United States District Court, M.D. Alabama, Northern Division
RECOMMENDATION OF THE MAGISTRATE JUDGE
F. MOORER, UNITED STATES MAGISTRATE JUDGE.
Johns, an inmate incarcerated at the Bullock Correctional
Facility in Union Springs, Alabama, filed this pro
se notice of removal on December 21, 2017. Johns seeks to
remove this case under 28 U.S.C. § 1443(1), which
provides for removal of criminal cases that involve denial or
non-enforcement in state court of “a right under any
law providing for . . . equal civil
rights.” According to the complaint, criminal
charges were brought against Johns in the Circuit Court for
Pike County, Alabama, when he asserted his right as a black
citizen to secure funds held in his name at the First
National Bank of Brundidge (“FNBB”).
Specifically, Johns alleges that based on his race, the
president of FNBB refused to provide him with any information
about his account or funds in question or otherwise allow him
access to the funds and directed local law enforcement
officials to arrest him based on his attempt to secure funds
held in his name.Johns asserts that events during and after
his arrest “resulted in criminal charges under the
color of state law which are prohibited under the impairment
provisions of 42 U.S.C. § 1981(c).” Doc. 1 at 1-2.
Upon review of the notice of removal, the court concludes
this case is due to be remanded to state court.
procedure for the removal of criminal prosecutions is
governed by 28 U.S.C. § 1455. The court has reviewed
Johns' notice of removal and the attached exhibits and
also taken judicial notice of Johns' criminal court
proceedings from the Alabama Trial Court System online
records database hosted at http://www.alacourt.com.
From this review it is clear that Johns has failed to adhere
to the procedural requirements for removal of a state
criminal defendant seeking removal must file a notice
“signed pursuant to Rule 11, Federal Rules of Civil
Procedure, [ ] 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.” 28 U.S.C. § 1455(a).
Unless the court finds good cause has been shown for untimely
filing, the notice must be filed “not later than 30
days after the arraignment [of the defendant] in the State
court, or at any time before trial, whichever is
earlier....” Id. § 1455(b)(1). The
district court in which the notice of removal is filed must
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.” Id. §
has failed to submit a “copy of all process, pleadings,
and orders served upon [him] in [the] sate action.”
See Doc. 1-2. Additionally, review of the state
court record regarding the criminal offenses made the subject
of this petition reflects Johns was arrested on October 28,
2016, on charges of making terrorist threats, resisting
arrest, and disorderly conduct and was arraigned on these
charges on October 30, 2017. On November 8, 2017, he entered
a plea of guilty to Making Terrorist Threats and was
sentenced to fifteen years as a habitual offender. The trial
court directed the sentence to run concurrent with the six
months sentence imposed on Johns' November 8, 2017,
guilty plea to resisting arrest. Johns filed his notice of
removal on December 20, 2017, over thirty days after both
arraignment and entry of judgment on the challenged offenses.
Johns has not presented good cause that may excuse his
untimely filing of the notice of removal. In light of the
foregoing, it is clear Johns did not comply with §
1455(b)(1)'s temporal requirement for removing a state
criminal prosecution nor has he presented good cause that may
excuse his filing of the notice of removal outside the
specified time period. Accordingly, the instant action is due
to be dismissed and remanded to state court on its untimely
Removal Under 28 U.S.C. § 1443
had Johns filed a timely notice of removal, he fails to meet
the requirements for removal under 28 U.S.C. § 1443(1).
Under this statute, a civil action or criminal prosecution
may be removed from a state court to a federal district court
when the state action is:
(1) [a]gainst 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) [f]or any act under color of authority derived from any
law providing for equal rights, or for refusing to do any act
on the grounds that it would be inconsistent with such law.
28 U.S.C. § 1443.
properly remove a state court action to federal court under
§ 1443, “the petitioner must show that the right
upon which the petitioner relies arises under a federal law
‘providing for specific civil rights stated in terms of
racial equality.' ” Alabama v. Conley, 245
F.3d 1292, 1294 (11th Cir. 2001) (quoting Georgia v.
Rachel, 384 U.S. 780, 792 (1966)). “[T]he
petitioner must show that he has been denied or cannot
enforce that right in the state courts.” Id.
(quoting Georgia, 384 U.S. at 794). As explained,
Johns' argument for removal under §1443(1) bears
upon his contention he was “impaired” in his
right to obtain funds at FNBB by a private actor-the bank
president-who was motivated by Johns' race and who then
directed local law enforcement officials to arrest Johns.
According to Johns, the subsequent state criminal charges
were for “purported” events which occurred after
his arrest based on race “and have no bearing upon the
impairment to [Johns'] civil rights that w[ere] initiated
by [FNBB's president] when he directed that arrest”
in violation of 42 U.S.C. § 1981(c). Doc. 1 at 6.
Johns' arguments are convoluted, but as best can be
discerned, he claims he was engaged in conduct entitled to
equal protection of the law and that events during and after
his arrest resulted in criminal charges prohibited under the
impairment provisions of 42 U.S.C. § 1981(c) because the
basis for his arrest was precipitated by the racially
motivated conduct of the bank president-a non-state actor.
Doc. 1 at 2. Johns maintains that § 1981(c) offers him
protection from the baseless criminal charges lodged against
him which resulted from “impairment caused by [the bank
president] as a non-government actor and from impairment
brought by the subsequent impairment of charges brought under
‘color state law' as result of the initial
impairment by [the bank president.]” Id. at 7.
Johns, in accordance with 28 U.S.C. § 1443(1), must show
he relies upon a law providing for equal civil rights stated
in terms of racial equality. Rachel, 384 U.S. at
792. Assuming, arguendo, that Johns has sufficiently
stated a cause of action under 42 U.S.C. § 1981, see
City of Greenwood v. Peacock, 384 U.S. 808, 825 (1966)
(§ 1981 falls within statutory definition of §
1443(1)), he fails to meet the second requirement under the
civil rights exception because he fails to point to any state
law or other “equally firm prediction” that
indicates he would be prevented from enforcing his §
1981 rights in state court, or that the state courts have
otherwise denied him any specific civil right arising from a
federal law providing for that right stated in terms of
racial equality. See Rachel, 384 U.S. at 800, 804
(holding that “removal is warranted only if it can be
predicted by reference to a law of general application that
the defendant will be denied or cannot enforce the specified
federal rights in the state courts.”); Conley,
245 F.3d at 1294; see alsoJohnson v.
Mississippi, 421 U.S. 213, 219 (1975) (holding on review
of an application under § 1443(1) that “[c]laims
that prosecution and conviction will ...