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BANKS v. HORN
August 18, 1999
GEORGE E. BANKS, PETITIONER,
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.
The opinion of the court was delivered by: McCLURE, District Judge.
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,*fn1 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withdrawn his eighth claim.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
(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
(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
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.
I. STATEMENT OF FACTS*fn2
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
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.
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
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.
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
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 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982)
(mixed petition is one with both exhausted and unexhausted
claims, and must be dismissed); Toulson v. Beyer, 987 F.2d 984
(3d Cir. 1993) (if unexhausted claims are procedurally barred in
state court, district court must dismiss unexhausted claims and
consider merits of exhausted claims, but state law must clearly
foreclose consideration of unexhausted claims). We then
considered the merits of Banks' remaining claims and denied the
petition. Banks v. Horn, 939 F. Supp. 1165 (M.D.Pa. 1996)
The Third Circuit reversed and remanded for dismissal of the
petition as mixed, finding that Pennsylvania law did not clearly
foreclose consideration of the unexhausted claims. Banks v.
Horn, 126 F.3d 206 (3d Cir. 1997) (Banks V). While the case
was pending before the Third Circuit, Banks filed a second
petition under the PCRA in the Court of Common Pleas, which
denied relief. The Supreme Court of Pennsylvania affirmed the
denial of relief, not for the reasons recited by the Court of
Common Pleas, but instead finding that the second petition was
time-barred under the amended version of the PCRA. Commonwealth
v. Banks, 726 A.2d 374 (Pa. 1999) (Banks VI).
After Governor Ridge again signed a death warrant, Banks
brought the instant petition under § 2254, and a stay of
execution again has issued. As noted above, see "BACKGROUND"
and Banks v. Horn, 49 F. Supp.2d 400 (M.D.Pa. 1999) (Banks
VII), we have dismissed four of Banks' claims as procedurally
barred under state law, and the petition no longer is a mixed
Respondents argue that Banks' petition is untimely under the
one-year limitations period permitted for bringing a § 2254
petition after passage of the Antiterrorism and Effective Death
Penalty Act of 1996 (AEDPA), Pub.L. 104-132, 110 Stat. 1214. The
relevant provision reads:
(d)(1) A 1-year period of limitation shall apply to
an application for a writ of habeas corpus by a
person in custody pursuant to the judgment of a State
court. The limitation period shall run from the
latest of —
(A) the date on which the judgment became final
by the conclusion of direct review or the
expiration of the time for seeking such review;
(B) the date on which the impediment to filing an
application created by State action in violation of
the Constitution or laws of the United States is
removed, if the applicant was prevented from filing
by such State action;
(C) the date on which the constitutional right
asserted was initially recognized by the Supreme
Court, if the right has been newly recognized by
the Supreme Court and made retroactively applicable
to cases on collateral review; or
(D) the date on which the factual predicate of
the claim or claims presented could have been
discovered through the exercise of due diligence.
(2) The time during which a properly filed
application for State post-conviction or other
collateral review with respect to the pertinent
judgment or claim is pending shall not be counted
period of limitation under this subsection.
According to respondents, Banks' judgment of conviction and
sentence became final in 1987, when the Supreme Court of
Pennsylvania affirmed on direct appeal and the Supreme Court of
the United States denied certiorari. In Burns v. Morton,
134 F.3d 109 (3d Cir. 1998), however, the Third Circuit held that
petitioners must be afforded at least one year from the effective
date of AEDPA before § 2244(d)(1) will bar the petition because
they did not have notice of the limitation until AEDPA's
effective date. Thus, the limitations period within which Banks
was required to file a petition did not begin until at least
April 24, 1996.
In addition, the Third Circuit has held that the time limit
established by § 2244(d)(1) is a statute of limitations subject
to equitable tolling. Miller v. N.J. State Dept. of
Corrections, 145 F.3d 616 (3d Cir. 1998).
On April 24, 1996, there were proceedings already pending in
this court, and the matter went to the Third Circuit. The Third
Circuit issued its opinion remanding to this court on September
19, 1997 (Banks V); we received a certified copy of the Third
Circuit's judgment on October 17, 1997, and dismissed the action
pursuant to that judgment on October 24, 1997. We think it
evident that the time before October 24, 1997, is excluded from
the period of limitations because a petition actually was pending
in federal court during that time. The proceedings related to
Banks' second PCRA petition were pending when the Third Circuit
issued its order remanding for dismissal. Those proceedings ended
when the Supreme Court issued its opinion, Banks VI, on March
2, 1999. The instant proceedings began on March 22, 1999.
