UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-6854
COMMONWEALTH OF VIRGINIA,
Plaintiff - Appellee,
v.
SIMON BANKS,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. James C. Cacheris, Senior
District Judge. (1:04-po-00248-JCC-1)
Submitted: October 23, 2012 Decided: November 29, 2012
Before NIEMEYER, MOTZ, and DAVIS, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Simon Banks, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Simon Banks appeals from district court orders denying
his Fed. R. Civ. P. 60(b) motion and his Fed. R. Civ. P. 59
motion. In July 2004, Banks filed a notice of removal in the
district court under 28 U.S.C. § 1443 (2006), seeking to remove
criminal proceedings from the Circuit Court for the City of
Alexandria, Virginia. This case stayed on the district court’s
docket for several years while Banks filed numerous motions and
notices. The district court twice ordered Banks to show cause
why the removed action should not be dismissed for lack of
subject matter jurisdiction. Banks filed timely responses to
both notices.
In the Circuit Court for the City of Alexandria, the
criminal action proceeded despite the notice of removal and
after a trial, Banks was convicted of several fraud offenses and
sentenced to two years and six months’ imprisonment with two
years suspended. His appeal was dismissed. Banks has served
his sentence.
On May 13, 2011, after a period of inactivity and
without the district court determining whether it had subject
matter jurisdiction, the case was apparently administratively
closed. We say “apparently” because there was no order entered
on the docket sheet indicating the case was closed. On March 8,
2012, Banks filed the Rule 60(b) motion seeking to reinstate the
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action, which was denied. Banks followed up with a Rule 59
motion seeking reconsideration of the denial of his Rule 60
motion. The court denied that motion and Banks filed a timely
notice of appeal from both orders.
In certain circumstances, a state criminal prosecution
may be removed to the district court. See 28 U.S.C. § 1443. A
prerequisite to removal “is a showing that the defendant is
being denied rights guaranteed under a federal law providing for
specific rights stated in terms of racial equality.” South
Carolina v. Moore, 447 F.2d 1067, 1070 (4th Cir. 1971) (internal
quotation marks omitted). Removal of a criminal case is limited
to rare situations in which a defendant has been denied or
cannot enforce the right to racial equality in the state courts.
See Georgia v. Rachel, 384 U.S. 780, 788 (1966). If it appears
that the district court lacks subject matter jurisdiction, the
case “shall be remanded.” 28 U.S.C. § 1447(c) (2006); see also
Roach v. West Va. Reg’l Jail & Corr. Facility Auth., 74 F.3d 46,
49 (4th Cir. 1996) (court has no discretion to dismiss a removed
case over which it has no subject matter jurisdiction).
Our review of the district court’s record shows that
there was never an order entered on the docket sheet on May 13,
2011, directing that the case be administratively closed.
Clearly, this was an error. See Fed. R. Crim. P. 55 (the
district court must keep records of criminal proceedings and
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“enter in the records every court order or judgment and the date
of entry.”); Fed. R. Civ. P. 79(2) (all orders must be entered
on the docket). Nor is there any record that Banks was notified
by the court that the case was administratively closed until he
contacted the court inquiring as to the status.
In this instance, we will not remand for the purpose
of having the district court remand the action to state court.
The state court never acted as if the criminal action was
removed and proceeded to bring the criminal proceedings to a
conclusion with a trial, convictions and sentence. ∗ Since the
convictions, Banks has served his sentence. Thus, under these
unique circumstances, there is nothing to remand. After his
convictions, Banks had other avenues upon which he could raise
the issue that he was denied a fair trial due to circumstances
relating to racial equality. There is no remedy this court or
the district court can provide under these circumstances. See
Central States, Se. & Sw. Areas Pension Fund v. Central Transp.,
Inc., 841 F.2d 92, 95-96 (4th Cir. 1988) (If there is no longer
a case or controversy, or there is an event that makes it
impossible for the court to provide relief, the appeal is moot
and should be dismissed.).
∗
We also note that the Commonwealth’s Attorney never
appeared in the district court action.
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Accordingly, because there is no relief that can be
provided to Banks, we dismiss the appeal as moot. We deny
Banks’ motion to supplement the record and his motion construed
as a petition for a writ of mandamus seeking an order directing
the district court to have an evidentiary hearing. 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.
DISMISSED
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