CLD-081 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 16-3843
___________
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. Criminal Action No. 2-96-cr-00064-001)
District Judge: Honorable Cathy Bissoon
____________________________________
Submitted for Possible Summary Action Pursuant to
Third Circuit LAR 27.4 and I.O.P. 10.6
December 21, 2016
Before: FISHER, SHWARTZ and BARRY, Circuit Judges
(Opinion filed January 6, 2017)
_________
OPINION *
_________
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
PER CURIAM
Frederick Banks appeals pro se from (1) the District Court’s September 8, 2016
order denying his petition for a writ of error coram nobis, and (2) the District Court’s
October 28, 2016 order denying his related motion to reconsider for lack of jurisdiction.
For the reasons that follow, we will summarily affirm the September 8 order, modify the
October 28 order, and summarily affirm the latter order as modified.
I.
In 1996, the District Court sentenced Banks to four months’ confinement and three
years’ supervised release following his guilty plea to mail fraud. He did not appeal from
that judgment. On September 7, 2016, the District Court received a coram nobis petition
from Banks. 1 That petition argued that his conviction should be vacated because
(1) Banks’s guilty plea was the product of threats and coercion, (2) his plea counsel failed
to inform him that he could be fired from his job as a result of his guilty plea, (3) plea
counsel failed to file a direct appeal (despite Banks’s request that counsel do so), and
(4) Banks did not actually violate the mail fraud statute. Banks alleged that he suffers
from continuing consequences as a result of his conviction, and that “[s]ound reasons
exist for [his] failing to seek relief earlier because [his] case file was never turned over to
him by counsel even though he requested it.” (Dist. Ct. docket # 50, at 1.) On September
8, 2016, the District Court denied the petition, concluding that Banks “ha[d] not shown
1
Banks filed an earlier coram nobis petition in 2005. The District Court denied that
petition, and we summarily affirmed that denial. See United States v. Banks, 165 F.
2
that his conviction carries continuing consequences, or that sound reasons exist for his
failure to seek relief earlier.” (Dist. Ct. docket # 51, at 2.)
In October 2016, the District Court received from Banks a notice of appeal
challenging its September 8 order. Later that month, Banks moved the District Court to
reconsider that order. On October 28, 2016 (the same day that this motion was
docketed), the District Court issued a text-only order denying reconsideration, stating that
it lacked jurisdiction over the motion in light of Banks’s pending appeal. A few days
later, Banks amended his notice of appeal to include a challenge to the October 28 order. 2
II.
We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. 3 In reviewing
a district court’s denial of coram nobis relief, we apply a de novo standard to that court’s
legal conclusions and examine its factual findings for clear error. See Mendoza v. United
States, 690 F.3d 157, 159 (3d Cir. 2012). We review a district court’s denial of a motion
to reconsider for abuse of discretion, exercising de novo review over that court’s legal
conclusions and reviewing its factual findings for clear error. Howard Hess Dental Labs.
App’x 987, 987 (3d Cir. 2006) (per curiam).
2
When, as here, an appellant challenges an order denying a coram nobis petition, the
appeal is treated as one made in a civil action for purposes of Federal Rule of Appellate
Procedure 4(a). Fed. R. App. P. 4(a)(1)(C). Accordingly, a 60-day appeal period, which
begins to run when the order in question is “entered,” governs in this case. See Fed. R.
App. P. 4(a)(1)(B). Both Banks’s original notice of appeal and his amended notice of
appeal were timely filed.
3
Banks does not need a certificate of appealability to proceed with this appeal. See
United States v. Baptiste, 223 F.3d 188, 189 n.1 (3d Cir. 2000) (per curiam).
3
Inc. v. Dentsply Int’l, Inc., 602 F.3d 237, 246 (3d Cir. 2010). We may take summary
action if this appeal fails to present a substantial question. See 3d Cir. I.O.P. 10.6.
We begin our review with the District Court’s September 8 order denying Banks’s
coram nobis petition. “[A] writ of error coram nobis may be used to attack allegedly
invalid convictions which have continuing consequence, when the petitioner has served
his sentence and is no longer ‘in custody’ for purposes of 28 U.S.C. § 2255.” Mendoza,
690 F.3d at 159 (certain internal quotation marks omitted). However, the writ is reserved
for “exceptional circumstances” only, United States v. Osser, 864 F.2d 1056, 1059 (3d
Cir. 1988), and it is appropriate only to (1) “correct errors for which there was no remedy
available at the time of trial,” and (2) “where ‘sound reasons’ exist for failing to seek
relief earlier.” Mendoza, 690 F.3d at 159 (quoting United States v. Stoneman, 870 F.2d
102, 106 (3d Cir. 1989)). The standard for coram nobis is even more stringent than that
used to evaluate § 2255 motions, Stoneman, 870 F.2d at 106, and both we and the
Supreme Court have noted that “it is difficult to conceive of a situation in a federal
criminal case today where a writ of coram nobis would be necessary or appropriate.”
