F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS AUG 16 1999 TENTH CIRCUIT PATRICK FISHER Clerk
WALTER BANKS,
Petitioner - Appellant, v. No. 98-5032 (D.C. No. 95-CV-1074-K) RONALD J. CHAMPION, sued as: (Northern District of Oklahoma) Ron Champion; ATTORNEY GENERAL OF THE STATE OF OKL,
Respondents - Appellees.
ORDER AND JUDGMENT *
Before PORFILIO, MAGILL ** and LUCERO, Circuit Judges.
Walter Banks appeals the dismissal of his 28 U.S.C. § 2254 petition,
challenging his conviction for first degree murder. The district court dismissed
the petition without prejudice for failure to exhaust state remedies. We dismiss
Banks’s appeal as moot.
I
* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. This court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
The Honorable Frank J. Magill, Senior Circuit Judge, United States Court of **
Appeals for the Eighth Circuit, sitting by designation. On February 21, 1981, an Oklahoma state court jury convicted appellant
Walter Banks and his older brother, Anthony Banks, of first degree murder. The
court sentenced Anthony to death and Walter (“Banks”) to life imprisonment. See
Banks v. State, 728 P.2d 497, 499 (Okla. Crim. App. 1986). The conviction was
affirmed on appeal. See id. at 503. In September 1994, Banks unsuccessfully
sought state post-conviction relief, alleging that trial and appellate counsel
rendered ineffective assistance and that the state failed to disclose exculpatory
evidence, in violation of Brady v. Maryland, 373 U.S. 83 (1963). 1
Banks subsequently filed a petition with the Oklahoma Court of Criminal
Appeals, challenging the trial court’s denial of his application for post-conviction
relief. According to prison logs, Banks mailed his petition on January 20, 1995,
the filing deadline. The Oklahoma Court of Criminal Appeals dismissed the
petition as untimely, however, because it considered February 16, 1995, the date
the Clerk of Court received the filing fee and docketed the petition, to be the date
the petition was filed.
1 Banks’s claims were based on the post-conviction history of his brother Anthony who, after unsuccessfully seeking state post-conviction relief, filed a habeas petition in federal district court claiming ineffective assistance of counsel and a Brady violation. The district court granted Anthony’s petition and we affirmed, holding that the prosecution committed a Brady violation by failing to disclose evidence suggesting that the murder with which the brothers were charged was committed by others, and that Anthony received constitutionally ineffective assistance because counsel had failed to raise the Brady issue on direct appeal. See Banks v. Reynolds, 54 F.3d 1508 (10th Cir. 1995).
-2- On October 26, 1995, Banks sought federal habeas relief, arguing that
because he and his brother were subject to the same circumstances at trial, he was
entitled to the same habeas relief his brother received based on his Brady
violation and ineffective assistance of counsel claims. See supra n.1. The district
court first sought to determine whether Banks had exhausted available state
remedies as required by 28 U.S.C. § 2254(b) and (c), and found that although
Banks had attempted to exhaust state remedies, the state appellate court had
effectively imposed a procedural bar on his claims by dismissing his petition.
Finding independent and adequate state grounds for application of the procedural
bar rule against Banks, the district court then determined whether Banks had
demonstrated cause and actual prejudice, pursuant to Coleman v. Thompson, 501
U.S. 722, 724 (1991), to overcome his procedural default.
Relying, in part, on Woody v. State, 833 P.2d 257 (Okla. 1992), and
applying the “mailbox rule,” see Houston v. Lack, 487 U.S. 266, 270 (1988), the
district court concluded that because Banks had placed his petition in the prison
mailbox on January 20, 1995, the filing date, he had demonstrated cause for his
“untimely” filing. The district court also found that Banks had demonstrated
actual prejudice because his ineffective assistance of counsel and Brady violations
claims would have been reviewed on the merits if the state appellate court had not
dismissed his petition as untimely.
-3- The district court thus ordered Oklahoma to grant appellate review to the
state district court’s denial of Banks’s application for post-conviction relief. To
ensure compliance with its order, the district court granted a conditional writ of
habeas corpus to be issued unless Oklahoma granted Banks an appeal out of time.
