Banks v. United States

JAMES BANKS, Movant, v. UNITED STATES OF AMERICA, Respondent.

Cv. No. 2:13-cv-02754-STA-dkv

Cr. No. 2:06-cr-20361-JDB

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE WESTERN DIVISION

July 5, 2016

ORDER DENYING MOTION PURSUANT TO 28 U.S.C. § 2255, DENYING CERTIFICATE OF APPEALABILITY, CERTIFYING THAT AN APPEAL WOULD NOT BE TAKEN IN GOOD FAITH AND DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL

Before the Court is the Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody ("§ 2255 Motion") filed by Movant, James Banks, Bureau of Prisons register number 21158-076, who is currently incarcerated at the United States Penitentiary Canaan in Waymart, Pennsylvania. (§ 2255 Mot., Banks v. United States, No. 2:13-cv-02754-STA-dkv (W.D. Tenn.), ECF No. 1.) For the reasons stated below, the Court DENIES the § 2255 Motion.

I. PROCEDURAL HISTORY

A. Criminal Case Number 06-20361

On September 19, 2006, a federal grand jury returned a single-count indictment charging Banks, a convicted felon, with possessing five rounds of nine millimeter caliber ammunition with the head stamp markings of "FC" and "9mm Luger," in violation of 18 U.S.C. § 922(g). (Indictment, United States v. Banks, No. 2:06-cr-20361-JDB (W.D. Tenn.), ECF No. 1 (sealed).) The factual basis for this charge is stated in the presentence report ("PSR"):

The Offense Conduct

5. According to the case file, on Sunday, March 12, 2006, James E. Banks and Talesha Malone were involved in a car accident, where a twelve year old boy (pedestrian) was struck in front of 1408 Briarcrest Lane in Memphis, Tennessee. A witness to the accident, Antonio Pierce, who lives at 1408 Briarcrest, gave a statement to investigating officers at the scene of the accident which contradicted Banks' version of the incident. A verbal altercation between Banks and Pierce ensued. Later in the day at approximately 8:30 p.m., Banks returned to 1408 Briarcrest Lane armed with a handgun. Banks called repeatedly for Pierce using Pierce's nickname. Pierce's father, Leo Seaberry, who was in the residence, peered out the window and observed Banks point a pistol and shoot through the window in his direction. Seaberry ducked and then got on the floor as several more shots were fired into the residence. Seaberry identified Banks as the "shooter" from a photo lineup. Pierce recognized Banks' voice just prior to the shots being fired.

6. Responding officers to the scene recovered five spent 9mm shell casings from in front of the residence.

7. On September 7, 2006, Talesha Malone, [sic] swore to a written affidavit that Antonio Pierce was the father of her six year old daughter and that James Banks was her boyfriend. Malone reported in the affidavit that she was the driver in the car accident on March 12, 2006 involving a small boy and that James Banks was in the car with her. Antonio Pierce, however, told police that James Banks was driving. According to Malone's affidavit, Pierce was constantly threatening Banks with his life and earlier had threatened to get his "G.D" (Gangster Disciples) partners to kill Banks. Malone stated that after the incident she and Banks went to Whitehaven where they remained overnight.

8. On December 19, 2006, Talesha Malone was interviewed by a federal agent. During the interview, Malone admitted that the story she gave in the affidavit was not true regarding the events that occurred after the accident and that James Banks threatened her to come up with the story or he was going to "kick her ass" or hurt her. In the December interview, Malone maintained that she was the driver at the time of the accident and that Pierce had falsely accused Banks of being the driver. However, after the accident, she and Banks went to the Coming Village Apartments where Banks obtained a gun from a male named "Steebo." Malone statedthat both she and Banks' sister tried to stop Banks from shooting into Pierce's house.

9. A federal agent examined the recovered shell casings from the scene at 1408 Briarcrest Lane and determined that the casings belonged to ammunition not manufactured in the State of Tennessee. Agents confirmed that James Banks was a previously convicted felon prior to the March 12, 2006 shooting.

. . . .

Adjustment for Obstruction of Justice

11. Considering the information in ¶8, it appears that the defendant threatened Talesha Malone into giving a false statement material to Banks' involvement in the instant offense. Therefore, an enhancement under 3C1.1 appears appropriate.

Adjustment for Acceptance of Responsibility

12. On March 5, 2007, the defendant admitted to the probation officer that he went to a person's house with whom he had been in an argument and he shot at the person's house, leaving spent bullet casings on the ground. The defendant stated he wants to apologize for his actions. The defendant stated that he would not do something like this again.

13. According to §3El.1, comment. (n.4) conduct resulting in an enhancement under §3C1.1 (Obstructing or Impeding the Administration of Justice) ordinarily indicates that the defendant has not accepted responsibility for his criminal conduct. There may, however, be extraordinary cases in which adjustments under both §§ 3Cl.l and 3El.1 may apply.

