271 F.3d 527 (3rd Cir. 2001), 99-9005, Banks v Horn

Docket Nº:99-9005
Citation:271 F.3d 527
Case Date:October 31, 2001
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

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271 F.3d 527 (3rd Cir. 2001)




No. 99-9005

United States Court of Appeals, Third Circuit

October 31, 2001

Argued April 2, 2001

On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. Civil No. 99-CV-00438) District Judge: Honorable James F. McClure, Jr.

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Albert J. Flora, Jr., Esq. [argued], 33 West South Street Wilkes-Barre, PA 18701 and William Ruzzo, Esq., 400 Third Avenue, Suite 109 Kingston, PA 18704, Counsel for Appellant George E. Banks.

Scott C. Gartley, Esq. [argued], David W. Lupas, Esq., Office of District Attorney, 200 North River Street Luzerne County Courthouse Wilkes-Barre, PA 18711, Counsel for Appellee Commonwealth of Pa.

Peter Goldberger, Esq., Law Office of Peter Goldberger. 50 Rittenhouse Place Ardmore, PA 19003-2276, Counsel for Amicus-Appellant PA Association of Criminal Defense Lawyers.

Louis M. Natali, Esq. [argued], Turner & McDonald, 1725 Spruce Street Philadelphia, PA 19103, Counsel for Amici-Appellants PA Association of Criminal Defense Lawyers and Louis M. Natali.

Before: Sloviter, Roth and Rendell, Circuit Judges


Rendell, Circuit Judge

George Banks was convicted by a Luzerne County, Pennsylvania jury of having committed thirteen murders, and was sentenced to death. His direct appeals and filings under the Pennsylvania Post-Conviction Relief Act ("PCRA") failed. He sought habeas corpus relief in the District Court under 28 U.S.C. S 2254, which was denied. He comes before us now to appeal the District Court's ruling.

We have jurisdiction over this appeal pursuant to 28 U.S.C. SS 1291 and 2253. The District Court granted a certificate of appealability as to whether the sentencing phase instructions and forms violated Mills v. Maryland, 486 U.S. 367 (1988), under our precedent in Frey v. Fulcomer, 132 F.3d 916 (3d Cir. 1997), cert. denied, 524 U.S. 911 (1998). By order entered June 27, 2000, we agreed to expand the certificate of

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appealability to include the issue of whether Banks failed to make a knowing, intelligent, and voluntary waiver of his Sixth Amendment right to counsel.

Because Banks's habeas corpus petition was filed after April of 1996,1 the role of the District Court in reviewing the state court proceedings was governed by AEDPA.2 Accordingly, the District Court's task was to determine whether the state court's decision was either contrary to or an unreasonable application of Supreme Court precedent. The District Court found no basis on which to dispute the state court's ruling. Because the question of whether the District Court appropriately applied the AEDPA standard of review is a question of law, we review its conclusions in that regard de novo. Berryman v. Morton, 100 F.3d 1089, 1095 (3d Cir. 1996).


On September 25, 1982 in Wilkes-Barre, Pennsylvania, Banks shot fourteen people with a Colt AR-15 semi-automatic rifle, killing thirteen and wounding one. The AR-15 is a civilian version of the military's M-16 rifle. Banks began his deadly spree at his own home, where he shot and killed three of his girlfriends and their five children, four of whom Banks himself had fathered. Banks then left his home clad in what appeared to be military fatigues. On the street outside he happened upon a group of bystanders who had heard the shots. Banks shot and killed one, a young man who had recognized him, and also shot and seriously wounded another. Banks then carjacked a car and drove to a trailer park, where he shot another girlfriend, their son, a second boy, and the girlfriend's mother. Two other boys survived the attack. After a stand-off at a friend's house, Banks surrendered.

At trial, the defense offered psychiatric experts who testified that Banks, who is bi-racial, suffered from paranoid psychosis and was convinced that he was a victim of a racist conspiracy. The theory was offered that he killed his children to save them from suffering racism as he had. Banks testified on his own behalf and insisted on referring to graphic, gruesome pictures of the murders to try to show that there was a government conspiracy against him. Banks alleged that his shots had only wounded, not killed, some of the victims, and that the police had fired the lethal shots, after which some of the bodies were moved. He also alleged that the medical examiner covered up some wounds and enlarged or altered others to distort the information presented to the jury. He sought throughout the trial to exhume the bodies.

