Banks v. Horn

• Decision Date: 18 August 1999
• Docket Number: No. 4:CV-99-0438.,4:CV-99-0438.
• Citation: 63 F.Supp.2d 525
• Parties: George E. BANKS, Petitioner, v. Martin HORN, Commissioner, Pennsylvania Department of Corrections; James E. Price, Superintendent of State Correctional Institution at Greene; and Raymond Colleran, Superintendent of State Correctional Institute at Waymart; Commonwealth of Pennsylvania, Respondents.
• Court: U.S. District Court — Middle District of Pennsylvania

63 F.Supp.2d 525

George E. BANKS, Petitioner, v. Martin HORN, Commissioner, Pennsylvania Department of Corrections; James E. Price, Superintendent of State Correctional Institution at Greene; and Raymond Colleran, Superintendent of State Correctional Institute at Waymart; Commonwealth of Pennsylvania, Respondents.

No. 4:CV-99-0438.

United States District Court, M.D. Pennsylvania.

August 18, 1999.

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Al Flora, Jr., Wilkes-Barre, PA, William Ruzzo, Kingston, PA, for petitioner.

Peter Paul Olszewski, Jr., District Attorney's Office, Luzerne County Courthouse, Wilkes-Barre, PA, for respondents.

MEMORANDUM

McCLURE, District Judge.

BACKGROUND:

On March 22, 1999, petitioner George E. Banks, an inmate at the State Correctional Institution at Waymart, Wayne County, Pennsylvania, commenced this action with the filing of a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. According to the petition, Banks was convicted in 1983 of twelve counts of first-degree murder, one count of third-degree murder, one count of attempted murder, and one count of robbery. Twelve consecutive sentences of death, plus a consecutive sentence of 25 to 50 years total incarceration, were imposed by the Court of Common Pleas of Luzerne County, Pennsylvania.

Banks has been granted leave to proceed in forma pauperis, counsel has been appointed, and a stay of a previously scheduled execution has issued.

On March 31, 1999, on initial review under Rule 4 of the Rules Governing Section 2254 Cases in the U.S. District Courts, 28 U.S.C. following § 2254, we issued a rule to show cause why four of Banks' claims should not be dismissed as procedurally barred. By Memorandum and Order dated May 7, 1999,¹ we dismissed those four claims as procedurally barred. In his brief, Banks has withdrawn his eighth claim. Brief in Support of Petition for Writ of Habeas Corpus at 14.

The remaining grounds for relief asserted by Banks, numbered as in the petition, are:

(1) The defendant did not effect a knowing, intelligent and voluntary waiver of his Sixth Amendment right to assistance of counsel.

(2) The defendant was not competent to waive his Sixth Amendment right to assistance of counsel.

(3) The defendant did not effect a knowing, intelligent and voluntary waiver of his Fifth Amendment right against self-incrimination.

(4) The defendant was not competent to waive his Fifth Amendment right to protection from self-incrimination.

(5) The defendant was not competent to be tried, convicted and sentenced to death.

(6) The trial court's instructions to the jury in the sentencing phase, the verdict slip, and the jury poll required the jury to unanimously find both aggravating and mitigating circumstances in violation of the defendant's Eighth Amendment right to protection from cruel and unusual punishment.

(10) Pennsylvania's proportionality review statute deprives a defendant of due process of law under the Fourteenth Amendment.

The parties were provided with a briefing schedule, and all briefs have been submitted. The matter is now ripe for disposition.

Banks also has filed a motion to amend the petition to add a claim that he is not competent to be executed. The motion will be denied because, as Banks himself notes, it is not ripe for adjudication. Also, the claim has not been exhausted. The claim therefore is subject to dismissal and amendment would be futile. The motion to amend the petition will be denied.

DISCUSSION:

I. STATEMENT OF FACTS²

On the evening of September 24, 1982, Banks attended a birthday party in Wilkes-Barre. He was accompanied to the party by two girlfriends, and a third girlfriend was in attendance as well. Banks was at the party from approximately 9:00 until about 10:30 p.m. Between midnight and 1:00 a.m. of September 25, 1982, Banks called the location of the party and spoke to one of his girlfriends, Dorothy Lyons. Lyons was visibly upset by the call and left the party, accompanied by the last of Banks' girlfriends still in attendance. She took with her an AR-15 rifle belonging to Banks, apparently at Banks' request. The Colt AR-15 rifle is a military style, semi-automatic weapon, a civilian version of the M-16 used by American servicemen.

Shortly after 1:00 a.m., Banks was seen at a complex in which Lyons had an apartment. He was carrying a bag containing several small boxes, and commented to the witness who saw him that he (the witness) should not surprise people because he might get shot.

