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State v. Johns

United States District Court, M.D. Alabama, Northern Division

March 19, 2018

STATE OF ALABAMA, Plaintiff,
v.
JOHNS, CHARLES KELVIN, #154 434, Defendant.

          RECOMMENDATION OF THE MAGISTRATE JUDGE

          TERRY F. MOORER, UNITED STATES MAGISTRATE JUDGE.

         Charles Johns, an inmate incarcerated at the Bullock Correctional Facility in Union Springs, Alabama, filed this pro se notice of removal on December 21, 2017.[1] 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.”[2] 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.[3]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.

         I. DISCUSSION

         A. Procedural Requirements

         The 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 action.

         A 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. § 1455(b)(4).

         Johns 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.[4] 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.

         B. Removal Under 28 U.S.C. § 1443

         Even 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.[5]

         To 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).[6] 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.

         Here, 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 ...


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