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Dewayne Noble Banks v. State of Idaho

August 17, 2012

DEWAYNE NOBLE BANKS,
PETITIONER-APPELLANT,
v.
STATE OF IDAHO,
RESPONDENT.



Appeal from the District Court of the Third Judicial District, State of Idaho, Canyon County. Hon. Thomas J. Ryan, District Judge.

The opinion of the court was delivered by: Melanson, Judge

Stephen W. Kenyon, Clerk

2012 Unpublished Opinion No. 594

THIS IS AN UNPUBLISHED OPINION AND SHALL NOT BE CITED AS AUTHORITY

Order summarily dismissing successive petition for post-conviction relief, affirmed.

Dewayne Noble Banks appeals from the district court's order summarily dismissing his successive petition for post-conviction relief. For the reasons set forth below, we affirm.

I.

FACTS AND PROCEDURE

Banks was found guilty of robbery and admitted to being a persistent violator. Banks was sentenced to a unified term of life imprisonment, with a minimum period of confinement of ten years. Banks filed a notice of appeal and an I.C.R. 35 motion for reduction of his sentence. After the district court denied Banks' Rule 35 motion, he filed a notice of appeal. In an unpublished opinion, this Court affirmed Banks' judgment of conviction and sentence and the denial of his Rule 35 motion. State v. Banks, Docket Nos. 27207 and 27629 (Ct. App. June 4, 2002). A remittitur was issued in August 2002.

Banks filed a federal petition for writ of habeas corpus. The action was stayed so Banks could exhaust his state court remedies. Banks filed a petition for post-conviction relief, which was dismissed in October 2003. Following the dismissal of Banks' appeal from the post-conviction action, Banks was permitted to reopen his federal habeas corpus case and filed an amended petition, which was dismissed. Attempts to appeal to the Ninth Circuit Court of Appeals were unsuccessful. In April 2009, a letter was sent to Banks stating that his petition for writ of certiorari to the United Sates Supreme Court had been denied.

In June 2009, Banks filed a successive petition for post-conviction relief alleging ineffective assistance of trial counsel. The state filed an answer and a motion for summary dismissal, asserting that Banks' petition was untimely pursuant to the one-year statute of limitation set forth in I.C. § 19-4902(a) and was an improper successive petition pursuant to I.C. § 19-4908. The district court entered an order granting the state's motion on those grounds. Banks filed a motion to alter or amend the judgment on post-conviction relief.*fn1 Banks alleged that his petition was timely because it was filed within one year of the April 2009 denial of his petition for writ of certiorari to the United States Supreme Court and was a proper successive petition. Banks alleged that his initial post-conviction counsel was ineffective because counsel did nothing on Banks' behalf.

In its memorandum decision upon Banks' motion, the district court determined that Banks' federal habeas corpus proceeding did not qualify as a proceeding following an appeal and, therefore, the time in which to file a petition for post-conviction relief began in August 2002 when this Court's opinion affirming Banks' judgment of conviction and sentence and the denial of his Rule 35 motion became final. Thus, because Banks' petition was filed in June 2009, the district court concluded that the petition was untimely pursuant to I.C. § 19-4902(a). The district court also concluded that it was unnecessary to engage in an analysis of why Banks' petition represented an improper successive petition. Thereafter, the district court entered a final judgment dismissing Banks' successive petition for post-conviction relief. Banks appeals.

II.

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