The state thereupon filed a motion requesting the Oklahoma Court of Criminal
Appeals to grant Banks a post-conviction appeal out of time. Rejecting the
district court’s reliance on the mailbox rule, the Court of Criminal Appeals denied
the motion but noted that under Oklahoma Court Rules, Banks could request an
appeal out of time in Tulsa County District Court. See Banks v. State, 953 P.2d
344, 347 (Okla. Crim. App. 1998). Based on this decision, the Oklahoma
Attorney General’s office filed a motion asking the federal district court to
reconsider its order granting a conditional writ of habeas corpus. Concluding that
Oklahoma court rules allowed Banks to file an application for post-conviction
relief out of time, the district court withdrew its earlier decision, granted the
State’s motion and dismissed Banks’s habeas petition without prejudice for
failure to exhaust state remedies.
Banks then filed an application for post-conviction appeal out of time in the
state district court. While a decision on his application was pending, Banks
obtained a certificate of probable cause from the district court to appeal the
dismissal of his habeas petition. We granted him leave to proceed in forma
-4- pauperis on appeal, ordered that counsel be appointed to represent his interests,
and requested supplemental briefing from the parties on the exhaustion issue.
Before the parties submitted their briefs on the exhaustion issue, however, the
state trial court denied Banks’s application for post-conviction appeal out of time,
and the Oklahoma Court of Criminal Appeals affirmed.
II
“This court will dismiss an appeal as moot, when pending an appeal from
the judgment of a lower court, . . . an event occurs which renders it impossible
. . . to grant [the appellant] any effectual relief whatever.” In re Material
Witness Warrant Nichols, 77 F.3d 1277, 1279 (10th Cir. 1996) (internal quotation
omitted). In Odum v. Boone, 62 F.3d 327 (10th Cir. 1995), we applied this rule
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F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS AUG 16 1999 TENTH CIRCUIT PATRICK FISHER Clerk
WALTER BANKS,
Petitioner - Appellant, v. No. 98-5032 (D.C. No. 95-CV-1074-K) RONALD J. CHAMPION, sued as: (Northern District of Oklahoma) Ron Champion; ATTORNEY GENERAL OF THE STATE OF OKL,
Respondents - Appellees.
ORDER AND JUDGMENT *
Before PORFILIO, MAGILL ** and LUCERO, Circuit Judges.
Walter Banks appeals the dismissal of his 28 U.S.C. § 2254 petition,
challenging his conviction for first degree murder. The district court dismissed
the petition without prejudice for failure to exhaust state remedies. We dismiss
Banks’s appeal as moot.
I
* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. This court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
The Honorable Frank J. Magill, Senior Circuit Judge, United States Court of **
Appeals for the Eighth Circuit, sitting by designation. On February 21, 1981, an Oklahoma state court jury convicted appellant
Walter Banks and his older brother, Anthony Banks, of first degree murder. The
court sentenced Anthony to death and Walter (“Banks”) to life imprisonment. See
Banks v. State, 728 P.2d 497, 499 (Okla. Crim. App. 1986). The conviction was
affirmed on appeal. See id. at 503. In September 1994, Banks unsuccessfully
sought state post-conviction relief, alleging that trial and appellate counsel
rendered ineffective assistance and that the state failed to disclose exculpatory
evidence, in violation of Brady v. Maryland, 373 U.S. 83 (1963). 1
Banks subsequently filed a petition with the Oklahoma Court of Criminal
Appeals, challenging the trial court’s denial of his application for post-conviction
relief. According to prison logs, Banks mailed his petition on January 20, 1995,
the filing deadline. The Oklahoma Court of Criminal Appeals dismissed the
petition as untimely, however, because it considered February 16, 1995, the date
the Clerk of Court received the filing fee and docketed the petition, to be the date
the petition was filed.
1 Banks’s claims were based on the post-conviction history of his brother Anthony who, after unsuccessfully seeking state post-conviction relief, filed a habeas petition in federal district court claiming ineffective assistance of counsel and a Brady violation. The district court granted Anthony’s petition and we affirmed, holding that the prosecution committed a Brady violation by failing to disclose evidence suggesting that the murder with which the brothers were charged was committed by others, and that Anthony received constitutionally ineffective assistance because counsel had failed to raise the Brady issue on direct appeal. See Banks v. Reynolds, 54 F.3d 1508 (10th Cir. 1995).
-2- On October 26, 1995, Banks sought federal habeas relief, arguing that
because he and his brother were subject to the same circumstances at trial, he was
entitled to the same habeas relief his brother received based on his Brady
violation and ineffective assistance of counsel claims. See supra n.1. The district
court first sought to determine whether Banks had exhausted available state
remedies as required by 28 U.S.C. § 2254(b) and (c), and found that although
Banks had attempted to exhaust state remedies, the state appellate court had
effectively imposed a procedural bar on his claims by dismissing his petition.
