Davis v. Cross

Filing 4

ORDER REFERRING CASE to Magistrate Judge Clifford J. Proud. Signed by Judge David R. Herndon on 3/13/2015. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JIMMY T. DAVIS,
No. 08340-031

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Petitioner,
vs.
JAMES CROSS, JR.,
Respondent.

Case No. 15-cv-00169-DRH

MEMORANDUM AND ORDER
HERNDON, District Judge:
Petitioner Jimmy T. Davis is currently incarcerated in the Federal
Correctional Institution at Greenville, Illinois. He is serving a 322-month sentence
for bank robbery (18 U.S.C. §§ 2113(a), (d)), using a firearm in the commission of
the robbery (18 U.S.C. § 924(c)(1)), and being a felon in possession of a firearm
(18 U.S.C. § 922(g)(1)). See United States v. Davis, Case No. 96-cr-10071-WEB
(D. Kan. 1997). Davis’s petition for writ of habeas corpus pursuant 28 U.S.C. §
2241 is now before the Court. He contends that his conviction should be set aside
in light of the Supreme Court’s recent decision in Rosemond v. United States,
__U.S.__, 134 S. Ct. 1240 (March 5, 2014), represents a retroactive change in the
law that renders him actually innocent.
This case is now before the Court for a preliminary review of the petition in
accordance with Rule 4 of the Rules Governing Section 2254 Cases in United
States District Courts. Rule 4 provides that upon preliminary consideration by
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the district court judge, “[i]f it plainly appears from the petition and any attached
exhibits that the petitioner is not entitled to relief in the district court, the judge
must dismiss the petition and direct the clerk to notify the petitioner.” Rule 1(b)
of those Rules gives this Court the authority to apply the rules to other habeas
corpus cases, such as this action under 28 U.S.C. § 2241.
Procedural History
The factual scenario underlying Davis’s conviction was summarized by the
appellate court on direct appeal as follows:
Mr. Davis was one of two men who eye witnesses identified as
having robbed the Fall River State Bank in Fall River, Kansas, on the
morning of October 17, 1996. Mr. Davis entered the bank,
approached Alicia Ashenfelter, the teller stationed closest to the front
door, and requested two rolls of dimes. A second man, Mr. Steven
Haslip, approached tellers Peggy Anderson and Christine Burt at the
next teller window. As Ms. Ashenfelter turned to Ms. Anderson to
request two rolls of dimes, she noticed Mr. Haslip was pointing a gun
at Ms. Anderson and instructing her to “give [him] all of the money.”
Mr. Davis then instructed Ms. Ashenfelter to place all the money from
her teller station into a blue plastic bag. Prior to leaving, the two men
locked the three tellers in the bank vault.
Law enforcement officers apprehended Mr. Davis later that
day, after a Highway Patrol trooper and K-9 unit found him hiding in
trees and bushes near a vehicle officers previously observed turning
around to avoid a roadblock placed at a main junction outside Fall
River. Police found a blue plastic bag containing two loaded guns,
and a white plastic bag containing all but $1,000 of the money stolen
from the Fall River State Bank, in the trunk of that vehicle. Mr.
Haslip had been arrested a few hours before, after officers found him
lying along a fence row in the same vicinity.

United States v. Davis, 1999 WL 29160, *1 (10th Cir. 1999). The factual synopsis
in Davis’s codefendant’s appeal, United States v. Haslip, 160 F.3d 649, 651-652
(10th Cir. 1998) (referenced in Davis’s appeal), further reveals that when Haslip

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was demanding money from Anderson and Burt, he brandished a gun and caused
it to “click” twice.
Following a jury trial, petitioner Davis was convicted of bank robbery (18
U.S.C. §§ 2113(a), (d)), using a firearm in the commission of the robbery (18
U.S.C. § 924(c)(1)), and being a felon in possession of a firearm (18 U.S.C. §
922(g)(1)). His codefendant, Haslip, was charged and convicted of those same
charges. Both were charged under an “aiding and abetting” theory in accordance
with 18 U.S.C. § 2. Davis was sentenced to imprisonment for 322 months. See

United States v. Davis, Case No. 96-cr-10071-WEB (D. Kan. 1997).
Davis’s conviction was unsuccessfully challenged on direct appeal based on
multiple grounds, including the sufficiency of the evidence and a double jeopardy
argument regarding the robbery and use of a firearm charges.

