USA v. Frederick Bank

Filing

NOT PRECEDENTIAL PER CURIAM OPINION Coram: AMBRO, GREENAWAY JR. and SCIRICA, Circuit Judges. Total Pages: 4. BLD-280

Case: 17-1575

Document: 003112694421

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BLD-280

Date Filed: 08/07/2017

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 17-1575
___________
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 B. Fischer
____________________________________
Submitted for Possible Summary Action
Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
June 15, 2017
Before: AMBRO, GREENAWAY, JR., and SCIRICA, Circuit Judges
(Opinion filed: August 7, 2017)
_________
OPINION *
_________
PER CURIAM
In October 2004, a jury in the Western District of Pennsylvania found Frederick

*

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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Banks guilty of mail fraud, criminal copyright infringement, uttering and possession of a
counterfeit or forged security, and witness tampering. We affirmed his convictions and
sentence. See United States v. Vampire Nation, 451 F.3d 189, 192 (3d Cir. 2006). Since
then, Banks has unsuccessfully challenged these convictions through various petitions for
post-conviction relief, including a motion to vacate his sentence under 28 U.S.C. § 2255,
petitions for a writ of error coram nobis, and motions under Rule 60(b). He has now
completed serving his sentence and term of supervised release.
In February 2017, Banks filed in the District Court the petitions at issue in this
appeal—petitions for writs of error coram nobis and audita querela, as well as a motion
for a hearing on the petitions. In these petitions, Banks claimed that he was incompetent
to stand trial in 2004 due to mental illness, and that his trial counsel rendered ineffective
assistance by failing to pursue the issue despite his requests. In support of his argument,
Banks noted that he was recently declared incompetent to stand trial in a separate
criminal case. By order entered March 1, 2017, the District Court denied relief. Banks
timely appealed. 1
We will summarily affirm the District Court’s order because this appeal fails to
present a substantial question. See 3d Cir. I.O.P. 10.6. First, the District Court did not
err in denying the petition for a writ of error coram nobis. A writ of error coram nobis is
available to challenge an invalid conviction that has continuing consequences, when the
petitioner has served his sentence and is no longer “in custody” for purposes of a motion
1

We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291.
2

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to vacate under 28 U.S.C. § 2255. United States v. Stoneman, 870 F.2d 102, 105–06 (3d
Cir. 1989). Use of the writ is appropriate to correct errors for which there was no remedy
available at the time of trial, and where sound reasons exist for failing to seek relief
earlier. Id. In this case, Banks has failed to meet this requirement; although
Banks asserted that he “only just learned that he has delusional disorder,” he
contradictorily states that he was concerned enough about his competency at the time of
his trial to raise the issue with his attorney. As the District Court explained, the fact that
Banks was declared incompetent to stand trial in 2016 has no bearing on whether he was
incompetent in 2004. Consequently, he has not demonstrated that he had “‘sound
reasons’ … for failing to seek relief earlier.” Mendoza v. United States, 690 F.3d 157,
159 (3d Cir. 2012) (quoting Stoneman, 870 F.2d at 106).
The District Court also correctly concluded that there was no basis for a writ of
audita querela to issue. Like coram nobis, a common law writ like audita querela can be
used to the extent that it “fill[s] in the gaps” in post-conviction remedies. United States v.
Valdez-Pacheco, 237 F.3d 1077, 1079 (9th Cir. 2001). Banks’s present claims can be
raised via 28 U.S.C. § 2255; his lack of success in a previous § 2255 motion does not
allow him to use the writ of audita querela to circumvent AEDPA’s gatekeeping
requirements. See Massey v. United States, 581 F.3d 172, 174 (3d Cir. 2009); United
States v. Holt, 417 F.3d 1172, 1175 (11th Cir. 2005).
Finally, under these circumstances, we see no abuse of discretion in the District
Court’s decision to deny Banks’s request for an evidentiary hearing. Accordingly,
3

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because this appeal does not present a substantial question, we will summarily affirm the
District Court’s order. See LAR 27.4; I.O.P. 10.6.

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