On December 4, 2019, the U.S. Supreme Court heard oral arguments in Banister v. Davis. In a rare grant of certiorari review to a pro se petitioner, the Court agreed last summer to take up an open question of habeas procedure posed by Gregory Banister, who is imprisoned in Texas for aggravated assault. Mr. Banister’s petition asked the Court to examine the contours of the rules under which federal courts re-examine their own decisions. In the habeas context, those rules are often hampered by the 1996 statute restricting multiple federal habeas petitions, the Anti-Terrorism and Effective Death Penalty Act (AEDPA). During his federal habeas proceedings, Mr. Banister made an unsuccessful motion under Federal Rule of Civil Procedure 59(e) asking the district court to amend its decision denying him relief. The Fifth Circuit Court of Appeals, in denying Mr. Banister’s appeal, determined that the motion to amend was actually an unauthorized second habeas petition. The Fifth Circuit cited Gonzalez v. Crosby, in which the Supreme Court had determined when a motion under Rule 60(b)—which asks for relief from judgment and operates differently than Rule 59(e) motions—should be treated as a successive petition, which are usually not allowed under AEDPA. As Mr. Banister pointed out in his petition, the federal circuits are split on whether Gonzalez also applies to Rule 59(e) motions. Though Mr. Banister is not a capital petitioner, Rule 59(e) motions are often filed during federal habeas proceedings in capital cases. The Court’s decision in Banister will, like Gonzalez, have important implications for death penalty litigation.
After Mr. Banister filed his petition, the Court took the unusual step of requesting a response from Texas. At this point, Brian Burgess, a partner at Goodwin Procter, took note of the Court’s apparent interest in the case and offered to represent Mr. Banister pro bono. Goodwin Procter handled Mr. Banister’s certiorari reply, merits briefing, and the oral argument. At the argument, the justices asked questions focusing on the legislative intent for AEDPA, observing that Congress had treated Rules 59 and 60 differently prior to AEDPA’s passage, and had not included anything in the statute suggesting that should change. Justices Kavanaugh and Gorsuch were active in this line of questioning, suggesting that Mr. Banister’s position might find favor across the Court. Justice Gorsuch further noted that the dichotomy between the two rules is “pretty ancient” and that motions under Rule 59(e), which must be filed before the deadline for appealing a decision, simply recognizes the inherent authority of judges to correct errors in their own judgments while the court is still “in session.”