United States v. Banks, Criminal No. 00-230 (E.D. Pa. 1/8/2002)
| Decision Date | 08 January 2002 |
| Docket Number | Civil No. 01-5145.,Criminal No. 00-230. |
| Parties | UNITED STATES OF AMERICA, v. KEVIN BANKS. |
| Court | U.S. District Court — Eastern District of Pennsylvania |
Presently before this Court is the Defendant Kevin Banks' ("Banks") pro se Habeas Corpus Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255. Banks asserts eight grounds under which he alleges that the sentence should be vacated, set aside or corrected. Six of the eight grounds are waived as they were not raised on direct review. Furthermore, these six grounds are also without merit. The two remaining grounds, ineffective assistance of counsel and the unsuitability of a federal court to hear the claims against him, are also without merit. Therefore, a hearing is not required and the Motion is denied.
On July 25, 2000, Banks was charged in a Second Superceding Indictment with possession of firearms and ammunition by a previously convicted felon in violation of 18 U.S.C. § 922(g)(1).1 Banks was alleged to have possessed two handguns and a round of shotgun ammunition. On July 10, 2000, this Court held a hearing on Banks' Motion to Suppress certain physical evidence and subsequently denied the Motion. On October 3, 2000, Banks was convicted of the charges following a three day jury trial.
The underlying facts concern an incident where officers went to an apartment building with a warrant to arrest William Kearney. Investigator Orest Zachariasevych ("Zachariasevych") and Officer Dennis F. Bauer ("Bauer"), covered the rear of the property while the warrant was executed by Investigator Samuel Turner ("Turner"), Detective John L. Maddox ("Maddox") and other officers at the front door. While Turner, Maddox, and the others were knocking on the front door and announcing that they were police, a man later identified as Banks, leaned out the rear third floor window and pointed a handgun in the direction of Zachariasevych and Bauer. Banks then ducked back inside after the two officers drew their weapons and yelled for Banks to drop his weapon.
Zachariasevych notified Turner, Maddox, and the others by radio that a male with a gun appeared at the third floor rear window. After Maddox, Turner and the other officers heard the radio broadcast, they forced the door to the apartment building open and entered. Maddox went directly to the third floor and entered the rear room. In the room was an open window facing the rear of the property, a bed and a pile of clothes. No one was in the room when Maddox entered. However, Maddox did discover on the bed the handgun which was later identified as the one Banks pointed at Zachariasevych and Bauer. Also discovered in the room were another handgun, a shotgun and Banks' photo identification card. Banks, dressed only in a t-shirt and boxers, then identified himself to Maddox and asked if he could retrieve clothes from his bedroom, which was the room in which Maddox had found the guns and identification.
At the trial, Elbert Corbin ("Corbin"), the owner of the property, testified that Kevin Banks rented the rear third floor room from him. However, Banks presented a witness who testified that Banks did not live at the apartment building and that he had only recently arrived there. Banks also testified that he did not live at the property and had only recently arrived there to talk with Corbin. Banks also presented a witness who stated that she heard a police officer at the front of the building say he could see a gun. Banks did not appeal his conviction.
A pro se petitioner's pleadings should be liberally construed in order to do substantial justice. Irrizari v. U.S., 153 F. Supp.2d 722, 726 (E.D.Pa. 2001) (citing Lewis v. Attorney Gen., 878 F.2d 714, 722 (3d Cir. 1989)). A prisoner, in custody pursuant to a sentence imposed by a federal court, who believes "that the sentence was imposed in violation of the Constitution or laws of the United States, . . . or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence." 28 U.S.C. § 2255; U.S. v. Rodriguez, 153 F. Supp.2d 590, 593 (E.D.Pa. 2001). The district court has discretion in determining whether to hold an evidentiary hearing on a prisoner's motion under Section 2255. Gov't of the Virgin Islands v. Forte, 865 F.2d 59, 62 (3d Cir. 1989); Rodriguez, 153 F. Supp.2d at 593. In exercising that discretion, the court must determine whether the petitioner's claims, if proven, would entitle him to relief and then consider whether an evidentiary hearing is needed to determine the truth of the allegations. Gov't of the Virgin Islands v. Weatherwax, 20 F.3d 572, 574 (3d Cir. 1994); Irrizari, 153 F. Supp.2d at 726.