Banks was convicted by a state court jury of twelve counts of first degree murder, one count of third degree murder, criminal attempt to commit murder, two counts of recklessly endangering another person, robbery and theft by unlawful taking or disposition. In the penalty phase, the jury sentenced Banks to death and imprisonment.

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Banks filed direct appeals and sought collateral relief in the state courts, as well as filing for federal habeas corpus relief. We need not detail all these proceedings, except that one aspect of the procedural posture of the case deserves attention. The government had argued to the District Court that Banks's habeas corpus petition was not filed in a timely manner. Under AEDPA, Banks was required to file his petition within one year of April 24, 1996, unless the deadline was equitably tolled during the time a "properly filed" state petition for relief was pending. The government contended that because Banks's state court PCRA petition was filed late, it should not be deemed to have been "properly filed" for purposes of the tolling provisions under the federal statute. See 28 U.S.C. S 2244(d)(2). The government based its argument in part on Lovasz v. Vaughn, 134 F.3d 146, 148 (3d Cir. 1998) ("We believe that a `properly filed application' is one submitted according to the state's procedural requirements, such as the rules governing the time and place of filing.").

The government relied on the Pennsylvania Supreme Court's ruling in 1999 that the requirement for timely filing was "jurisdictional," rather than merely a statute of limitations. See Commonwealth v. Banks, 726 A.2d 374, 376 (Pa. 1999) ("Banks VI"). The District Court did not accept that argument, however, noting that Banks could not be said to have been on notice prior to the Pennsylvania Supreme Court's holding in Banks VI that the Commonwealth would consider S 9545(b) to be jurisdictional, and that, especially in light of relaxed waiver in capital cases, and the policy of equitable tolling, Banks should not be barred because he reasonably could have construed the time requirement as procedural only. See Banks v. Horn, 63 F.Supp.2d 525, 533-34 (M.D. Pa. 1999) ("Banks VIII"). The District Court noted that since the exceptions allowed courts to hear some untimely petitions, not every provision in the statute could be jurisdictional, and, absent clear jurisdictional language, it is "entirely reasonable to conclude that S 9545(b) is a statute of limitations rather than a jurisdictional provision." Id. at 533. In Banks VI, the Pennsylvania Supreme Court cited to its decision in Commonwealth v. Peterkin, 722 A.2d 638 (Pa. 1998), petition for habeas corpus dismissed sub nom. Peterkin v. Horn, 34 F.Supp.2d 289 (E.D. Pa. 1998), which states simply that the "General Assembly amended the PCRA to require that, as a matter of jurisdiction, a PCRA petition must be filed within one year of judgment," but the statement was not the court's holding, and the court did not elaborate on the reasoning underlying its conclusion. Peterkin, 722 A.2d at 641. Banks VI was the first time the Pennsylvania Supreme Court held that a court was deprived of jurisdiction when the deadline was not met. As the District Court noted, by concluding that the time limitation was jurisdictional, the Pennsylvania Supreme Court thought it was foreclosed from applying the relaxed waiver standard in Banks's case. 63 F.Supp.2d at 533.

Banks argues that, quite apart from the issue of how the "properly-filed" requirement of 28 U.S.C.S 2244(d)(2) is construed, we should consider his habeas petition as properly before us. First, he urges that because his first petition was filed pre-AEDPA he is not bound by AEDPA's provisions. In the alternative, he takes the position that the issue of timeliness of his habeas petition is not even before us on appeal since the government has not challenged the District Court's ruling in its counterstatement of issues, and has failed to discuss the issue in its brief, except for

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its conclusory reference to its position in a footnote.

Banks argues that his habeas petition was timely because it was not governed by AEDPA's one-year limitation period, but, rather, by pre-AEDPA law. In support of this theory, Banks urges that the habeas petition he filed in the District Court after AEDPA merely reasserted claims previously filed pre-AEDPA, so that it "relates back to the original filing date of Banks' pre-AEDPA petition." We disagree. The applicability of AEDPA does not turn upon a comparison of claims in successive petitions. It is, rather, governed solely by the date of the petition's filing. See, e.g., Hull v. Kyler, 190 F.3d 88, 103 (3d Cir. 1999); Jones v. Morton, 195 F.3d 153, 160-61 (3d Cir. 1999). Any petition that is filed subsequent to AEDPA is governed by AEDPA standards. In his argument, Banks relies on Coss v. Lackawanna Cty. Dev. Auth., 204 F.3d 453 (3d Cir...

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