United States District Court, E.D. Missouri, Eastern Division
GEORGE C. BANKS, Petitioner,
UNITED STATES OF AMERICA, Respondent.
MEMORANDUM AND ORDER
W. SIPPEL UNITED STATES DISTRICT JUDGE
matter is before the Court on a motion by Petitioner George
Banks to vacate his sentence under 28 U.S.C. § 2255.
Banks asserts that, under Johnson v. United States,
135 S.Ct. 2551 (2015), he is no longer subject to an enhanced
sentence under the Armed Career Criminal Act
(“ACCA”). Respondent United States of America
opposes the motion, arguing that Johnson does not
entitle Banks to relief. For the reasons that follow, I will
deny Banks' motion. However, I will grant Banks a
certificate of appealability.
April 19, 2006, Banks pleaded guilty to being a felon in
possession of a firearm in violation of 18 U.S.C. §
922(g)(1). On June 27, 2006, at Banks' sentencing
hearing, it was determined that Banks was an armed career
criminal under the Armed Career Criminal Act, 18 U.S.C.
following three predicate convictions for ACCA purposes were
identified in Banks' Presentence Report
(“PSR”) at the time of sentencing:
Felony Delivery of a Controlled Substance and Sale of
Marijuana, September 7, 1983, Circuit Court of Sedgwick
County, Kansas, Case. No. 83 CR 311;
(ii) Felony Second Degree Burglary, April 6, 1993, Circuit
Court of Pemiscot County, Missouri, No. CR 592-180 F; and
(iii) Felony First Degree Burglary, February 9, 1994, Circuit
Court of Dunklin County, No. CR 393-902 FX.
sentenced Mr. Banks to a term of imprisonment of 180 months
which is the minimum sentence under 18 U.S.C. §
924(e)(1). Mr. Banks did not file a direct appeal of his
conviction or sentence.
the present case was filed, Banks filed nine previous motions
to vacate pursuant to 28 U.S.C. § 2255.
April 25, 2016, Banks filed an application with the United
States Court of Appeals for the Eighth Circuit for permission
to file a successive 28 U.S.C. §2255 petition. See
George Banks v. United States, No. 16-1992. Banks sought
to file for relief based on the decision in Johnson
that the residual clause of the ACCA was unconstitutionally
vague. The Eighth Circuit granted Banks permission to file a
successive habeas corpus petition on June 20, 2016. Banks
filed the present case on June 24, 2016.
district court may vacate, set aside, or correct a federal
sentence if “the sentence was in excess of the maximum
authorized by law.” 28 U.S.C. § 2255(a). Banks
bears the burden to show he is entitled to relief. Day v.
United States, 428 F.2d 1193, 1195 (8th Cir. 1970).
See also United States v. Thornton, 766 F.3d 875,
878 (8th Cir.2014) (requiring the Government to prove at
sentencing, by a preponderance of the evidence, that the
defendant pled guilty to a qualifying ACCA offense).
this is not his first Section 2255 habeas petition, Banks
must show that his claim meets the requirements under 28
U.S.C. § 2244(b)(4). Specifically, 28 U.S.C. §
2255(h)(2) authorizes a second or successive habeas motion if
it involves “a new rule of constitutional law, made