Banks v. State, PC

Citation953 P.2d 344,1998 OK CR 5
Decision Date15 January 1998
Docket NumberNo. PC,PC
Parties1998 OK CR 5 Walter BANKS, Petitioner, v. The STATE of Oklahoma, Respondent. 95-138.
CourtUnited States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

ORDER DENYING POST-CONVICTION APPEAL OUT OF TIME

¶1 The Petitioner, Walter Banks, filed the above-styled appeal from an order of the District Court of Tulsa County denying his application for post-conviction relief in Case No. CRF-79-3393. This post-conviction appeal was dismissed by this Court because it was not filed within the time periods prescribed by the Oklahoma Statutes and the Rules of this Court. Banks v. State, No. PC 95-138 (Okl.Cr. April 14, 1995) (not for publication).

¶2 It recently came to our attention that an order had been entered by the United States District Court for the Northern District of Oklahoma (hereinafter, the "Federal District Court"), on October 3, 1997, granting a conditional writ of habeas corpus: "[t]he writ shall issue unless, within sixty (60) days of the entry of this Order, the State of Oklahoma grants Petitioner an out-of-time appeal of the Tulsa County District Court's denial of the application for post-conviction relief, filed December 22, 1994." Also, on December 10, 1997, the Respondent, the State of Oklahoma, by and through the Attorney General, filed a motion in the above-styled proceeding asking this Court to grant a post-conviction appeal out of time. For the reasons set forth below, we decline to grant Banks a post-conviction appeal out of time.

¶3 Our judicial system, and our government, are based on principles of federalism. The United States Constitution is the guiding law of the federal government and all state governments, and United States Supreme Court decisions specifically interpreting the United States Constitution are binding in all courts of every jurisdiction. However, each state has its own separate, independent constitution, government and judiciary. Oklahoma's constitution creates a judicial system which includes two courts of last resort, the Oklahoma Supreme Court (for civil matters) and the Oklahoma Court of Criminal Appeals (for criminal matters). 1 The Legislature and these Courts may promulgate laws and rules which govern parties and practice before all Oklahoma courts. State courts are entitled to rely on these laws and rules in deciding cases. Federal courts may not second-guess a state legislature or state judicial system. Indeed, with the sole exception of the United States Supreme Court, no federal court has any appellate or supervisory authority over this Court or any other state court. If a state law, or a state court rule, does not violate the federal constitution or infringe on a federally-created right, the federal courts are bound by the state rule. The rule may differ from federal rules; it may not make sense; it may even be bad. However, absent a federal constitutional right or claim, a federal court may not review the law de novo and simply disagree with it. Federal courts must apply state procedural rules, no matter what they may think of them, in cases decided exclusively on those rules.

¶4 In this case we are faced with the results of a failure of federalism. The Federal District Court, presented with several federally-based questions, chose instead to decide Walter Banks's federal habeas corpus case by offering its own interpretation of an Oklahoma Court of Criminal Appeals procedural rule. Worse, the Federal District Court has woefully misinterpreted both the rule in question and the relevant state law. In fact, the Federal District Court fails to discuss either the correct rule or the appropriate case law, and appears to misunderstand the relationship between this Court and the Oklahoma Supreme Court.

¶5 Practice in the Oklahoma Court of Criminal Appeals is governed by the Rules of the Court of Criminal Appeals, 2 and guidance in applying those Rules is found in cases decided by the Court of Criminal Appeals. This Court dismissed Banks's appeal from the trial court's denial of his application for post-conviction because it was untimely filed. Banks's appeal was not filed "within thirty (30) days from the entry of the judgment" as required by the Oklahoma Legislature, and by Rule 5.2 which is consistent with the mandates of the Legislature and with constitutional requirements. 3 Rule 5.2(A) specifically directs parties who wish to file an appeal out of time in post-conviction proceedings to Rule 2.1(E). 4 Rather than follow this Court's Rules and request an appeal out of time, Banks filed his federal habeas petition. The Federal District Court Order recognizes our decision was based on Rule 5.2, but its reasoning focuses exclusively on the "mailbox rule" and cites Oklahoma Supreme Court cases for the interpretation of that rule. 5 This amounts to an interesting academic exercise but has no relevance to practice before this Court. Whether Banks's appeal would have been timely filed under Oklahoma Supreme Court rules or case law has no bearing on whether it was timely filed in this Court. This Court does not recognize the "mailbox rule" for criminal proceedings in Oklahoma, 6 but uses the appeal out of time procedures specified for post-conviction proceedings in Rules 5.2 and 2.1(E) if an appeal is not timely filed. As our subsequent discussion shows, Rules 5.2 and 2.1(E) violate neither the federal nor Oklahoma constitutions and are at least as fair as the "mailbox rule".

