BLD-280                                                        NOT PRECEDENTIAL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.
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, 

, 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
to vacate under 28 U.S.C. § 2255. United States v. Stoneman, 

, 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. 

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, 

,

159 (3d Cir. 2012) (quoting 

).

       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, 

, 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, 

, 174 (3d Cir. 2009); United

States v. Holt, 

, 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
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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