The opinion of the court was delivered by: Joe Billy McDADE United States Senior District Judge
Wednesday, 06 June, 2012 10:09:54 AM Clerk, U.S. District Court, ILCD
This matter is before the Court on Defendant's attempt to remove his criminal prosecution to this Court pursuant to 28 U.S.C. § 1443.*fn1 For the reasons stated below, the case is dismissed and remanded to the state court.
Criminal defendants can, in certain limited circumstances, remove their state prosecutions to federal court under 28 U.S.C. § 1443. Removal under this provision is permitted either:
(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; [or]
(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.
In addition, 28 U.S.C. § 1455 imposes a time limit for filing a Notice of Removal, and a requirement that the first Notice of Removal state all grounds for such removal; both requirements can be relaxed if the Court finds good cause. 28 U.S.C. § 1455(b)(1) & (2). Finally, § 1455(b)(4) requires the Court to examine the Notice of Removal to determine whether the case should proceed before it or be summarily remanded to the state court.
Defendant filed a "Notice of Removal" in this Court on April 3, 2012,
citing to both sub-sections of § 1443. (Doc. 1). In it, he alleges
that police engaged in selective prosecution of him, an
African-American, on the basis of race by arresting him for being
felon in possession of a gun, while not arresting the
similarly-situated white woman who was also a felon.*fn2
He has since filed several more "Notices of Removal." (Docs.
2-4). On May 2, 2012, the Court, noting that Defendant had apparently
failed to give notice of the purported removal to the state, ordered
him to give such notice by May 16, 2012; the Court also ordered
Defendant to state the dates of his arraignment and/or
trial.*fn3 (5/2/2012 Text Order).
Pursuant to 28 U.S.C. § 1455(b)(4), the Court now undertakes a review of Defendant's attempt to remove his criminal prosecution to this Court, and finds that a summary remand is appropriate. First, it appears that the removal is untimely, and there is no "good cause" to excuse the untimeliness. Under § 1455(b)(1), a Notice of Removal is untimely if filed "later than 30 days after the arraignment in the State court, or at any time before trial, whichever is earlier."*fn4 In response to the Court's order that he provide the date of his arraignment, Defendant filed a "Motion for Judicial Notice," in which he states that he has now been given a trial date of July 30, 2012, and argues for the Court to grant him an extension of time to file his Notice of Removal. In spite of the direct order to do so, he did not state the date of his arraignment, but the fact that he asked for an extension of time indicates that he concedes that the 30-day period has run.*fn5 In its Motion to Dismiss, Plaintiff notes that Defendant was arraigned on December 22, 2010, making his Notice of Removal due January 23, 2011. (Doc. 15 at 6, Ex. 1).
In support of his request for relief from the 30-day removal period, Defendant cites only the facts that the state chose to try him on the contemporaneous domestic battery charge prior to proceeding with the gun charge, and that his trial on the gun charge is thus not until July of this year. (Doc. 8). He claims that this choice prejudices him and undermines his constitutional rights. He does not explain how state's decision to proceed with the domestic battery charge first had any bearing on his ability to attempt to remove the gun charge.*fn6 He also implies that, because he alleges selective prosecution, he should be automatically excused from the applicable time requirements. If this were the case, then there would be no need for § 1455 to exist, as all removals under § 1443 are supposedly based on racial discrimination in prosecution. Defendant has not shown good cause for his delay in filing his Notice of Removal, and so the Court will not excuse it.
Moreover, Defendant's case does not warrant removal under either subsection of § 1443.*fn7 Subsection (1) provides for removal 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, or of all persons within the jurisdiction thereof." 28 U.S.C. § 1443(1). This provision has been narrowly construed to apply only to "specific civil rights stated in terms of racial equality." Georgia v. Rachel, 384 U.S. 780, 792 (1966). The Court will assume for the purposes of this Order that there is a specific civil right not to be prosecuted solely on the basis of one's race.*fn8 United States v. Armstrong, 517 U.S. 456, 464 (1996) (quoting Oyler v. Boles, 368 U.S. 448, 456 (1962).) ("[T]he decision whether to prosecute may not be based on 'an unjustifiable standard such as race, religion, or other arbitrary classification.'"). But see Rachel, 384 U.S. at 793 (generally-applicable constitutional guarantees do not support § 1443 removal). In addition, though, a defendant attempting to remove a criminal prosecution must either (a) show that he is, by mere fact that he is being prosecuted, being denied his right of racial equality, or (b) be able to firmly predict that he will be denied his civil rights. See Bar Ass'n of Baltimore City v. Posner, 391 F.Supp. 76, 80 (D. Md. 1975) (citing South Carolina v. Moore, 447 F.2d 1067, 1070 (4th Cir. 1971)) (outlining requirements for removal under § 1443(1)); see also City of Greenwood, Miss. v. Peacock, 384 U.S. 808, 826-27 (1966). It is not enough that he have a specific defense to the prosecution based on an alleged violation of civil rights. Moore, 447 F.2d at 1070 (citing Greenwood, 384 U.S. at 828).
In order to rely on the first alternative, the defendant must show both that he had a federal statutory right to engage in the conduct which is the basis for the state prosecution, and that he has the further federal statutory right that no State should even attempt to prosecute him for his conduct. Greenwood, 384 U.S. at 826-27; Rachel, 384 U.S. at 803. The paradigmatic case is of civil rights demonstrators arrested and prosecuted for trespass as a result of participating in a sit-in, which the Civil Rights Act of 1964 expressly authorizes and immunizes from state prosecution. Rachel, 384 U.S. at 804-05 (citing Hamm v. City of Rock Hill, 379 U.S. 306 (1964)). Here, Defendant cannot even begin to argue that he had a federal statutory right to possess a gun as a felon, since federal law also prohibits felons from possessing guns in most situations. See 18 U.S.C. § 922(g) ("It shall be unlawful for any person (1) who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year.to.possess in or affecting commerce, any firearm or ammunition."). In addition, there is no federal civil rights statute specifically allowing such conduct. Defendant therefore cannot rely on the interpretation of § 1443(1) under Rachel, allowing for removal where the fact of prosecution itself denies his civil rights.
The second alternative under subsection (1) of § 1443 has been interpreted to require an allegation that the state will refuse to enforce his civil right, "supported by reference to a state statute or a constitutional provision that purports to command the state courts to ignore the federal rights." People of California v. Sandoval, 434 F.2d 635, 636 (9th Cir. 1970) (citing Rachel, 384 U.S. at 794-804; Greenwood, 384 U.S. at 827-28) The Court is not aware of, and Defendant has not cited, any statute or constitutional provision in Illinois calling for the flouting of civil rights on the basis of race. Cf., Strauder v. West Virginia, 100 U.S. 303 (1880) (state statute expressly excluded blacks from petit juries). Defendant claims that he may proceed because the Attorney General of Illinois has responded to a complaint he filed with her office with a letter stating that she "does not have jurisdiction over the acts of county prosecutors, sitting judges or jurors;" he claims that this shows the state of Illinois to be unwilling to vindicate his civil rights. (Doc. 1 at 8). This is insufficient to show that Illinois will refuse to enforce Defendant's rights because it would ordinarily be the trial judge who would deal with a claim of selective prosecution, not the Attorney General.*fn9 The Attorney General's lack of jurisdiction does not mean, as ...