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Banks v. United States

United States District Court, E.D. Missouri, Eastern Division

April 6, 2018

GEORGE C. BANKS, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM AND ORDER

          RODNEY W. SIPPEL UNITED STATES DISTRICT JUDGE

         This 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.

         I. Background

         On 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. § 924(e)(1).

         The following three predicate convictions for ACCA purposes were identified in Banks' Presentence Report (“PSR”) at the time of sentencing:

         (i) 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.

         I 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.

         Before the present case was filed, Banks filed nine previous motions to vacate pursuant to 28 U.S.C. § 2255.

         On 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.

         II. Legal Standard

         A 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).

         Because 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 retroactive ...


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