Mendoza, 690 F.3d at 159 (quoting Carlisle v. United States, 517 U.S. 416, 429 (1996)).
We agree with the District Court that Banks’s 2016 petition failed to show that his
case presents exceptional circumstances warranting coram nobis relief. Even if we were
to assume for the sake of argument that (1) Banks’s 1996 conviction still carries
continuing consequences, and (2) his alleged errors could not have been corrected at the
time of his guilty plea (due to the ineffectiveness of his plea counsel), coram nobis relief
4
still would not be warranted here because Banks has not established that “sound reasons”
exist for his raising his claims 20 years after his conviction. Although he contends that
he did not have access to his “case file” for some unspecified amount of time, nothing
from that file was attached to his coram nobis petition, and he has not otherwise
demonstrated that the lack of access to that file prevented him from raising his claims
earlier. Because his challenge to the District Court’s denial of coram nobis relief presents
no substantial question, we will summarily affirm the District Court’s September 8 order.
We now turn to the District Court’s October 28 order denying Banks’s motion to
reconsider for lack of jurisdiction. For the reasons that follow, we conclude that the
District Court did have jurisdiction over that motion. However, as explained below, we
also conclude that remand on this point is unnecessary.
“As a general rule, the timely filing of a notice of appeal is an event of
jurisdictional significance, immediately conferring jurisdiction on a Court of Appeals and
divesting a district court of its control over those aspects of the case involved in the
appeal.” Venen v. Sweet, 758 F.2d 117, 120 (3d Cir. 1985). But when a party timely
files a motion to reconsider, the district court retains jurisdiction to decide that motion
notwithstanding the filing of the notice of appeal. See Fed. R. App. P. 4(a)(4)(A)(iv),
(B)(i); Lakeside Resort Enters., LP v. Bd. of Supervisors of Palmyra Twp., 455 F.3d 154,
156 n.4 (3d Cir. 2006). For a motion to reconsider to be timely, the motion must be filed
within 28 days of the “entry” of the order being challenged. See Fed. R. Civ. P. 59(e).
Typically, an order is deemed entered when it is placed on the docket. See Fed. R. Civ.
5
P. 58(c). However, if the order does not satisfy Federal Rule of Civil Procedure 58(a)’s
separate document requirement, the order is not deemed entered until 150 days after it is
docketed. See Fed. R. Civ. P. 58(c)(2)(B).
Here, the District Court’s September 8 order did not satisfy the separate document
requirement, for that order is not self-contained and separate from the District Court’s
accompanying memorandum opinion. See LeBoon v. Lancaster Jewish Cmty. Ctr.
Ass’n, 503 F.3d 217, 224 (3d Cir. 2007). 4 Accordingly, that order will not be considered
entered until 150 days after it was docketed. Banks, of course, filed his motion to
reconsider within this 150-day period; therefore, his motion was timely and the District
Court should have adjudicated it on the merits rather than denying it for lack of
jurisdiction. That said, we see no reason to remand. Banks’s motion to reconsider
clearly fails as a matter of law, for he has not even come close to meeting the standard for
such relief. See Lazaridis v. Wehmer, 591 F.3d 666, 669 (3d Cir. 2010) (per curiam)
(explaining that reconsideration is warranted only if the movant relies on one of the
following grounds: “(1) an intervening change in controlling law; (2) the availability of
new evidence; or (3) the need to correct clear error of law or prevent manifest injustice”).
Because we may uphold a district court’s judgment on any basis supported by the record,
4
The order and the memorandum opinion are contained in a single document titled
“Memorandum Order,” and these two parts of this document are not separately paginated.
See LeBoon, 503 F.3d at 224 (explaining that, “[t]o be independent of the [district]
court’s opinion, an order must be separately titled and captioned, not paginated
consecutively to the opinion or memorandum, not stapled or otherwise attached to the
opinion, and must be docketed separately”).
6
see Murray v. Bledsoe, 650 F.3d 246, 247 (3d Cir. 2011) (per curiam), we will modify
the District Court’s October 28 order so that its denial is on the merits, and we will
summarily affirm that order as modified.
7