Frederick Banks v. Kelly Forbes, No. 17-7207 (4th Cir. 2017)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 17-7207 FREDERICK BANKS, Petitioner - Appellant, v. KELLY FORBES, FMC Butner; U.S. MARSHAL’S SERVICE; MARK HORNAK; D. DREW, Warden, USP Atlanta; J.C. HOLLAND, Warden, FMC Butner; S.A. SEAN LANGFORD; CHRISTOPHER ASHER WRAY; MIKE POMPEO, Central Intelligence Agency; ROBERT CESSAR, Asst. US Attorney; SOO SONG, US Attorney; FEDERAL BUREAU OF PRISONS; THOMAS KANE, Acting Director, Federal BOP, Respondents - Appellees. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. Terrence W. Boyle, District Judge. (5:17-hc-02102-BO) Submitted: December 21, 2017 Decided: December 28, 2017 Before WILKINSON and DUNCAN, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed by unpublished per curiam opinion. Frederick Hamilton Banks, Appellant Pro Se. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Federal pretrial detainee Frederick Banks appeals the district court’s order dismissing without prejudice his petition seeking a writ of habeas corpus, pursuant to 28 U.S.C. § 2241 (2012), and a writ of mandamus, pursuant to 28 U.S.C. § 1361 (2012). We agree with the district court that, because a Pennsylvania District Court is in the process of determining Banks’ competency to stand trial, Banks’ request for mandamus and habeas relief is premature. See Heckler v. Ringer, 466 U.S. 602, 616 (1984) (“The common-law writ of mandamus, as codified in 28 U.S.C. § 1361, is intended to provide a remedy for a plaintiff only if he has exhausted all other avenues of relief and only if the defendant owes him a clear nondiscretionary duty.”); Timms v. Johns, 627 F.3d 525, 530 (4th Cir. 2010) (“[W]e hold that Timms should have exhausted his alternative remedies in the Commitment Action before availing himself of habeas review under § 2241.”). Thus, we grant Bank’s application to proceed in forma pauperis and affirm the district court’s judgment. See Banks v. Forbes, No. 5:17-hc-02102-BO (E.D.N.C. Aug. 28, 2017). 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 2

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