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Banks v. Horn

September 19, 1997

GEORGE E. BANKS, APPELLANT

v.

MARTIN HORN, COMMISSIONER, PA DEPARTMENT OF CORRECTIONS; JAMES PRICE, SUPERINTENDENT OF THE STATE CORRECTIONAL INSTITUTION AT GREENE; JOSEPH P. MAZURKIEWICZ, SUPERINTENDENT OF THE STATE CORRECTIONAL INSTITUTION AT ROCKVIEW; THE COMMONWEALTH OF PENNSYLVANIA



On Appeal from the United States District Court for the Middle District of Pennsylvania

(D.C. Civ. No. 96-00294)

BEFORE: SLOVITER, Chief Judge, and GREENBERG and MCKEE, Circuit Judges

GREENBERG, Circuit Judge.

Filed September 19, 1997

Argued August 12, 1997

(Filed: September 19, 1997)

OPINION OF THE COURT

I. INTRODUCTION

George E. Banks appeals to this court from a final judgment entered in the district court on August 30, 1996, denying his petition for a writ of habeas corpus under 28 U.S.C. Section(s) 2254. Banks committed the crimes leading to his conviction and sentencing in the state court and finally to his petition for habeas corpus on September 25, 1982, when he shot 14 people in Wilkes-Barre, Pennsylvania, killing 13 of them. The victims included Banks' four girlfriends and their children, most of whom were Banks' children as well. Banks, who was born from an interracial relationship, apparently committed the murders because he preferred his children to die rather than grow up in what he thought was a racist world. See Commonwealth v. Banks, 521 A.2d 1, 4-7 (Pa. 1987) ("Banks I").

Prior to trial in the Luzerne County Court of Common Pleas, Banks' attorney raised issues with respect to Banks' competency to stand trial. Accordingly, the common pleas court held several pre-trial competency hearings pursuant to the Pennsylvania Mental Health Procedures Act of 1976, Pa. Stat. Ann. tit. 50 Section(s) 7402-7403 (West Supp. 1986), each time concluding that Banks was competent to stand trial. In addition, during the trial, Banks' attorney made several unsuccessful motions seeking competency determinations.

During the trial, Banks' attorney attempted to establish that Banks was legally insane at the time of the offenses, or, alternatively, that his capacity was diminished by alcohol and pills, thereby precluding a finding offirst degree murder. Against the advice of counsel, Banks testified and offered a defense that the police, the Wilkes-Barre mayor, and the district attorney were conspiring against him. Banks also cross-examined a ballistic expert, and directed counsel with respect to questions for cross-examination of several of the Commonwealth's witnesses.

On June 21, 1983, the jury convicted Banks of 12 counts of first degree murder, as well as of third degree murder, attempted murder, and other related counts. The next day the jury voted to impose the death penalty. Accordingly, the court sentenced Banks to 12 "consecutive" death sentences and various consecutive terms of imprisonment.

Banks filed an appeal, and the Pennsylvania Supreme Court affirmed his convictions and sentences in Banks I. The court upheld the trial court's determination that Banks was competent to stand trial, found that there was ample evidence that Banks had the requisite intent to kill his victims, and resolved the remaining issues on appeal against Banks. Chief Justice Nix and Justice Zappala dissented on the ground that the common pleas court made the trial a mockery of justice by allowing Banks to take over his own defense.

In February 1989 Banks filed a petition in the common pleas court under the Pennsylvania Post Conviction Hearing Act ("PCHA"), 42 Pa. Cons. Stat. Section(s) 9541 et seq. (West 1982), seeking relief from the judgment of conviction and sentence. The Pennsylvania courts treated this petition as if filed under the Post Conviction Relief Act ("PCRA"), 42 Pa. Cons. Stat. Section(s) 9541 (West Supp. 1997), which had replaced the PCHA. See Commonwealth v. Banks, 656 A.2d 467, 469 n.4 (Pa. 1995) ("Banks II"). The common pleas court denied him relief, and on appeal, the Pennsylvania Supreme Court, finding all his claims meritless, affirmed in Banks II.

On February 21, 1996, after Governor Ridge signed a warrant for his execution, Banks filed a motion in the district court seeking leave to proceed in forma pauperis, a motion to stay the execution, and a motion for appointment of counsel. The district court granted the motion to proceed in forma pauperis stayed the execution, provided for the appointment of counsel, and directed Banks to file a habeas petition by March 22, 1996. Banks v. Horn, 928 F. Supp. 512, 514 (M.D. Pa. 1996) ("Banks III"). Banks then filed a petition raising the following claims:

1. He did not make a knowing, intelligent and voluntary waiver of his Sixth Amendment right to counsel before the trial court allowed him to assume control of the presentation of evidence and cross-examination of witnesses;

2. He was not competent to waive his right to counsel;

3. He did not make a knowing, intelligent and voluntary waiver of his Fifth Amendment right against self-incrimination before the trial court allowed him to assume control of the ...


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