WASHINGTON (CN) – Taking up the case of a Texas man sentenced to 30 years in prison for assault with a deadly weapon, the Supreme Court agreed Monday to decide whether his motion for a new trial should be considered a second habeas petition, which would not extend the timeframe to file a notice of appeal.
Gregory Dean Banister, who was convicted by a jury in 2004, challenged his three-decade sentence with a pro se petition for writ of habeas corpus, but a federal judge dismissed the petition in May 2017.
Banister filed his appeal of the ruling 66 days later, well beyond the 30-day timeframe mandated by federal law.
The Fifth Circuit noted last year that it lacked jurisdiction to review the denial, unless there was a reason that the time to file an appeal had been extended.
Banister had timely filed a Rule 59 motion for a new trial, which could have extended his time for filing a notice of appeal until a judge ruled on that motion.
But the New Orleans-based federal appeals court found the Rule 59 motion to be a second or “successive” habeas petition because it “merely attacked the merits of the district court’s reasoning.”
“Because the Rule 59(e) motion was a successive petition, it did not toll the period for timely filing a notice of appeal,” U.S. Circuit Judge Jennifer Walker Elrod wrote.
The Fifth Circuit ruling cited the 2005 case Gonzalez v. Crosby. But Banister’s attorney Brian Burgess of Goodwin Proctor wrote in an April brief to the Supreme Court that Gonzalez was centered on a different procedural rule.
“Left without anything else to say, respondent argues the merits and insists that Gonzalez resolves this case. But Gonzalez involved a petitioner who filed a Rule 60(b) motion more than a year after his first habeas proceeding had ended,” Burgess wrote. “The Gonzalez court thus had no occasion to consider whether [the Antiterrorism and Effective Death Penalty Act’s] restrictions on second habeas petitions apply to timely Rule 59(e) motions, which are ‘part and parcel of the petitioner’s ‘one full opportunity to seek collateral review.’”
The U.S. Supreme Court agreed Monday to decide “whether and under what circumstances a timely Rule 59(e) motion should be recharacterized as a second or successive habeas petition.”
Per their custom, the justices did not comment on the decision to take up the case.