United States District Court, E.D. Kentucky, Southern Division, Pikeville
MEMORANDUM OPINION AND ORDER
K. CALDWELL, CHIEF JUDGE.
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. [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]. This matter is ripe for decision.
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).
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
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).
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).
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).
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.
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.
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.
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.
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 ...