Respondents rely on Lovasz v. Vaughn, 134 F.3d 146 (3d Cir.
1998), in which the Third Circuit considered the tolling
provision of § 2244(d)(2). Under that provision, the period
during which a "properly filed" petition for collateral review is
pending is not counted for purposes of § 2244(d)'s limitations
period. The question becomes, then, whether the limitations
period was tolled after the prior case in this court was
dismissed and during the pendency of Banks' second PCRA petition,
or between October 24, 1997, and March 2, 1999. More succinctly
and directly stated, was Banks' second PCRA petition "properly
filed"? According to respondents, it was not, because a petition
must be timely to be properly filed. Lovasz at 147.
In our memorandum issued May 7, 1999 (Banks VII), we
discussed the adequacy of the state grounds barring consideration
of the four unexhausted claims asserted by Banks. 49 F. Supp.2d 400,
403-06. We noted that a ground is inadequate if, at the time
an action must be taken by the petitioner to preserve a claim or
claims, the rule is not clearly established. Id. at 403-04. If
a rule is changed without notice to potential petitioners and
bars consideration in state court of a claim which could have
been considered prior to the change, such as by changing the time
at which a claim must be raised after that time has passed, the
ground is not adequate to support the judgment. Id. at 404-05
(relying on Ford v. Georgia, 498 U.S. 411, 111 S.Ct. 850, 112
L.Ed.2d 935 (1991)).*fn3
In contrast, the limitations subsection states that a petition
"shall be filed within one year of the date the judgment becomes
final, . . ." with certain exceptions. Sec. 9545(b)(1).*fn4 The
subsection does not state that no court will have the authority
to entertain an untimely petition. Thus, since (1) not every
subsection of the statute is jurisdictional in nature, and (2)
the limitations subsection does not invoke clear language of
jurisdiction, it cannot be said that § 9545(b) is necessarily
jurisdictional in nature, as opposed to a statute of limitations
subject to equitable tolling. Cf. Miller at 618 (AEDPA time
limit statute of limitations subject to equitable tolling because
term "jurisdiction" not used); Calderon v. U.S. Dist. Court for
C.D. of Calif., 128 F.3d 1283, 1288 (9th Cir. 1997) (Kozinski,
J.; opinion on which Third Circuit relied in Miller; also
finding that failure to use language of jurisdiction indicates
statute of limitations subject to equitable tolling), reh'g,
reh'g en banc denied, cert. denied, ___ U.S. ___, 118 S.Ct. 899,
139 L.Ed.2d 884 (1998).*fn5 That it is entirely reasonable to
conclude that § 9545(b) is a statute of limitations rather than a
jurisdictional provision is reflected in Lambert v. Blackwell,
134 F.3d 506, 523-524 (3d Cir. 1997), in which the provision was
The second point is that, prior to considering second petitions
in the context of the amended version of the PCRA, the Supreme
Court had applied a "relaxed waiver" standard for preserving
issues for review in capital cases. Banks VI at 376 (citing
Commonwealth v. Zettlemoyer, 500 Pa. 16, 454 A.2d 937 (1982);
Commonwealth v. Beasley, 544 Pa. 554, 678 A.2d 773 (1996),
cert. denied, 520 U.S. 1121, 117 S.Ct. 1257, 137 L.Ed.2d 337
(1997)). Because it found the amended version of § 9545(b) to be
jurisdictional in nature, however, it declined to apply
(actually, without jurisdiction, it could not apply) the relaxed
waiver standard in Banks' case. Id.*fn6
Based on the foregoing, we do not think that, prior to the
holding of the Supreme Court in Banks VI, Banks can be said to
have had notice that § 9545(b) would be considered jurisdictional
in nature. Only at the time of that ruling can it be said with
certainty that Banks would be absolutely barred from presenting
his unexhausted claims to the state courts on the basis of
jurisdiction which, from respondents' point of view, also would
mean that Banks had forfeited, without notice, his exhausted
claims. We conclude that this would not be an adequate state
ground or, at least, would be a reason for equitable tolling of ...