                            UNPUBLISHED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Dismissed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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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