State of Alabama v. Thomason (JOINT ASSIGN)
MEMORANDUM OPINION AND ORDER that Defendant Steve Clayton Thomason's 6 Motion to Amend Notice of Removal is DENIED as further set out in the order. Signed by Chief Judge William Keith Watkins on 6/22/2015. (dmn, )
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
STATE OF ALABAMA,
CASE NO. 2:15-CV-327-WKW
MEMORANDUM OPINION AND ORDER
Before the court is Defendant Steven Clayton Thomason’s Motion to Amend
the Notice of Removal (Doc. # 6), which is construed as a motion for
reconsideration of the Memorandum Opinion and Order (Doc. # 5) remanding Mr.
Thomason’s criminal case to the District Court of Elmore County, Alabama. On
May 15, 2015, Mr. Thomason filed a notice of removal of his state-court criminal
prosecution. On May 22, 2015, the case was remanded in light of Mr. Thomason’s
failure to comply with the procedures for removing a state criminal prosecution as
provided by 28 U.S.C. § 1455. Specifically, the court highlighted the fact that the
notice was filed well after § 1455(b)(1)’s thirty-day window.
In response to the May 22, 2015 order of remand, Mr. Thomason filed the
present motion, in which he argues that good cause exists to warrant leave for the
filing of an untimely notice.1 However, even if Mr. Thomason could show good
cause to satisfy the procedural requirements for removal, neither his notice of
removal, nor his present motion, nor his motion to dismiss shows that 28 U.S.C. §
1443’s narrow circumstances for removal of a criminal prosecution are present.2
The Supreme Court addressed the scope of removal under § 1443 in Georgia v.
Rachel, 384 U.S. 780 (1966), and articulated the two-pronged test that still controls
today. First, a defendant must show “that the right upon which [he] rel[ies] is a
‘right under any law providing for . . . equal civil rights.’” Id. at 788 (quoting §
1443(1)). Second, the defendant must show that he is “‘denied or cannot enforce’
that right” in the state court in which the action currently sits. Id.
Mr. Thomason argues that, during the course of his criminal prosecution, the
state district attorney, state district court judge, and the investigator of the Alabama
Home Builder’s License Board violated several of his federal constitutional and
statutory rights, including but not limited to his right to a grand jury indictment,
right to an attorney, right to equal protection, and right to procedural due process.
The violations Mr. Thomason alleges, however, are not based upon rights that fall
28 U.S.C. § 1455(b)(1) provides that, when good cause is shown, “the United States
district court may enter an order granting the defendant or defendants leave to file the notice at a
Section 1443 contains two subsections. Because removal under subsection (2) is
available “only to federal officers and to persons assisting such officers in the performance of
their official duties,” City of Greenwood, Miss. v. Peacock, 384 U.S. 808, 815 (1966), a scenario
not present here, the discussion focuses on subsection (1).
within the scope of § 1443(1), as it is not sufficient to claim that rights of “general
application to all persons or citizens” have been violated. Alabama v. Conley, 245
F.3d 1292, 1295–96 (11th Cir. 2001). Rather, for a case to be removable under §
1443(1), Mr. Thomason would have to show the denial of rights that “‘provid[e]
for specific civil rights stated in terms of racial equality.’” Id. (quoting Rachel,
384 U.S. at 792). Accordingly, because Mr. Thomason has not alleged claims
involving racial inequality, he is unable to meet prong one of Rachel. See Cabello
v. Texas, 71 F. App’x 315, 316 (5th Cir. 2003) (explaining that because the
defendant conceded “that his claims d[id] not involve racial discrimination,” he
had “not made the required showing” under prong one of Rachel).
Mr. Thomason is also unable to meet Rachel’s second prong. “Generally,
the denial of the petitioner’s equal civil rights must be ‘manifest in a formal
expression of state law.’” Conley, 245 F.3d at 1296 (quoting Rachel, 384 U.S. at
As the Eleventh Circuit has explained, “This requirement ensures that
removal is available only in cases where the denial of the right can be clearly
predicted and avoids involving federal judges in ‘the unseemly process of
prejudging their brethren of the state courts.’” Id. (quoting Rachel, 384 U.S. at
Mr. Thomason’s state-court prosecution is for the undertaking of
residential homebuilding without a license in violation of Alabama Code § 34-
14A-14, and there is no contention that Alabama’s licensure laws for homebuilders
are not facially neutral.
The Supreme Court has created a narrow exception to allow the removal of
an action grounded upon the violation of a facially neutral law “if the very act of
bringing the state court proceedings will constitute a denial of the rights conferred”
by the applicable federal statute. Id. To fall within this exception, however, it is
not enough to allege that one’s civil rights have been “illegally and corruptly”
denied prior to trial, “that the charges are false, or that the defendant is unable to
obtain a fair trial in a particular state court.” City of Greenwood, 384 U.S. at 827.
As the Supreme Court has highlighted, allegations of corrupt motives of charging
officers are insufficient to support removal because such motives do not necessitate
that a defendant will be found guilty in state court if he is innocent “or that in any
other manner the defendant will be ‘denied or cannot enforce in the courts’ of the
State any right under a federal law providing for equal civil rights.” Id. (quoting §
1443(1)). Unlike Rachel, in which the defendants were prosecuted in state court
despite being immunized from suit by federal law, the vindication of Mr.
Thomason’s federal rights is appropriately left to the state court because those
rights, if they are being denied, are not being denied by the mere act of bringing
him to trial. See Rachel, 384 U.S. at 804; Conley, 245 F.3d at 1298 (“In Rachel, it
was only because section 203(c) of the Civil Rights Act of 1964 expressly
immunized the defendants from prosecution . . . that ‘the mere pendency of the
prosecutions enable[d] the federal court to make the clear prediction that the
defendants w[ould] be ‘denied or c[ould not] enforce in the courts of (the) State’
the right to be free of any ‘attempt to punish’ them for [the] protected activity.”).
Based on the foregoing analysis, it is ORDERED that Defendant Steve
Clayton Thomason’s Motion to Amend Notice of Removal (Doc. # 6) is DENIED.
DONE this 22nd day of June, 2015.
/s/ W. Keith Watkins
CHIEF UNITED STATES DISTRICT JUDGE
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