Banks v. Forbes et al.

Filing 5

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 2 in full. A certificate of appealability is denied. Signed by Judge Brian Morris on 9/13/2017. Mailed to Banks at NEOCC (TAG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
HELENA DIVISION
FREDERICK BANKS,
Petitioner,

CV-17-61-H-BMM

vs.
ORDER
KELLY FORBES, et al.,
Respondents.
Petitioner Frederick Banks (Banks) has filed a “Petition for a Writ of
Mandamus and for Immediate Discharge and Habeas Corpus.” (Doc. 1). Banks is a
federal prisoner proceeding pro se. Banks alleges that he is entitled to a writ of
habeas corpus because he was transferred from the Federal Medical Facility in
Butner, North Carolina, to the United States Penitentiary in Atlanta, Georgia, on
May 8, 2017, while he had a habeas petition pending before the Fourth Circuit
Court of Appeals. (Doc. 1).1 Banks alleges that he was transferred to the

1

The Court was able to verify that the case of Frederick Banks v. Mark Hornak, No. 166981, was argued before the Fourth Circuit on May 9, 2017, in Richmond, Virginia. See
http://www.ca4.uscourts.gov/oral-argument/oral-argument-calendar.

penitentiary in Atlanta “because the government feared he would be released” by
the Fourth Circuit. Id.
United States Magistrate Judge John Johnston entered Findings and
Recommendations in this matter on June 1, 2017. (Doc. 2). Judge Johnston
recommended that Banks’s petition be dismissed for lack of jurisdiction. Judge
Johnston determined that this Court lacked jurisdiction given that Respondent Kelly
Forbes (Forbes) resides outside this District’s territorial limits. (Doc. 2 at 2-3).
Forbes is the Warden at the Federal Medical Facility in Butner, North Carolina.
Banks filed objections to Judge Johnston’s Findings and Recommendations on
July 25, 2017. (Doc. 4).
The Court reviews de novo findings and recommendations to which
objections are made. 28 U.S.C. § 636(b)(1). The Court has reviewed Judge
Johnston’s Findings and Recommendations de novo. The Court finds no error in
Judge Johnston’s Findings and Recommendations, and adopts them in full.
District Courts may grant habeas relief only within their respective
jurisdictions. Rumsfeld v. Padilla, 542 U.S. 426, 442 (2004). The Court lacks
personal jurisdiction to consider a petition that names a respondent that resides
outside the Court’s territorial limits. See Malone v. Calderon, 165 F.3d 1234, 1237
(9th Cir. 1999) (holding that a California district court lacked jurisdiction over a
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habeas action related to a prisoner confined in Missouri). Forbes resides outside
this Court’s territorial limits. This Court therefore lacks jurisdiction to consider
Banks’s petition.
When a petitioner files a habeas petition in a district court that lacks
jurisdiction, that court may transfer the petition to a court with jurisdiction “if it is
in the interest of justice.” 28 U.S.C. § 1631; Miller v. Hambrick, 905 F.2d 259, 262
(9th Cir. 1990). Banks has filed the same petition in several other jurisdictions.2
Banks has been previously designated a vexatious litigant. See Frederick Banks v.
Pope Francis, 2015 WL 8207532 at *3-4 (W.D. Pa. Dec. 8, 2015) (collecting cases
where Banks has been repeatedly warned that the filing of meritless, duplicative,
and frivolous motions and lawsuits will not be tolerated). The transfer of Banks’s
petition in this case would not promote the interests of justice.
Accordingly, IT IS ORDERED:
1.

Banks’s petition (Doc. 1) is DISMISSED for lack of jurisdiction.

2.

A certificate of appealability is denied because this Court lacks

jurisdiction.
3.

The Clerk is directed to enter judgment accordingly.

2

See Banks v. Forbes, et al., No. 5:2017 hc 02102 (filed May 22, 2017, in the Eastern
District of North Carolina); Banks v. Forbes, et al., No. 3:17-CV-0086 (filed May 22, 2017, in
the District of Oregon); and Banks v. Forbes, et al., No. 3:2017 CV-00847 (filed May 22, 2017
in the District of Connecticut).
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DATED this 13th day of September, 2017.

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