United States District Court, S.D. Illinois
DANYAHLE L. MOSLEY, Petitioner,
UNITED STATES OF AMERICA, Respondent.
MEMORANDUM AND ORDER
J. ROSENSTENGEL United States District Judge
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.
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
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).
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 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.
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
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).
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.
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.
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.
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
Mosley will only be allowed to proceed on his appeal if he
obtains a 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 ...