United States District Court, S.D. Illinois
DARWIN MONTANA, No. 10006-424, Petitioner,
JAMES N. CROSS, Respondent.
MEMORANDUM AND ORDER
DAVID R. HERNDON, District Judge.
Petitioner Darwin Montana is currently incarcerated in the Federal Correctional Institution at Greenville, Illinois, where he is serving a total sentence of 322 months. United States v. Montana, No. 99-cr-1691 (N.D. Ill. March 16, 1999), aff'd 199 F.3d 947 (7th Cir. 1999). He was found guilty by a jury of aiding and abetting a bank robbery in which his cohort used a gun. Petitioner was not present during the actual robbery and claimed to have no advance knowledge of the crime, but he drove the getaway car. He was sentenced to 262 months on the bank robbery conviction, and to a consecutive sentence of 60 months under 18 U.S.C. § 924(c) because the firearm was used to commit a crime of violence.
On September 19, 2014, petitioner brought this habeas corpus action pursuant to 28 U.S.C. § 2241 (Doc. 1). He attacks only the firearm conviction, arguing that under the recent Supreme Court case of United States v. Rosemond, 134 S.Ct. 1240 (2014), the jury instructions on the issue of accountability for the gun offense were erroneous, and the § 924(c) conviction and sentence should be vacated.
This case is now before the Court for a preliminary review of the petition pursuant to Rule 4 of the Rules Governing Section 2254 Cases in United States District Courts. Rule 4 provides that upon preliminary consideration by 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. After carefully reviewing the petition, the Court concludes that this action is subject to dismissal.
Petitioner claims that he gave James Dodd a ride to a public assistance office on January 22, 1998 (Doc. 1-1, pp. 3-4). He had car trouble, so he stopped at a Jewel-Osco parking lot to examine the engine. While petitioner was occupied with the car, Dodd walked to a nearby bank, pointed a handgun at a teller, and demanded money. He then walked back to the parking lot with his loot and got into petitioner's car. In petitioner's words, they then "fled" and were followed by police officers in "a high-speed chase" (Doc. 1-1, p. 3).
Dodd pled guilty to the bank robbery and weapon charge, and later testified at petitioner's jury trial. Dodd asserted that petitioner had no advance knowledge that he would rob the bank or use a gun in the crime. Id .; Montana, 199 F.3d 947, 948. The jury returned a not guilty verdict against petitioner on a conspiracy charge, but convicted him on the bank robbery and weapon charge on a theory of accomplice liability.
Petitioner timely appealed his convictions, raising arguments that his trial attorney rendered ineffective assistance because he passed a note from Dodd to petitioner's mother that turned out to be a demand for money in exchange for his favorable testimony, and because he called Dodd as a witness; and that the testimony of a U.S. marshal regarding Dodd's verbal demand for money was inadmissible hearsay. The Seventh Circuit affirmed the convictions, and the Supreme Court denied review.
On April 30, 2001, petitioner filed a timely motion for relief under 28 U.S.C. § 2255, Montana v. United States, No. 01-C-3098. He was represented by the same attorney who handled his appeal, and sought relief on the basis that trial counsel had been ineffective and that the government should not have been allowed to rely on hearsay evidence to meet one element of the bank robbery offense (the fact that the bank was federally insured). Petitioner also submitted a pro se brief arguing that the court lacked jurisdiction to sentence him. The § 2255 motion was denied on August 24, 2001.
Petitioner subsequently filed a number of motions for reduction of sentence in his criminal case, all of which were denied. The Seventh Circuit affirmed the denial, noting that the district court should have treated the filings as unauthorized successive motions under § 2255 (Doc. 116 in criminal case).
Petitioner argues that under United States v. Rosemond, 134 S.Ct. 1240 (2014), the jury instructions on his firearm charge were erroneous because they failed to require jurors to find that he had advance knowledge that Dodd would commit a bank robbery and use a gun in the crime. He asserts that the trial court should have directed the jury to determine whether he knew about the gun in sufficient time to withdraw from the crime of bank robbery (Doc. 1-1, p. 5). Instead, he claims the jury was instructed that if they found that Dodd had committed the robbery with a handgun, they should also find petitioner guilty. According to the petition, he had no prior knowledge that Dodd planned to rob the bank or use a handgun. His only knowledge of the crime came "when Dodd jumped into the vehicle in the parking lot of the Jewel-Osco" (Doc. 1-1, p. 10).
Rosemond held that with respect to a charge of aiding and abetting the offense of using a firearm in the commission of a violent crime or drug felony, 18 U.S.C. § 924(c), an unarmed defendant must be proven to have had advance knowledge that his confederate would carry a gun. 134 S.Ct. at 1249. This means he must have had "knowledge at a time the accomplice can do something with it - most notably, opt to walk away." Id. at 1249-50. Rosemond involved a drug deal where one person pulled a ...