Banks v. Kelley

Filing 8

MEMORANDUM AND ORDER granting Respondent's motion to dismiss 7 . Mr. Banks' § 2254 Petition is dismissed and the requested relief is denied. Signed by Magistrate Judge Joe J. Volpe on 12/28/2015. (lej)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
PINE BLUFF DIVISION
WILLIE BANKS, JR., ADC # 078633
Petitioner,
v.
WENDY KELLEY, Director,
Arkansas Department of Correction,
Respondent.

*
*
*
*
*
*
*
*
*

No. 5:15CV00346-JJV

MEMORANDUM AND ORDER
Before the Court is the Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254,
filed by Willie Banks, Jr. (Doc. No. 2) and Respondent’s Motion to Dismiss. (Doc. No. 7.)
I.

BACKGROUND
Mr. Banks was convicted of rape in November 1999 and sentenced to 480 months’

imprisonment with an habitual offender enhancement. (Doc. No. 7-2.) On July 6, 2000, he was
convicted of first-degree battery1 and sentenced to 720 months’ imprisonment with an habitual
offender enhancement. (Doc. No. 7-5.) The trial judge ordered the sentences to run concurrently.
On March 29, 2015, Mr. Banks filed a petition for writ of habeas corpus arguing the parole
board should not have denied his request for a parole eligibility hearing. Banks v. Kelley,
5:15CV00089-SWW (Doc. No. 2). I recommended his petition be dismissed because Mr. Banks did
not have a liberty interest in parole. (Id. at Doc. No. 6.) The district court adopted the recommended
disposition on June 3, 2015, and the petition was dismissed. (Id. at Doc. No. 6.)
On October 29, 2015, Mr. Banks filed the current Petition which is nearly identical to his last

1

The first-degree battery charge arose from conduct Mr. Banks committed while on bond
pending trial in the rape case.
1

one. In this Petition, he reiterates his argument that he should have been granted a parole eligibility
hearing in February 2015. (Doc. No. 2.) The Respondent filed a Motion to Dismiss arguing Mr.
Banks’s Petition is successive and should be dismissed because this Court lacks jurisdiction. (Doc.
No. 7.) For the following reasons, I agree.
II.

ANALYSIS
Under 28 U.S.C. 2244(b)(3), petitioners who have previously filed a federal habeas petition

must first obtain authorization from the appropriate federal court of appeals before filing a second
or successive habeas petition. Williams v. Hobbs, 658 F.3d 842, 853 (8th Cir. 2011). Without an
order from the court of appeals authorizing the filing of a successive petition, the district court lacks
jurisdiction to hear the petition. Burton v. Stewart, 549 U.S. 147, 152-53, 157 (2007). Further, the
court of appeals may authorize the filing of a successive petition only if the new petition satisfies
certain statutory requirements. See 28 U.S.C. 2244(b)(2). Similarly, claims asserted in a second or
successive habeas petition that were not alleged in a previously filed habeas petition shall be
dismissed unless:
(A) the applicant shows that the claim relies on a new rule of constitutional law,
made retroactive to cases on collateral review by the Supreme Court, that was
previously unavailable; or
(B)(i) the factual predicate for the claim could not have been discovered previously
through the exercise of due diligence; and
(ii) the facts underlying the claim, if proven and viewed in light of the evidence as
a whole, would be sufficient to establish by clear and convincing evidence that, but
for constitutional error, no reasonable fact finder would have found the applicant
guilty of the underlying offense.
28 U.S.C. § 2244(b)(2).
After careful review, I find the language of 28 U.S.C. § 2244(b) is binding and prior
authorization to file a second or successive habeas petition is an absolute requisite to this Court’s
authority to consider a petition. 28 U.S.C. § 2244(b)(3); see also Williams, 658 F.3d 842, 853 (2011)
2

(“A ‘second or successive’ habeas petition requires authorization from a federal court of appeals
prior to filing.”). There is nothing in the record to indicate Mr. Banks sought and received
authorization from the United States Court of Appeals for the Eighth Circuit before filing this
successive Petition. He must apply for, and receive, permission from the Eighth Circuit before filing
any habeas corpus petition that challenges his convictions.
Therefore, I find this Court does not have jurisdiction over Mr. Bank’s claims. The dismissal
is without prejudice so Mr. Banks may refile his Petition should the Eighth Circuit grant him
permission to proceed.
III.

CONCLUSION
IT IS, THEREFORE, ORDERED:
1.

Respondent’s Motion to Dismiss (Doc. No. 7) is GRANTED.

2.

Mr. Banks’s § 2254 Petition (Doc. No. 2) is DISMISSED and the requested relief is

DENIED.
SO ORDERED this 28th day of December, 2015.

__________________________
JOE J. VOLPE
UNITED STATES MAGISTRATE JUDGE

3