Frederick Banks v. ( 2019 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 18-1014
____________
IN RE: FREDERICK H. BANKS,
Petitioner
__________________________________
On a Petition for Writ of Mandamus from the
United States District Court for the Western District of Pennsylvania
(Related to W.D. Pa. Crim. No. 2-15-cr-00168-001)
____________________________________
Submitted Pursuant to Rule 21, Fed. R. App. P.
April 23, 2019
Before: CHAGARES, RESTREPO, and SCIRICA, Circuit Judges
(Opinion filed May 22, 2019)
_________
OPINION *
_________
PER CURIAM
Petitioner Frederick Banks is currently awaiting trial in the United States District
Court for the Western District of Pennsylvania on charges of interstate stalking, 18
U.S.C. § 2261(a)(2), aggravated identity theft, § 1028A(a)(1), making false statements,
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
§ 1001(a)(3), and wire fraud, § 1343. In an order entered December 12, 2017, the
District Court determined, inter alia, that Banks is competent to stand trial, but
incompetent to represent himself. Banks filed a petition for writ of mandamus pursuant
to 28 U.S.C. § 1651, seeking an order directing the District Court to allow him to
represent himself at trial, and to appoint standby counsel. For the following reasons, we
will deny the mandamus petition.
Traditionally, use of the writ is appropriate “to confine an inferior court to a lawful
exercise of its prescribed jurisdiction or to compel it to exercise its authority when it is its
duty to do so.” Roche v. Evaporated Milk Ass’n, 319 U.S. 21, 26 (1943). Banks alleges
that the District Court did not lawfully exercise its jurisdiction in denying his right to
self-representation. However, the remedy of mandamus is “a drastic one, to be invoked
only in extraordinary situations.” United States v. Santtini, 963 F.2d 585, 593 (3d Cir.
1992). To justify the use of this extraordinary remedy, Banks must show both a clear and
indisputable right to the writ and that he has no other adequate means to obtain the relief
desired. See Haines v. Liggett Grp. Inc., 975 F.2d 81, 89 (3d Cir. 1992). Because Banks
can raise the issue in a direct criminal appeal should he be convicted, he has not shown
that he has no other alternative means of relief. See United States v. Peppers, 302 F.3d
120, 127-37 (3d Cir. 2002) (reviewing the issue after conviction); Flanagan v. United
States, 465 U.S. 259, 267-68 (1984) (“post-conviction review of a disqualification order
is fully effective to the extent that the asserted right to counsel of one’s choice is like, for
2
example, the Sixth Amendment right to represent oneself”); cf. United States v. Gooch,
850 F.3d 285, 290 (6th Cir. 2107) (“[t]he district court did not deny defendant the right to
counsel by allowing him to self-represent”); see also McKaskle v. Wiggins, 465 U.S.
168, 177 n.8 (1984) (holding that the denial of the right to self-representation “is not
amenable to ‘harmless error’ analysis”).
Accordingly, we will deny the petition for writ of mandamus. 1
1
Banks’ motion filed with this Court on February 20, 2018, is denied. To the extent he
seeks an order directing the District Court to appoint counsel, the motion is moot as the
District Court has appointed new counsel. Banks’ challenge to the District Court’s
determination that the period of delay stemming from this mandamus petition is
excludable under the Speedy Trial Act should be raised, if necessary, in a motion to
dismiss pursuant to 18 U.S.C. § 3162(a)(2). See Zedner v. United States, 547 U.S. 489,
506-07 (2006). Banks’ emergency motion filed on March 21, 2019, is denied as
unnecessary to the extent that it seeks expedited consideration of this mandamus petition.
It is granted to the extent that it seeks judicial notice of a state court order granting
Banks’ right to self-representation on appeal. The “Motion to Disclose FISA Electronic
Surveillance” is denied; to the extent that the motion seeks mandamus relief, Banks has
not shown a clear and indisputable right to the writ. Finally, in an effort to clear up any
confusion in the District Court, we note that there are no further matters pending in this
Court regarding Banks’ competency either to stand trial or to represent himself at trial.
3