United States v. Frederick Banks ( 2019 )

ALD-067 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 18-3091
___________
UNITED STATES OF AMERICA
v.
FREDERICK H. BANKS,
Appellant
____________________________________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Crim. No. 2-03-cr-00245-001)
District Judge: Honorable Nora Barry Fischer
____________________________________
Submitted for Possible Summary Action
Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
January 3, 2019
Before: MCKEE, SHWARTZ and BIBAS, Circuit Judges
(Opinion filed: January 9, 2019)
_________
OPINION *
_________
PER CURIAM
Frederick Banks appeals pro se from the District Court’s order denying his petition
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
for a writ of error coram nobis or, in the alternative, a writ of audita querela. He also
challenges the District Court’s order insofar as it denied his request for a hearing on these
claims. For the following reasons, we will summarily affirm.
I.
In October 2004, following a jury trial in the United States District Court for the
Western District of Pennsylvania, Banks was convicted of mail fraud, copyright
infringement, and additional related offenses. We affirmed. See United States v.
Vampire Nation, 451 F.3d 189, 192 (3d Cir. 2006). The District Court later denied
Banks’s motion under 28 U.S.C. § 2255, and we denied him a certificate of appealability.
United States v. Banks, C.A. No. 06–3671 (order entered Dec. 17, 2007). Since then,
Banks has filed dozens of other motions and petitions in the District Court challenging
his 2004 convictions, and those filings have generated numerous unsuccessful appeals.
Banks has now completed serving his sentence and term of supervised release.
At issue here is Banks’s August 2018 petition for a writ of error coram nobis, or,
in the alternative, a writ of audita querela. In the petition, Banks claimed that: (1) the
District Court erred in denying a request he made during his 2014 revocation hearing
for evidence allegedly gathered against him under the Foreign Intelligence
Surveillance Act (FISA); (2) the District Court lacked jurisdiction over his criminal
case for numerous reasons, including: (a) the government obtained evidence against
him without the grand jury’s authorization; (b) the government failed to prove the
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interstate commerce element of the charges against him; (c) the court lacked
jurisdiction to prosecute him because he is a Native American; (d) the magistrate
judge was not authorized to accept his guilty plea; (e) he was not provided an
opportunity to challenge the individuals selected for the grand jury; (f) the arrest
warrants were invalid because they did not contain the magistrate judge’s official seal;
and (g) the grand jury did not properly record its vote.
The District Court denied the petition, concluding that Banks had not
demonstrated that he was entitled to the extraordinary relief provided by either of
these writs. The District Court also denied Banks’s request for a hearing. Banks
timely appealed.
II.
We have jurisdiction pursuant to 28 U.S.C. § 1291, and exercise de novo
review over legal issues arising from the denial of coram nobis and audita querela
relief. See United States v. Rhines, 640 F.3d 69, 71 (3d Cir. 2011) (per curiam);
United States v. Richter, 510 F.3d 103, 104 (2d Cir. 2007) (per curiam). We may take
summary action if an appeal fails to present a substantial question. See 3d Cir. I.O.P.
10.6.
III.
A motion to vacate sentence under 28 U.S.C. § 2255 is the presumptive means
to collaterally challenge a federal conviction or sentence. See Okereke v. United
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States, 307 F.3d 117, 120 (3d Cir. 2002). Only if § 2255 relief is “inadequate or
ineffective” may a petitioner like Banks resort to the All Writs Act, 28 U.S.C. § 1651,
which authorizes coram nobis and audita querela relief in the appropriate
circumstances. Because Banks’s claims could have been raised on appeal or under
§ 2255, the writs of coram nobis and audita querela are not available to him. See
Mendoza v. United States, 690 F.3d 157, 159 (3d Cir. 2012) (explaining that the writ
of error coram nobis is appropriate only when sound reasons exist for failing to seek
relief earlier); Massey v. United States, 581 F.3d 172, 174 (3d Cir. 2009) (explaining
that
§ 2255 is not “inadequate or ineffective” to warrant use of audita querela merely
because a petitioner cannot meet the stringent gatekeeping requirements of § 2255).
Accordingly, the District Court properly denied relief. In light of its disposition
of these motions, the District Court also properly denied Banks’s requests for a
hearing and appointment of counsel and a guardian ad litem.
IV.
For these reasons, we conclude that this appeal presents no substantial
question. Therefore, we will summarily affirm the District Court’s orders. See Third
Circuit LAR 27.4 and I.O.P. 10.6.
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