BUREAU OF INVESTIGATION, BANK CRIME STATISTICS
2015 (2016), www.fbi.gov/file‐repository/stats‐services‐
statistics‐2015/view.2 But while Davis is correct that the time
of day by itself says little about the likelihood of arms being
involved, he overlooks the fact that the court in Lawson was
addressing another takeover robbery. These are quite un‐
common, which undermines the utility of Davis’s general
observations about bank robberies in the aggregate.3 When
considering the takeover subgenre, it remains intuitive that
firearms are much more likely necessary than in other types
of robberies because a takeover scheme involves seizing a
location and controlling everyone there through force or
Because a properly instructed jury would not have
doubted that Davis knew beforehand that Haslip would use
a firearm in the robbery, Davis has not demonstrated his in‐
nocence of aiding and abetting that conduct, and the district
court correctly denied his § 2241 petition.
2 According to the FBI, out of 4,091 total robberies, burglaries, and larce‐
nies involving federally insured financial institutions in 2015, a firearm
was used in 877, and a weapon was threatened in 1,762. A demand note
was used in 2,416.
3 Only 186 of the 4,091 bank crimes in 2015 were takeovers. The FBI’s
report does not say what portion of takeovers involved weapons.
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