United States District Court, M.D. Alabama, Northern Division
RECOMMENDATION OF THE MAGISTRATE JUDGE
CHARLES S. COODY UNITED STATES MAGISTRATE JUDGE
Johns, an inmate incarcerated at the Bullock Correctional
Facility in Union Springs, Alabama, attempts once again to
remove his state criminal case to federal
court. 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.” Upon review of the notice of removal, the
court concludes this case is due to be remanded to state
prosecution may be removed to federal court only under the
narrow circumstances set forth in 28 U.S.C. §§
1442, 1442a, and 1443. Because Johns is not a federal officer
or a member of the United States armed forces, 28 U.S.C.
§§ 1442 and 1442a do not apply. Under 28 U.S.C.
§ 1455(b)(4), the court must “promptly”
examine the defendant's removal papers and “[i]f it
clearly appears . . . that removal should not be permitted,
the court shall make an order for summary remand.” In
his previous removal action, the court determined Johns
failed to meet the procedural requirements for removal of a
state criminal action. The court further concluded that even had
Johns filed a timely notice of removal, he failed to meet the
requirements for removal under 28 U.S.C. § 1443(1). The
present action meets the same fate.
this removal action met the procedural requirements under
§ 1455 (and it does not), it again fails to meet the
requirements for removal under § 1443. 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(1) and (2).
U.S.C. § 1443(1) is authorized where the defendant
“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 . . . .” This
generally requires a state law or constitutional provision
that denies the defendant an opportunity to raise a federal
right. See Alabama v. Conley, 245 F.3d 1292, 1294
(11th Cir. 2001) (“[T]he petitioner must show that he
has been denied or cannot enforce that right in the state
courts.”) (quoting Georgia v. Rachel, 384 U.S.
780, 794 (1966)). The Supreme Court has interpreted §
1443(1) as limited to a state court's unwillingness to
enforce a law “providing for civil rights stated in
terms of racial equality.” Rachel, 384 U.S. at
Johns does not allege there is an explicit state law which,
by its very operation, inevitably resulted in the denial of
his civil rights. Even if he may be heard to make such
allegation, he identifies no state law or constitutional
provision that denies him the opportunity to raise a federal
right in state court, nor has he shown that he will be unable
to enforce a federal right in state court. See
Rachel, 384 U.S. at 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.
Additionally, broad contentions of deprivations of equal
protection and due process in the state court criminal
proceeding will not support removal under § 1443(1).
See Johnson 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
violate rights under constitutional or statutory provisions
of general applicability or under statutes not protecting
against racial discrimination, will not suffice.”).
Further, to the extent Johns attempts to remove a criminal
appeal or other post-conviction matter, these proceedings
occur after trial and are, thus, time-barred from removal
under 28 U.S.C. § 1455(b)(1) (a notice of removal of a
criminal prosecution “shall be filed not later than
thirty days after the arraignment in the State court, or at
any time before trial, whichever is earlier.”).
removal under 28 U.S.C. § 1443(2) is only authorized
“[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 ground that it would be inconsistent with such
law.” The Supreme Court has construed this provision as
conferring “a privilege of removal only upon federal
officers or agents and those authorized to act with or for
them in affirmatively executing duties under any federal law
providing for equal civil rights.” City of
Greenwood v. Peacock, 384 U.S. 808, 824 (1966).
Johns' case does not fall within this
these reasons, the court concludes that “it clearly
appears on the face of the notice and  exhibits annexed
thereto that removal should not be permitted, ” 28
U.S.C. § 1455(b)(4), and this case is, therefore, due to
be remanded to state court.
it is the Recommendation of the Magistrate Judge this case be
REMANDED to the ...