(PSR ¶¶ 5-9, 11-13.)

Pursuant to a written plea agreement, Banks appeared before United States District Judge J. Daniel Breen on February 21, 2007, to plead guilty to the indictment. (Min. Entry, United States v. Banks, No. 2:06-cr-20361-JDB (W.D. Tenn.), ECF No. 21; Plea Agreement, id., ECF No. 23.) At a hearing on May 31, 2007, Judge Breen sentenced Banks to a term of imprisonment of ten years, to be followed by a three-year period of supervised release. (Min. Entry, id., ECFNo. 27; Sentencing Hr'g Tr., id., ECF No. 33 (sealed).)¹ Judgment was entered on June 1, 2007. (J. in a Criminal Case, United States v. Banks, No. 2:06-cr-20361-JDB (W.D. Tenn.), ECF No. 29 (sealed).)

The United States Court of Appeals for the Sixth Circuit affirmed Banks's sentence in an unpublished opinion. United States v. Banks, No. 07-5698 (6th Cir. July 22, 2008). The Court of Appeals found that the judicial factfinding at the sentencing hearing did not violate Banks's Sixth Amendment rights:

Banks challenges the district court's reliance on the cross-reference to a separate offense, alleging that the facts underlying the offense of attempted murder were not established by a guilty plea or a jury verdict and not admitted by the defendant or proven to a jury beyond a reasonable doubt. However, a defendant's Sixth Amendment right to have a jury determine the facts beyond a reasonable doubt is limited to facts that increase a sentence beyond the statutory maximum for the offense charged. Apprendi v. New Jersey, 530 U.S. 466, 490 (2000); United States v. Crowell, 493 F.3d 744, 749 (6th Cir. 2007), cert. denied, 128 S. Ct. 880 (2008). This court has consistently held that judicial factfinding, under the advisory Guidelines regime, does not violate the Sixth Amendment. See United States v. Wittingen, 519 F.3d 633, 638 (6th Cir. 2008); see also United States v. Thompson, 515 F.3d 556, 568 (6th Cir. 2008). Banks does not argue that the district court increased his sentence beyond the statutory maximum for being afelon in possession of a firearm. Instead, he argues that the court violated his Sixth Amendment right to a trial by jury when it found facts by a preponderance of the evidence that increased his sentence beyond the conduct to which he admitted. His argument that the district court could not base the cross-reference on facts that the court found by a preponderance of the evidence is clearly foreclosed by case law to the contrary. See United States v. Birka, 487 F.3d 450, 459 (6th Cir. 2007); United States v. Gates, 461 F.3d 703, 708 (6th Cir. 2006).

We also conclude that the district court's factual finding was supported by a preponderance of the evidence. Facts employed by the district court to find criminal responsibility should not be set aside unless clearly erroneous. United States v. Katzopoulos, 437 F.3d 569, 574 (6th Cir. 2006); United States v. Quigley, 382 F.3d 617, 621 (6th Cir. 2004). Under the Guidelines at § 2A2.1 comment (n.1), which references 18 U.S.C. § 1111, murder is defined as "the unlawful killing of a human being with malice aforethought." The statute further states: "Every murder . . . perpetrated from a premeditated design unlawfully and maliciously to effect the death of any human being other than him who is killed, is murder in the first degree." 18 U.S.C. § 1111(a).

The district court thoroughly and meticulously described the testimony of three witnesses who testified relative to the facts and circumstances surrounding Banks shooting at an intended victim. The district court also considered Banks's statements, along with police reports filed in conjunction with the incident. Upon review of the transcript and the district court's summary of the evidence, we conclude that the court did not clearly err when it found by a preponderance of the evidence that the actions taken by Banks fell within the definition of attempted first-degree murder under 18 U.S.C. § 1111.

Id., slip op. at 3-4.

B. Civil Case Number 13-2754

On September 27, 2013, Banks filed his pro se § 2255 Motion, accompanied by a legal memorandum. (§ 2255 Mot., Banks v. United States, No. 2:13-cv-02754-STA-dkv (W.D. Tenn.), ECF No. 1; Mem. of Law in Supp. of § 2255 Mot., id., ECF No. 1-1.) Because the issues presented were not clearly enumerated in either the form motion or the 38-page memorandum, the Court issued an order on April 9, 2014, directing Banks to file an amended motion on the official form within thirty days. (Order, id., ECF No. 4.) The order concluded: "Should Movant fail to file an amended motion within the time specified, the Court will assume that his § 2255Motion presents only a challenge to his sentence on the basis of the Supreme Court's decision in ...