United States District Court, E.D. Kentucky, Southern Division, London
MEMORANDUM OPINION AND ORDER
DAVID L. BUNNING, District Judge.
Mitchell Farkas is an inmate confined by the Bureau of Prisons ("BOP") in the United States Penitentiary ("USP")-Canaan, located in Waymart, Pennsylvania. Proceeding without an attorney, Farkas has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 [R. 1], challenging the enhancement of his federal sentence under the Armed Career Criminal Act ("ACCA"), 18 U.S.C.A. § 924(c)(1)(A).
In conducting an initial review of habeas petitions under 28 U.S.C. § 2243, the Court must deny the relief sought "if it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief." Rule 4 of the Rules Governing § 2254 Cases in the United States District Courts (applicable to § 2241 petitions pursuant to Rule 1(b)). Because Farkas is not represented by an attorney, the Court evaluates his petition under a more lenient standard. Erickson v. Pardus, 551 U.S. 89, 94 (2007); Burton v. Jones, 321 F.3d 569, 573 (6th Cir. 2003). Thus, at this stage of the proceedings, the Court accepts Farkas's factual allegations as true and liberally construes his legal claims in his favor.
The Court has reviewed Farkas's habeas petition, but concludes that the Supreme Court case which Farkas has cited does not apply retroactively to his § 2241 petition, and further, that it cannot grant the relief which Farkas seeks in this action, i.e., an order vacating the two concurrent federal sentences which he is currently serving. The Court will therefore deny Farkas's § 2241 petition, deny as moot his "Motion to Abate" [R. 7], and dismiss this proceeding.
On October 15, 2003, a federal jury in Louisiana found Farkas guilty of one count of possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1). United States v. Mitchell Leon Farkas, No. 01-91-JJB-SCR (M. D. La. 2001) [R. 71, therein] On April 22, 2004, the district court sentenced Farkas to a 293-month prison term, followed by a 5-year term of supervised release. [R. 97, therein]
Farkas appealed, arguing, among other things, that the district court erred by sentencing him as an armed career criminal under 18 U.S.C. § 924(e)(1). The Fifth Circuit Court of Appeals affirmed Farkas's conviction and sentence, holding that when the government filed a post-verdict notice and attached thereto documents that reflected Farkas's many state-court convictions, it provided him with adequate notice of its intention to seek sentencing as an armed career criminal. United States of America v. Mitchell Leon Farkas, 134 F.Appx. 672 (5th Cir. 2005). Farkas sought review in the United States Supreme Court, but on October 3, 2005, his petition for writ of certiorari was denied. Mitchell Leon Farkas v. United States, 546 U.S. 925, 126 S.Ct. 317 (2005).
On July 23, 2007, Farkas filed a motion to vacate his sentence under 28 U.S.C. § 2255, alleging therein that during his criminal proceeding, he had been denied effective assistance of counsel. [R. 127, therein] The Magistrate Judge entered a Report and Recommendation ("R & R") concluding that the § 2255 motion should be denied as untimely. [R. 127, therein] Farkas objected, but on November 13, 2007, the district court adopted the R & R and denied the § 2255 motion as untimely. [R. 129, therein] Farkas appealed, but on December 4, 2008, the Fifth Circuit Court of Appeals denied him a certificate of appealability. [R. 145, therein; United States v. Mitchell Leon Farkas, No. 08-30167 (5th Cir. Dec. 4, 2008)].
Farkas's criminal problems resulting from illegal firearm possession were not limited to the state of Louisiana. On March 29, 2006, a federal indictment was returned in Alabama, charging Farkas with having been a felon in possession of a firearm on October 30, 2002, in violation of 18 U.S.C. § 922(g). United States v. Mitchell Leon Farkas, No. 1:06-CR-1119-UWC-JEO (N. D. Ala. 2006) [R. 1, therein] On June 15, 2006, Farkas pleaded guilty to the § 922(g) offense, and on that same date, entered into a Plea Agreement in which he admitted that he was guilty of the firearm charge; waived his rights to appeal his conviction and to file a collateral challenge to his conviction; and acknowledged that in light of United States v. Booker, the federal sentencing guidelines were advisory and that the court was not required to sentence him within those guidelines. [R. 13, therein]
On October 5, 2006, the district court sentenced Farkas to a 180-month prison sentence, but ordered it to run concurrently with the federal sentence that had previously been imposed in Louisiana. See Minute Entry from 10/5/06. On October 10, 2006, the Judgment in a criminal case was filed. [R. 21, therein] Farkas did not appeal his Alabama federal sentence.
CLAIMS ASSERTED IN § 2241 PETITION
Farkas challenges his concurrent federal sentences, arguing that he should have received a maximum sentence of no more than 120 months for a firearm offense under 18 U.S.C. § 922(g), and that the district courts in both Louisiana and Alabama incorrectly enhanced his sentences under the ACCA. Farkas states that the district court in Louisiana incorrectly determined that he qualified as an armed career criminal under 18 U.S.C. § 924(e)(1),  and that the district court in Alabama subsequently relied on the pre-sentence investigation report filed in the Louisiana criminal proceeding. [ Id .]
Farkas first alleges that based on false representations from the government, the district court in Louisiana incorrectly determined that he had three prior state court convictions for "generic robbery" which qualified as violent felonies for sentence enhancement under the ACCA. [R. 1, p. 9] Farkas argues that his prior state court convictions for burglary did not qualify as predicate offenses under the ACCA. Farkas maintains that for the crime of burglary to be considered as a violent felony under the ACCA, he would have been required to unlawfully enter a building or structure, but that because the Louisiana burglary statute under which he was convicted did not require unlawful entry of a structure, he was not convicted of "generic burglary" as defined by the ACCA. Farkas thus contends that because his prior convictions for robbery did not meet the definition of ...