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Frederick H. Banks v. United States of America

January 26, 2012

FREDERICK H. BANKS, PETITIONER,
v.
UNITED STATES OF AMERICA, RESPONDENT.



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

MEMORANDUM OPINION AND ORDER

Pending before the court is a motion to vacate, set aside, or correct sentence by a person in federal custody pursuant to 28 U.S.C. § 2255 (ECF No. 622)*fn1 and the supplement thereto (ECF No. 625) (collectively, "petitioner's motion") filed by petitioner Frederick H. Banks ("Banks" or "petitioner").*fn2 Upon reviewing petitioner's motion and the government's motion to dismiss (ECF No. 641), the court will grant the government's motion and deny petitioner's motion for the reasons set forth herein.

I. Background

On October 25, 2005, a federal grand jury returned an indictment charging petitioner with eight counts of a scheme and artifice to defraud, all in violation of 18 U.S.C. § 1341. On December 27, 2005, a jury returned a verdict finding Banks guilty on each count. On March 13, 2006, petitioner, who had represented himself at trial, was sentenced at each count concurrently for a term of imprisonment of sixty-three months to be served consecutively to the term of imprisonment defendant was already serving for other convictions at Criminal No. 03-245, thirty-six months of supervised release at each count to be served concurrently, and $15,100.10 in restitution. (ECF No. 391). On March 14, 2006, petitioner filed a notice of appeal. (ECF No. 393). On December 22, 2008, the United States Court of Appeals for the Third Circuit affirmed the judgment and commitment order entered by this court. (ECF No. 573).

On or about January 27, 2011, the clerk of court received and filed petitioner's motion to vacate, set aside, or correct sentence by a person in federal custody pursuant to 28 U.S.C. § 2255 (ECF No. 622). On or about February 23, 2011, petitioner filed a supplement. (ECF No. 625). In the motion filed at ECF No. 622, petitioner lists forty-nine grounds for his claims that he is being held in violation of the Constitution, laws or treaties of the United States and his prayer for relief that the court vacate, set aside, or correct his sentence. In his supplement, petitioner argues that his conviction should be reversed because his appellate counsel who "was a state assistant district attorney for the Commonwealth of Pennsylvania" had "a direct conflict of interest." Id. at 1. Most of those grounds are frivolous, repetitive, convoluted, and not based on controlling or existing law. The grounds include allegations that: petitioner was not tried on a true bill; the court lacked jurisdiction to impose a sentence since petitioner alleges to be a sovereign citizen; the court lacked jurisdiction because the postal powers clause and commerce clause do not provide for punishment; the court lacked jurisdiction to impose the sentence because petitioner is an American Indian; the government failed to prove that Pittsburgh, Pennsylvania, is in the Western District of Pennsylvania; the federal mail fraud statute is unconstitutional; the court advocated for the government when it did not grant petitioner's motion for a mistrial; the restitution order was unconstitutional; petitioner's Sixth Amendment rights were violated when the court denied him the right to call the Honorable Thomas M. Hardiman ‒ the judge in his prior case ‒ as a witness; petitioner's right of confrontation was violated when the court refused to issue an arrest warrant for a witness; petitioner's Second Amendment rights were violated when the court prohibited him from carrying a firearm during his supervised release; and the court had no power under the constitution to impose involuntary servitude. On May 20, 2011, the government filed a motion to dismiss. (ECF No. 641). The government argues that petitioner's motion should be dismissed because he cannot relitigate claims raised on direct appeal and any other claims are procedurally defaulted. Because most of the grounds raised are clearly frivolous, it would be a waste of judicial resources for this court to discuss all the frivolous grounds. Only five grounds will be addressed: (1) the second superseding indictment was insufficient; (2) the district court erred in denying his motions to suppress evidence; (3) the district court ordered an unreasonable sentence; (4) his appellate counsel provided ineffective assistance; and (5) the government withheld Bradymaterial at trial.

II. Standard of Review

A district court is required to hold an evidentiary hearing on a motion to vacate sentence filed pursuant to 28 U.S.C. § 2255, unless the motion and files and records of the case show conclusively that the movant is not entitled to relief. 28 U.S.C. § 2255 ("Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall . . . grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto."); United States v. Booth, 432 F.3d 542, 545-46 (3d Cir. 2005). For reasons set forth herein, and based upon petitioner's motion and files and records of the case, the court determines that petitioner's motion shall be denied without a hearing because the motion and files and records of the case show conclusively that petitioner is not entitled to relief.

Under 28 U.S.C. § 2255, a federal prisoner in custody may move the court which imposed the sentence to vacate, set aside or correct the sentence upon the ground that "the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack." 28 U.S.C. § 2255. The Supreme Court read the statute as stating four grounds upon which relief can be granted:

(1) "that the sentence was imposed in violation of the Constitution or laws of the United States;" (2) "that the court was without jurisdiction to impose such sentence;" (3) "that the sentence was in excess of the maximum authorized by law;" and (4) that the sentence "is otherwise subject to collateral attack."

CHARLES A. WRIGHT, ET AL., FEDERAL PRACTICE AND PROCEDURE § 625 (4th ed. 2011) (quoting Hill v. United States, 368 U.S. 424, 426-27 (1962)). The statute provides as a remedy for a sentence imposed in violation of law that "the court shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate." 28 U.S.C. § 2255.

III. Analysis

Although § 2255 enables federal prisoners to challenge collaterally the lawfulness of their incarceration, such challenges are limited by the ban on relitigating questions that have already been raised and considered on direct appeal and the procedural default doctrine. Bousley v. United States, 523 U.S. 614, 621 (1998); see e.g., Davis v. United States, 417 U.S. 333, 343 (1974).

A.The Relitigation Bar

It is well settled that "a prior opportunity for full and fair litigation is . . . dispositive of a federal prisoner's habeas claim." Withrow v. Williams, 507 U.S. 680, 721 (1993); United States v. Frady, 456 U.S. 152 (1982). Therefore, if a claim has already been raised and rejected on direct review, it will not be readjudicated in a habeas proceeding. Id. Section 2255 is not a substitute for direct review and permitting the relitigation of issues that have already been decided would result in "wasteful duplication of the federal judicial process." Id. The Court of Appeals for the Third Circuit, however, has noted four exceptions to this general rule where the review of previously adjudicated claims may be warranted, i.e., when there is "newly discovered evidence that could not reasonably have been presented at the original trial, a change in applicable law, incompetent prior representation by ...


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