Mosley v. USA
Filing
9
ORDER DENYING 1 Motion to Vacate/Set Aside/Correct Sentence (2255) filed by Danyahle L. Mosley. Signed by Judge Nancy J. Rosenstengel on 1/6/17. (klh2)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
DANYAHLE L. MOSLEY,
Petitioner,
vs.
UNITED STATES OF AMERICA,
Respondent.
)
)
)
)
)
)
)
)
)
Case No. 16-CV-206-NJR
MEMORANDUM AND ORDER
ROSENSTENGEL, District Judge:
On February 26, 2016, Petitioner Danyahle Mosley filed a habeas petition under
28 U.S.C. § 2255 challenging his enhanced sentence as an armed career criminal based on
the Supreme Court’s decision in Johnson v. United States, 135 S.Ct. 2551 (2015). In Johnson,
the Supreme Court held that “the imposition of an enhanced sentence under the residual
clause of [the Armed Career Criminal Act] violates due process because the clause is too
vague to provide adequate notice.” Price v. United States, 795 F.3d 731, 732 (7th Cir. 2015)
(citing Johnson, 135 S.Ct. at 2557). That holding is categorically retroactive to cases on
collateral review. Welch v. United States, 136 S. Ct. 1257, 1268 (2016); Price, 795 F.3d at 734.
The Court conducted a preliminary review of Mosley’s § 2255 motion, and after
going over the record in Mosley’s criminal proceeding, determined that he was not
sentenced under the residual clause of the Armed Career Criminal Act (Doc. 2).
Specifically, the plea agreement and the presentence investigation report indicate that
Mosley’s status as an armed career criminal under 18 U.S.C. § 924(e) was established by
a previous conviction for residential burglary in 2001, another previous conviction for
Page 1 of 6
residential burglary in 2004, and a previous conviction for robbery in 2008. SDIL Case
No. 3:13-cr-30026, Doc. 21, 38. His convictions for residential burglary were classified as
violent felonies under the enumerated crimes clause of the Armed Career Criminal Act,
not the residual clause (Doc. 2). And his conviction for robbery was classified as a violent
felony under the elements clause, not the residual clause (Doc. 2). See Stanley v. United
States, 827 F.3d 562 (7th Cir. 2016) (explaining that Johnson does not affect convictions
classified under the enumerated crimes clause or the elements clause of the Sentencing
Guidelines or the Armed Career Criminal Act). Consequently, the Court issued a show
cause order requiring Mosley to explain how Johnson applied to him and why he was
entitled to relief (Doc. 2). Mosley responded and made a very brief and undeveloped
argument that his prior robbery conviction under Illinois law cannot qualify as a
predicate offense under the Armed Career Criminal Act (Doc. 5).
Mosley’s argument simply is not sufficient to warrant relief under § 2255,
particularly given that the Seventh Circuit has repeatedly held that robbery as defined
by Illinois law is a crime of violence. United States v. Smith, No. 16-1895, 2016 WL
5867263, at *1 (7th Cir. Oct. 7, 2016) (noting previous holdings that a conviction for
robbery under Illinois law is a crime of violence under the elements clause of U.S.S.G.
§ 4B1.2 and similarly worded statutes) (citations omitted); United States v. Watson-El, 376
F. App’x 605, 608 (7th Cir. 2010) (holding robbery under Illinois law is a violent felony
under the Armed Career Criminal Act) (citations omitted); United States v. Melton, 75 F.
App’x 539, 545 (7th Cir. 2003) (explaining that because the robbery statute in Illinois “has
as an essential element the threat or use of force,” it is a per se crime of violence under
Page 2 of 6
U.S.S.G. § 4B1.2); United States v. Bedell, 981 F.2d 915, 916 (7th Cir. 1992) (discussing why
a conviction for robbery under Illinois law is a crime of violence under U.S.S.G. § 4B1.2);
United States v. Dickerson, 901 F.2d 579, 584 (7th Cir. 1990) (holding that a conviction for
robbery under Illinois law is a crime of violence under the elements clause of the Armed
Career Criminal Act). See also United States v. Templeton, 543 F.3d 378, 380 (7th Cir. 2008)
(“Section 924—a section of the Armed Career Criminal Act—defines ‘violent felony’ in
the same way as § 4B1.2 defines ‘crime of violence,’ and we interpret § 4B1.2 in the same
way as § 924(e).”) Accordingly, Mosley’s § 2255 motion is denied.
CERTIFICATE OF APPEALABILITY
If Mosley wants to appeal this Court’s ruling denying his motion, he must first
secure a certificate of appealability, either from this Court or from the Court of Appeals.
See FED. R. APP. P. 22(b); 28 U.S.C. § 2253(c)(1). Pursuant to § 2253, a certificate of
appealability may issue “only if the applicant has made a substantial showing of the
denial of a constitutional right.”
This requirement has been interpreted by the Supreme Court to mean that an
applicant must show that “reasonable jurists would find the district court’s assessment
of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484
(2000). Mosley need not show that his appeal will succeed, but he must show
“something more than the absence of frivolity” or the existence of mere “good faith” on
his part. Miller-El v. Cockrell, 537 U.S. 322, 337, 338 (2003). If the district court denies the
request, a petitioner may request that a circuit judge issue the certificate of appealability.