¶6 The procedures established for criminal proceedings in Oklahoma provide for an appeal out of time when a prisoner could not appeal or his appeal was not timely filed "through no fault of his own." 7 The protection afforded a pro se prisoner under this procedure is at least equal to, and in our judgment is greater than that afforded under a mere "mailbox rule". Under our appeal out of time procedure, a delay in filing the appeal or even the inability to file the appeal--for any reason, not just late mailing by prison officials--that is not the fault of the pro se prisoner, can result in relief. Moreover, our procedures allow the trial court to initially resolve factual disputes concerning why the appeal was not timely filed. This Court functions as an appellate court and cannot efficiently decide factual disputes.

¶7 As stated, the Federal District Court's attempt to force a "mailbox rule" into Oklahoma criminal proceedings seems to be a misunderstanding of Oklahoma law and a misapplication of Oklahoma Supreme Court authority. This Court has exclusive appellate jurisdiction in Oklahoma "in criminal cases." 8 Therefore, Oklahoma Supreme Court case law adopting and applying a "mailbox rule" in civil cases has no precedential effect on this Court. The Federal District Court's order cites no authority, and we have found none, which requires a state to adopt a "mailbox rule" in order to meet minimum federal or state constitutional requirements. Such rules are based upon statutory procedural requirements and not on constitutional requirements. 9 This includes the procedural requirements for an appeal out of time in post-conviction proceedings specified by Rules 5.2(A) and 2.1(E). 10

¶8 The Federal District Court has ordered the State of Oklahoma to grant Banks an appeal out of time or that Court will order his release. This Order was made even though Banks has not requested an appeal out of time, as required by our rules, and was based on a misunderstanding of state procedural rules. We decided Banks's original post-conviction appeal correctly: his petition did not comply with our Rules and we had no choice but to dismiss it. Banks could still request an appeal out of time under Rule 2.1(E). Our rules are fair, reasonable, and constitutional, and the Federal District Court is required to respect them rather than rewrite...

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11 cases
  • Taylor v. City of Bixby, Case No. 12-CV-0066-CVE-FHM
    • United States
    • U.S. District Court — Northern District of Oklahoma
    • December 10, 2012
    ...out of time when a prisoner could not appeal or his appeal was not timely filed 'through no fault of his own.'" Banks v. State, 953 P.2d 344, 346 (Okla. Crim. App. 1998). "If petitioner seeks an appeal out of time, the proper procedure is to file an Application for Post-Conviction Relief re......
  • Fitzgerald v. State
    • United States
    • United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
    • December 10, 1998
    ...in this case rather than the general statements of our belief of what should be done under Ake. As we set out in Banks v. State, 953 P.2d 344, 346-47 (Okl.Cr.1998), if our decision on an issue is not a violation of the federal Constitution, then regardless of whether it is right, wrong or a......
  • Gibson v. Klinger
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • November 14, 2000
    ...the appellate courts before filing an actual appeal out of time. Okla. Stat. tit. 22, 18 app. rule 2.1(E)(1); Banks v. Oklahoma, 953 P.2d 344, 346-47 (Okla. Crim. App. 1998). Under Oklahoma's rule, a petitioner seeking permission to appeal out of time must file an "application for Post-Conv......
  • Moore v. Gibson
    • United States
    • United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
    • April 4, 2001
    ...This Court has exclusive appellate jurisdiction over criminal cases in Oklahoma. Okla. Const. art. 7, § 4; see Banks v. State, 1998 OK CR 5, 953 P.2d 344, 346; see also State ex rel. Henry v. Mahler, 1990 OK 3, 786 P.2d 82, 85. Actions brought pursuant to the Oklahoma Uniform Post Convictio......
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