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    1) Walter Banks appealed the dismissal of his habeas corpus petition challenging his first degree murder conviction. The district court dismissed the petition without prejudice for failure to exhaust state remedies. 2) While Banks' appeal was pending, he filed an application for post-conviction relief in state court as instructed by the district court. The state court denied his application. 3) Because Banks has now exhausted his state court remedies, the exhaustion issue in his federal habeas appeal is moot. The Tenth Circuit dismisses Banks' appeal.

    Original Description:

    Filed: 1999-08-16 Precedential Status: Non-Precedential Docket: 98-5032

    Original Title

    Banks v. Champion, 10th Cir. (1999)

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    1) Walter Banks appealed the dismissal of his habeas corpus petition challenging his first degree murder conviction. The district court dismissed the petition without prejudice for failure to exhaust state remedies. 2) While Banks' appeal was pending, he filed an application for post-conviction relief in state court as instructed by the district court. The state court denied his application. 3) Because Banks has now exhausted his state court remedies, the exhaustion issue in his federal habeas appeal is moot. The Tenth Circuit dismisses Banks' appeal.

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    17 views6 pages

    Filed: Patrick Fisher

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    1) Walter Banks appealed the dismissal of his habeas corpus petition challenging his first degree murder conviction. The district court dismissed the petition without prejudice for failure to exhaust state remedies. 2) While Banks' appeal was pending, he filed an application for post-conviction relief in state court as instructed by the district court. The state court denied his application. 3) Because Banks has now exhausted his state court remedies, the exhaustion issue in his federal habeas appeal is moot. The Tenth Circuit dismisses Banks' appeal.

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    of 6

    F I L E D

    UNITED STATES COURT OF APPEALS


    TENTH CIRCUIT

    United States Court of Appeals


    Tenth Circuit

    AUG 16 1999

    PATRICK FISHER
    Clerk

    WALTER BANKS,
    Petitioner - Appellant,

    v.

    No. 98-5032
    (D.C. No. 95-CV-1074-K)
    (Northern District of Oklahoma)

    RONALD J. CHAMPION, sued as:


    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
    Bankss 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 courts 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.
    Bankss 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 Anthonys 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).
    1

    -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 courts denial of Bankss 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 courts 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 Generals 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
    States motion and dismissed Bankss 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 Bankss 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 Odums 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
    [Odums] 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 Bankss 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 courts 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 courts 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 Bankss habeas petition. The
    district court dismissed the petition without prejudice for failure to exhaust state
    remedies. The state courtss 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-

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