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Farkas v. Kizziah

United States District Court, E.D. Kentucky, Southern Division, Pikeville

July 16, 2019

MITCHELL LEON FARKAS, Petitioner,
v.
GREGORY KIZZIAH, Warden, Respondent.

          MEMORANDUM OPINION AND ORDER

          KAREN K. CALDWELL, CHIEF JUDGE.

         Inmate Mitchell Farkas has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. Farkas argues that in light of the Supreme Court's decision in Mathis v. United States, 136 S.Ct. 2243 (2016), his 2004 and 2006 federal sentences should not have been enhanced under the Armed Career Criminal Act, 18 U.S.C. § 924(e) (“ACCA”) based upon his prior burglary convictions.[1] [R. 1 at 3-8] The government has filed its response in opposition [R. 15] and Farkas has replied in further support [R. 18, 20].[2] This matter is ripe for decision.

         I

         Following a jury trial in Baton Rouge, Louisiana, Farkas was found guilty in October 2003 of being a convicted felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Ordinarily, such a conviction warrants a sentence of no more than 10 years. 18 U.S.C. § 924(a)(2). But if the defendant has three or more prior convictions for “serious drug offenses” or “violent felonies, ” the ACCA mandates a minimum sentence of imprisonment for 15 years or more. 18 U.S.C. § 924(e). The Presentence Investigation Report (“PSR”) indicated that Farkas had five prior convictions in Louisiana for possession of stolen property; two convictions for being a felon in possession of a firearm; one conviction for simple escape; one conviction for aggravated burglary; two convictions for burglary of an inhabited dwelling; and nineteen more convictions for residential and other species of burglary. The PSR concluded that three or more of these convictions qualified as ACCA predicate offenses, thus requiring a sentence of at least 180 months imprisonment. [R. 14 at 6-13] The trial court agreed, and in April 2004 sentenced Farkas to 293 months imprisonment at the high end of the guidelines range. United States v. Farkas, No. 01-91-JJB-SCR-1 (M. D. La. 2001).

         Farkas challenged the ACCA enhancement on direct appeal, but the Fifth Circuit affirmed, noting that the Supreme Court's intervening decision in United States v. Booker, 543 U.S. 220 (2005) did not warrant a different result. United States v. Farkas, 134 Fed.Appx. 672 (5th Cir. 2005). The United States Supreme Court declined further review. Farkas v. United States, 546 U.S. 925 (2005). Farkas collaterally attacked his conviction and sentences by motion under 28 U.S.C. § 2255, without success.

         In a separate federal prosecution in Birmingham, Alabama, in March 2006 Farkas was charged with being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) based upon separate events occurring prior to the prosecution in Louisiana. Before trial, Farkas reached an agreement with the government to plead guilty to that charge. That court also found Farkas subject to the mandatory minimum term required by the ACCA because three or more of his prior convictions were for violent felonies. [R. 14-1 at 8-16] In October 2006 that court sentenced Farkas to 180 months imprisonment, that term to run concurrently with the federal sentence imposed in Louisiana. United States v. Farkas, No. 1:06-CR-119-UWC-JEO-1 (N. D. Ala. 2006).

         While serving these sentences, in January 2010 Farkas pleaded guilty to stabbing another federal inmate with a dangerous weapon in violation of 18 U.S.C. § 113(a)(3). The federal court sentenced Farkas to an additional 24-month term of imprisonment to be served consecutively to his existing sentences. United States v. Farkas, No. 1:09-CR-113-IMK-1 (N.D. W.Va. 2009).

         In 2014 Farkas sought habeas relief pursuant to 28 U.S.C. § 2241 in this Court, asserting that the enhancement of his sentence was improper under Descamps v. United States, 570 U.S. 254 (2013). The Court held that consistent with the weight of authority Descamps is not retroactively applicable to cases on collateral review. Farkas v. Holland, No. 6:14-150-DLB (E.D. Ky. 2014). Farkas appealed, and the Sixth Circuit affirmed. Without reaching the question of Descamps' retroactivity, the Sixth Circuit instead held that Farkas's claims were substantively without merit: “[Farkas's] multiple prior convictions for simple burglary under La. Rev. Stat. § 14:62 constitute convictions for generic burglary, meriting the armed career criminal sentencing enhancement.” Farkas v. Holland, No. 15-5015 (6th Cir. 2015).

