Montana v. Cross, 2016 U.S. App. LEXIS 13179

Background

In 1998 Darwin Montana was convicted of bank robbery (18 U.S.C. § 2113) and of aiding/abetting use of a firearm during a crime of violence (18 U.S.C. § 924(c)); he received 262 months on the robbery and a consecutive 60 months on § 924(c).
At trial the accomplice Dodd testified inconsistently with a prior proffer; the jury acquitted on conspiracy but convicted Montana on robbery and § 924(c); the jury instructions did not require the Government to prove Montana had advance knowledge of the gun.
Montana appealed and lost; he later filed a § 2255 motion and multiple postconviction filings, which were treated as successive and barred without authorization.
After Rosemond v. United States (2014) narrowed aiding-and-abetting liability for § 924(c) (requiring advance knowledge enabling a realistic opportunity to withdraw), Montana filed a § 2241 petition challenging only his § 924(c) conviction as inconsistent with Rosemond.
The district court dismissed the § 2241 petition at screening; Montana appealed to the Seventh Circuit, which reviewed de novo and agreed the trial instruction conflicted with Rosemond but held Montana could not proceed under § 2241 because he could have raised the argument earlier.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Montana can invoke § 2255(e) savings clause to bring a § 2241 challenge based on Rosemond statutory rule	Rosemond narrowed aider-and-abettor liability for § 924(c); Montana’s jury instruction omitted the advance-knowledge element, so he may seek relief under § 2241 because § 2255 is successive and inadequate	§ 2255 remains the proper vehicle; Montana previously had opportunity to raise an actual-knowledge argument and was not foreclosed by circuit law	Denied: Montana cannot use § 2241 because he could have raised the Rosemond-type argument earlier; savings clause unavailable
Whether Rosemond applies retroactively to collateral cases	Rosemond is a substantive statutory decision that narrows criminal liability; thus it applies retroactively	Government agreed Rosemond is substantive and retroactive	Held: Rosemond is retroactive, but retroactivity alone does not permit § 2241 relief when prior opportunity to raise the claim existed
Whether Montana’s trial instruction violated Rosemond’s intent requirement for § 2 aiding-and-abetting liability	Trial instruction failed to require advance knowledge that a confederate would carry a gun, contrary to Rosemond	Government argued jury could have found Montana had opportunity to withdraw after learning of the gun and thus satisfied Rosemond’s intent standard	Court agreed the instruction conflicted with Rosemond but this factual possibility did not overcome procedural bar to § 2241 relief
Whether prior Seventh Circuit precedent foreclosed Montana from raising the current statutory-interpretation claim earlier	Montana argued earlier precedent made his claim unavailable until Rosemond	Government argued earlier precedent left room for Montana to assert actual-knowledge argument on direct appeal or in first § 2255	Held: Seventh Circuit precedent did not foreclose the argument; Montana had a reasonable opportunity earlier, so § 2241 savings clause does not apply

Key Cases Cited

United States v. Montana, 199 F.3d 947 (7th Cir. 1999) (affirming Montana’s conviction and sentence)
In re Davenport, 147 F.3d 605 (7th Cir. 1998) (articulating savings-clause standard for proceeding under § 2241)
Rosemond v. United States, 134 S. Ct. 1240 (2014) (holding aider-and-abettor liability under § 2 for § 924(c) requires advance knowledge enabling withdrawal)
Bailey v. United States, 516 U.S. 137 (1995) (interpreting "use" in § 924(c) and referenced in retroactivity analysis)
Teague v. Lane, 489 U.S. 288 (1989) (framework for retroactivity of new rules)
Bousley v. United States, 523 U.S. 614 (1998) (describing when new substantive rules apply retroactively on collateral review)
Webster v. Daniels, 784 F.3d 1123 (7th Cir. 2015) (en banc) (explaining futility/foreclosure standard for Davenport second-prong)
United States v. Woods, 148 F.3d 843 (7th Cir. 1998) (discussing knowledge requirement in § 924(c) aiding-and-abetting cases)
United States v. Taylor, 226 F.3d 593 (7th Cir. 2000) (interpreting knowledge element for aiding-and-abetting § 924(c) liability)
Light v. Caraway, 761 F.3d 809 (7th Cir. 2014) (discussing tests for whether a claim could have been raised previously)