Finding independent and adequate state grounds for application of the procedural
bar rule against Banks, the district court then determined whether Banks had
demonstrated cause and actual prejudice, pursuant to Coleman v. Thompson, 501
U.S. 722, 724 (1991), to overcome his procedural default.
Relying, in part, on Woody v. State, 833 P.2d 257 (Okla. 1992), and
applying the “mailbox rule,” see Houston v. Lack, 487 U.S. 266, 270 (1988), the
district court concluded that because Banks had placed his petition in the prison
mailbox on January 20, 1995, the filing date, he had demonstrated cause for his
“untimely” filing. The district court also found that Banks had demonstrated
actual prejudice because his ineffective assistance of counsel and Brady violations
claims would have been reviewed on the merits if the state appellate court had not
dismissed his petition as untimely.
-3- The district court thus ordered Oklahoma to grant appellate review to the
state district court’s denial of Banks’s application for post-conviction relief. To
ensure compliance with its order, the district court granted a conditional writ of
habeas corpus to be issued unless Oklahoma granted Banks an appeal out of time.
The state thereupon filed a motion requesting the Oklahoma Court of Criminal
Appeals to grant Banks a post-conviction appeal out of time. Rejecting the
district court’s reliance on the mailbox rule, the Court of Criminal Appeals denied
the motion but noted that under Oklahoma Court Rules, Banks could request an
appeal out of time in Tulsa County District Court. See Banks v. State, 953 P.2d
344, 347 (Okla. Crim. App. 1998). Based on this decision, the Oklahoma
Attorney General’s office filed a motion asking the federal district court to
reconsider its order granting a conditional writ of habeas corpus. Concluding that
Oklahoma court rules allowed Banks to file an application for post-conviction
relief out of time, the district court withdrew its earlier decision, granted the
State’s motion and dismissed Banks’s habeas petition without prejudice for
failure to exhaust state remedies.
Banks then filed an application for post-conviction appeal out of time in the
state district court. While a decision on his application was pending, Banks
obtained a certificate of probable cause from the district court to appeal the
dismissal of his habeas petition. We granted him leave to proceed in forma
-4- pauperis on appeal, ordered that counsel be appointed to represent his interests,
and requested supplemental briefing from the parties on the exhaustion issue.
Before the parties submitted their briefs on the exhaustion issue, however, the
state trial court denied Banks’s application for post-conviction appeal out of time,
and the Oklahoma Court of Criminal Appeals affirmed.
II
“This court will dismiss an appeal as moot, when pending an appeal from
the judgment of a lower court, . . . an event occurs which renders it impossible
. . . to grant [the appellant] any effectual relief whatever.” In re Material
Witness Warrant Nichols, 77 F.3d 1277, 1279 (10th Cir. 1996) (internal quotation
omitted). In Odum v. Boone, 62 F.3d 327 (10th Cir. 1995), we applied this rule
within the context of a challenge to the dismissal of a habeas petition for failure
to exhaust state remedies. There, the district court dismissed Odum’s petition for
federal habeas relief because he had failed to exhaust state remedies. Having
exhausted state remedies, Odum filed a second habeas petition which the district
court also denied. On appeal, he argued that the district court abused its
discretion in dismissing his first petition for failure to exhaust. Declining to
reach the exhaustion issue, we held that “it is irrelevant whether dismissal of
[Odum’s] first petition was correct; that issue is now moot because all of the
previously unexhausted claims are now exhausted.” Id. at 333.
-5- In the case now before us, the district court dismissed Banks’s petition for
failure to exhaust state remedies because it concluded that under state rules, he
could file an application for post-conviction relief out of time. Banks thereupon
filed such an application, which the state court denied while his appeal of the
district court’s dismissal of his petition was pending. Were we to consider the
exhaustion issue and hold that exhaustion was required, we would be affirming
the district court’s findings, thereby affording Banks no relief. If, however, we
were to conclude that exhaustion was not required, we would similarly be
affording Banks no relief as he has completed the exhaustion process.
This order does not address the merits of Banks’s habeas petition. The
district court dismissed the petition without prejudice for failure to exhaust state
remedies. The state courts’s denial of Banks’ application for post-conviction
relief while his appeal was pending in this court has rendered the exhaustion issue
moot, and we DISMISS this appeal.
ENTERED FOR THE COURT
Carlos F. Lucero Circuit Judge
-6-