ALD-067                                                         NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 18-3091
                                       ___________

                            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 Barry Fischer
                      ____________________________________

                        Submitted for Possible Summary Action
                   Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                    January 3, 2019
                Before: MCKEE, SHWARTZ and BIBAS, Circuit Judges

                             (Opinion filed: January 9, 2019)
                                       _________

                                        OPINION *
                                        _________
PER CURIAM

       Frederick Banks appeals pro se from the District Court’s order denying his petition


*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
for a writ of error coram nobis or, in the alternative, a writ of audita querela. He also

challenges the District Court’s order insofar as it denied his request for a hearing on these

claims. For the following reasons, we will summarily affirm.

                                              I.

       In October 2004, following a jury trial in the United States District Court for the

Western District of Pennsylvania, Banks was convicted of mail fraud, copyright

infringement, and additional related offenses. We affirmed. See United States v.

Vampire Nation, 

, 192 (3d Cir. 2006). The District Court later denied

Banks’s motion under 28 U.S.C. § 2255, and we denied him a certificate of appealability.

United States v. Banks, C.A. No. 06–3671 (order entered Dec. 17, 2007). Since then,

Banks has filed dozens of other motions and petitions in the District Court challenging

his 2004 convictions, and those filings have generated numerous unsuccessful appeals.

Banks has now completed serving his sentence and term of supervised release.

       At issue here is Banks’s August 2018 petition for a writ of error coram nobis, or,

in the alternative, a writ of audita querela. In the petition, Banks claimed that: (1) the

District Court erred in denying a request he made during his 2014 revocation hearing

for evidence allegedly gathered against him under the Foreign Intelligence

Surveillance Act (FISA); (2) the District Court lacked jurisdiction over his criminal

case for numerous reasons, including: (a) the government obtained evidence against

him without the grand jury’s authorization; (b) the government failed to prove the

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interstate commerce element of the charges against him; (c) the court lacked

jurisdiction to prosecute him because he is a Native American; (d) the magistrate

judge was not authorized to accept his guilty plea; (e) he was not provided an

opportunity to challenge the individuals selected for the grand jury; (f) the arrest

warrants were invalid because they did not contain the magistrate judge’s official seal;

and (g) the grand jury did not properly record its vote.

        The District Court denied the petition, concluding that Banks had not

demonstrated that he was entitled to the extraordinary relief provided by either of

these writs. The District Court also denied Banks’s request for a hearing. Banks

timely appealed.

                                            II.

        We have jurisdiction pursuant to 28 U.S.C. § 1291, and exercise de novo

review over legal issues arising from the denial of coram nobis and audita querela

relief. See United States v. Rhines, 

, 71 (3d Cir. 2011) (per curiam);

United States v. Richter, 

, 104 (2d Cir. 2007) (per curiam). We may take

summary action if an appeal fails to present a substantial question. See 3d Cir. I.O.P.

10.6.

                                           III.

        A motion to vacate sentence under 28 U.S.C. § 2255 is the presumptive means

to collaterally challenge a federal conviction or sentence. See Okereke v. United
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States, 

, 120 (3d Cir. 2002). Only if § 2255 relief is “inadequate or

ineffective” may a petitioner like Banks resort to the All Writs Act, 28 U.S.C. § 1651,

which authorizes coram nobis and audita querela relief in the appropriate

circumstances. Because Banks’s claims could have been raised on appeal or under

§ 2255, the writs of coram nobis and audita querela are not available to him. See

Mendoza v. United States, 

, 159 (3d Cir. 2012) (explaining that the writ

of error coram nobis is appropriate only when sound reasons exist for failing to seek

relief earlier); Massey v. United States, 

, 174 (3d Cir. 2009) (explaining

that

§ 2255 is not “inadequate or ineffective” to warrant use of audita querela merely

because a petitioner cannot meet the stringent gatekeeping requirements of § 2255).

       Accordingly, the District Court properly denied relief. In light of its disposition

of these motions, the District Court also properly denied Banks’s requests for a

hearing and appointment of counsel and a guardian ad litem.

                                           IV.

       For these reasons, we conclude that this appeal presents no substantial

question. Therefore, we will summarily affirm the District Court’s orders. See Third

Circuit LAR 27.4 and I.O.P. 10.6.




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