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BANKS v. HORN

May 7, 1999

GEORGE E. BANKS, PETITIONER,
v.
MARTIN HORN, COMMISSIONER, PENNSYLVANIA DEPARTMENT OF CORRECTIONS; JAMES PRICE, SUPERINTENDENT OF THE STATE CORRECTIONAL INSTITUTION AT GREENE; RAYMOND COLLERAN, SUPERINTENDENT OF THE STATE CORRECTIONAL INSTITUTION AT WAYMART; AND THE COMMONWEALTH OF PENNSYLVANIA, RESPONDENTS.



The opinion of the court was delivered by: McCLURE, District Judge.

MEMORANDUM

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. Before the court is Banks' response to the rule to show cause.

The facts underlying Banks' conviction having been recited in a number of the published opinions related to this case, we will not repeat them here. Because the legal questions before us are narrow, any repetition of the facts is unnecessary. Specific reference is made to the thorough recitation provided by the Supreme Court of Pennsylvania in its first opinion. See Commonwealth v. Banks, 513 Pa. 318, 324-335, 521 A.2d 1, 3-9 (1987).

DISCUSSION:

I. CLAIMS AT ISSUE

The grounds asserted by Banks which we indicated appear to be procedurally barred (numbered as in our prior order) are:

(7) The trial court, in the sentencing hearing, failed to instruct the jury on life imprisonment without parole in violation of the defendant's rights to protection from cruel and unusual punishment and due process of law under the Eighth and Fourteenth Amendments.

(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 engendered from the evidence violated the defendant's Eighth Amendment right to protection from cruel and unusual punishment.

(11) The trial court's failure to voir dire prospective jurors on whether they would automatically impose a sentence of death upon a finding of first degree murder deprived the defendant of a jury which would consider mitigating evidence in a capital sentencing hearing in violation of the Eighth Amendment.

(12) The trial court improperly applied a clear and convincing standard for the burden of proof rather than a preponderance of the evidence standard in determining whether the defendant met his burden of proof as to competency to stand trial and to waive his Fifth and Sixth Amendment rights.

II. PROCEDURAL DEFAULT

In Coleman v. Thompson, 501 U.S. 722, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991), the Supreme Court of the United States discussed the concept of procedural default, which implicates the independent and adequate state ground doctrine. A federal court will not review a question of federal law which has been procedurally defaulted in state court if the decision of the state court is independent of the federal question and adequate to support the judgment. Id. at 727-729, 111 S.Ct. 2546. However, there must be a clear and express statement by the state court that its decision is based upon state law. Id. at 731-735, 111 S.Ct. 2546.

Once it is determined that a federal claim has been procedurally defaulted, a federal court to which a petition for a writ of habeas corpus is presented will consider the claim only if the petitioner can demonstrate cause for the default and prejudice as a result of the violation of federal law (the cause and prejudice standard), or that failure to consider the claim will result in a fundamental miscarriage of justice. Id. at 750, 111 S.Ct. 2546. See generally Carpenter v. Vaughn, 888 F. Supp. 635, 644-646 (M.D.Pa. 1994) (summarizing Coleman).

The case was before this court previously, and we denied a motion to dismiss the petition as a "mixed petition" under Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982), and Toulson v. Beyer, 987 F.2d 984 (3d Cir. 1993). See Banks v. Horn, 928 F. Supp. 512 (M.D.Pa. 1996). The Third Circuit reversed, holding that 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 the three claims which we held were procedurally barred, are time-barred under Pennsylvania law. Commonwealth v. Banks, 726 A.2d 374, 1999 WL 104576 (Pa. Mar.2, 1999) (citing 42 Pa.Cons.Stat.Ann. § 9545(b), which sets forth a one-year limitation period on petitions under the Post Conviction Relief Act). It was this ruling which formed the basis for our determination that the four claims recited above probably are barred as having been procedurally defaulted, and for our issuance of the rule to show cause.

We turn, then, to the reasons recited by Banks for finding that the claims have not been procedurally defaulted or that the default should be excused.

III. ADEQUACY OF STATE GROUNDS

Banks first argues that the state rule applied by the Supreme Court of Pennsylvania does not furnish an adequate basis for denying relief. The crux of this argument lies in amendments to the Pennsylvania Post Conviction Relief Act (PCRA), 42 Pa.Cons.Stat.Ann. §§ 9541 et seq. The amendments, enacted in 1995 and effective January 16, 1996, included the one-year time limitation on the filing of a petition under the PCRA, § 9545(b), which is jurisdictional in nature. Banks, 726 A.2d 374, 376.

Banks argues that the state procedural rule is not "adequate" because, at the time he filed his second PCRA petition, he could no longer pursue an avenue of relief which was available to him prior to the amendment. He relies on Ford v. Georgia, 498 U.S. 411, 111 S.Ct. 850, 112 L.Ed.2d 935 (1991), for this proposition.