Banks was next seen on Schoolhouse Lane in Wilkes-Barre by a group of young people on the street. (Although referred to as "teenagers" by the Supreme Court of Pennsylvania, only one of the members of this group can have been a teenager at the time of the shootings. The two victims were aged 23 and 24, and a woman who was not shot was 21 at the time of trial. The remaining person present (a man) was 20 at the time of trial.) Banks owned a home at 28 Schoolhouse Lane in which noises like gunshots were heard by the youths at about 2:00 a.m. Banks appeared on the street wearing coveralls which witnesses consistently described as appearing to be of a military appearance. One of the youths stated that he knew Banks, to which Banks responded that he was "not going to live to tell anybody about this," and shot two of the youths. One of them survived but the other was pronounced dead later that morning.

When police were summoned to the scene, they called for an ambulance. Also, they were told about the sound of gunfire from 28 Schoolhouse Lane and went there to investigate. Inside they found the lifeless bodies of the three girlfriends of Banks who had been at the party as well as their five children, four of whom were fathered by Banks. All had gunshot wounds.

Banks was next seen in the vicinity of a lounge called the Cabaret. Two men were in their cars talking when Banks approached, in the same outfit, and pointed the AR-15 at the head of one of the men. Banks demanded that the man move over and got into the car. Banks let the owner out after a short distance but left with the car.

At about 2:30 a.m. shots were heard at the Heather Highlands Trailer Park in Jenkins Township, Luzerne County. Two boys present in one of the trailers described how Banks entered the trailer and grabbed Sharon Mazzillo (another girlfriend) with one arm while holding the AR-15 in the other. Banks said something like, "I shot some of my family, now I'm going to shoot some of yours." He then shot his son by Sharon, Kissmayu Banks, who was asleep on the couch. Sharon and her mother, Alice Mazzillo, then tried to push Banks out of the trailer, and Alice went to the bedroom to call police. Banks shot Sharon as she tried to run out the door of the trailer. Banks next choked, shot and kicked Scott Mazzillo, then struck him with the butt of the rifle. Finally, Banks shot Alice and left. One of the two boys left alive by Banks lifted the phone from Alice's body and completed the call to the police.

Banks later was tracked to his mother's home, but left before police arrived. Eventually, Banks was located in the home of a friend, having barricaded himself inside. Police surrounded the house but did not enter since Banks still had the AR-15 and was suspected of having hand grenades. Police tried to convince Banks that his children were still alive and needed his help. After more than four hours, Banks was talked out of the house and taken into custody. He made numerous statements admitting to the shootings.

Explaining conduct like that of Banks probably can never be done adequately. At trial, the Commonwealth took the position that Banks was motivated by a fear that he was losing control over his "family." Defense counsel presented psychiatric experts who testified that Banks suffered from paranoid psychosis. Succinctly stated, the experts testified that Banks, who is biracial, believed that he was the victim of a racist conspiracy. There was evidence also that Banks had made statements to the effect that he did not want his children to grow up in a racist world, and killed them to save them from suffering the effects of racism as Banks had.

II. PROCEDURAL HISTORY

As indicated above, see Note 2, this case has been before this court previously. To place the matter into context, since the resolution of Banks' claims is affected, we will provide a procedural history of the case. A chronology of some of the more important events of this case is appended to this opinion as Court's Appendix I.

After Banks was convicted in the Court of Common Pleas of Luzerne County, he pursued a direct appeal to the Supreme Court of Pennsylvania, which affirmed. Commonwealth v. Banks, 513 Pa. 318, 521 A.2d 1 (1987) (Banks I). The Supreme Court of the United States denied a petition for certiorari. Banks v. Pennsylvania, 484 U.S. 873, 108 S.Ct. 211, 98 L.Ed.2d 162 (1987). Banks then sought post-conviction, collateral relief in the Court of Common Pleas under the Pennsylvania Post Conviction Hearing Act which was considered under the Post Conviction Relief Act (PCRA), 42 Pa.Cons. Stat.Ann. §§ 9541 et seq., which had become effective; the denial of relief was affirmed by the Supreme Court of Pennsylvania. Commonwealth v. Banks, 540 Pa. 143, 656 A.2d 467 (1995) (Banks II). The Supreme Court of the United States again denied a petition for certiorari. Banks v. Pennsylvania, 516 U.S. 835, 116 S.Ct. 113, 133 L.Ed.2d 65 (1995).

After Pennsylvania Governor Thomas Ridge signed a death warrant for execution during the week of March 3, 1996, Banks filed with this court, inter alia, a motion to stay execution. We granted that motion and Banks filed a petition for a writ of habeas corpus under § 2254. We denied a motion to dismiss the petition as a mixed petition, finding that unexhausted claims were procedurally barred in the Pennsylvania courts. Banks v. Horn, 928 F.Supp. 512 (M.D.Pa.1996) (Banks III). See also Rose v. Lundy, 455...