State Of Delaware v. Sheppard

Filing 5

MEMORANDUM ORDER DENYING AS MOOT 4 MOTION to Stay MOTION for Preliminary Injunction filed by Shira L. Sheppard. The case is summarily REMANDED to the Superior Court of the State of Delaware in and for Kent County. Signed by Judge Gregory M. Sleet on 9/20/2016. (asw)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
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STATE OF DELA WARE,
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Plaintiff,
v.
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SHIRA L. SHEPPARD,
Defendant. .

Civil Action No. 16-803-UNA
Del. Super Cr. ID. 1512003035

MEMORANDUM ORDER
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At Wilmington this

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day of September, 2016, for the reasons set forth below;

IT IS ORDERED that: (1) the motion to stay and for injunctive relief (D.I. 4) is denied
as moot; and (2) the case is summarily remanded to the Superior Court of the State of Delaware
in and for Kent County.
1. On June 6, 2016, the defendant Shira L. Sheppard ("Sheppard") was indicted in the
Superior Court of t~e State of Delaware in and for Kent County ("Superior Court") on one count
of carrying a concealed deadly weapon in violation of 11 Del. C. § 1442. (D.I. 2, ex. 1.)
2. On September 13, 2016, Sheppard filed a notice of removal of the criminal matter
from the Superior Court. (D .I. 2.) She appears pro se and seeks leave to proceed in forma
pauperis. (D.I. 1.) Hearing in the criminal matter is scheduled in State Court on September 20,
2016. Sheppard seeks a stay of the proceedings. (D.I. 4.)
3. In order ~or a case to be removable to the district court, the court must have original
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jurisdiction by eith~r 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) (quo~ng Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987)). If the case could
not have been filed lriginally in federal court, then removal under 28 U.S.C. § 1441 is improper
and remand is appropriate. Id (citations omitted).
4. 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. 1 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 [s]he is being deprived of rights guaranteed by a federal law 'providing
for ... equal civil rights'; and (2) that [s]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 ofracial equality." Rachel, 384 at 792 (quoting 28 U.S.C. § 1443(1)). 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).
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Section 1443(2) is inapplicable. This subsection '"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."' Pennsylvania v.
Randolph, 464 F. App'x 46, 47 (3d Cir. 2012) (quoting City of Greenwood, Miss. v. Peacock,
384 U.S. 808, 824 (1966).
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5. The notiy of removal does not meet the required requisites. Sheppard does not allege

that the State court l~tigation involves issues of racial equality. In addition, the issues raised by
Sheppard are rights that are certainly enforceable in state court. 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. For the above reasons, the court

will deny Sheppard's pending motion as moot and will summarily remand the case to the
Superior Court.

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