United States of America v. Gerald Lee Banks

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 23-7154
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
GERALD LEE BANKS,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern District of North Carolina, at
Greenville. Louise W. Flanagan, District Judge. (4:11-cr-00034-FL-2)
Submitted: April 18, 2024 Decided: April 19, 2024
Before WILKINSON, NIEMEYER, and THACKER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Gerald Lee Banks, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Gerald Lee Banks, a federal prisoner, appeals the district court’s order construing
his petition for a writ of error coram nobis as an unauthorized, successive 28 U.S.C. § 2255
motion and dismissing it on that basis.* Banks claims that the court erred in construing his
petition as a § 2255 motion and that he can seek relief in a petition for writ of error coram
nobis because he has no other available remedies. However, coram nobis is an
extraordinary remedy available only when the movant demonstrates a fundamental error
for which a more usual remedy is not available and that he had valid reasons for not
attacking his convictions earlier. United States v. Lesane, 40 F.4th 191, 197 (2022). And
here, Banks is in federal custody, so the more usual remedy for challenging the validity of
his convictions—a § 2255 motion—is available. See id. Furthermore, because Banks
could have raised the challenge he asserted in his petition on direct appeal or in his first
§ 2255 motion but did not do so, he has not shown that valid reasons exist for not contesting
his convictions earlier. See id. Accordingly, we conclude that the district court correctly
construed Banks’ petition as a successive § 2255 motion. We therefore affirm the district
court’s order.
Additionally, consistent with our decision in United States v. Winestock, 340 F.3d
200, 208 (4th Cir. 2003), we construe Banks’ notice of appeal and informal brief as an
application to file a second or successive § 2255 motion. Upon review, we conclude that
* A certificate of appealability is not required to appeal the district court’s
jurisdictional dismissal of Banks’ petition as an unauthorized, successive § 2255 motion.
See United States v. McRae, 793 F.3d 392, 400 (4th Cir. 2015).

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Banks’ claims do not meet the relevant standard. See 28 U.S.C. § 2255(h). We therefore
deny authorization to file a successive § 2255 motion.
We dispense with oral argument because the facts and legal contentions are
adequately presented in the materials before this court and argument would not aid the
decisional process.
AFFIRMED

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