State of Georgia v. Atun

Filing 3

ORDER REMANDING this case to the State Court of Gwinnett County. The Court lacks subject matter jurisdiction over this action. Signed by Judge Richard W. Story on 4/6/2015. (cem)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
STATE OF GEORGIA,
Plaintiff,
v.
ANKH SESHMU ATUN,
Defendant.

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CIVIL ACTION NO.
1:15-CV-0643-RWS

ORDER
This case comes before the Court on Defendant’s Notice of Removal [1].
After reviewing the record, the Court enters the following Order.
Background
On March 4, 2015, Defendant Ankh Seshmu Atun removed his Gwinnett
County State Court proceedings for speeding and driving without a valid
driver’s license in Norcross, Georgia. (See Accusation, Dkt. [1] at 8, 10.)
According to the Notice of Removal, Defendant is a member of the Aboriginal
Republic of North America. As a member of an aboriginal tribe, Defendant

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asserts that he is also a U.S. citizen. See 8 U.S.C. § 1401(b) (providing that
“nationals and citizens of the United States at birth” include “a person born in
the United States to a member of an Indian, Eskimo, Aleutian, or other
aboriginal tribe”). Defendant states that his aboriginal tribe is recognized by the
U.S. Government. Defendant further contends that the State of Georgia lacks
personal jurisdiction over him because he is not a resident of Georgia.
Although Defendant was arrested for driving without a valid driver’s
license in his possession, Defendant states that he showed both his Tribal
Domestic and International Driver’s Licenses to the officer. (See Licenses, Dkt.
[2] at 5-6.) He removed his prosecution to this Court for determination of the
validity of his driver’s licenses. In addition, he filed a Motion to Dismiss [2]
asserting that he did not violate Georgia law because he possessed a valid
driver’s license. He also argues that his speeding charge should be dismissed
because speeding is not a threat to public safety.
Discussion
“The district court may remand a case sua sponte for lack of subject
matter jurisdiction at any time.” Corporate Mgmt. Advisors, Inc. v. Artjen
Complexus, Inc., 561 F.3d 1294, 1296 (11th Cir. 2009); see also 28 U.S.C. §
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1447(c). Moreover, federal removal jurisdiction must be strictly construed. See
Shamrock Oil & Gas v. Sheets, 313 U.S. 100, 108-09 (1941).
A criminal case can be removed from state to federal court under 28
U.S.C. § 1443 “if the action is against a person who is denied or cannot enforce
in the state courts ‘a right under any law providing for equal civil rights of
citizens of the United States.’ ”1 Alabama v. Conley, 245 F.3d 1292, 1295
(11th Cir. 2001) (quoting 28 U.S.C. § 1443(1)). A removal petition under §
1443(1) must satisfy a two-prong test. Id. “First, the petitioner must show that
the right upon which the petitioner relies arises under a federal law ‘providing
for specific civil rights stated in terms of racial equality.’ ” Id. (quoting
Georgia v. Rachel, 384 U.S. 780, 792 (1966)). Under the second prong, “the
petitioner must show that he has been denied or cannot enforce that right in the
state courts.” Id. On the other hand, 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 racial

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In addition, 28 U.S.C. § 1442(a) provides that a state criminal prosecution may
be removed to federal court if the defendant is an “officer . . . of the United States,” an
“officer of the courts of the United States,” or an “officer of either House of
Congress,” and the prosecution is related to acts in performance of official duties or
under color of office. That provision is inapplicable here.
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discrimination” is not a valid ground for § 1443 removal. Johnson v.
Mississippi, 421 U.S. 213, 219 (1975). Therefore, “broad contentions of
deprivation of equal protection and due process under the Fourteenth
Amendment do not support removal of claims under § 1443(1).” Id.
Defendant claims that removal is proper so the Court can determine the
validity of his driver’s licenses. Moreover, he claims that the licenses were
confiscated in violation of federal law providing foreign-state property located
in the United States with immunity from attachment and execution. See 28
U.S.C. § 1609. Defendant further asserts that the State of Georgia violated his
rights under various federal criminal statutes protecting foreign officials, the
Supremacy Clause of the U.S. Constitution, and the Treaty of Watertown,
which “was a mutual defense agreement between the fledgling United States
and the St. John’s and Mi’kmaq Indian tribes of Nova Scotia, Canada, which
was entered into shortly after the signing of the Declaration of Independence in
1776.” United States v. $7,000.00 in U.S. Currency, 583 F. Supp. 2d 725, 732
(M.D.N.C. 2008).
Defendant, however, fails to show that the laws upon which he relies
arise under federal laws “providing for specific civil rights stated in terms of
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racial equality.” See Rachel, 384 U.S. at 792. Nor does he show that he is a
member of either of the tribes that were signatories to the Treaty of Watertown
(assuming the treaty would even justify removal). See El v. Redmon’s Towing,
No. 13-cv-00300, 2014 WL 2510552, at *2 (N.D. Ill. June 14, 2014) (stating, in
a case in which a member of the Aboriginal Republic of North America sought
a writ of replevin after his vehicle was seized when he was stopped for speeding
and driving without a valid license, that the plaintiff failed to show he was a
member of one of the tribes party to the Treaty of Watertown, and federal
statutes protecting foreign entities did not entitle him to relief).
Even if Defendant satisfied the first prong, Defendant wholly fails to
show that he has been denied or cannot enforce those rights in the State Court
of Gwinnett County. “Generally, the denial of the petitioner’s equal civil rights
must be ‘manifest in the formal expression of state law.’ ” Conley, 245 F.3d at
1296 (quoting Rachel, 384 U.S. at 803). Consequently, removal is only
available when “the denial of the right can be clearly predicted.” Id. Here,
Defendant was arrested for driving without a license and speeding. Enforcing
such laws does not deny Defendant’s equal civil rights. And even if the
arresting officer was mistaken in making the arrest, that is no ground for
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removal, and Defendant can raise this defense, along with any others, in state
court. Consequently, removal under § 1443(1) was improper.
Conclusion
For the foregoing reasons, the Court lacks subject matter jurisdiction over
this action, and the Clerk is DIRECTED TO REMAND this case to the State
Court of Gwinnett County.
SO ORDERED, this 6th day of April, 2015.

________________________________
RICHARD W. STORY
United States District Judge

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