Banks v. Horn, 96-9003

Decision Date19 September 1997
Docket NumberNo. 96-9003,96-9003
Citation126 F.3d 206
PartiesGeorge E. BANKS, Appellant, v. Martin HORN, Commissioner, PA Department of Corrections; James Price, Superintendent of the State Correctional Institution at Greene; Joseph P. Mazurkiewicz, Superintendent of the State Correctional Institution at Rockview; The Commonwealth of Pennsylvania.
CourtU.S. Court of Appeals — Third Circuit

Albert J. Flora, Jr. (argued), William Ruzzo, Office of Public Defender, Wilkes-Barre, PA, for Appellant.

Peter P. Olszewski, Jr. (argued), Scott C. Gartley, Office of District Attorney, Wilkes-Barre, PA, for Appellees.

Before: SLOVITER, Chief Judge, and GREENBERG and MCKEE, Circuit Judges.

OPINION OF THE COURT

GREENBERG, Circuit Judge.

I. INTRODUCTION

George E. Banks appeals to this court from a final judgment entered in the district court on August 30, 1996, denying his petition for a writ of habeas corpus under 28 U.S.C. § 2254. Banks committed the crimes leading to his conviction and sentencing in the state court and finally to his petition for habeas corpus on September 25, 1982, when he shot 14 people in Wilkes-Barre, Pennsylvania, killing 13 of them. The victims included Banks' four girlfriends and their children, most of whom were Banks' children as well. Banks, who was born from an interracial relationship, apparently committed the murders because he preferred his children to die rather than grow up in what he thought was a racist world. See Commonwealth v. Banks, 513 Pa. 318, 521 A.2d 1, 4-7 (1987) ("Banks I").

Prior to trial in the Luzerne County Court of Common Pleas, Banks' attorney raised issues with respect to Banks' competency to stand trial. Accordingly, the common pleas court held several pre-trial competency hearings pursuant to the Pennsylvania Mental Health Procedures Act of 1976, Pa. Stat. Ann. tit. 50 §§ 7402-7403 (West Supp.1986), each time concluding that Banks was competent to stand trial. In addition, during the trial, Banks' attorney made several unsuccessful motions seeking competency determinations.

During the trial, Banks' attorney attempted to establish that Banks was legally insane at the time of the offenses, or, alternatively, that his capacity was diminished by alcohol and pills, thereby precluding a finding of first degree murder. Against the advice of counsel, Banks testified and offered a defense that the police, the Wilkes-Barre mayor, and the district attorney were conspiring against him. Banks also cross-examined a ballistic expert, and directed counsel with respect to questions for cross-examination of several of the Commonwealth's witnesses.

On June 21, 1983, the jury convicted Banks of 12 counts of first degree murder, as well as of third degree murder, attempted murder, and other related counts. The next day the jury voted to impose the death penalty. Accordingly, the court sentenced Banks to 12 "consecutive" death sentences and various consecutive terms of imprisonment.

Banks filed an appeal, and the Pennsylvania Supreme Court affirmed his convictions and sentences in Banks I. The court upheld the trial court's determination that Banks was competent to stand trial, found that there was ample evidence that Banks had the requisite intent to kill his victims, and resolved the remaining issues on appeal against Banks. Chief Justice Nix and Justice Zappala dissented on the ground that the common pleas court made the trial a mockery of justice by allowing Banks to take over his own defense.

In February 1989 Banks filed a petition in the common pleas court under the Pennsylvania Post Conviction Hearing Act ("PCHA"), 42 Pa. Cons.Stat. § 9541 et seq. (West 1982), seeking relief from the judgment of conviction and sentence. The Pennsylvania courts treated this petition as if filed under the Post Conviction Relief Act ("PCRA"), 42 Pa. Cons.Stat. § 9541 (West Supp.1997), which had replaced the PCHA. See Commonwealth v. Banks, 540 Pa. 143, 656 A.2d 467, 469 n. 4 (1995) ("Banks II"). The common pleas court denied him relief, and on appeal, the Pennsylvania Supreme Court, finding all his claims meritless, affirmed in Banks II.

On February 21, 1996, after Governor Ridge signed a warrant for his execution, Banks filed a motion in the district court seeking leave to proceed in forma pauperis, a motion to stay the execution, and a motion for appointment of counsel. The district court granted the motion to proceed in forma pauperis, stayed the execution, provided for the appointment of counsel, and directed Banks to file a habeas petition by March 22, 1996. Banks v. Horn, 928 F.Supp. 512, 514 (M.D.Pa.1996) ("Banks III"). Banks then filed a petition raising the following claims:

1. He did not make a knowing, intelligent and voluntary waiver of his Sixth Amendment right to counsel before the trial court allowed him to assume control of the presentation of evidence and cross-examination of witnesses;

2. He was not competent to waive his right to counsel;

3. He did not make a knowing, intelligent and voluntary waiver of his Fifth Amendment right against self-incrimination before the trial court allowed him to assume control of the presentation of evidence and cross-examination of witnesses;

4. He was not competent to waive his Fifth Amendment right against self-incrimination;

5. He was not competent to be tried and sentenced; therefore, the trial court's judgment violated the Due Process Clause of the Fourteenth Amendment and the Cruel and Unusual Punishment Clause of the Eighth Amendment;

6. During the penalty phase of the trial the court's instructions to the jury, the verdict slip, and the jury poll all required the jury to find unanimously both aggravating and mitigating circumstances in violation of the Eighth Amendment;

