UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-7399
COMMONWEALTH OF VIRGINIA,
Plaintiff - Appellee,
versus
SIMON BANKS,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Leonie M. Brinkema, District
Judge. (CR-04-249-1-MG)
Submitted: January 12, 2005 Decided: February 3, 2005
Before NIEMEYER, WILLIAMS, and TRAXLER, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
Simon Banks, Appellant Pro Se. Elliott Casey, COMMONWEALTH’S
ATTORNEY’S OFFICE, Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Simon Banks appeals from the district court’s order
dismissing his petition for removal of a state criminal prosecution
against him and denying his motion for reconsideration. While the
district court properly concluded it lacked jurisdiction over the
case, see City of Greenwood, MS. v. Peacock, 384 U.S. 808, 827-28
(1966), the proper disposition upon a determination of the lack of
subject matter jurisdiction is to remand the case to the state
court, rather than dismiss the action. See 28 U.S.C.
§§ 1446(c)(3), (4), 1447(c) (2000); see, e.g., Virginia v. Wallace,
357 F.2d 105, 106 (4th Cir. 1966) (affirming district court order
remanding criminal prosecution to state court).
Accordingly, we vacate the district court’s dismissal
order and the order denying reconsideration and remand this case to
the district court with instructions to remand the case to the
state court. 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.
VACATED AND REMANDED
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