2009 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

11-12-2009

USA v. Frederick H. Banks

Precedential or Non-Precedential: Non-Precedential

Docket No. 09-3168

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Recommended Citation

"USA v. Frederick H. Banks" (2009). 2009 Decisions. Paper 266.

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1

HLD-011 (October 2009) NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 09-3168

___________

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. 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 and Consideration of Whether a

Certificate of Appealability is Required

October 30, 2009

Before: SCIRICA, Chief Judge, WEIS and GARTH, Circuit Judges

 (Opinion filed: November 12, 2009) 

_________

OPINION

_________

PER CURIAM.

Frederick H. Banks, a federal inmate, appeals from the denial of his motion

titled, “Motion to Recuse Nora Barry Fischer from Hearing Motion to Vacate; Motion to
To the extent that Banks needs a certificate of appealability to pursue this 1

appeal, it is denied. Reasonable jurists could not debate the District Court’s stated

reasons for denying Banks’s motion. See Slack v. McDaniel, 529 U.S. 473, 484 (2000). 

2

Vacate, Set Aside, and Correct Sentence under 28 U.S.C. §2255; Motion to Modify

Sentence for Clear Error 18 U.S.C. § 3582(c)(1)(b).” (District Court Docket No. 459). By

Order entered July 14, 2009, the District Court denied the request for recusal, explained

that Banks’s motion is procedurally improper to the extent that Banks seeks to initiate a

civil action against numerous purported defendants, and denied collateral relief to the

extent that Banks sought to file a second or successive 28 U.S.C. § 2255 motion without

having first securing permission from this Court to do so.

The District Court thereafter received Banks’s “Reply” to the government’s

response in opposition to his motion. By Order entered July 20, 2009, the District Court

denied Banks’s reply as moot given that the Court had already denied the underlying

motion. To the extent that Banks’s “Reply” could be viewed as a motion for

reconsideration of the July 14 Order, the District Court denied reconsideration. Banks

timely filed this appeal. 

This Court has appellate jurisdiction under 28 U.S.C. § 1291. After a

careful review of the record, we will summarily affirm the District Court’s judgment in

accordance with Third Circuit Internal Operating Procedure Chapter 10.6.1

The record reflects that a jury in the Western District of Pennsylvania

convicted Banks in 2004 of mail fraud, criminal copyright infringement, money
3

laundering, uttering and possessing counterfeit or forged securities, and witness

tampering. The District Court sentenced Banks to sixty months of imprisonment plus

three years of supervised release. This Court affirmed, see United States v. Vampire

Nation, 451 F.3d 189 (3d Cir. 2006), and the United States Supreme Court denied

certiorari review. The District Court denied Banks’s first 28 U.S.C. § 2255 motion on the

merits, and in December 2007, this Court denied Banks a certificate of appealability. See

C.A. No. 06-3671.

Banks has continued to file numerous motions in the District Court,

including the motion that is the subject of the present appeal. The District Court was

correct that, insofar as Banks sought to initiate a civil lawsuit through the filing of another

§ 2255 motion, his filing was procedurally improper. Banks, an experienced pro se

litigant, is no doubt aware of the manner in which to commence a civil proceeding in

federal court, and the District Court committed no error in its refusal to allow Banks to

pursue civil claims in connection with the post-conviction review of his criminal

conviction.

Insofar as Banks sought to style his § 2255 filing as a civil suit so that he

could name Judge Fischer as a defendant and seek recusal, that action was patently

improper. Indeed, other than merely naming Judge Fischer in his proposed civil action,

Banks offered no allegation at all to question Judge Fischer’s impartiality in presiding

over these post-conviction proceedings. The District Court correctly denied recusal.
4

Finally, as the District Court has advised Banks previously, he must obtain

authorization from this Court before he can proceed with a “second or successive” § 2255

attack. See 28 U.S.C. § 2244; United States v. Miller, 197 F.3d 644, 649 (3d Cir. 1999). 

Banks’s various arguments based on his alleged status as a Lakota Sioux Indian do not

exempt him from having to comply with the law governing the filing of second or

successive § 2255 motions. Accordingly, the District Court did not err in refusing to

consider the unauthorized § 2255 motion. The District Court likewise committed no error

in denying reconsideration insofar as Banks’s “Reply” was liberally construed as a motion

for reconsideration of the July 14 Order; Banks offered no viable ground upon which the

District Court could have reconsidered its refusal to entertain his motion.

In sum, because this appeal presents “no substantial question,” 3d Cir. IOP

Ch. 10.6, the District Court’s judgment will be affirmed.