BLD-102 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________

No. 19-3212 ___________

FREDERICK H. BANKS, Appellant

v.

NPR NEWS MORNING EDITION; NATIONAL PUBLIC RADIO; DIRECTOR CENTRAL INTELLIGENCE AGENCY; CENTRAL INTELLIGENCE AGENCY; WARDEN ALLEGHENY COUNTY JAIL ____________________________________

On Appeal from the United States District Court for the Western District of Pennsylvania (W.D. Pa. Civil Action No. 2:19-cv-01168) District Judge: Honorable Cathy Bissoon ____________________________________

Submitted for Possible Dismissal Pursuant to

(e)(2)(B) or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6 January 30, 2020

Before: AMBRO, GREENAWAY, Jr., and BIBAS, Circuit Judges

(Opinion filed: February 25, 2020) _________

OPINION * _________

PER CURIAM

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. Frederick Banks, proceeding pro se, appeals an order of the United States District

Court for the Western District of Pennsylvania dismissing his habeas petition pursuant to

vexatious-litigant orders. For the reasons that follow, we will summarily affirm the

judgment of the District Court.

On November 7, 2019, Banks was found guilty after a federal jury trial of wire

fraud and aggravated identity theft. He has yet to be sentenced. Prior to his conviction,

Banks filed a form petition for a writ of habeas corpus under

on behalf

of himself and as “next friend” to the estate of Anthony Bordain. 1 Banks alleged that he

and Bourdain, who is deceased, were “under illegal FISA [Foreign Intelligence

Surveillance Act] electronic surveillance which ultimately resulted in not a ‘suicide’ but a

remote assassination under Banks’ theory.” Petition at 7. He stated that he and Bordain

had been targeted by the CIA. Banks sought disclosure of all FISA orders and claimed

violations of due process and federal law.

Banks also claimed that NPR News, which he named as a respondent, has been

falsely reporting Bourdain’s death as a suicide. In addition, he claimed that he was being

unlawfully held beyond his maximum possible sentence in pre-trial detention because of

the illegal FISA warrants and sought his release. He alleged that he has a high-pitched

tone in each ear and that he is under illegal electronic surveillance.

1 Banks filed the petition in the United States District Court for the District of Columbia and it was transferred to the United States District Court for the Western District of Pennsylvania. 2 The District Court dismissed the case under vexatious-litigant orders entered in

two other actions filed by Banks, W.D. Civ. Nos. 15-cv-01400 and 15-cv-01385, as

expanded by an order in a criminal case, W.D. Crim. No. 15-cr-00174, in which Banks

filed a habeas petition and motions as “next friend” of the defendant. In the civil actions,

the District Court found that Banks had abused the judicial process by filing frivolous and

duplicative lawsuits, designated him a vexatious litigant, and enjoined him from filing

any complaint, lawsuit, or mandamus petition without authorization of the Court.

In the criminal action, the District Court extended its vexatious-litigant order “to

all filings made by Mr. Banks, in his name or under his known alias(es), whether on his

behalf or on behalf of anyone else.” 10/3/17 Order. The District Court noted that the

order did not apply to filings in Banks’ active criminal case. Banks appealed and we

affirmed the District Court’s order. United States v. Miller,

, 108 (3d

Cir. 2018) (per curiam) (non-precedential). Banks now appeals the District Court’s order

dismissing his habeas petition pursuant to its vexatious-litigant orders.

We have jurisdiction pursuant to

. We exercise plenary review

over the District Court’s legal conclusions and apply a clearly erroneous standard to its

factual findings. Cradle v. U.S. ex rel. Miner,

(3d Cir. 2002) (per

curiam).

Banks asserts in his notice of appeal that the District Court erred because its

vexatious-litigant orders do not apply to habeas corpus actions. He also states that the

American Indian canon of construction requires that § 2241 be liberally construed. As 3 discussed above, the District Court extended its vexatious-litigant order to all filings by

Banks other than those in his active criminal case. Even if the vexatious-litigant orders

were limited to complaints, lawsuits, and mandamus petitions, we find no error in the

District Court’s application of the orders here as Banks’ claims are not cognizable under

§ 2241, see Reese v. Warden Phila. FDC,

(3d Cir. 2018) (§ 2241 is not

the proper vehicle to challenge detention pending trial); Woodall v. Fed. Bureau of

Prisons,

(3d Cir. 2005) (§ 2241 allows a federal prisoner to challenge

the execution of his sentence), and he may not circumvent the orders by filing a habeas

petition. Moreover, Banks cannot litigate on behalf of Bourdain or his estate. See

Elustra v. Mineo,

(7th Cir. 2010) (representative parties such as next

friends may not conduct litigation pro se).

Because this appeal does not raise a substantial question, we will summarily

affirm the judgment of the District Court. See 3d Cir. LAR 27.4.

4