Davis v. Cross, 863 F.3d 962

Background

In 1997 a Kansas jury convicted Jimmy Davis of bank robbery (18 U.S.C. § 2118), being a felon in possession of a firearm (§ 922(g)(1)), and aiding and abetting his confederate’s use of a firearm during the robbery (§ 924(c)).
At trial Davis acted as a distractor at one teller window while his confederate, Steven Haslip, displayed a handgun at the adjacent window; Davis was unarmed, assisted in demanding money, and fled; police later recovered money and two handguns from their car.
Davis proposed a jury instruction requiring advance knowledge of a gun for aiding-and-abetting § 924(c) liability; the district court gave a general aiding-and-abetting instruction and convicted him on all counts.
Davis’s direct appeal and an initial § 2255 motion failed; after Rosemond v. United States clarified that aiding-and-abetting § 924(c) requires advance knowledge of a confederate’s gun use, Davis filed a § 2241 petition claiming actual innocence of the § 924(c) count.
The district court assumed § 2255 was inadequate and denied relief on the merits, finding the trial evidence would allow a jury to infer Davis had advance knowledge (or failed to withdraw after seeing the gun).
The appellate court affirmed, holding that a properly instructed jury would not have had reasonable doubt that Davis knew in advance that Haslip would use a firearm.

Issues

Issue	Davis's Argument	Government's Argument	Held
Whether Davis can use § 2241 because § 2255 is inadequate/ineffective post-Rosemond	Rosemond is a new statutory-interpretation rule, retroactive; prior § 2255 relief was futile, so § 2241 is available	Agrees Rosemond is retroactive but disputes adequacy showing	Court assumed § 2255 inadequate and proceeded (declined to decide dispute)
Whether Rosemond requires setting aside Davis’s § 924(c) conviction because he lacked advance knowledge of the gun	Davis: he was duped or mentally infirm, may not have known about the gun until it was too late to quit	Gov: trial evidence showed coordinated takeover robbery; jury could infer advance knowledge or failure to withdraw after gun display	Court: Evidence would not permit reasonable juror doubt; affirmed denial of § 2241 relief
Whether the trial instruction error (failure to give Rosemond-style instruction) renders conviction a miscarriage of justice	Davis: erroneous instruction likely led a reasonable juror to convict despite lack of advance knowledge	Gov: even under Rosemond a reasonable jury could infer advance knowledge from facts	Court: No miscarriage of justice—properly instructed jury still would convict
Whether coordinated takeover robbery facts support inference of advance knowledge	Davis: some bank robberies are unarmed; he could have discovered gun late	Gov: coordinated division of labor and takeover nature make firearm use foreseeable	Court: Takeover robbery context and coordinated acts make foreknowledge plausible; court relied on this to affirm

Key Cases Cited

Rosemond v. United States, 134 S. Ct. 1240 (2014) (aiding-and-abetting § 924(c) requires advance knowledge a confederate will use or carry a gun)
House v. Bell, 547 U.S. 518 (2006) (standard for demonstrating actual innocence to overcome procedural bars)
Schlup v. Delo, 513 U.S. 298 (1995) (actual-innocence gateway standard for habeas review)
United States v. Lawson, 810 F.3d 1032 (7th Cir.) (takeover-robbery context supports inference that firearms were part of the plan)
Montana v. Cross, 829 F.3d 775 (7th Cir. 2016) (Rosemond is statutory interpretation and retroactive for § 2255 adequacy inquiries)
In re Davenport, 147 F.3d 605 (7th Cir. 1998) (framework for when § 2255 is inadequate or ineffective)
United States v. Adams, 789 F.3d 713 (7th Cir.) (if defendant anticipated the gun, culpability follows; if not, feasibility of withdrawal matters)
United States v. Wiseman, 172 F.3d 1196 (10th Cir. 1999) (prior Tenth Circuit approach treating mere knowledge as sufficient for § 924(c) aiding-and-abetting, later overruled by Rosemond)