Commonwealth of Virginia v. Simon Bank

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying Motion to supplement [998899537-2]; denying Motion for writ of mandamus (FRAP 21) [998886296-2] Originating case number: 1:04-po-00248-JCC-1 Copies to all parties and the district court/agency. [998991493]. Mailed to: Simon Banks. [12-6854]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 12-6854

COMMONWEALTH OF VIRGINIA,
Plaintiff - Appellee,
v.
SIMON BANKS,
Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. James C. Cacheris, Senior
District Judge. (1:04-po-00248-JCC-1)

Submitted:

October 23, 2012

Decided:

November 29, 2012

Before NIEMEYER, MOTZ, and DAVIS, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Simon Banks, Appellant Pro Se.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Simon Banks appeals from district court orders denying
his Fed. R. Civ. P. 60(b) motion and his Fed. R. Civ. P. 59
motion.

In July 2004, Banks filed a notice of removal in the

district court under 28 U.S.C. § 1443 (2006), seeking to remove
criminal

proceedings

Alexandria, Virginia.

from

the

Circuit

Court

for

the

City

of

This case stayed on the district court’s

docket for several years while Banks filed numerous motions and
notices.
why

the

The district court twice ordered Banks to show cause
removed

action

should

subject matter jurisdiction.

not

be

dismissed

for

lack

of

Banks filed timely responses to

both notices.
In the Circuit Court for the City of Alexandria, the
criminal

action

proceeded

despite

the

notice

of

removal

and

after a trial, Banks was convicted of several fraud offenses and
sentenced to two years and six months’ imprisonment with two
years suspended.

His appeal was dismissed.

Banks has served

his sentence.
On

May

13,

2011,

after

a

period

of

inactivity

and

without the district court determining whether it had subject
matter
closed.

jurisdiction,

the

case

was

apparently

administratively

We say “apparently” because there was no order entered

on the docket sheet indicating the case was closed.

On March 8,

2012, Banks filed the Rule 60(b) motion seeking to reinstate the
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action, which was denied.
motion

seeking

motion.

Pg: 3 of 5

Banks followed up with a Rule 59

reconsideration

of

the

denial

of

his

Rule

60

The court denied that motion and Banks filed a timely

notice of appeal from both orders.
In certain circumstances, a state criminal prosecution
may be removed to the district court.
prerequisite

to

removal

“is

a

See 28 U.S.C. § 1443.

showing

that

the

defendant

A
is

being denied rights guaranteed under a federal law providing for
specific

rights

stated

in

terms

of

racial

equality.”

South

Carolina v. Moore, 447 F.2d 1067, 1070 (4th Cir. 1971) (internal
quotation marks omitted).
to

rare

situations

in

Removal of a criminal case is limited

which

a

defendant

has

been

denied

or

cannot enforce the right to racial equality in the state courts.
See Georgia v. Rachel, 384 U.S. 780, 788 (1966).

If it appears

that the district court lacks subject matter jurisdiction, the
case “shall be remanded.”

28 U.S.C. § 1447(c) (2006); see also

Roach v. West Va. Reg’l Jail & Corr. Facility Auth., 74 F.3d 46,
49 (4th Cir. 1996) (court has no discretion to dismiss a removed
case over which it has no subject matter jurisdiction).
Our review of the district court’s record shows that
there was never an order entered on the docket sheet on May 13,
2011,

directing

Clearly,

this

that

was

an

the

case

error.

be

See

administratively

Fed.

R.

Crim.

P.

closed.
55

(the

district court must keep records of criminal proceedings and
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“enter in the records every court order or judgment and the date
of entry.”); Fed. R. Civ. P. 79(2) (all orders must be entered
on the docket).

Nor is there any record that Banks was notified

by the court that the case was administratively closed until he
contacted the court inquiring as to the status.
In this instance, we will not remand for the purpose
of having the district court remand the action to state court.
The

state

court

never

acted

as

if

the

criminal

action

was

removed and proceeded to bring the criminal proceedings to a
conclusion with a trial, convictions and sentence. ∗
convictions, Banks has served his sentence.

Since the

Thus, under these

unique circumstances, there is nothing to remand.

After his

convictions, Banks had other avenues upon which he could raise
the issue that he was denied a fair trial due to circumstances
relating to racial equality.

There is no remedy this court or

the district court can provide under these circumstances.

See

Central States, Se. & Sw. Areas Pension Fund v. Central Transp.,
Inc., 841 F.2d 92, 95-96 (4th Cir. 1988) (If there is no longer
a

case

or

controversy,

or

there

is

an

event

that

makes

it

impossible for the court to provide relief, the appeal is moot
and should be dismissed.).

∗

We also note that the Commonwealth’s
appeared in the district court action.

4

Attorney

never

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Accordingly, because there is no relief that can be
provided to Banks, we dismiss the appeal as moot.

We deny

Banks’ motion to supplement the record and his motion construed
as a petition for a writ of mandamus seeking an order directing
the district court to have an evidentiary hearing.

We dispense

with oral argument because the facts and legal contentions are
adequately

presented

in

the

materials

before

the

court

and

argument would not aid the decisional process.
DISMISSED

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