State of Georgia v. Hesed-El
Filing
16
ORDER denying 11 Motion for an Opportunity to be Heard; denying 12 Motion for Relief from Judgment re 9 Order; and denying 14 Motion for Leave to Appeal in forma pauperis. Signed by Chief Judge J. Randal Hall on 04/11/2018. (jlh)
IN THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF GEORGIA
AUGUSTA DIVISION
STATE OF GEORGIA,
*
*
Plaintiff,
*
*
V.
*
CV 118-037
*
BRO T. HESED-EL,
*
*
Defendant.
*
ORDER
Before the Court are Defendant's: (a) ''Motion to Request an
Opportunity to be Heard" (doc. 11); (b) "Motion for Relief from
Judgment" (doc. 12); and (c) "Motion for Permission to Appeal In
Forma Pauperis" (doc. 14).
On March 6,
2018,
Defendant,
proceeding pro se, filed a
notice of removal purporting to remove two criminal prosecutions
from the State Court of Richmond County, Georgia, namely Case
Nos. 2017-RCMC-9095 & 2017-RCMC-9096 (the "State Actions"), to
this Court pursuant to 28 U.S.C. § 1443.^
(Doc. 1; see also Doc
1-1, at 2-7 (criminal arrest warrants issued in connection with
the State Actions.)
Contemporaneously with the filing of his
^ The State Actions respectively concern Defendant's alleged criminal trespass
on a private citizen's property as well as his obstruction of a law
enforcement
officer
while
inside
a
Richmond County courthouse (i.e.,
violations of Georgia law).
(See Doc. 1-1, at 2-7.)
Notably, the Court
previously dismissed Defendant's prior attempt to remove the State Actions to
this Court.
See State of Georgia v. Hesed-El, et al.. Case No. l;17-cv-141
(S.D. Ga. dismissed Dec. 5, 2017).
notice of removal, Defendant filed a motion for leave to proceed
in forma pauperis.
On
March
(Doc. 2.)
8,
2018,
the
United
States
Magistrate
Judge
conducted an initial review of Defendant's filings and entered a
report and recommendation (the
wherein he concluded that
this Court lacked subject-matter jurisdiction over the criminal
matters
underlying
the
State
Actions
and
recommended,
inter
alia, that: (i) Defendant's motion for leave to proceed in forma
pauperis be denied as moot; (ii) the instant case be dismissed;
and
(iii)
while
'''removal'
procedurally proper
manner,
was
in
never
accomplished
an abundance
of
in
a
caution," the
underlying criminal prosecutions be remanded to the State Court
of
Richmond
County,
Georgia.
(Doc.
5.)
On March
Defendant filed his objections to the R&R.
14,
(Doc. 7.)
2018,
On March
16, 2018, Defendant filed his "Supplemental Notice of Removal."
(Doc. 8.)
After conducting an independent and de novo review of the
entire
record,
this
Court
overruled
Defendant's
objections,
noted that Defendant's Supplemental Notice of Removal failed to
cure
R&R
the
as
improper
its
own
removal,
opinion
"Dismissal Order").)
and
on
adopted
March
20,
the
Magistrate
2018.
(Doc.
Judge's
9
(the
Accordingly, the Court: (i) denied as moot
Defendant's motion for leave to proceed in forma pauperis; (ii)
dismissed and closed this case; and (iii) despite noting that
removal was never properly accomplished, remanded the underlying
2
criminal
prosecutions
to
the
State
Court
Georgia, out of an abundance of caution.
On
March
Opportunity
23,
to
2018,
be
Defendant
Heard.
(Doc.
of
Richmond County,
(Id.)
filed
11.)
his
Motion
On
April
Defendant filed his Motion for Relief from Judgment.
for
2,
an
2018,
On April
4, 2018, Defendant filed a notice of appeal with regards to the
Dismissal Order as well as his Motion for Permission to Appeal
In Fojrma Pauperis.
(Docs. 13, 14.)
Here, to the extent that the Court has jurisdiction to do
so,^
the
Opportunity
Court
to
denies
be
Defendant's
Heard
because
Motion
Defendant
to
Request
already
had
an
an
opportunity to be heard - and indeed was heard - in this matter
as
to
the
propriety of
removal
to
this
Court
by
way of
the
filing of his objections to the R&R, his Supplemental Notice of
Removal, and indeed, his original notice of removal.
Further,
the
Judgment
Court
denies
Defendant's
Motion
for
Relief
from
because Defendant has failed to establish that he is entitled to
any relief under Federal Rules of Civil Procedure 59(e) & 60(b).
See, e.g., Arthur v. King, 500 F.3d 1335, 1343 (11th Cir. 2007)
(Rule 59(e) may not be used ''to relitigate old matters, raise
argument or present evidence that could have been raised prior
^ See Mahone v. Ray, 326 F.3d 1176, 1179 {11th Cir. 2003) ("As a general
matter, the filing of a notice of appeal deprives the district court of
jurisdiction over all issues involved in the appeal.
However, it does not
prevent the district court from taking action in furtherance of the appeal.
Nor does it prevent the court from entertaining motions on matters collateral
to those at issue on appeal." (internal quotations, citations, and footnote
omitted)).
3
to the entry of judgment," as "the only grounds for granting a
Rule
59(e)
errors
of
motion
law
are
or
newly-discovered
fact"
(internal
evidence
quotations
or
and
manifest
citations
omitted)); Griffin v. Swim-Tech Corp., 722 F.2d 677, 680 (11th
Cir. 1984) ("[R]elief under [Rule 60(b)(6)'s umbrella "any other
reason that justifies relief" clause] is an extraordinary remedy
which
may
be
circumstances.")
invoked
only
upon
a
showing
of
exceptional
Finally, because the Court can discern no non-
frivolous issues to be raised on appeal and therefore the appeal
has not been taken in good faith, the Court denies Defendant's
Motion
for
U.S.C.
§ 1915(a)(3);
445
Permission
(1962);
Bilal
to
Appeal
In
Coppedge v.
v.
Driver,
Forma
United
251
F.3d
Pauperis.
States, 369
1346,
1349
See
28
U.S.
438,
(11th
Cir.
2001).
Therefore, upon the foregoing and due consideration, IT IS
HEREBY ORDERED THAT Defendant's Motion to Request an Opportunity
to
be
Heard
(doc.
11),
Motion
for
Relief
from
Judgment
(doc.
12), and Motion for Permission to Appeal In Forma Pauperis (doc.
14) are DENIED.
ORDER
ENTERED
at
Augusta,
Georgia,
this
day
of
April, 2018.
J. /RANp^ HALZ, CHIEF JUDGE
UNITE^^TATES DISTRICT COURT
^GUTIffiRN DISTRICT OF GEORGIA
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