         II

         In his petition, Farkas contends that the Louisiana burglary statutes are indivisible and are overbroad because they criminalize the burglary not merely of dwellings but also of cars and boats. [R. 1-1 at Page ID #15-16] The government's response consists of a generic discussion on the scope of § 2255(e)'s savings clause as interpreted by the various federal courts of appeal. [R. 15 at 3-15] It suggests that the Eleventh Circuit's narrower reading of the savings clause in McCarthan v. Director Of Goodwill Indus.-Suncoast, Inc., 851 F.3d 1076 (11th Cir.) (en banc), cert. denied, 138 S.Ct. 502 (Dec. 4, 2017) should be applied instead of the more expansive reading given to that provision by the Sixth Circuit set forth in Hill v. Masters, 836 F.3d 591 (6th Cir. 2016). Of course, this Court may not disregard controlling precedent from the Sixth Circuit. Hutto v. Davis, 454 U.S. 370, 376-77 (1982) (“... a precedent of this Court must be followed by the lower federal courts no matter how misguided the judges of those courts may think it to be.”); In re: Livingston, 379 B. R. 711, 725 (Bankr. W.D. Mich. 2007) (“...district courts and bankruptcy courts within this circuit are bound by published Sixth Circuit decisions.”), rev'd on other grounds, 422 B.R. 645 (W.D. Mich. 2009). The government does not discuss or analyze the substance of Farkas' contentions, instead only requesting that the Court “consider the exhibits, the arguments above and deny the relief sought by the Petitioner.” [R. 15 at 15] The Court, having thoroughly reviewed the record and the submissions of the parties, concludes that Farkas has not properly pursued relief under § 2241 and that his claims are without merit.

         As a threshold matter, a petitioner may only challenge the enhancement of his federal sentence in a § 2241 petition in a narrow set of circumstances. To qualify, the petitioner must (1) have been sentenced under a mandatory guidelines regime before the Supreme Court's decision in United States v. Booker, 543 U.S. 220 (2005) rendered the Sentencing Guidelines merely advisory; (2) point to a Supreme Court decision - issued after the petitioner's sentence became final and which is retroactively applicable to cases on collateral review - which establishes that as a matter of statutory interpretation one or more of his prior convictions were not for offenses that could properly be used to enhance his federal sentence; and (3) establish that the new decision could not have been invoked in an initial or successive § 2255 motion. Hill, 836 F.3d at 595, 599-600.

         Farkas does not satisfy Hill's second requirement. Although he refers to the Supreme Court's decisions in Mathis, his claims are not actually based upon it. Mathis explained that a statute is “divisible, ” hence permitting reference to Shepard materials, only if it establishes several different crimes by defining alternative elements; a statute which merely sets forth different ways to commit a single crime is not divisible. Mathis, 136 S.Ct. at 2248-50 (citing Richardson v. United States, 526 U.S. 813, 817 (1999)). But Farkas does not contend that the trial court actually committed an error of a kind revealed by Mathis: he does not allege that it incorrectly determined that his prior offenses were committed under divisible statutes or improperly consulted Shepard materials to decide whether his prior convictions were for violent felonies. He has therefore failed to establish that his claims are actually grounded upon Mathis. Accord Potter v. United States, 887 F.3d 785, 787-88 (6th Cir. 2018) (requiring § 2255 petitioner purportedly asserting a claim under Johnson v. United States, 135 S.Ct. 2551 (2015) to establish that trial court actually applied the since-invalidated residual clause when it imposed sentence). Farkas' nonspecific argument that the Louisiana burglary statutes proscribe a broader range of conduct than the generic offense is a claim under Taylor v. United States, 495 U.S. 575 (1990), not Mathis. Because Farkas could and therefore must have made this argument before the trial court at the sentencing hearing, on direct appeal, or in an initial motion under § 2255, he may not assert it in a § 2241 petition. Hill, 836 F.3d at 599-600.

         As the Sixth Circuit has previously noted, three or more of Farkas' Louisiana convictions for burglary qualify as violent felonies. The ACCA defines a violent felony as “any crime punishable by imprisonment for a term exceeding one year” that meets one of three requirements: (1) “has as an element the use, attempted use, or threatened use of physical force against the person of another” (the “elements clause”); (2) is burglary, arson, or extortion, or involves use of explosives” (the “enumerated offenses clause”); or (3) “otherwise involves conduct that presents a serious potential risk of physical injury to another” (the “residual clause”). 18 U.S.C. § 924(e)(2)(B). The Supreme Court's decision in Johnson (2015) invalidated the residual clause, and burglary does not typically require the actual or threatened use of force as necessary to fall under the elements clause. Thus, if Farkas' Louisiana burglary convictions are to qualify as ACCA predicates, they must likely do so as generic burglary under the enumerated offenses clause.

         First, in January 1988 Farkas burglarized a pawn shop while armed with a .357 Magnum pistol. Farkas pleaded guilty to one count of aggravated burglary in June 1988 and was sentenced to one year and one day imprisonment in Livingston, Louisiana, Docket No. 7682. [R. 14 at 6-7] At the time ...


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