In Ford, the defendant filed a pre-trial motion in state court to preclude the prosecution from exercising its peremptory strikes in a racially discriminatory manner, and defense counsel argued the motion at a pretrial hearing. Id. at 414-415, 111 S.Ct. 850. The motion was denied. Id. at 415, 111 S.Ct. 850. On the second day of trial, the trial judge held a conference in chambers and placed on the record the manner in which the prosecution used its peremptory strikes. Id. at 416, 111 S.Ct. 850.

At that time, the applicable opinion of the Supreme Court of the United States was Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965). After the defendant's conviction and sentence were affirmed by the Supreme Court of Georgia, he petitioned for certiorari with the Supreme Court of the United States. While that petition was pending, the Supreme Court issued its opinion in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), altering the burden of proof for such a claim. While not generally retroactive, Allen v. Hardy, 478 U.S. 255, 106 S.Ct. 2878, 92 L.Ed.2d 199 (1986), the rule of Batson was held to apply to all cases pending on direct review or not final when Batson was issued. Griffith v. Kentucky, 479 U.S. 314, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987). The Supreme Court of the United States granted the petition for certiorari in Ford and remanded the case for further consideration. Ford at 417, 111 S.Ct. 850.

On remand, the Supreme Court of Georgia held that the claim was procedurally barred based on its intervening decision in State v. Sparks, 257 Ga. 97, 355 S.E.2d 658 (1987), that a Batson claim had to be raised prior to the time the jurors selected for trial were sworn. Ford at 417-418, 111 S.Ct. 850.*fn1 Since the defendant had not made an objection between jury selection and trial, according to the Supreme Court of Georgia, the Swain/Batson claim was barred by the state procedural rule.

The Supreme Court of the United States reversed, holding that, because the applicable state procedural rule was not clearly established at the applicable time, the rule was not adequate to support the judgment.

The application of the opinion in Ford is a bit confusing, mostly due to the different procedural posture. When the Supreme Court reviews a state court decision pursuant to a writ of certiorari, see 28 U.S.C. § 1257, it is reviewing the judgment of the state court. If resolution of a federal question does not affect the judgment, "there is nothing for the Court to do," Coleman at 730, 111 S.Ct. 2546, and the Supreme Court lacks jurisdiction. Review of the independence and adequacy of the asserted state procedural bar is therefore a necessary part of the Supreme Court's review of the judgment.

In contrast, a federal court on habeas review is determining the lawfulness of the petitioner's custody "simpliciter," and not the judgment itself. Id. Still, because custody is pursuant to a state judgment, the independent and adequate state ground doctrine applies for reasons of comity and federalism, as opposed to jurisdiction. Id. at 730-731, 111 S.Ct. 2546. Thus, in Ford, the Supreme court exercised its jurisdiction by remanding for consideration of the constitutional issue by the state courts because the asserted state procedural bar was not adequate. 498 U.S. at 425, 111 S.Ct. 850. See also James v. Kentucky, 466 U.S. 341, 351-352, 104 S.Ct. 1830, 80 L.Ed.2d 346 (1984) (remanding to state court for harmless error analysis when state procedural bar inadequate). In contrast, in the habeas context, the fact that the state courts did not base a decision on an independent and adequate state ground permits the federal court to consider the merits of the constitutional issue. Coleman at 735, 111 S.Ct. 2546. Regardless, the independent and adequate state ground doctrine applies with equal force in both contexts, as it is the basis for its application, and not the manner of its application, that differs.

In Ford, the Supreme Court emphasized that the timeliness of the exercise of local power is essential in determining the sufficiency of a procedural bar. 498 U.S. at 423, 111 S.Ct. 850. The state rule must be "firmly established and regularly followed" at the time of trial, or such other appropriate time for action, to prevent review of a constitutional claim. Id. at 423-424, 111 S.Ct. 850 (quoting and citing James at 348-351, 104 S.Ct. 1830). In Ford, the Sparks rule did not exist at the time of the defendant's trial, so that he could not have known that an objection to the prosecution's use of peremptory strikes had to be raised between jury selection and the oath. Since the defendant could not have known to raise his constitutional claim at the appropriate time, a judgment that he failed to do so was inadequate to bar presentation of the claim. Id. at 424, 111 S.Ct. 850. The same principle applied in James, in which the Supreme Court noted that Kentucky's distinction between "instruction" and "admonition" was not applied in a consistent manner at the time of the defendant's trial, i.e. the time at which he would have to raise the constitutional claim at issue. The claim there related to the defendant's entitlement to an instruction to the jury on the proscription on drawing an adverse inference from the failure of the defendant to testify. Id. at 350-351, 104 S.Ct. 1830.

The Third Circuit has held that a state rule may provide an independent and adequate ground only if: "(1) the state procedural rule speaks in unmistakable terms; (2) all appellate courts refused to review the petitioner's claims on the merits; and (3) the state courts' refusal in this instance is consistent with other decisions." Doctor v. Walters, 96 F.3d 675, 683-684 (3d Cir. 1996), reh'g and reh'g in banc denied. In this instance, the rule is statutory and clear, i.e. "speaks in unmistakable terms." The only appellate court which may review the claims, the Supreme Court of Pennsylvania, refused. There are no other opinions with which to compare the Supreme ...


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