Banks v. Holland

Filing 9

MEMORANDUM: Setting forth reasons for dismissal of the case without prejudice. Order to follow as separate docket entry. Signed by Honorable Matthew W. Brann on 7/10/13. (km) (Main Document 9 replaced on 7/10/2013) (km).

IN THE UNITED STATES DISTRICT COURT
FOR THE
MIDDLE DISTRICT OF PENNSYLVANIA
SHAMAR L. BANKS,
Petitioner
v.
J. C. HOLLAND, WARDEN,
Respondent

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CIVIL NO. 4:CV-13-1196
(Judge Brann)

MEMORANDUM
July 10, 2013
Background
This pro se habeas corpus action pursuant to 28 U.S.C. § 2254 was initiated
in the United States District Court for the Eastern District of Kentucky by Shamar
L. Banks, an inmate presently confined at the McCreary United States
Penitentiary, Pine Knot, Kentucky, (USP-McCreary). Named as Respondent is
USP-McCreary Warden J. C. Holland. The matter was subsequently transferred to
this Court.
Petitioner does not challenge the legality of his ongoing federal sentence.
Rather, Banks’ action seeks federal habeas corpus relief pursuant to § 2254 with
respect to a guilty plea which he entered in two criminal prosecutions (CP-67-CR1

1053- 2002 & CP-67-CR-1781-2002) in the Court of Common Pleas of York
County, Pennsylvania.
By Order dated June 24, 2013, Petitioner was advised, in accordance with
United States v. Miller, 197 F.3d 644 (3d Cir. 1999) and Mason v. Meyers, 208
F.3d 414 (3d Cir. 2000), that (1) he can have the petition ruled on as filed, that is,
as a § 2254 petition for writ of habeas corpus and heard as such, but lose his
ability to file a second or successive petition absent certification by the Court of
Appeals, or (2) withdraw his petition and file one all-inclusive § 2254 petition
within the one-year statutory period prescribed by the Antiterrorism Effective
Death Penalty Act (“AEDPA”).1 See Doc. 7. Petitioner was also forewarned that
if he elected to withdraw his instant petition in order to file one all-inclusive
petition, the AEDPA’s statute of limitations might bar the filing of any such
successive petition.
Banks was provided with a Notice of Election form and directed to notify
this Court within forty-five (45) days as to how he wished to proceed in this
matter.
On July 5, 2013, Petitioner filed the Notice of Election form wherein he

Miller and Mason sought to prevent pro se litigants from unintentionally
defaulting federal claims through failure to assert them in a single petition.
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notified this Court that he wishes to withdraw his instant petition for writ of
habeas corpus so that he may file one, all-inclusive petition under 28 U.S.C. §
2254 within the one year-year time limit for filing such a petition.2 He also
acknowledged that the AEDPA statute of limitations might bar the filing of any
such successive petition. See Doc. 8.
Based upon an application of the standards announced in Miller and Mason
to Banks’ announced intention that he does not wish to proceed with his present
petition, this Court is precluded from ruling upon his action as filed.
Consequently, since Banks has expressed that he does not wish to proceed with his
petition, it will be dismissed without prejudice. An appropriate Order will enter.
BY THE COURT:
s/Matthew W. Brann
Matthew W. Brann
United States District Judge

Petitioner is forewarned that her new petition would have to be submitted
within the one year period of limitation authorized under 28 U.S.C. § 2244(d)(1).
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