# Mosley v. Stange

> District Court, E.D. Missouri · April 28, 2023

URL: https://www.frixlaw.com/law-library/cases/10238665

## Case

- **Court:** District Court, E.D. Missouri
- **Decided:** April 28, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10238665

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
DEVIN MOSLEY, )
Petitioner,
v. No. 1:23-CV-00068 RHH
BILL STANGE, )
Respondent.
MEMORANDUM AND ORDER
This matter is before the Court upon review of petitioner Devin Mosley’s application for
writ of habeas corpus brought pursuant to 28 U.S.C. § 2254. The Court will grant petitioner leave
to proceed in forma pauperis and will dismiss the petition as an unauthorized second or successive
‘petition Petitioner’s motion for appointment of counsel will be denied as moot.
Background
Petitioner Devin Mosley is presently incarcerated at the Southeast Correctional Center
pursuant to the sentence and judgment of the Circuit Court of the City of Saint Louis. On
September 30, 2011, a jury convicted petitioner of two counts of murder in the second-degree, one
count each of first-degree and attempted first-degree robbery and four counts of armed criminal

action. State v. Mosley, No. 0922-CR02903-01 (22™ Jud. Cir., St. Louis City). The trial court
sentenced petitioner to consecutive terms of imprisonment totaling life, plus life, plus thirty-five
years. The Missouri Court of Appeals affirmed petitioner’s conviction on direct appeal on
February 13, 2013. State v. Mosley, No. ED97797 (Mo.Ct.App. 2013).
Petitioner filed a post-conviction motion to vacate pursuant to Missouri Supreme Court
Rule 29.15 on April 8, 2013. Mosley v. State, No. 1322-CC00877 (22"4 Jud. Cir., St. Louis City).
The Circuit Court denied the motion to vacate on November 19, 2013. /d. The ruling was affirmed

by the Missouri Court of Appeals on February 3, 2015. Mosley v. State, No. ED100915
(Mo.Ct.App. 2015).
On May 18, 2011, petitioner filed his first application for writ of habeas corpus brought
pursuant to 28 U.S.C. § 2254 in this United States District Court, seeking to challenge the above
2011 Missouri State court judgment. Mosley v. Wallace, No. 4:15-CV-00794 RWS (E.D. Mo.
2015) (hereafter “Mosley I’). On May 22, 2018, the District Court denied and dismissed the
petition after determining that petitioner’s twelve claims for relief were without merit. Petitioner
filed the instant application for writ of habeas corpus brought pursuant to 28 U.S.C. § 2254 on or
about April 24, 2023, seeking to challenge the same 2011 Missouri State court judgment he
challenged in Mosley I!
Discussion
Petitioner seeks to challenge the same Missouri State court judgment he challenged in
Mosley I, which constituted an adjudication on the merits that renders future petitions under § 2254
challenging the same judgment “second or successive” petitions under 28 U.S.C. § 2244(b).
Pursuant to 28 U.S.C. § 2244(b)(3)(A), before a second or successive petition permitted by §
2244(b) is filed in this Court, the petitioner must obtain an order from the Eighth Circuit Court of
Appeals authorizing this Court to consider the petition. 28 U.S.C. § 2244(b)(3)(A).

In his application for writ, petitioner asserts claims for ineffective assistance of counsel and abandonment
of counsel. Petitioner additionally asserts that the Missouri Department of Corrections (MDOC) listed his
sentence on his “face sheet” as “life without the possibility of parole.” He states that the “face sheet” at the
MDOC needs to be corrected. To the extent petitioner is seeking relief from this Court with respect to an
error on his “face sheet” or a denial of parole, he first needs to exhaust his state remedies before invoking
federal habeas corpus jurisdiction. See Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484
(1973). Missouri law provides at least three distinct avenues for challenging a parole decision: by bringing
a declaratory action against the Board of Probation and Parole, by filing a state petition for habeas corpus,
or by filing a petition for writ of mandamus. Wayne v. Missouri Board of Probation and Parole, 83 F.3d
994, 996-97 (8th Cir. 1996).

Petitioner does not allege, nor does independent inquiry reveal, that he obtained the
necessary authorization before filing the instant petition. As a result, the Court is without
jurisdiction to consider petitioner’s request for relief. The Court finds it would not be in the interest
of justice to require the transfer of this case to the Eighth Circuit Court of Appeals and will instead
dismiss the petition as an unauthorized second or successive petition. The Court finds there has
been no substantial showing of the denial of a constitutional right and will therefore not issue a
certificate of appealability.
Accordingly,
IT IS HEREBY ORDERED that petitioner’s motion to proceed in forma pauperis [ECF
No. 2] is GRANTED.
IT IS FURTHER ORDERED that petitioner Devin Mosley’s application for writ of
habeas eorpue brought pursuant to 28 U.S.C. § 2254 [ECF No. 1] is DENIED AND DISMISSED
as an unauthorized second or successive petition. A separate Order of Dismissal shall accompany
this Memorandum and Order.
IT IS FURTHER ORDERED that petitioner’s motion for appointment of counsel [ECF
No. 3] is DENIED AS MOOT.
IT IS FURTHER ORDERED that no certificate of appealability shall issue.
Dated this 28" day of April, 2023.

sung oe
UNITED STATES DISTRICT JUDGE

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10238665. Public record. Not legal advice.