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Previewing Banister v. Davis

The Supreme Court will be hearing arguments in December 2019 in a habeas corpus case, Banister v. Davis. This site closely watches Supreme Court cases regarding habeas corpus, to make sure that the trialdex retroactivity tool continues to give accurate results (new to this site? Check out the links on the front page to see all the litigation tools available).

Banister was convicted in state court of a vehicular homicide, and was unable to get the conviction overturned on direct review. His state habeas petition was denied in 2008.

He filed a pro se petition for federal habeas corpus relief (28 U.S.C. § 2254) in 2014, which was dismissed with prejudice on May 15, 2017. Twenty-eight days later he filed a "Motion to Alter or Amend the Judgment" based on FRCP 59(e) that essentially restated the same claims made in his original § 2254 petition. This was denied on June 20, 2017.

A month after that, on July 20, 2017, the defendant filed a motion in the Fifth Circuit Court of Appeals for a certificate of appealability (COA). This was denied. The court noted that the FRCP 59(e) motion was timely filed, and that FRCP 59(e) motions can extend the time for filing an appeal, Federal Appellate Rule 4(a)(4)(A)(iv), but reasoned that it lacked jurisdiction because the purported FRCP 59(e) motion was really a successive § 2254 petition, which could not toll the time for filing a notice of appeal. You can't toll an appeal deadline by filing something that is labeled a FRCP 59(e) motion if it is really something else.

The question of whether the purported FRCP 59(e) motion was really a successive § 2254 petition might be governed by Gonzalez v. Crosby, 545 U.S. 524 (2005). The petitioner in Gonzalez filed a "Motion to Alter or Amend the Judgment," but filed it pursuant to FRCP 60(b). The Court in Gonzalez set out a test for when a motion is successive:

  • Motions raising substantive claims on the merits, or refuting a district court's denial on the merits are successive
  • Motions that allege a defect in the integrity of the proceeding (e.g., fraud on the court) are not

The motion in Gonzalez (statute of limitations calculation) was not successive, but if the Gonzalez test is applied to Banister's petition, his motion was clearly successive. Consequently, Banister has to argue that the Gonzales test is inapplicable to Rule 59(e).

The differences between the rules are not striking. FRCP 59(e) permits a motion to alter or amend a judgment within 28 days after the entry of the judgment. FRCP 60(b) permits motions to relieve a party from a final judgment or order on various enumerated grounds within a "reasonable time," in some cases a year.

Nevertheless, the circuits are split on the issue, with some circuits reasoning that recharacterizing Rule 59(e) motions would frustrate the Rule's purpose of allowing district courts to fix errors, or that it is not a collateral action because the motion suspends the finality of the judgment.

(9/18/19)

 
 
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