State of Colorado et al v. Anwar

Filing 3

ORDER for Summary Remand to the Adams County District Court by Judge Lewis T. Babcock on 12/4/14. 2 Application to Proceed in District Court Without Prepaying Fees or Costs is denied as moot. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Criminal Action No. 14-mc-00250-GPG
(Removal from Adams County, Colorado, District Court,
Case No. 2014M3765)
STATE OF COLORADO, and
MOHAMAD ABDALLAH,
Plaintiffs,
v.
AZFAR JADOON ANWAR,
Defendant.

ORDER FOR SUMMARY REMAND

Defendant Azfar Jadoon Anwar has filed pro se a Notice of Removal in which he
states that the grounds for removal are based on Federal question; but the Notice for
the most part is convoluted and difficult to decipher. Defendant does not indicate in the
Notice the number of the case he desires to remove to this Court. He does, however,
indicate that he has attached copies of all “Process, Pleadings, and Orders served upon
Pro Per Defendant.” ECF No. 1 at 1. Several of the attachments appear to be filings
Defendant has submitted or intends to submit in Case No. 2014M3765 in the Adams
County District Court. ECF No. 1 at 3-10 and 69. The Court, therefore, construes this
action as a criminal removal of Case No. 2014M3765 from the Adams County District
Court.
The Court must construe the Notice of Removal liberally because Defendant is
not represented by an attorney. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972);

Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, the Court cannot act
as an advocate for a pro se litigant. See Hall, 935 F.2d at 1110. For the reasons stated
below, Case No. 2014M3765 will be remanded summarily to the state court.
Title 28 U.S.C. § 1455(a) provides that a defendant seeking to remove a criminal
prosecution from a state court must file a notice of removal “containing a short and plain
statement of the grounds for removal.” Defendant fails to provide a short and plain
statement of the grounds for removal of this action and he fails to demonstrate that any
criminal prosecution currently is pending against him that may be removed. Even
construing the notice of removal liberally and assuming the existence of an active
criminal prosecution in the removed case, the Court is unable to ascertain any
legitimate basis for removal of the case under the relevant statutes. Title 28 U.S.C.
§§ 1442, 1442a, and 1443 all authorize the removal of certain criminal prosecutions, but
Defendant makes no allegations relevant to § 1442, which applies to actions against
federal officers or agencies, or to § 1442a, which applies to members of the armed
forces. The Court also finds there is no basis for removal pursuant to § 1443, which
authorizes removal of certain civil rights cases.
The two requirements for removal under § 1443(1) are narrow and well-defined.
See Davis v. Glanton, 107 F.3d 1044, 1045 (3d Cir. 1997). “First, it must appear that
the right allegedly denied the removal petitioner arises under a federal law ‘providing for
specific civil rights stated in terms of racial equality.’ ” Johnson v. Mississippi, 421 U.S.
213, 219 (1975) (quoting Georgia v. Rachel, 384 U.S. 780, 792 (1966)). “A state court
defendant’s claim that ‘prosecution and conviction will violate rights under constitutional
or statutory provisions of general applicability or under statutes not protecting against
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racial discrimination’ is insufficient for removal.” Colorado v. Lopez, 919 F.2d 131, 132
(10th Cir. 1990) (quoting Johnson, 421 U.S. at 219). Defendant does not allege facts
that demonstrate he has been denied any rights based on his race.
“Second, it must appear . . . that the removal petitioner is ‘denied or cannot
enforce’ the specified federal rights ‘in the courts of [the] State.’” Johnson, 421 U.S. at
219 (quoting 28 U.S.C. § 1443(1)). The Supreme Court explained this requirement as
follows:
Under § 1443(1), the vindication of the defendant's federal
rights is left to the state courts except in the rare situations
where it can be clearly predicted by reason of the operation
of a pervasive and explicit state or federal law that those
rights will inevitably be denied by the very act of bringing the
defendant to trial in the state court.
City of Greenwood, Miss., v. Peacock, 384 U.S. 808, 828 (1966). This requirement
must be supported by specific factual allegations. See generally 14A Charles Alan
Wright et al., Federal Practice & Procedure § 3728 (2d ed. 1985). Defendant does not
provide the Court with specific factual allegations regarding any inability to enforce his
constitutional rights in the state court proceedings. Therefore, removal pursuant to
§ 1443(1) is not appropriate.
Removal pursuant to 28 U.S.C. § 1443(2) also is not appropriate. Section
1443(2) “confers 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, 384 U.S. at 824. Defendant does
not allege that he is either a federal officer or a person assisting a federal officer in the
performance of official duties providing for equal civil rights.

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Therefore, because it clearly appears on the face of the notice of removal that
removal of this action should not be permitted, the action will be remanded summarily to
the state court pursuant to 28 U.S.C. § 1455(b)(4). Accordingly, it is
ORDERED that Case No. 2014M3765 is remanded summarily to the Adams
County District Court, 1100 Judicial Center Driver, Brighton, CO 80601. It is
FURTHER ORDERED that the Clerk of this Court shall mail a certified copy of
this Order to the Clerk of the Adams County District Court. It is
FURTHER ORDERED that the Application to Proceed in District Court Without
Prepaying Fees or Costs (Long Form), ECF No. 2, is denied as moot.
DATED at Denver, Colorado, this

4th

day of

December

BY THE COURT:

s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court

4

, 2014.