State of Delaware v. Paskins

Filing 15

MEMORANDUM. Signed by Judge Sue L. Robinson on 1/17/14. (mdb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
STATE OF DELAWARE,

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Plaintiff,

v.
DANIEL M. PASKINS, JR.,
Defendant.

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Civil Action No. 13-850-SLR
Del. Super Cr. ID. 9312006327
Del. Super. Cr. Nos. 93-12-0532
through 0535

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MEMORANDUM
1. Introduction. On May 15, 2013, defendant Daniel M. Paskins, Jr.
("defendant") filed a motion for notice of removal, construed as a notice of removal from
the Superior Court of the State of Delaware in and for Sussex County ("Superior
Court"). (D. I. 1) He appears prose and has been granted leave to proceed in forma
pauperis.
2. Background. In October 1988, defendant pled guilty to one count of robbery
in the first degree and one count of burglary in the first degree. Paskins v. State, 58

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A.3d 983 (Del. 2012) (table). The Superior Court sentenced him to a total period of
twenty years at Level V incarceration to be suspended after serving four and one-half
years in prison for a ten year period of probation. /d. In January 1994, defendant was
charged by information with multiple counts of robbery, burglary, conspiracy and
weapons offenses. Paskins v. State, 2 A 3d 74 (Del. 201 0) (table). Four of the robbery
charges and one weapons charge were severed from the other charges. /d. Defendant
was convicted by a Superior Court jury of four counts of robbery in the first degree and
one count of possession of a deadly weapon during the commission of a felony and the

other charges were dismissed. Paskins, 58 A.2d 983; Paskins, 2 A.2d 74. The
Superior Court sentenced defendant to a total period of thirty-three years at Level V
incarceration to be suspended after serving twenty-five years for probation. Paskins, 58
A.2d 983. The Delaware Supreme Court affirmed the convictions and sentence on
direct appeal. Paskins v. State, 655 A.2d 1255 (Del. 1995) (table). Defendant filed
numerous motions for postconviction relief and motions for sentence reduction in the
robbery case, all of which were denied, and those that were appealed were affirmed.
Paskins v. State, 2 A.3d 74. When the Delaware Supreme Court affirmed the denial of
defendant's fifth motion for postconviction relief, it barred him from further litigating a
waiver of indictment issue that he had repeatedly raised without success. Paskins v.
State, 706 A.2d 26 (Del. 1998) (table). Similarly, on September 21, 2005, the Delaware
Supreme Court prohibited defendant from filing petitions for extraordinary relief
concerning the robbery case. In re Paskins, 884 A.2d 512 (Del. 2005) (table).
3. In November 2010, defendant filed a motion for sentence reduction or
modification and, on January 19, 2011, the Superior Court issued a modified
sentencing order, which suspended all of the remaining Level V time of defendant's
sentences and imposed a one year period at Level IV home confinement followed by a
four-year concurrent period at Level Ill probation. Paskins, 58 A.3d 983. On July 15,
2012, defendant was arrested and charged with driving under the influence of alcohol
which resulted in a charge of violation of probation. /d. The Superior Court found that
defendant had violated his probation and sentenced him immediately to a total period of
thirty-one years at Level V incarceration to be suspended entirely for one year at Level

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IV home confinement followed by a lengthy period of probation. /d. Defendant
appealed and the Delaware Supreme Court affirmed the judgment of the Superior
Court. /d.
4. In defendant's notice of removal, he states that a violation of probation
hearing was held on January 4, 2013, and the court determined that he had violated his
probation in Case Nos. 9312006327 and 88S01362D1, Crim. A. No. 88-06-0072-02.
Defendant states that he was sentenced to the remainder of his Level V sentence for
Case No. 9312006327; seven years and probation. (D.I. 1) In addition, a November
12, 2013 filing indicates that defendant requested a hearing but "there has been no
response concerning a September 18, 2013 hearing." (D.I. 9) Exhibits to the notice of
removal include 1993 arrest warrants, a 1995 certification of records, December 16,
1993 transcript of proceedings, January 28, 1994 transcript of proceedings, a partial
Superior Court docket for Criminal Case No. 9312006327, 1994 trial transcripts, Court
of Common Pleas docket for Criminal Case No. 9312003318, and a waiver of
preliminary hearing. (D .I. 1, exs. 1-9)
5. Defendant seeks removal pursuant to 28 U.S.C. §§ 1443 and 1446(c)(1) on
the grounds that he was deprived of "equal civil rights" through race discrimination in
the Sussex County Superior Court and the Delaware Supreme Court (D.I. 1), and
because "there is no arrest, no bail hearing, no preliminary hearing, no arraignment and
after numerous filings before, during and after trial [his] motions arguing these due
process issues were not only denied, but barred from being presented in any Delaware
state court." (D.I. 9)

