Banks v. USA
MEMORANDUM AND ORDER re: 1 MOTION to Vacate, Set Aside or Correct Sentence (2255) filed by Petitioner George Banks; motion is DENIED. IT IS HEREBY ORDERED that the instant motion to vacate is DENIED, without prejudice, because movant did not o btain permission from the Eighth Circuit Court of Appeals to bring the motion in this Court. See 28 U.S.C. § 2255. A separate Order of Dismissal shall accompany this Memorandum and Order. Signed by District Judge Rodney W. Sippel on 7/2/13. (CSG)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
UNITED STATES OF AMERICA,
Case No. 1:13CV93 RWS
MEMORANDUM AND ORDER
This matter is before the Court upon the motion of George Banks to vacate, set
aside, or correct his sentence pursuant to 28 U.S.C. § 2255.1
The motion is inarticulate, but it seeks relief only available under § 2255.
Movant appears to be arguing that the Supreme Court’s recent holding in Alleyne v.
United States, 133 S.Ct. 2151 (2013), on June 17, 2013, should apply to him. In that
case, the Court held that because mandatory minimum sentences increase the penalty
for the crime, any fact that increases the mandatory minimum is an “element” of the
crime that must be submitted to the jury. The holding in Alleyne simply does not
apply to movant. First and foremost, movant’s motion to vacate is successive, and
thus, he must seek leave from the Eighth Circuit Court of Appeals prior to bringing
the instant argument to this Court. However, even if movant’s motion was properly
before this Court, his argument under Alleyne would still be irrelevant. Movant
entered a guilty plea and specifically entered into a plea agreement with the
Government finding that his base level offense would be either 20 or 33, depending
upon his criminal history. At the plea hearing he specifically acknowledged that the
agreement included the caveat that if he was found to be an Armed Career Criminal,
his maximum penalty would be up to life imprisonment with a minimum sentence of
fifteen years. He further admitted that he was a felon and that the gun in question
traveled in interstate commerce. The Presentence Investigation Report (“PSR”)
On April 19, 2006, Banks entered a plea of guilty to the charge of being a felon
in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). On June 27, 2006,
movant was sentenced to 180 months’ imprisonment, 3 years of supervised release,
and a $100 special assessment. Banks did not file an appeal.
The Court’s records show that movant previously brought several motions for
relief under 28 U.S.C. § 2255, the first of which this Court denied on the merits on
April 10, 2008. See Banks v. United States, No. 1:06-CV-99-RWS (E.D. Mo.).
Banks did not appeal from this judgment. On January 11, 2010, movant filed another
§ 2255 action, which this Court transferred, as successive, to the United States Court
of Appeals for the Eighth Circuit. See Banks v. United States, 1:10-CV-14-RWS
(E.D. Mo.). On June 16, 2010, the Eighth Circuit denied Banks’ petition for
authorization to file a successive habeas application. See Banks v. United States, No.
10-1446 (8th Cir. 2010). On September 22, 2010, Banks filed another § 2255 motion,
showed that Banks had three prior felony convictions for either controlled substance
offenses or violent felonies and a felony conviction for stealing property from the
person of Mary Cunningham, also a crime of violence. The PSR recommended that
Banks’ Final Offense Level be set at 30, based on a determination that he was an
Armed Career Criminal with a base offense level of 33, less 3 levels for acceptance
of responsibility. At his sentencing hearing, Banks objected to the burglary
conviction, but because the Court had obtained a certified copy of the actual
conviction, his objection was overruled. Accordingly, it was Banks’ own agreement
that resulted in his sentence of 180 months’ in this case. And Alleyne cannot be said
to be applicable to his situation even if it were available to him in these proceedings.
See, e.g., U.S. v. Wimberly, No: 12-2210, 2013 WL 3214988, *1 (6th Cir. June 26,
which was summarily dismissed as successive. Banks v. United States, 1:10-CV-145
RWS (E.D. Mo.). On December 2, 2010, Banks filed another successive § 2255
motion, which was also summarily dismissed. Banks v. United States, 1:10-CV-199
RWS (E.D. Mo.). On May 2, 2011, Banks filed yet another successive § 22255
motion which was also summarily dismissed. Banks v. United States, 1:11CV74
RWS (E.D. Mo.). And on December 17, 2012, Banks filed a motion pursuant to 28
U.S.C. § 2241 to request credit for time spent in service of his state sentence. That
matter was dismissed for lack of jurisdiction. Banks v. United States, 1:12CV213
RWS (E.D. Mo.).
As amended by the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), 28 U.S.C. § 2255 now provides that a “second or successive motion
must be certified . . . by a panel of the appropriate court of appeals” to contain certain
information. Title 28 U.S.C. § 2244(b)(3)(A) provides that “[b]efore a second or
successive application permitted by this section is filed in the district court, the
applicant shall move in the appropriate court of appeals for an order authorizing the
district court to consider the application.”
Because movant did not obtain permission from the Eighth Circuit Court of
Appeals to maintain the instant § 2255 motion in this Court, the Court lacks authority
to grant movant the relief he seeks. As such, the instant action will be summarily
dismissed, without prejudice.
IT IS HEREBY ORDERED that the instant motion to vacate is DENIED,
without prejudice, because movant did not obtain permission from the Eighth Circuit
Court of Appeals to bring the motion in this Court. See 28 U.S.C. § 2255.
A separate Order of Dismissal shall accompany this Memorandum and Order.
Dated this 2nd day of July, 2013.
RODNEY W. SIPPEL
UNITED STATES DISTRICT JUDGE
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