The People of the State of California v. Hiramanek

Filing 13

ORDER ADOPTING 9 REPORT AND RECOMMENDATION; AND REMANDING CASE FOR LACK OF SUBJECT MATTER JURISDICTION. Signed by Judge Beth Labson Freeman on 11/25/2014. (blflc1, COURT STAFF) (Filed on 11/25/2014)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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THE PEOPLE OF THE STATE OF
CALIFORNIA,
Plaintiff,

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v.

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ADIL K. HIRAMANEK,

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United States District Court
Northern District of California

Case No. 14-cv-04640-BLF

Defendant.

ORDER ADOPTING REPORT AND
RECOMMENDATION; AND
REMANDING CASE FOR LACK OF
SUBJECT MATTER JURISDICTION
[Re: ECF 9]

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I.

BACKGROUND

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On October 14, 2014, Defendant Adil Hiramanek (“Defendant”) filed a Notice of

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Removal, removing criminal case #C1235568 from the Santa Clara County Superior Court to the

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Northern District of California under 28 U.S.C. § 1443(1). Not. of Removal, ECF 1. The Notice

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of Removal, which is twenty-five pages long and filled with numerous references to statutes and

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legal authorities, does not include a copy of the criminal case. Upon removal, the case initially

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was assigned to Magistrate Judge Paul S. Grewal, who issued an order directing that the case be

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reassigned to a district judge along with a Report and Recommendation (“R&R”) that the case be

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remanded for lack of subject matter jurisdiction. R&R at 1, ECF 9. Defendant timely objected to

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the R&R. Obj., ECF 12. Having considered the R&R, Defendant’s objection thereto, and the

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applicable legal authorities, the Court hereby ADOPTS the R&R and REMANDS the case to the

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Santa Clara County Superior Court for lack of subject matter jurisdiction.

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II.

LEGAL STANDARD
A district court judge may refer a matter to a magistrate judge to issue findings of fact and

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recommendations for the disposition of the matter. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P.

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72(b)(1); Civ. L.R. 72-3. Any objections to the report and recommendation of a magistrate judge

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must be filed within fourteen days of receipt thereof and must “specifically identify the portions of

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the findings, recommendation or report to which objection is made and the reason and authority

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therefor.” Civ. L.R. 72-3(a). “The district judge must determine de novo any part of the

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magistrate judge’s disposition that has been properly objected to.” Fed. R. Civ. P. 72(b)(3). “The

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district judge may accept, reject, or modify the recommended disposition; receive further

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evidence; or return the matter to the magistrate judge with instructions.” Id.
III.

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As noted, the nature of the criminal action against Defendant is unclear. Mr. Hiramanek

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DISCUSSION

claims that in connection with that action, he has been “subjected to denial of access to State Court
facilities, harassment, torture, intimidation, unlawful search and seizure, unlawful interrogation,

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United States District Court
Northern District of California

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unlawful detention, unlawful confiscation of property, obstruction and perversion of course of

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justice, shadowing, eviction from the facility, forcibly removed, et al.” Not. of Removal at 1, ECF

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1.1 He asserts that these actions were taken against him as a result of his “racial minority [status]

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and ethnic background,” which he identifies as “Asian Indian.” Id. On these bases, Defendant

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removed a pending state court criminal action against him to the Northern District of California

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under “all applicable removal statutes, including but not limited to 28 U.S.C. § 1443(1), § 1651

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[All Writs Act], § 2201, [and] 42 U.S.C. § 2000a-3.” Id.
Of those statutes, only 28 U.S.C. § 1443(1) potentially authorized removal. That statute

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provides for removal of a criminal prosecution “[a]gainst any person who is denied or cannot

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enforce in the courts of such State a right under any law providing for the equal civil rights of

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citizens of the United States, or of all persons within the jurisdiction thereof.” 28 U.S.C. §

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1443(1). “A petition for removal under § 1443(1) must satisfy the two-part test articulated by the

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Supreme Court in Georgia v. Rachel, 384 U.S. 780, 788-92, 794-804, 86 S. Ct. 1783, 16 L. Ed. 2d

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925 (1966) and City of Greenwood, Miss. v. Peacock, 384 U.S. 808, 824-28, 86 S. Ct. 1800, 16 L.

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Ed. 2d 944 (1966).” Patel v. Del Taco, Inc., 446 F.3d 996, 998 (9th Cir. 2006). “First, the

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The Court notes that Defendant appears on the Vexatious Litigant List maintained by the
California Courts, available at http://www.courts.ca.gov/12272.htm. It may be that his perceived
“denial of access to State Court facilities” related to his status as a vexatious litigant.
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petitioners must assert, as a defense to the prosecution, rights that are given to them by explicit

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statutory enactment protecting equal racial civil rights.” Id. (quotation marks and citation

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omitted). “Second, petitioners must assert that the state courts will not enforce that right, and that

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allegation must be supported by reference to a state statute or a constitutional provision that

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purports to command the state courts to ignore the federal rights.” Id. (quotation marks and

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citation omitted).
Defendant’s Notice of Removal does not meet either prong. Where comprehensible, the

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Notice of Removal makes bare allegations of raced-based discrimination, unsupported by facts

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suggesting that, for example, the criminal prosecution and exclusion from public facilities was
motivated by Defendant’s race or ethnicity. Moreover, Defendant “point[s] to no formal

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United States District Court
Northern District of California

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expression of state law that prohibits [him] from enforcing [his] civil rights in state court nor [does

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he] point to anything that suggests that the state court would not enforce [his] civil rights in the

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state court proceedings.” Patel, 446 F.3d at 999.

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IV.

Accordingly, the Court adopts the R&R2 and REMANDS this case to the Santa Clara

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ORDER

County Superior Court for lack of subject matter jurisdiction.

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Dated: November 25, 2014
______________________________________
BETH LABSON FREEMAN
United States District Judge

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As pointed out by Defendant, the R&R relied upon outdated authority for the proposition that
removal “brings the state prosecution to an immediate halt.” R&R at 2 (quoting Davis v. Sup. Ct.
of State of Cal., 464 F.2d 1272, 1273 (9th Cir. 1972)). Effective January 2012, “[t]he filing of a
notice of removal of a criminal prosecution shall not prevent the State court in which such
prosecution is pending from proceeding further, except that a judgment of conviction shall not be
entered unless the prosecution is first remanded.” 28 U.S.C. § 1455(b)(3). The Court nonetheless
adopts the R&R because remand is appropriate under the analysis set forth above.
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