USA v. Frederick Bank

Filing

NOT PRECEDENTIAL PER CURIAM OPINION Coram: SHWARTZ, NYGAARD and FISHER, Circuit Judges. Total Pages: 4. CLD-184

Case: 17-1018

Document: 003112590099

Page: 1

CLD-184

Date Filed: 04/11/2017

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 17-1018
___________
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. Criminal Action No. 2-03-cr-00245-001)
District Judge: Honorable Nora B. Fischer
____________________________________
Submitted for Possible Summary Action Pursuant to
Third Circuit LAR 27.4 and I.O.P. 10.6
April 6, 2017
Before: SHWARTZ, NYGAARD, and FISHER, Circuit Judges
(Opinion filed: April 11, 2017)
_________
OPINION*
_________

*

This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.

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PER CURIAM
Frederick Banks appeals pro se from the District Court’s December 16, 2016 order
denying his petition for a writ of error coram nobis. For the reasons that follow, we will
summarily affirm.
In 2005, the District Court sentenced Banks to an aggregate term of sixty months’
imprisonment and three years’ supervised release following his convictions for mail
fraud, criminal copyright infringement, uttering and possession of a counterfeit or forged
security, and witness tampering. His conviction was affirmed on direct appeal. See
United States v. Vampire Nation, 451 F.3d 189 (3d Cir. 2006). A subsequent motion to
vacate sentence pursuant to 28 U.S.C. § 2255 was denied, and we denied a certificate of
appealability (COA). See C.A. No. 06-3671.
In May 2013, after serving a consecutive sentence on additional charges of mail
fraud in a separate criminal proceeding at W.D. Pa. Cr. No. 2-04-cr-00176-001, Banks
was released from custody into the supervision of the U.S. Probation Office. In October
2014, the District Court determined that Banks had violated the terms of his supervised
release by committing wire fraud and aggravated identity theft.1 Banks’ supervised
release was revoked and he was sentenced to time served, with no additional term of
supervised release. We dismissed Banks’ appeal, for lack of a case or controversy, to the

1

The District Court relied on the fact finding by Chief Judge Conti who determined, after
contested violation proceedings, that Banks’ conduct had violated the terms of his
supervised release stemming from the 2004 criminal proceeding. In a Judgment for
Revocation of Supervised Release, Banks was sentenced to 14 months’ imprisonment and
six months of supervised release. We affirmed the revocation of his supervised release
and his sentence. See United States v. Banks, 572 F. App’x 162 (3d Cir. 2014).

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extent that he sought to challenge the revocation because he was no longer subject to a
term of custody and could not show any collateral consequences stemming from the
revocation in this matter. See United States v. Banks, 618 F. App’x 82, 84 (3d Cir.
2015). On December 16, 2016, Banks filed a coram nobis petition with the District
Court.2 The petition was denied the same day, and this appeal ensued.
We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291.3 In reviewing
a district court’s denial of coram nobis relief, we apply a de novo standard to that court’s
legal conclusions and examine its factual findings for clear error. See Mendoza v. United
States, 690 F.3d 157, 159 (3d Cir. 2012). We may take summary action if this appeal
fails to present a substantial question. See 3d Cir. I.O.P. 10.6.
We agree with the District Court that Banks is not entitled to this extraordinary
relief . “[A] writ of error coram nobis may be used to attack allegedly invalid convictions
which have continuing consequence, when the petitioner has served his sentence and is
no longer ‘in custody’ for purposes of 28 U.S.C. § 2255.” Mendoza, 690 F.3d at 159
(internal quotation marks omitted). In his petition, Banks seeks to attack his revocation
proceedings, not the underlying convictions in this matter. Because we have previously
determined that there are no collateral consequences stemming from the revocation in this
matter, he cannot satisfy this threshold eligibility requirement for coram nobis relief.

2

Banks filed an earlier coram nobis petition in August 2016. The District Court denied
that petition, and we summarily affirmed that denial. See United States v. Banks, 665 F.
App’x 138, 140 (3d Cir. 2016) (per curiam).
3
Banks does not need a certificate of appealability to proceed with this appeal. See
United States v. Baptiste, 223 F.3d 188, 189 n.1 (3d Cir. 2000) (per curiam).

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Although he contends that he continues to suffer consequences from this revocation, he
identifies only those which stem from the underlying convictions.
Because Banks’ challenge to the District Court’s denial of coram nobis relief
presents no substantial question, we will summarily affirm the District Court’s order.

4