L. Ed. 2d 260 (1980). Construing the complaint as a petition for a writ of habeas corpus, the court accordingly denies the petition for failure to exhaust state remedies.
If Hudson is attempting to remove his case from state to federal jurisdiction, we note that there is no indication in his complaint that he has complied with the procedures for removal as outlined in 28 U.S.C. § 1446.
Even if Hudson had pleaded his case under the applicable removal statute, 28 U.S.C. § 1443(1), and followed the proper procedures, it would not have availed him. To satisfy the two-pronged test for removal, a petitioner (1) allegedly must have been denied a right arising under a federal law that provides for specific civil rights stated in terms of racial equality and (2) these federal rights allegedly must have been denied or cannot be enforced in the state courts. Johnson v. Mississippi, 421 U.S. 213, 219, 44 L. Ed. 2d 121, 95 S. Ct. 1591 (1975). Hudson has been charged with an offense against the People of the State of Illinois. No federal law or allegations of denial of equal protection are involved here.
Furthermore, it has long been recognized that determining whether the federal or state government has prior jurisdiction over the person of an accused rests on principles of comity between the two sovereigns. Ponzi v. Fessenden, 258 U.S. 254, 262, 66 L. Ed. 607, 42 S. Ct. 309 (1922). "If there is a dispute over whether an individual should be in custody of either the state or the federal government, that dispute is between the two sovereigns." Jeter v. Keohane, 739 F.2d 257, 258 (1984). No such dispute currently exists as Hudson does not allege he has also been charged with a federal offense. Hudson's petition therefore does not meet any of the criteria for removing this case from state to federal jurisdiction.
Hudson also seeks to have a temporary restraining order placed on Judge Kelley (apparently to stay Hudson's trial, which is set to commence on July 11, 1994) until after the federal court has procured all the materials Hudson seeks. Abstention is appropriate when a plaintiff invokes federal jurisdiction for the purpose of restraining state criminal proceedings. See Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 816, 47 L. Ed. 2d 483, 96 S. Ct. 1236 (1976); Younger v. Harris, 401 U.S. 37, 27 L. Ed. 2d 669, 91 S. Ct. 746 (1971); Douglas v City of Jeannette, 319 U.S. 157, 87 L. Ed. 1324, 63 S. Ct. 877 (1943). Because restraining state criminal proceedings is precisely what Hudson is attempting to do, the court abstains and therefore denies Hudson's motion for a temporary restraining order.
Accordingly, finding no arguable legal basis for the complaint, the court denies Hudson's motion for leave to file in forma pauperis, see Denton v. Hernandez, 118 L. Ed. 2d 340, 112 S. Ct. 1728, 1733-34 (1992); Neitzke v. Williams, 490 U.S. 319, 104 L. Ed. 2d 338, 109 S. Ct. 1827 (1989), and dismisses this action pursuant to 28 U.S.C. § 1915(d). Hudson's motion for a temporary restraining order is denied.
It is so ordered.
MARVIN E. ASPEN
United States District Judge