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State v. Lucy

United States District Court, S.D. Alabama, Southern Division

September 22, 2014

STATE OF ALABAMA, Plaintiff,
v.
WILLIAM N. LUCY, Defendant.

ORDER

KRISTI K. DuBOSE, District Judge.

This action is before the Court on the notice of removal (Doc. 1) filed pro se by Defendant William N. Lucy ("Lucy"). Lucy seeks to remove to this Court a pending criminal action against him in the Circuit Court of Mobile County, Alabama, Case No. CC-2013-005332.[1] Upon consideration and for the reasons set forth herein, this action is REMANDED to the Circuit Court of Mobile County, Alabama.

Lucy cites 28 U.S.C. § 1446(b) as the basis for removal. However, § 1446(b) applies to removal of civil cases. Moreover, as Lucy does not claim he is a federal officer or member of the armed forces, he cannot remove his criminal action under 28 U.S.C. §§ 1442 or 1442a.

Title 28 U.S.C. § 1455, effective December 7, 2011, governs removal of state criminal actions and sets forth in relevant part as follows:

(a) Notice of removal. A defendant or defendants desiring to remove any criminal prosecution from a State court shall file in the district court of the United States for the district and division within which such prosecution is pending a notice of removal signed pursuant to Rule 11 of the Federal Rules of Civil Procedure and containing a short and plain statement of the grounds for removal, together with a copy of all process, pleadings, and orders served upon such defendant or defendants in such action.
(b) Requirements. (1) A notice of removal of a criminal prosecution shall be filed not later than 30 days after the arraignment in the State court, or at any time before trial, whichever is earlier, except that for good cause shown the United States district court may enter an order granting the defendant or defendants leave to file the notice at a later time.

28 U.S.C. § 1455.

Lucy has not complied with § 1455(a) because he did not provide the Court "with a copy of all process, pleadings, and orders served upon" him in the criminal action. Also, he has not shown compliance with the procedural requirements listed in § 1455(b)(1) because he did not allege or establish that his notice of removal was timely filed or allege good cause for an untimely notice.

The statute also provides that when a notice of removal of a criminal action is filed, the District Court "shall examine the notice promptly" and "[i]f it clearly appears on the face of the notice and any exhibits annexed thereto that removal should not be permitted, the court shall make an order for summary remand." 28 U.S.C. § 1455(b)(4). In that regard, 28 U.S.C. § 1443 permits removal of the following "criminal prosecutions[] commenced in a State court":

(1) Against any person who is denied or cannot enforce in the courts of such State a right under any law providing for the equal civil rights of citizens of the United States, or of all persons within the jurisdiction thereof;
(2) For any act under color of authority derived from any law providing for equal rights, or for refusing to do any act on the ground that it would be inconsistent with such law.

28 U.S.C. § 1443.

The Supreme Court has held that a notice of removal under 28 U.S.C. § 1443(1) must satisfy a two-pronged test. See Johnson v. Miss., 421 U.S. 213, 219, 95 S.Ct. 1591, 44 L.Ed.2d 121 (1975) (citing Georgia v. Rachel, 384 U.S. 780, 86 S.Ct. 1783, 16 L.Ed.2d 925 (1966) and City of Greenwood v. Peacock, 384 U.S. 808, 86 S.Ct. 1800, 16 L.Ed.2d 944 (1966)). First, it must appear that the right allegedly denied the removing defendant arises under a federal law "providing for specific civil rights stated in terms of racial equality. " Johnson, 421 U.S. at 219 (emphasis added) (citation internal quotation omitted). Claims that prosecution and conviction will violate rights under constitutional or statutory provisions of general applicability or under statutes not protecting against racial discrimination will not suffice. Id. Similarly, assertions that a removing defendant will be denied due process of law because the criminal law under which he is being prosecuted is allegedly vague or that the prosecution is assertedly a sham, corrupt, or without evidentiary basis does not, standing alone, satisfy the requirements of Section 1443(1). Id. (citation omitted).
Second, it must appear, in accordance with the provisions of Section 1443(1), that the removing defendant is "denied or cannot enforce" the specified federal rights "in the courts of (the) State." Johnson, 421 U.S. at 219. This provision normally requires that the "denial be manifest in a formal expression of state law, " such as a state legislative or constitutional provision, "rather than a ...

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