United States v.

Davis, 1999 WL 29160 (10th Cir. 1999). A subsequent motion to vacate set aside
or correct his sentence pursuant to 28 U.S.C. § 2255 was denied in 2000 (Doc.
204 in the criminal case); aff’d, United States v. Davis, 2001 WL 1032913 (10th
Cir. 2001). The principle arguments presented were whether (1) relative to the
Section 922(g) offense, evidence had to be presented to the grand jury that Davis
had received the weapons as they travelled in interstate commerce; and (2) the
indictment was insufficient because it omitted all reference to the aiding and
abetting language of 18 U.S.C. § 2. Those arguments were summarily dismissed
by the appellate court.

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Discussion
Davis’s Section 2241 petition is premised upon Rosemond v. United States,
__U.S.__, 134 S. Ct. 1240 (March 5, 2014). Rosemond dealt with a “drug deal
gone bad” – three individuals, Rosemond among them, drove to a park to sell
marijuana, but when the would-be purchaser punched one of the individuals and
took off with the marijuana without paying his due, one of the sellers exited the
vehicle and fired shots at the thief. 134 S. Ct. at 1243. The shooter reentered the
vehicle, and all three sellers gave chase after the thief, but were apprehended by
police before they could catch him. Id.
For his part, Rosemond was charged with violating 18 U.S.C. § 924(c) by
using a gun in connection with a drug trafficking crime, or aiding and abetting
that offense under 18 U.S.C. § 2. Id. The Government prosecuted Rosemond
under two theories: either Rosemond was the shooter, or he aided the shooter in
connection with the drug trafficking crime.

Id. at 1243-44.

The jury was

instructed that it could convict Rosemond if the “defendant knew his cohort used
a firearm in the drug trafficking crime,” and the “defendant knowingly and actively
participated in the drug trafficking crime.”

Id. at 1244.

The jury convicted

Rosemond of violating § 924(c) via a general verdict, and the Tenth Circuit
affirmed.

Id. at 1244-45.

The Supreme Court, however, vacated the Tenth

Circuit’s judgment, holding that an unarmed defendant must have advance
knowledge that his confederate would carry a gun to impose liability. Id. at 1245,
1249-50.

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Petitioner Davis explains that he was in the process of robbing the bank
when his codefendant, Haslip, who was the getaway driver, entered with a gun.
Davis contends that he had no advance knowledge that Haslip had a gun—a gun
was not in their plan.
As a general matter, “28 U.S.C. § 2241 and 28 U.S.C. § 2255 provide
federal prisoners with distinct forms of collateral relief. Section 2255 applies to
challenges to the validity of convictions and sentences, whereas § 2241 applies to
challenges to the fact or duration of confinement.” Hill v. Werlinger, 695 F.3d
644, 645 (7th Cir. 2012); see also Garza v. Lappin, 253 F.3d 918, 921 (7th Cir.
2001) (“In general, federal prisoners who wish to attack the validity of their
convictions or sentences are required to proceed under § 2255.”). Here, Davis is
attacking his conviction, and thus a Section 2255 motion would appear to be the
proper avenue of relief.
However, under limited circumstances, a prisoner may use Section 2241 to
challenge his conviction. Section 2255 contains a “savings clause” which allows a
prisoner to file a Section 2241 petition where the remedy under Section 2255 is
“inadequate or ineffective to test the legality of his detention.”

28 U.S.C. §

2255(e). The mere fact that a petitioner may be barred from bringing a second
Section 2255 petition is not, in and of itself, sufficient to render Section 2255
inadequate. In re Davenport, 147 F.3d 605, 609-10 (7th Cir. 1998). Instead, a
petitioner must demonstrate the inability of a Section 2255 motion to cure the
defect in the conviction. Id. at 611. In the end, a petitioner must meet three

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conditions to come within the savings clause: first, he must rely on a statutory
interpretation case rather than a constitutional case; second, he must rely on a
retroactive decision that he could not have invoked in his first Section 2255
motion because the position was “foreclosed by binding precedent” at the time;
and third, he must show that there has been a “fundamental defect” in his
conviction that is grave enough to be deemed a miscarriage of justice. Brown v.

