United States District Court, S.D. Illinois
DANYAHLE L. MOSLEY, #10113-025, Petitioner,
BRYAN M. ANTONELLI, Respondent.
MEMORANDUM AND ORDER
J. ROSENSTENGEL CHIEF U.S. DISTRICT JUDGE
matter is before the Court on Petitioner Danyahle L.
Mosley's Motion pursuant to Federal Rule of Civil
Procedure 59(e), filed on September 23, 2019, to challenge
the dismissal of his case. (Doc. 27). Mosley's motion was
filed within the 28-day deadline for a Rule 59(e) motion.
Court dismissed Mosley's Habeas Petition on September 5,
2019. (Doc. 25). Mosley is serving a 180-month sentence
imposed by this Court (United States v. Mosley,
13-cr-30026-NJR, Doc. 42 (S.D. Ill. Oct. 7, 2013)) after he
pled guilty to being a felon in possession of a firearm.
Mosley's Petition, filed under 28 U.S.C. § 2241,
challenged the enhancement of his sentence under the Armed
Career Criminal Act (“ACCA”), 18 U.S.C. §
924(e)(1), based on his three prior Illinois felony
convictions: two residential burglaries (in 2001 under 720
ILCS 5/19-3 (1985), and in 2004 under 720 ILCS 5/19-3
(2001)), and a 2008 robbery pursuant to 720 ILCS 5/18-1(a)
(1999). Mosley focused his arguments on the residential
burglary priors, claiming that the statute governing his
convictions was overbroad in light of Mathis v. United
States, - U.S. -, 136 S.Ct. 2243 (2016). He did not
develop his argument challenging the prior robbery
conviction. (Doc. 1, p. 3; Doc. 17, p. 1; Doc. 25, pp. 2, 6).
He had earlier filed an unsuccessful motion under 28 U.S.C.
§ 2255 based on Johnson v. United States, 576
U.S. -, 135 S.Ct. 2551 (2015), asserting that the robbery
conviction could not be used to enhance his sentence under
the ACCA. Mosley v. United States, No.
16-cv-0206-NJR, Doc. 1 (S.D. Ill. Feb. 26, 2016).
dismissing the Petition, this Court concluded that the
relevant versions of the Illinois residential burglary
statute and the statutory definition of
“dwelling” were not overbroad when compared to
the definition of “generic burglary” outlined in
Mathis and Taylor v. United States, 495
U.S. 575 (1990). (Doc. 25, pp. 8-9). The Seventh Circuit had
rejected Mosley's very argument in Smith v. United
States, 877 F.3d 720, 724 (7th Cir. 2017); see also
United States v. Stitt, 139 S.Ct. 399, 403-04 (2017).
this Court found that Mosley's 2008 Illinois robbery
conviction was properly used as a predicate “violent
felony” to enhance his sentence under the ACCA, because
the Illinois statute includes the use or threat of force as
an element of the offense. (Doc. 25, pp. 9-11); see
Klikno v. United States, 928 F.3d 539, 541, 547 (7th
motion states that on March 3, 2019, he filed an amendment to
his Section 2241 Petition regarding the Illinois robbery
statute. (Doc. 27, p. 2). But the Court never received any
such amendment or motion to amend. The docket sheet in this
case reflects that after Mosley filed a notice of address
change in September 2018 (Doc. 20), the only other document
he filed was a motion requesting a status update on the case,
submitted on April 21, 2019, and docketed on April 26. (Doc.
Mosley's motion goes on to argue, citing Johnson v.
United States, 135 S.Ct. 2551 (2015), that the 2008
Illinois robbery could not have been used for the ACCA
enhancement because, he claims, it did not have the use of
physical force as an element and did not constitute a violent
felony under the ACCA. (Doc. 27, pp. 3-5). This argument
fails, however, under the authority discussed in the Order
dismissing Mosley's Petition. (Doc. 25, pp. 9-11);
Klikno, 928 F.3d at 541, 547. In light of this
Seventh Circuit precedent, the Court would have reached the
same conclusion even if Mosley's purported March 2019
amendment had been received.
motion under Rule 59(e) may only be granted if the movant
shows there was a manifest error of law or fact or presents
newly discovered evidence that could not have been discovered
previously. See, e.g., Sigsworth v. City of
Aurora, 487 F.3d 506, 511-12 (7th Cir. 2007);
Harrington v. City of Chicago, 433 F.3d 542 (7th
Cir. 2006) (citing Bordelon v. Chicago Sch. Reform Bd. of
Trs., 233 F.3d 524, 529 (7th Cir. 2000)). Mosley's
motion fails to demonstrate any legal or factual error, and
presents no grounds for alteration or amendment of the
Judgment in this case.
review of the record, the Court remains persuaded that its
dismissal of the Petition with prejudice was correct.
Therefore, the Motion Pursuant to Federal Rule of Civil
Procedure 59(e) (Doc. 27) is DENIED.
filing of the Rule 59(e) motion (Doc. 27) suspended the
deadline for him to appeal the dismissal of his case.
Therefore, if he wishes to appeal the dismissal of his Habeas
Petition, his notice of appeal must now be filed with this
Court within 60 days of the date of
this Order. Fed. R. App. P.
4(a)(1)(B) and 4(a)(4)(A). A motion for leave to appeal
in forma pauperis (“IFP”) must set forth
the issues Petitioner plans to present on appeal.
See Fed. R. App. P. 24(a)(1)(C). If Petitioner does
choose to appeal and is allowed to proceed IFP, he will be
liable for a portion of the $505.00 appellate filing fee (the
amount to be determined based on his prison trust fund
account records for the past six months) irrespective of the
outcome of the appeal. See Fed. R. App. P. 3(e); 28
U.S.C. § 1915(e)(2); Ammons v. Gerlinger, 547
F.3d 724, 725-26 (7th Cir. 2008); Sloan v. Lesza,
181 F.3d 857, 858-59 (7th Cir. 1999); Lucien v.
Jockisch, 133 F.3d 464, 467 (7th Cir. 1998). It is not
necessary for Petitioner to obtain a certificate of
appealability from this disposition of his Section 2241
Petition. Walker v. O'Brien, 216 F.3d 626, 638
(7th Cir. 2000).
IS SO ORDERED.
 A review of Mosley's criminal case
(No. 13-cv-30026-NJR) and Section 2255 case (No.
16-cv-206-NJR) in this Court reveals that his purported March
2019 amendment was not mistakenly ...