United States District Court, M.D. Pennsylvania
MALACHY E. MANNION, UNITED STATES DISTRICT JUDGE.
August 25, 2015,  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).
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.
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
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,
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.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.
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.
brief, at 8.
issues on appeal involve challenges to the discretionary
aspects of sentencing.
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