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Banks v. Kauffman

United States District Court, M.D. Pennsylvania

March 22, 2018

DENNIS JEROME BANKS, Petitioner
v.
KEVIN KAUFFMAN, Respondent

          MEMORANDUM

          MALACHY E. MANNION, UNITED STATES DISTRICT JUDGE.

         On August 25, 2015, [1] petitioner, Dennis Jerome Banks, an inmate confined in the State Correctional Institution at Huntingdon, Pennsylvania (“PA”), filed the instant petition for writ of habeas corpus pursuant to 28 U.S.C. §2254. (Doc. 1). He attacks his 2007 convictions for drug related offenses. By Order dated June 13, 2016, this Court, sua sponte, raised the AEDPA's one-year statute of limitations and directed the parties to respond in accordance with United States v. Bendolph, 409 F.3d 155, 169 (3d Cir. 2005). (Doc. 7).

         On July 11, 2016, the Adams County District Attorney filed a response to the habeas petition, with exhibits consisting of the state court record. Doc. 10. No traverse has been filed. For the reasons set forth below, the Court will dismiss Petitioner's habeas petition as untimely.

         I. Background

         The following background has been extracted from the Pennsylvania Superior Court's May 14, 2008, Memorandum Opinion affirming Petitioner's judgments of sentence on direct appeal, see (Doc. 10-17); Commonwealth of Pennsylvania v. Banks, No. 581 MDA 2007):

Dennis Jerome Banks appeals from the February 16, 2007 judgments of sentence entered in the Court of Common Pleas, Adams County, following his convictions for drug related offenses. On appeal, he challenges the discretionary aspects of sentencing by arguing that the police engaged in sentencing entrapment. Upon review, we affirm the judgments of sentence.
At CP-01-CR-42-2006, Banks was convicted of one count of the following: criminal use of communication facility, delivery of a controlled substance-cocaine, possession with intent to deliver-cocaine, and criminal conspiracy-deliver of a controlled substance. The convictions stemmed from a “controlled buy” drug transaction on December 29, 2005.
At CP-01-CR-49-2006, Banks was convicted of the following: three counts of criminal use of communication facility, three counts of delivery of a controlled substance-cocaine, and two counts of criminal conspiracy-delivery of a controlled substance. These convictions stemmed from three “controlled buy” drug transactions that occurred on November 14, November 18, and December 21, 2005.
On February 16, 2007, the trial court sentenced Banks to an aggregate sentence of 10½ to twenty-one years imprisonment.[2]He filed a timely motion to modify the sentence arguing that the Commonwealth engaged in conduct that amounted to “sentencing entrapment” and that the trial court abused its discretion by imposing consecutive sentences. The trial court denied the motion, and Banks filed a timely appeal.

         On appeal, Banks presents the following issues for our review:

1. Whether the lower court erred in denying without hearing and argument [his] motion for modification of sentence on grounds of sentencing entrapment where [he] alleged that (1) the police continued to engage him in three drug buys after the initial buy without any reasonable purpose; and (2) the police knew or should have known that the effect of such engagement was to endanger the public and subject him unnecessarily to multiple mandatory minimum penalties.
2. Whether the lower court abused its discretion in imposing an aggregate sentence of not less than 10½ years to not more than 21 years in a state correctional institution, with counts within the sentences for drug transactions and related offenses run consecutively, and the aggregate sentence was manifestly excessive, where the court failed to consider whether [he] was subject to sentencing entrapment by denying his motion for modification of sentence without hearing or argument, and the trial record was not a sufficient basis upon which this issue could be resolved.

         Appellant's brief, at 8.

         Bank's issues on appeal involve challenges to the discretionary aspects of sentencing.

         Unlike a challenge to the legality of sentence, the right to appeal a discretionary aspect of sentence is not absolute. Rather, a party who desires to raise such matters must petition this Court for permission to appeal and demonstrate that there is a substantial question that the sentence is inappropriate. The determination of whether a particular issue constitutes a ...


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