Banks v. Holland

Filing 9

MEMORANDUM (Order in conformity with Memorandum to follow as separate docket entry.)Signed by Honorable Matthew W. Brann on 8/14/2013. (km)

Banks v. Holland

Doc. 9

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-13-1608
(Judge Brann)

MEMORANDUM
August 14, 2013
Background
This pro se habeas corpus action pursuant to 28 U.S.C. § 2254 was filed 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. By Order dated June 14, 2013, Petitioner’s action was
transferred to this Court.
Petitioner seeks federal habeas corpus relief pursuant to § 2254 with respect
to a guilty plea which he entered in multiple criminal cases in the Court of
Common Pleas of York County, Pennsylvania.
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Dockets.Justia.com

This Copurt issued and Order on July 12, 2013 which advised Petitioner, 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 could 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. The Order additionally
warned Banks 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.
Accompanying the Order was a Notice of Election form and Petitioner was
directed to notify this Court within forty-five (45) days as to how he wished to
proceed in this matter.
On August 9, 2013, Banks submitted an executed Notice of Election form
wherein he 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

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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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/Mattew 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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