                        NONPRECEDENTIAL DISPOSITION
                To be cited only in accordance with Fed. R. App. P. 32.1



                United States Court of Appeals
                                 For the Seventh Circuit
                                 Chicago, Illinois 60604

                                 Argued April 25, 2018
                                 Decided August 6, 2018

                                          Before

                           DANIEL A. MANION, Circuit Judge

                           DAVID F. HAMILTON, Circuit Judge

                           AMY C. BARRETT, Circuit Judge

No. 17-1853

EUGENE RILEY, III,                            Appeal from the United States District
    Plaintiff-Appellant,                      Court for the Northern District of Illinois,
                                              Eastern Division.
       v.
                                              No. 13 C 8866
STEPHANIE DORETHY,
     Defendant-Appellee.                      Rebecca Pallmeyer,
                                              Judge.

                                        ORDER

        In this habeas corpus case under 28 U.S.C. § 2254, Eugene Riley challenges his
Illinois conviction for felony murder predicated on mob action. He claims that the trial
court infringed his Sixth Amendment right to have a jury determine each element of the
offense by not instructing jurors that, for felony murder in Illinois, the State must prove
that he had a “felonious purpose” independent of causing death and that the acts
constituting the predicate felony (here, mob action) were not “inherent in” the victim’s
killing. He also argues that his attorney’s failure to request these instructions was
ineffective. Because the state appellate court reasonably held that the jury was correctly
instructed, we affirm the judgment.
No. 17-1853                                                                      Page 2

       For his role in the death of Derrion Albert, Riley was sentenced to 32 years in
prison. The state appellate court recounted the facts as follows. In September 2009,
Chicago school closures caused high-school students living in the Altgeld Gardens
Homes to attend Fenger Academy in a neighborhood referred to as “the Ville.” Riley’s
brother, Vashion “BJ” Bullock, and cousin, Silvonus Shannon, were Altgeld students
attending Fenger; Riley had graduated from a different high school.

        One day Bullock was suspended and sent home early. Bullock and Riley later
drove to Fenger to pick Shannon up, having heard a rumor that Shannon would be
“jumped” after school. Soon after Shannon joined them, Riley stopped the car, and
Bullock and Shannon got out to “exchange words” with someone in the street; Bullock
testified that he had heard something hit the car window and was checking for damage.
One way or another, a fistfight erupted, so Riley exited the car to help.

       Riley testified that he was trying to defend Bullock, who was pinned to the
ground, when he himself was hit with a board, making him dizzy, scared, and
confused. Riley then picked up a board and hit Albert (the eventual murder victim)
twice “because it was a reaction.” Riley admitted that Shannon had been kicking Albert,
who had his arms up for protection.

       Eyewitnesses and cell-phone videos added detail. One video showed Riley
hitting a man in a white shirt while another “young man wearing a red coat” hit and
kicked Albert. Then Riley, Bullock, and an unidentified person squared off against a
man holding a board, who swung at Bullock and then threw the board. Riley picked up
the board. Two unidentified people kicked Albert as Riley ran over with the board and
struck Albert twice.

       Dominic Johnson, a student from the Ville, testified that Bullock had been
suspended for fighting with another Ville student and that he (Johnson) “kind of” knew
that there would be a fight after school. Johnson and friends were walking home when
Bullock drove by and said, “[T]his ain’t over,” out the window. The car stopped and
Bullock, Riley, and “other people” approached Johnson and his friends, starting a
melee. Johnson saw Eric Carson, another student, knock Albert down with a board, and
then one of Dominic’s friends punched Albert in the head. Someone hit Bullock with a
board; Shannon “stomped” on Albert, who was trying to protect himself; and Riley hit
Albert with a board before the Ville residents chased away the Altgeld band.

       A woman working for a nearby community center testified that she went for
help after she saw “crowds of kids” about to fight. When she returned, she saw two
young men assault Albert—one of them with a board. With another adult’s help, the
No. 17-1853                                                                         Page 3

woman pulled Albert to safety. An ambulance took Albert to the hospital, where he
died of “cerebral injuries that were caused by blunt head trauma as a result of assault.”

       Riley, Shannon, and Carson were charged with Albert’s death and tried
separately. The trial court denied Riley’s requests for involuntary-manslaughter and
second-degree-murder instructions, and it declined to treat mob action and aggravated
battery as lesser-included offenses. But the court did instruct jurors that they could
convict Riley of felony murder “only if you also find the defendant guilty of mob
action,” which required him to “knowingly disturb[] the peace” by using force or
violence. The jury found Riley guilty of felony murder predicated on mob action,
720 ILCS 5/9-1(a)(3) and 5/25-1(a)(1).

       Riley appealed, arguing that the trial court did not properly instruct the jury on
the elements of felony murder, that counsel was ineffective for not requesting the
proper instructions, and that insufficient evidence supported his conviction. The
appellate court rejected these claims and affirmed the conviction.

       Riley then filed a timely § 2254 petition renewing his arguments that the jury
instructions were constitutionally deficient and that counsel was ineffective. The district
court denied relief. We certified an appeal and directed the parties to address Evans v.
Dorethy, 833 F.3d 758 (7th Cir. 2016), regarding the jury-instruction issue.

       Riley argues that the Sixth Amendment required the trial judge to instruct the
jury that, under Illinois law, the State must prove that (1) the acts underlying the
predicate felony (mob action) were not “inherent in” Albert’s killing, and (2) Riley acted
with a “felonious purpose” independent of murder. The two factors to which Riley
refers derive from the Illinois Supreme Court’s decision in People v. Morgan, 758 N.E.2d
813, 838 (Ill. 2001). Riley claims that the Morgan inquiry contributes new elements to the
crime of felony murder. And because elements of the crime must be submitted to the
jury, Riley argues that the trial court violated the Sixth Amendment by resolving those
questions itself.

       Riley’s argument is foreclosed by our precedent. In Evans v. Dorethy, we held that
the Morgan inquiry is “a legal assessment of the separateness of two events” that may be
conducted by the trial judge, rather than a factual inquiry that must be submitted to a
jury. 833 F.3d 758, 762 (7th Cir. 2016). Riley challenges that precedent as wrongly
decided, yet he has not identified any “supervening developments” that cast new light
on the matter. Santos v. United States, 461 F.3d 886, 891 (7th Cir. 2006). We remain bound
by Evans, which means that we must deny Riley’s application for a writ of habeas
corpus. See 28 U.S.C. § 2254(d)(1).
No. 17-1853                                                                      Page 4

       Our holding in Evans was based on our understanding of Illinois law. If new
legal developments later make clear that the Illinois Supreme Court is using the Morgan
inquiry to add a judicially created element to the statutorily defined crime of felony-
murder, it may be necessary for us to revisit the Sixth Amendment analysis in Evans.
Cf. People v. Space, Nos. 1–15–0922 & 1–15–1171, 2018 WL 2104538 (Ill. App. Ct. May 4,
2018). As of this time, however, no such supervening developments have occurred.

      Accordingly, we AFFIRM the district court judgment.