FED. R. APP. P. 22(b)(1)-(3).
Page 3 of 6
For the reasons detailed above and in the Court’s previous order (Doc. 2), the
Court has determined that Mosley has not stated any grounds for relief under § 2255,
and reasonable jurists could not debate that conclusion. Thus, Mosley has not made “a
substantial showing of the denial of a constitutional right,” and a certificate of
appealability will not be issued.
CONCLUSION
Danyahle Mosley’s Motion to Vacate, Set Aside, or Correct Sentence pursuant to
28 U.S.C. § 2255 (Doc. 1) is DENIED. The Court DECLINES to issue a certificate of
appealability. This action is DISMISSED with prejudice, and the Clerk of Court is
DIRECTED to enter judgment accordingly.
NOTICE
If Mosley wishes to contest this Order, he has two options. He can ask the Seventh
Circuit to review the Order, or he can first ask the undersigned to reconsider the Order
before appealing to the Seventh Circuit.
If Mosley chooses to go straight to the Seventh Circuit, he must file a notice of
appeal within 60 days from the entry of judgment or order appealed from. FED. R. APP. P.
4(a)(1)(A). The deadline can be extended for a short time only if Mosley files a motion
showing excusable neglect or good cause for missing the deadline and asking for an
extension of time. FED. R. APP. P. 4(a)(5)(A), (C). See also Sherman v. Quinn, 668 F.3d 421,
424 (7th Cir. 2012) (explaining the good cause and excusable neglect standards);
Abuelyaman v. Illinois State Univ., 667 F.3d 800, 807 (7th Cir. 2011) (explaining the
excusable neglect standard).
Additionally, Mosley will only be allowed to proceed on his appeal if he obtains a
Page 4 of 6
certificate of appealability. Here, the undersigned District Judge has already declined to
issue a certificate of appealability. Thus, Mosley must request a certificate of
appealability from the Court of Appeals pursuant to Federal Rule of Appellate
Procedure 22 and 28 U.S.C. § 2253(c), in addition to filing his notice of appeal.
The current cost of filing an appeal with the Seventh Circuit is $505.00. The filing
fee is due at the time the notice of appeal is filed. FED. R. APP. P. 3(e). If Mosley cannot
afford to pay the entire filing fee up front, he must file a motion for leave to appeal in
forma pauperis (“IFP motion”) along with a recent statement for his prison trust fund
account. See FED. R. APP. P. 24(a)(1)(C). The IFP motion must set forth the issues Mosley
plans to present on appeal. See FED. R. APP. P. 24(a)(1)(C). If he is allowed to proceed IFP
on appeal, he will be assessed an initial partial filing fee. 28 U.S.C. § 1915(b)(1). He will
then be required to make monthly payments until the entire filing fee is paid. 28 U.S.C.
§ 1915(b)(2).
On the other hand, if Mosley wants to start with the undersigned, he should file a
motion to alter or amend the judgment under Federal Rule of Civil Procedure 59(e). The
motion must be filed within twenty-eight (28) days of the entry of judgment, and the
deadline cannot be extended. FED. R. CIV. P. 59(e); 6(b)(2). The motion must also comply
with Rule 7(b)(1) and state with sufficient particularity the reason(s) that the Court
should reconsider the judgment. Elustra v. Mineo, 595 F.3d 699, 707 (7th Cir. 2010); Talano
v. Nw. Med. Faculty Found., Inc., 273 F.3d 757, 760 (7th Cir. 2001). See also Blue v. Hartford
Life & Acc. Ins. Co., 698 F.3d 587, 598 (7th Cir. 2012) (“To prevail on a Rule 59(e) motion to
amend judgment, a party must clearly establish (1) that the court committed a manifest
Page 5 of 6
error of law or fact, or (2) that newly discovered evidence precluded entry of
judgment.”) (citation and internal quotation marks omitted).
So long as the Rule 59(e) motion is in proper form and timely submitted, the
60-day clock for filing a notice of appeal will be stopped. FED. R. APP. P. 4(a)(4). The clock
will start anew once the undersigned rules on the Rule 59(e) motion. FED. R. APP. P.
4(a)(1)(A), (a)(4), (a)(4)(B)(ii). To be clear, if the Rule 59(e) motion is filed outside the
28-day deadline or “completely devoid of substance,” the motion will not stop the clock
for filing a notice of appeal; it will expire 60 days from the entry of judgment. Carlson v.
CSX Transp., Inc., 758 F.3d 819, 826 (7th Cir. 2014); Martinez v. Trainor, 556 F.2d 818, 819–
20 (7th Cir. 1977). Again, this deadline can be extended only on a written motion by
Mosley showing excusable neglect or good cause.
IT IS SO ORDERED.
DATED: January 6, 2017
____________________________
NANCY J. ROSENSTENGEL
United States District Judge
Page 6 of 6
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?