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Gregory Dean Banister v. Lorie Davis, Director, Texas Department of Criminal Justice, Correctional Institutions Division

Paid petition · United States Court of Appeals for the Fifth Circuit, No. 17-10826 · judgment May 8, 2018

Decided · June 1, 2020

Question presented

Granted limited to the following question: whether and under what circumstances a timely rule 59 (e) motion should be recharacterized as a second or successive habeas petition under gonzalez v. Question One: In Gonzalez V. Crosby this Court held that a Rule 60(b) motion that either adds new habeas claim or attacks the court's previous resolution of the habeas claims, should be treated as a successive habeas petition under AEDPA's §2244. Does Gonzalez extend to post-judgment motions filed under Rule 59(e) of the Federal Rules of Civil Procedure? a. If so, should a timely filed Rule 59(e) motion toll the the time to file a notice of appeal under Federal Rules of Appellate Procedure, Rule 4(a)(4)(A)(iv)? Question Two: Whether a pro se petitioner must be warned and given an opportunity to withdraw a post-judgment motion which has been recharacterized as a successive habeas petition if that recharacterization will effect his ability to file a timely notice of appeal?

Case

Conference history
Distributed for 4 conferences

Amicus briefs
4 merits
(2 supporting pet./neither, 2 respondent)

Related

Argument & decision

Argued December 4, 2019 — Brian T. Burgess · Kyle D. Hawkins. Audio and transcript

Decided June 1, 2020. Opinion by Kagan.

Proceedings

  1. Jul 06 2020
    JUDGMENT ISSUED.
  2. Jun 01 2020
    Judgment REVERSED and case REMANDED. Kagan, J., delivered the opinion of the Court, in which Roberts, C. J., and Ginsburg, Breyer, Sotomayor, Gorsuch, and Kavanaugh, JJ., joined. Alito, J., filed a dissenting opinion, in which Thomas, J., joined.
  3. Dec 04 2019
    Argued. For petitioner: Brian T. Burgess, Washington, D. C. For respondent: Kyle D. Hawkins, Solicitor General, Austin, Tex.; and Benjamin Snyder, Assistant to the Solicitor General, Department of Justice, Washington, D. C. (for United States, as amicus curiae.)
  4. Nov 18 2019
    Reply of petitioner Gregory Dean Banister filed. (Distributed)
    Main DocumentCertificate of Word CountProof of Service
  5. Nov 12 2019
    Motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument GRANTED.
  6. Oct 25 2019
    CIRCULATED
  7. Oct 25 2019
    Brief amicus curiae of United States filed. (Distributed)
    Main DocumentCertificate of Word Count
  8. Oct 25 2019
    Motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument filed.
    Proof of ServiceMain Document
  9. Oct 25 2019
    Brief amici curiae of States of Indiana, et al. filed. (Distributed)
    Main DocumentCertificate of Word CountProof of Service
  10. Oct 23 2019
    Record requested from the U.S.C.A. 5th Circuit.
  11. Oct 23 2019
    The Record from the U.S.C.A. 5th Circuit is electronic and located on Pacer.
  12. Oct 18 2019
    Brief of respondent Lorie Davis, Director TDCJ filed.
    Main DocumentProof of ServiceCertificate of Word Count
  13. Sep 13 2019
    SET FOR ARGUMENT on Wednesday, December 4, 2019.
  14. Sep 03 2019
    Brief amici curiae of Law Professors with Expertise in Habeas Corpus and Civil Procedure filed.
    Main DocumentCertificate of Word CountProof of Service
  15. Aug 30 2019
    Brief amicus curiae of National Association of Criminal Defense Lawyers filed.
    Main DocumentCertificate of Word CountProof of Service
  16. Aug 26 2019
    Joint appendix filed. (Statement of costs filed)
    Main DocumentProof of Service
  17. Aug 26 2019
    Brief of petitioner Gregory Dean Banister filed.
    Main DocumentCertificate of Word CountProof of Service
  18. Jul 17 2019
    Joint motion to extend the time to file the briefs on the merits granted. The time to file the joint appendix and petitioner's brief on the merits is extended to and including August 26, 2019. The time to file respondent's brief on the merits is extended to and including October 18, 2019.
  19. Jul 10 2019
    Joint motion for an extension of time to file the briefs on the merits filed.
    Main Document
  20. Jun 24 2019
    Motion to proceed in forma pauperis GRANTED, and petition for a writ of certiorari GRANTED limited to the following question: Whether and under what circumstances a timely Rule 59(e) motion should be recharacterized as a second or successive habeas petition under Gonzalez v. Crosby, 545 U. S. 524 (2005).
  21. Jun 17 2019
    DISTRIBUTED for Conference of 6/20/2019.
  22. May 29 2019
    DISTRIBUTED for Conference of 6/13/2019.
  23. May 06 2019
    Rescheduled.
  24. Apr 24 2019
    DISTRIBUTED for Conference of 5/9/2019.
  25. Apr 24 2019
    Reply of petitioner Gregory Dean Banister filed. (Distributed)
    Main DocumentCertificate of Word CountProof of Service
  26. Apr 10 2019
    Brief of respondent Lorie Davis, Director TDCJ in opposition filed.
    Main DocumentProof of Service
  27. Mar 29 2019
    Letter from counsel for petitioner received.
    Main Document
  28. Mar 01 2019
    Motion to extend the time to file a response is granted in part, and the time is extended to and including April 10, 2019.
  29. Feb 27 2019
    Motion to extend the time to file a response from February 27, 2019 to April 26, 2019, submitted to The Clerk.
    Main Document
  30. Jan 28 2019
    Response Requested. (Due February 27, 2019)
  31. Jan 17 2019
    DISTRIBUTED for Conference of 2/15/2019.
  32. Sep 17 2018
    Petition for a writ of certiorari and motion for leave to proceed in forma pauperis filed. (Response due January 7, 2019)
    Motion for Leave to Proceed in Forma PauperisPetitionAppendixProof of Service