BLD-004 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 16-3091
___________
IN RE: FREDERICK H. BANKS,
Petitioner
____________________________________
On a Petition for Writ of Mandamus from the
United States District Court for the Western District of Pennsylvania
(Related to W.D. Pa. Crim. No. 2-15-cr-00168-001)
____________________________________
Submitted Pursuant to Rule 21, Fed. R. App. P.
October 6, 2016
Before: AMBRO, GREENAWAY, JR., and SCIRICA, Circuit Judges
(Opinion filed: November 3, 2016 )
_________
OPINION*
_________
PER CURIAM
Pro se Petitioner Frederick H. Banks has filed a petition for a writ of mandamus
concerning the ongoing criminal case against him on charges of Interstate Stalking
(18 U.S.C. §§ 2261A(2) and 2), Wire Fraud (18 U.S.C. §§ 1343 and 2), Aggravated
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
Identity Theft (18 U.S.C. § 1028A(a)(1)), and Making False Statements (18 U.S.C.
§ 1001(a)(3)). Upon motion by appointed defense counsel, the District Court began an
official inquiry into Banks’s competency to stand trial. During that inquiry, in April
2016, the District Court ordered a mental health evaluation to be performed at the Federal
Bureau of Prisons (“BOP”) facility in Butner, North Carolina. In the same order, the
District Court denied Banks’s counseled request to be released on bond pending trial.
The District Court also denied Banks’s pro se motions, noting that the motions were
denied without prejudice to being refiled by appointed counsel.
In July 2016, Banks filed this mandamus petition. He alleges that the District
Court did not serve him with the April 2016 order in order to obstruct his appeal under
the Bail Reform Act. Banks states that counsel never provided him with a copy, and so
he first received actual notice of the order on July 1, 2016.1 He asserts that a writ of
mandamus is appropriate to reinstate his right to appeal from the April 2016 order and to
reverse the decision denying his release on bond. Banks also seeks mandamus relief to
order his appointed counsel to refile his motions, given counsel’s refusal to do so thus far.
Mandamus is a drastic remedy reserved for the most extraordinary of
circumstances. See In re Diet Drugs Prods. Liab. Litig., 418 F.3d 372, 378 (3d Cir.
2005). To justify such a remedy, a petitioner must show that he has (i) no other adequate
means of obtaining the desired relief and (ii) a “clear and indisputable” right to issuance
1
Apparently, Banks does not dispute that counsel of record was duly served with notice
of the order.
2
of the writ. See Haines v. Liggett Group, Inc., 975 F.2d 81, 89 (3d Cir. 1992) (citing
Kerr v. United States District Court, 426 U.S. 394, 403 (1976)). Even when a petitioner
shows the absence of other adequate means to obtain the requested relief, and also
establishes a “clear and indisputable” right to issuance of the writ, our exercise of
mandamus power is largely discretionary. See In re Kensington Int’l Ltd., 353 F.3d 211,
219 (3d Cir. 2003).
Upon consideration of the circumstances presented here, we conclude that
mandamus relief is not warranted. The writ of mandamus may be used “to confine an
inferior court to a lawful exercise of its prescribed jurisdiction or to compel it to exercise
its authority when it is its duty to do so.” In re Diet Drugs Prods. Liab. Litig., 418 F.3d at
378 (quoting In re Patenaude, 210 F.3d 135, 140 (3d Cir. 2000)). Mandamus is not
appropriate as a substitute for an appeal from a decision by the District Court. See
Cheney v. U.S. Dist. Ct. for Dist. of Columbia, 542 U.S. 367, 380-81 (2004); In re Diet
Drugs Prods. Liab. Litig., 418 F.3d at 378-79. We note that Banks alludes to an eleven-
month delay during the District Court’s determination of his competency. To the extent
that Banks alleges that mandamus relief is appropriate in light of the delay in his criminal
case while the question of his competency is being determined, we disagree that our
intervention is warranted. See Madden v. Myers, 102 F.3d 74, 79 (3d Cir. 1996). It
appears from the record that the District Judge and the parties remain engaged in the
matter, and the proceedings have remained active in recent months.
For these reasons, we will deny the petition for a writ of mandamus.
3