7. The trial court's failure in the capital sentencing part of the trial to instruct the jury on life imprisonment without parole violated the holding in Simmons v. South Carolina, 512 U.S. 154, 114 S.Ct. 2187, 129 L.Ed.2d 133 (1994), that the Eighth Amendment required such an instruction;

8. The lack of uniformity in death penalty procedures in Pennsylvania did not provide a narrowing of discretion in the imposition of a death sentence as the Eighth Amendment requires;

9. The trial court's failure to instruct the jury that it could render a verdict of life imprisonment based on a finding of mercy violated the Eighth Amendment as applied in California v. Brown, 479 U.S. 538, 107 S.Ct. 837, 93 L.Ed.2d 934 (1987);

10. Pennsylvania's Proportionality Review Statute deprived Banks of his right to due process under the Fourteenth Amendment;

11. The trial court's failure to voir dire prospective jurors on whether they automatically would impose death on a finding of first degree murder was in violation of Morgan v. Illinois, 504 U.S. 719, 112 S.Ct. 2222, 119 L.Ed.2d 492 (1992).

Banks v. Horn, 939 F.Supp. 1165, 1166 (M.D.Pa.1996) ("Banks IV").

Banks recognized that his habeas corpus petition faced a procedural hurdle because he had not raised claims 7, 9, and 11 in the state courts. Consequently, he filed a motion to remand the petition to the state courts and to stay the proceedings in the district court pending exhaustion of claims 7, 9, and 11 in the state courts. See Banks III, 928 F.Supp. at 514. The Commonwealth opposed the motion and urged the district court to dismiss the petition as mixed under Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982), because it included both exhausted and unexhausted claims. By order of April 29, 1996, the district court denied Banks' motion because in its view the adoption in 1995 of the Capital Unitary Review Act, 42 Pa. Cons.Stat. Ann. § 9570 et seq. (West Supp.1997), which limited death penalty appeals to one "unitary" direct appeal of all issues, barred further review of Banks' case in the state courts. See Banks III, 928 F.Supp. at 514. The Commonwealth then filed a motion for reconsideration on the ground that the Capital Unitary Review Act does not apply to cases in which the death penalty was imposed before January 1, 1996.

The district court agreed with the Commonwealth's contention. It concluded, however, that in Pennsylvania "an issue is waived for purposes of post conviction relief if the petitioner failed to raise the issue and it could have been raised before trial, at trial, on direct appeal, or in prior collateral proceedings. 42 Pa. Cons.Stat. Ann. § 9544(b) [ (West Supp.1997) ]." Banks III, 928 F.Supp. at 515. The court then indicated that second or subsequent petitions for post conviction relief will not be entertained in Pennsylvania unless the petitioner makes a strong prima facie showing that a miscarriage of justice may have occurred. There is a miscarriage of justice if the proceedings resulting in conviction were so unfair that no civilized society could tolerate them or if the defendant was actually innocent of the crimes charged. Id.

The court found the innocence prong inapplicable to the unexhausted claims and interpreted the other prong as referring to errors which undermine the truth-determining process. The court concluded from its analysis of Pennsylvania cases addressing similar claims that a Pennsylvania court would not find that the allegations in any of the unexhausted claims set forth circumstances amounting to a miscarriage of justice. Id. at 518-21. Therefore, the district court held that state law clearly foreclosed review by the state courts of the unexhausted claims which thus were procedurally barred. Id. at 521, citing Toulson v. Beyer, 987 F.2d 984 (3d Cir.1993). Consequently, it concluded that Banks' petition was not mixed under Rose v. Lundy, and it therefore denied the Commonwealth's motion to dismiss the petition.

The Commonwealth then moved again to dismiss the petition under Rose v. Lundy, this time alleging that Banks had not exhausted his claim concerning waiver of his right to counsel. The district court denied the motion because...

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  • Banks v. Horn, 4:CV-99-0438.
    • United States
    • United States District Courts. 3th Circuit. United States District Court of Middle District of Pennsylvania
    • 7 Mayo 1999
    ...review of the claims was not clearly foreclosed under state law and therefore not procedurally barred in federal court. Banks v. Horn, 126 F.3d 206 (3d Cir.1997). Since then, the Supreme Court of Pennsylvania has held that four of the issues recited in the instant petition, which include th......
  • Charleston v. Gilmore, 2:15–cv–01437
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • 29 Marzo 2018
    ...there is a firmly established rule that is applied in a consistent and regular manner "in the vast majority of cases." Banks v. Horn, 126 F.3d 206, 211 (3d Cir. 1997) (quoting Dugger v. Adams, 489 U.S. 401, 410 n.6, 109 S.Ct. 1211, 103 L.Ed.2d 435 (1989) ).If a claim is found defaulted, the......
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    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • 26 Junio 2003
    ...procedural rule is `adequate' only if the rule is `consistently or regularly applied.'" Jermyn, 266 F.3d at 278 (quoting Banks v. Horn, 126 F.3d 206, 211 (3d Cir.1997)) (citations omitted). In order for a state procedural rule to provide an adequate basis to bar federal habeas review, "[t]h......
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    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • 1 Mayo 2002
    ...the time he filed his fourth PCRA petition, the § 2254 petition would be dismissed as unexhausted. As we stated in [Banks v. Horn, 126 F.3d 206 (3d Cir. 1997) ("Banks I")], at the relevant time we could not, "with confidence," predict the Pennsylvania court's position regarding procedural b......
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