Mosley v. Werlich

Filing 5

ORDER REFERRING CASE to Magistrate Judge Clifford J. Proud. Signed by Judge David R. Herndon on 4/12/2018. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
DANYAHLE L. MOSLEY,
No. 10113-025,
Petitioner,
vs.
T.G. WERLICH,
Respondent.

Case No. 18−cv–00574-DRH

MEMORANDUM AND ORDER
HERNDON, District Judge:
Petitioner Danyahle Mosley is currently incarcerated in the Federal
Correctional Institution located at Greenville, Illinois (“FCI-Greenville”). He brings
this federal habeas corpus action pursuant to 28 U.S.C. § 2241 in order to
challenge his sentence in United States v. Mosley, No. 13-cr-30026 (S.D. Ill.)
(“criminal case”).

In 2013, Mosley was convicted pursuant to a written plea

agreement of being a felon in possession of a firearm. (Doc. 21, criminal case).
He was sentenced to 15 years of imprisonment as an armed career criminal.
(Doc. 40, criminal case).

Mosley brought an unsuccessful collateral attack

pursuant to 28 U.S.C. § 2255. Mosley v. United States, No. 16-cv-00206-NJR
(S.D. Ill. 2016). Relying on the United States Supreme Court’s decision in Mathis
v. United States, 579 U.S. ––, 136 S. Ct. 2243 (2016), Mosley now attacks his
enhanced sentence under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. §
924(e), based on his prior convictions in Illinois for residential burglary (Case No.
1

01-CF-34801 and Case No. 04-CF-06101) and robbery (Case No. 08-CF-94101).
Mosley maintains that none of these convictions qualify as predicate offenses in
light of Mathis, particularly his convictions for residential burglary. (Doc. 1, pp.
1-11). He asks this Court to vacate his sentence. (Doc. 1, p. 11).
This matter is now before the Court for review of the § 2241 Petition
pursuant to Rule 4 of the Rules Governing § 2254 Cases in United States District
Courts, which provides that upon preliminary consideration by the district court
judge, “[i]f it plainly appears from the petition and any attached exhibits that the
petitioner is not entitled to relief in the district court, the judge must dismiss the
petition and direct the clerk to notify the petitioner.” Rule 1(b) of those Rules
gives this Court the authority to apply the rules to other habeas corpus cases.
In

light

of

the

rapidly

developing

case

law

addressing

sentence

enhancements based on Illinois burglary convictions, in particular, the Court
deems it appropriate to order a response. See, e.g., Shields v. United States,
885 F.3d 1020 (7th Cir. Mar. 21, 2018) (recent precedent forecloses argument
that Illinois residential burglary conviction no longer qualifies as a violent felony
under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e)); Smith v.
United States, 877 F.3d 720 (7th Cir. Dec. 13, 2017) (Illinois residential burglary
conviction based on 1982 statute counts as a violent felony under § 924(e));
United States v. Haney, 840 F.3d 472 (7th Cir. 2016) (pre-1982 version of
Illinois law covering ordinary burglary did not satisfy federal definition and no
longer counted as violent felony under § 924(e)); Dawkins v. United States, 809

2

F.3d 953 (7th Cir. 2016) (pre-Mathis case holding that Illinois residential
burglary is equivalent to generic burglary of a dwelling and counts as an
enumerated crime of violence under U.S.S.G. § 4B1.2(a)(2)); Dawkins v. United
States, 829 F.3d 549 (7th Cir. 2016) (post-Mathis case questioning whether
Mathis makes Illinois residential burglary conviction suspect under the ACCA and
U.S.S.G., but declining to address question and directing petitioner to bring
independent claim under § 2241, if at all).
IT IS HEREBY ORDERED that Respondent Werlich shall answer or
otherwise plead within thirty days of the date this order is entered.

This

preliminary order to respond does not preclude the Government from raising any
objection or defense it may wish to present.

Service upon the United States

Attorney for the Southern District of Illinois, 750 Missouri Avenue, East St. Louis,
Illinois, shall constitute sufficient service.
IT IS ALSO ORDERED that pursuant to Local Rule 72.1(a)(2), this cause
is referred to United States Magistrate Judge Clifford J. Proud for further pretrial proceedings.
IT IS FURTHER ORDERED that this entire matter be REFERRED to
United States Magistrate Judge Proud for disposition, as contemplated by Local
Rule 72.2(b)(2) and 28 U.S.C. § 636(c), should all the parties consent to such a
referral.
Petitioner is ADVISED of his continuing obligation to keep the Clerk (and
each opposing party) informed of any change in his whereabouts during the

3

pendency of this action. This notification shall be done in writing and not later
than seven (7) days after a transfer or other change in address occurs. Failure to
provide such notice may result in dismissal of this action. See FED. R. CIV. P.

Judge Herndon
2018.04.12
09:13:25 -05'00'

41(b).
IT IS SO ORDERED.

United States District Judge

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