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08340-031 v. Cross

United States District Court, S.D. Illinois

March 13, 2015

JIMMY T. DAVIS, No. 08340-031, Petitioner,
v.
JAMES CROSS, JR., Respondent.

MEMORANDUM AND ORDER

DAVID R. 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 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 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.

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.

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 ...


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