In U.S. v. Essig, the United States Court of Appeals for the Third Circuit ("Third Circuit") stated that the district court should utilize a two step approach in determining whether a petitioner has raised an issue of material fact that necessitates a hearing. U.S. v. Essig, 10 F.3d 968, 976-977 (3d Cir. 1993). First, if the petitioner is raising an issue for the first time, the court should inquire whether the petitioner's failure to raise any objection at sentencing or on direct appeal constitutes a procedural waiver which would bar the petitioner from bringing the claims. Id. Second, if there is no waiver, the court should inquire into whether the petitioner has alleged an error serious enough to warrant consideration under Section 2255. Id. Only if these two steps are met must the district court hold a hearing to determine if the factual allegations are true. Irrizari, 153 F. Supp. d at 726.
Under the first step, a petitioner is procedurally barred from bringing any claims on collateral review which could have been, but were not, raised on direct review. Bousley v. U.S., 523 U.S. 614, 622 (1998); U.S. v. Biberfeld, 957 F.2d 98, 104 (3d Cir. 1992). Once claims have been procedurally defaulted, the petitioner may only overcome the procedural bar by showing "cause" for the default and "prejudice" from the alleged error. Biberfeld, 957 F.2d at 104. "In this context, `cause' consists of `something external to the petitioner, something that cannot be fairly attributable to him,' and `prejudice' means that the alleged error `worked to [the petitioner's] actual and substantial disadvantage.'" U.S. v. Rodriguez, 153 F. Supp.2d 590, 594 (E.D.Pa. 2001) () .
Under the second step, if the petitioner waived the alleged errors by failing to raise them on direct review, then the court does not determine whether the errors are serious enough to permit collateral review under Section 2255. Id. at 976-77. However, even if the alleged errors were not waived, the errors must be quite serious in order to be actionable. In fact, the Third Circuit has stated that "[h]abeas corpus relief is generally available only to protect against a fundamental defect which inherently results in a complete miscarriage of justice or an omission inconsistent with the rudimentary demands of fair procedure." U.S. v. DeLuca, 889 F.2d 503, 506 (3d Cir. 1989) (citing Hill v. U.S., 368 U.S. 424, 428 (1962)).
Banks asserts eight grounds under which he alleges that the sentence should be vacated, set aside, or corrected. Specifically, Banks alleges: (1) that evidence was gained by an illegal search and seizure; (2) that the officers did not satisfy the "knock and announce" rule; (3) that the officers' statements contradict each other on various issues; (4) ineffective assistance of counsel; (5) that the judge incorrectly answered the jury's question; (6) that the felon in possession of a firearm statute is not suitable for the federal court to adjudicate, but should brought in the state court; (7) that a government witness was threatened by the government; and (8) that Maddox, during the hearing on the Motion to Suppress, described the wrong room as belonging to Banks. Banks has waived Grounds 1, 2, 3, 5, 7, and 8 because he has failed to raise them on direct review. Essig, 10 F.3d at 976. Furthermore these Grounds are also without merit. Ground 4, ineffective assistance of counsel, is also without merit because Banks cannot show that his attorney's, Edson Bostic ("Bostic"), performance fell outside "the wide range of professionally competent assistance" or that he was prejudiced by Bostic's actions. Strickland v. Washington, 466 U.S. 668, 689 (1984). Lastly, Ground 6, that "a convicted felon in possession of a firearm is not suitable for federal court but usually punished by the state", is frivolous and without merit. (§ 2255 Mot., Ground 6).
Banks alleges that the police improperly entered the apartment building because they only had a bench warrant and not a search warrant. Thus, Banks claims that the evidence found in his room was illegally obtained. This issue was raised and rejected in the hearing on the Motion to Suppress. Moreover, Banks did not raise the issue on direct review and thus he has waived it. Essig, 10 F.3d at 976.
Also, Banks has not shown cause for the default or prejudice from the alleged error as the Ground is without merit. Biberfeld, 957 F.2d at 104. The police had probable cause to enter the building and arrest Banks after Banks pointed the handgun at Zachariasevych and Bauer. See e.g. 19 Pa. C.S.A. §§ 908 and 2705. Bank's actions also created exigent circumstances which allowed the police to arrest Banks and search for weapons. Exigent circumstances "include those in which officers fear for their safety, where firearms are present, or where there is a risk of a criminal suspect's escaping or fear of destruction of evidence." U.S. v. Rico, 51 F.3d 495, 501 (5th Cir. 1995). Therefore, the officers were...
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