Montana v. Cross, No. 14-3313 (7th Cir. 2016)
Annotate this CaseIn 1998, Montana was convicted of aiding and abetting a bank robbery in which an accomplice used a firearm, 18 U.S.C. 2113 and 924(c), and was sentenced to a total of 322 months in prison. The Seventh Circuit affirmed. He then filed unsuccessful postconviction petitions, including a motion to vacate under 28 U.S.C. 2255. In 2014, Montana filed a new petition under 28 U.S.C. 2241, challenging only his section 924(c) conviction for use of a firearm in a crime of violence. He contended that the Supreme Court’s 2014 decision (Rosemond) narrowed the scope of criminal liability for aiding and abetting section 924(c) offenses and that the court, therefore, had erroneously instructed the jury on the elements of the offense. The district court dismissed the petition on the merits at the screening stage under Rule 4 of the Rules Governing Section 2254 Cases. The Seventh Circuit affirmed, noting Montana’s prior section 2255 motion and the consequent statutory bar on successive petitions. Rosemond significantly changed the landscape for his offense of conviction and therefore applies retroactively, but Montana cannot avail himself of the savings clause in 28 U.S.C. 2255(e) because he could have brought his current argument at an earlier time.
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