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6. Standard of review. In order for a case to be removable to the district court,
the court must have original jurisdiction by either a federal question or diversity of
citizenship. 28 U.S.C. §§ 1331, 1332, 1441. "Only state-court actions that originally
could have been filed in federal court may be removed to federal court by the
defendant." Kline v. Security Guards, Inc., 386 F.3d 246, 252 (3d Cir. 2004) (quoting
Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987)). If the case could not have been

filed originally in federal court, then removal under 28 U.S.C. § 1441 is improper and
remand is appropriate. /d. (citations omitted).
7. Discussion. Defendant invokes§§ 1443 and 1446(c)(1) of the removal
statute. Removal of state criminal matters is permitted in limited instances under 28
U.S.C. § 1443. Pursuant to§ 1443(1), a criminal prosecution commenced in a State
court may be removed to the district court of the United States for the district and
division embracing the place wherein it is pending 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. 28 U.S.C. 1443(1). A state court defendant who seeks removal of a criminal
prosecution to federal court under 28 U.S.C. § 1443(1) "must demonstrate both (1) that
he is being deprived of rights guaranteed by a federal law 'providing for ... equal civil
rights'; and (2) that he is 'denied or cannot enforce that right in the courts' of the state."
Davis v. Glanton, 107 F.3d 1044, 1047 (3d Cir. 1997) (quoting Georgia v. Rachel, 384

U.S. 780, 788 (1966)). With respect to the first prong, "the phrase 'any law providing
for ... equal civil rights' must be construed to mean any law providing for specific civil
rights stated in terms of racial equality." Rachel, 384 at 792 (quoting 28 U.S.C. §

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1443(a)). Second, it must appear, in accordance with the provisions of§ 1443(1), that
the removal petitioner is denied or cannot enforce the specified federal rights in the
courts of the State. Johnson v. Mississippi, 421 U.S. 213, 219 ( 1975) (citations
omitted).
8. Defendant alleges that he has been discriminated against on the basis of
race. Hence, although alleged very generally, the allegation may provide a basis for
this court's proposed exercise of subject matter jurisdiction. Defendant must also show,
however, that he cannot enforce his asserted rights in state court. In re Weddington,
2008 WL 686381 (E.D. Pa. Mar. 12, 2008); see also State v. Haws, 131 F.3d 1205,
1209 (7th Cir. 1997). The rights to which defendant refers appear to be his right to
appeal and/or to raise issues. It is evident, from reported and unreported cases, that
defendant has taken advantage of his right to appeal on numerous occasions. In
addition, he has repeatedly sought postconviction relief, so much so that he was
ultimately barred from raising repetitive issues and petitions. It is generally presumed
that "the protection of federal constitutional or statutory rights [can] be effected in the
pending state proceedings, civil or criminal." Johnson, 421 U.S. at 219-20.
9. Finally, under 42 U.S.C. § 1446, a notice of removal of a criminal prosecution
shall include all grounds for such removal. If it clearly appears on the face of the notice
and any exhibits annexed thereto that removal should not be permitted, the court shall
make an order for summary remand. Section 1446(c)(1) provides that a notice of
removal of a criminal prosecution shall be filed not later than thirty days after the
arraignment in the State court, or at any time before trial, whichever is earlier, except
that for good cause shown the United States district court may enter an order granting

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defendant leave to file the notice at a later time. Defendant has been tried and
convicted. Indeed, at present he is serving time due to the revocation of his probation.
Hence, the notice is untimely and his failure to timely file his notice of removal renders
the removal procedurally defective. Finally, the court finds that defendant has not
shown good cause for his failure to timely remove the case. Instead, it appears that
defendant attempts to use the removal statute in a procedurally incorrect manner to
gain release from prison.
10. Conclusion. For the above reasons, the court will deny as moot the motion
of common law sovereignty for this legislative tribunal (D. I. 13), and will summarily
remand the case to the Superior Court in and for Sussex County. A separate order
shall issue.

Dated: January

,-1 , 2014
DISTRICT JUDGE

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