Caraway, 719 F.3d 583, 586-87 (7th Cir. 2012). Davis relies upon the Supreme
Court’s 2014 decision in Rosemond to satisfy these criteria.
To be sure, Rosemond satisfies at least one of the savings clause
requirements – it was a statutory interpretation case. However, Davis’s petition
runs into trouble on other points, including the issue of retroactivity. This Court,
in Montana v. Cross, No. 14-cv-1019, 2014 WL 5091708, at *3 (S.D. Ill. Oct. 10,
2014), held that Rosemond was not retroactive, and almost every other court to
address the point agrees. 1 If nothing had changed since Montana, dismissal of
Davis’s petition at screening would be proper.

However, since Montana, one

district court in the Seventh Circuit has ruled that “Rosemond should apply
retroactively,” at least for a Section 2255 petition: United States v. Greene, No.
14-C-431, 2015 WL 347833, at *1 (E.D. Wis. Jan. 23, 2015). More importantly,
as Davis notes, the Government has conceded retroactivity before the district
1

E.g., Bey v. Hollenback, No. 5:14-HC-2016, 2015 WL 859575, at *3 (E.D.N.C. Feb. 27, 2015); Metz v.
United States, No. 14-cv-3081, 2015 WL 566766, at *3 (W.D. La. Feb. 9, 2015); Elwood v. United States,
No. 14-cv-3097, 2015 WL 566773, at *3 (W.D. La. Feb. 9, 2015); Rodriguez v. Thomas, No. 1:14-cv1121, 2015 WL 179057, at *5 (M.D. Pa. Jan. 14, 2015); Moreno v. Snyder-Morse, No. 14-cv-106, 2015
WL 82418, at *4 (E.D. Ky. Jan. 6, 2015); Guardado-Mezen v. Copenhaver, No. 1:14-cv-01806, 2014 WL
6885999, at *4 (E.D. Cal. Dec. 4, 2014); Taylor v. Sepanek, No. 14-cv-160, 2014 WL 6705408, at *4
(E.D. Ky. Nov. 26, 2014); Douglas v. Butler, No. 14-cv-177, 2014 WL 6633230, at *6 (E.D. Ky. Nov.
21, 2014); Taniguchi v. Butler, No. 14-cv-120, 2014 WL 5063748, at *5 (E.D. Ky. Oct. 8, 2014).
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court in Greene and the Seventh Circuit in the Montana briefing on appeal, and
the matter is now before the Seventh Circuit for consideration. Given the current
landscape of the law and the fact that this case is at the preliminary stage of
review, the retroactivity point will be deferred.
To employ Section 2241, Davis has another hurdle to surmount: he must
show that there is a defect in his conviction so significant as to qualify as a
miscarriage of justice, as would be the case if he were “imprisoned for a
nonexistent offense.”

In re Davenport, 147 F.3d at 611.

After Rosemond, a

defendant can be convicted of aiding and abetting a person who uses or carries a
firearm in relation to a crime of violence if the defendant has knowledge that a
cohort will use a gun “at a time the accomplice can do something” with that
knowledge – “most notably, opt to walk away.” 134 S. Ct. at 1249-50. If the jury
instructions or the record permitted a conviction in a manner keeping with

Rosemond, Davis will have difficulty establishing that he was convicted of a
nonexistent offense. However, the record and relevant jury instructions are not
yet before the Court and, consequently, Davis’s petition passes preliminary
screening.
Disposition
IT IS HEREBY ORDERED that Respondent shall, within thirty (30) days of
receipt of this application for Writ of Habeas Corpus, answer and show cause why
the writ should not issue.

Service upon the United States Attorney for the

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Southern District of Illinois, 750 Missouri Avenue, East St. Louis, Illinois, shall
constitute sufficient service.
IT IS FURTHER ORDERED that pursuant to Local Rule 72.1(a)(2), this
cause is REFERRED to Magistrate Judge Clifford J. Proud for further pre-trial
proceedings.
IT IS FURTHER ORDERED that this entire matter be REFERRED to a
United States Magistrate Judge for disposition, as contemplated by Local Rule
72.2(b)(2) and 28 U.S.C. § 636(c), should all parties consent to such a referral.
Petitioner is ADVISED of his continuing obligations to keep the Clerk (and
Respondent) informed of any change in his whereabouts during this action. This
notification shall be done in writing and not later than seven days after a transfer
or other change in address occurs.
IT IS SO ORDERED.
Signed this 13TH day of March, 2015.

Digitally signed
by David R.
Herndon
Date: 2015.03.13
16:03:30 -05'00'
United States District Court

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