That latter course was understandably not followed by our
Court of Appeals in Montana's direct appeal. As stated earlier,
the Opinion devoted most of its consideration to Montana's claims
of ineffective assistance that represented the bulk of Montana's
then-advanced claims, and there was nothing to suggest at that
point that he was holding anything back in that area.

What has been said up to now clearly calls for the denial of
Montana's motion. But this Court would be remiss if it did not
add a few words about the emptiness of Montana's current
arguments in substantive terms in any event. This Court has
already expressed its view that Montana's experienced trial
counsel performed very competently in handling a difficult case
at trial, and nothing in the Opinion is at odds with that
determination. And the government's response to the current
motion (at its Mem. 8-9) demonstrates amply that the legal
representation that Montana received at trial is in no way
vulnerable under the principles announced in the seminal
decisions in Strickland v. Washington, 466 U.S. 668 (1984) and

Lockhart _v. Fretwell, 506 U.S. 364, 368-70 (1993).

Accordingly this Court determines that no evidentiary
hearing is required (see Rule 8(a) of the Rules Governing Section
2255 Proceedings for the United States District Courts) and that
“such disposition of the motion as justice dictates” (id.) calls

for its denial and the dismissal of this action. This Court so


urging that he was in a Catch-22 situation on the direct appeal,
where the failure to have raised Montana's then-advanced
arguments of ineffective assistance of his trial counsel would
assertedly have triggered a holding of waiver (more accurately,
forfeiture) as and when Montana later tried a Section 2255 motion
on the same generic ground. Instead:

1. If a defendant's only potentially available
ineffective assistance claims are apparent from the trial
record, such claims must indeed be advanced on direct appeal
or be lost via waiver (or forfeiture)--see, e.g., United
States v. Guinan, 6 F.3d 468, 473-74 (7 Cir. 1993).

2. But if (as is assertedly Montana's situation) such
claims are mixed--some based on the record and others based
on extrinsic evidence, so that the totality of circumstances
is relied on to show trial counsel's inadequacy--no such
prejudicial consequence arises. To the contrary, in that
scenario our Court of Appeals regularly eschews any proposed
consideration of the record-based potential claims on direct
appeal, instructing defendants to consider the later filing
of Section 2255s motion to avoid the problem that now bars
Montana's motion (the procedure followed, for example, in
such cases as Hardamon, 188 F.3d at 847 and South, 28 F.3d

at 629).


eee

orders.

Date:

August

24,

2001

Tp Me. Bardo

Milton I. Shadur
Senior United States District Judge


as

Ifinute Onder Feem (06/97)

ag

United States District Court, Northern District of Illinois

Name of Assigned Jud i Sitting Judge if Other
pe Magistrate Judge Milton I, Shadur than Aesigned Judge
CASE NUMBER 01 C 3098 DATE 8/24/2001
CASE USA vs. Darwin Montana
TITLE

[In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
of the motion being presented.)

MOTION:
DOCKET ENTRY:
(ed) o Filed motion of [ use listing in “Motion” box above.]
(2) a Brief in support of motion due.
GB) QO Answer brief to motion due. . Reply to answer briefdue__.
(4) oO Ruling/Hearingon____sset for___—_at
(5) im) Status hearing[held/continued to] [set for/re-set for] on setfor at.
(6) Oo Pretrial conference[held/continued to] [set for/re-set for]on ss set for at
(7) i) Trial[set for/re-set for]on__——sat_—
(8) Qo [Bench/Jury trial] [Hearing] held/continuedto __—__at
(9) o This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to}
COFRCP4(m) (CGeneral Rule21 CIFRCP41(a)(1) OO FRCP41(a)(2).
ao) «ff [Other docket entry] Enter Memorandum Opinion and Order. Accordingly this Court determines

that no evidentiary hearing is required (see Rule 8(a) of the Rules Governing Section 2255 Proceedings
for the United States District Courts ) and that “such disposition of the motion as justice dictates” (id.)
Calls for its denial and the dismissal of this action.

[For further detail see order attached to the original minute order.]

di) om

No notices required, advised in open court.

No notices required. ‘number of notices:

AUS 2-7 ym)

date docketed

\S

docketing deputy initials

S| Notices mailed by judge’s staff.

Notified counsel by telephone.

Docketing to mail a)
Mail AO 450 form.
Copy to judge/magistrate judge!’ ©

82472001

courtidomAUG 24 /Fii & 48 date mailed notice
SN deputy’s sn
initials

Date/time received in

central Clerk’s Office mailing deputy initiats



IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

DOEKETED

UNITED STATES OF AMERICA, " “
AUG 2 7 2001

)
)
Plaintiff, )
)
v. ) No. 98 CR 54
. ) (01 € 3098)
DARWIN MONTANA, )
)
Defendant . )
MEMORANDUM OPINION AND ORDER
Darwin Montana (“Montana”), acting through the same able

counsel (Phillip Turner, Esq.) who represented him on his
unsuccessful appeal, has filed a 28 U.S.C. §2255 (“Section 2255”)
motion in which he seeks to vacate his conviction and the 322-
month sentence that this Court imposed on March 16, 1999 after a
jury had found Montana guilty of bank robbery and of the use of a
firearm in the course of that robbery (a crime of violence).

This Court's May 3, 2001 memorandum opinion and order dispatched
all aspects of Montana's motion save one--that asserting the
constitutionally ineffective assistance of his trial counsel--and
ordered (1) the United States to file a response on that issue
and (2) Montana's counsel to submit any additional authority that
he would rely on in that respect. Attorney Turner complied
promptly with the latter directive, but the case apparently got
lost in the United States Attorney's office--it was only when
attorney Turner later moved for an order of default that the case

was reassigned within that office, and the United States has


oneal

recently filed its response.

It is now exceedingly plain from the parties' submissions
that Montana must lose on that remaining claim, just as he has
lost on the other issues originally tendered in his motion. As
our Court of Appeals' affirmance of his conviction on direct
appeal (via the “Opinion,” 199 F.3d 947 (7% Cir. 1999))
reflects, the principal issues that he had tendered on that
direct appeal also attacked the effectiveness of his trial
counsel's representation (see id. at 948-49). That being the
case, he is limited by law of the case considerations to one shot
and one shot only on that subject, at least as to matters that
were known or reasonably knowable at the time of the appeal--see

such cases as United States v. Hardamon, 188 F.3d 843, 847 (7th

Cir. 1999); United States v. Woolley, 123 F.3d 627, 634 (7% Cir.

1997); United States v. Allender, 62 F.3d 909, 913 (7% Cir.

1995); United States v. South, 28 F.3d 619, 629 (7% Cir. 1994);

Bond v. United States, 1 F.3d 631, 635 (7 Cir. 1993).

What Montana has now offered up does not fit that last
potentially exceptionable category of new (that is, unknown and
not reasonably knowable) evidence--evidence that might perhaps
qualify for current consideration under the principle stated in
United States v. Taglia, 922 F.2d 413, 418 (7% Cir. 1991) and

pursuant to a like suggestion in Olmstead v. United States, 55

F.3d 316, 319 (7 Cir. 1995). Nor is attorney Turner correct in