Williams v. Kansas, State of

Filing 4

MEMORANDUM AND ORDER AND ORDER OF REMAND: This matter is remanded to the District Court of Sedgwick County, Kansas. Petitioner's motion to appoint counsel 3 is denied. ***Terminating Case. Signed by U.S. Senior District Judge Sam A. Crow on 05/08/18. Mailed to pro se party Jeremy J. Williams by regular mail. (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

JEREMY J. WILLIAMS,
Petitioner,
v.

CASE NO. 18-3115-SAC

STATE OF KANSAS,
Respondent.

MEMORANDUM AND ORDER AND ORDER OF REMAND
This matter is before the court on petitioner’s Notice of Removal
and Motion for Writ of Habeas Corpus (Doc. #1). Petitioner faces
several criminal charges in the District Court of Sedgwick County in
Case No. 2015CR002218. He seeks to remove the criminal action to the
federal district court.
Because

petitioner

proceeds

pro

se,

the

Court

liberally

construes his claims. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.
1991). However, “removal statutes are to be strictly construed … and
all doubts are to be resolved against removal.” Fajen v. Foundation
Reserve Ins. Co, Inc., 683 F.2d 331, 333 (10th Cir. 1982)(citation
omitted).
Having considered the matter, the Court will summarily remand
the matter to the state district court.
Analysis
Petitioner seeks removal under 28 U.S.C. § 1455, which governs
the removal of state criminal actions to federal court. The statute
provides as follows:
(a)

Notice of removal. – A defendant or defendants
desiring to remove any criminal prosecution from

a State court shall file in the district court
of the United States for the district and
division within which such prosecution is
pending a notice of removal signed pursuant to
Rule 11 of the Federal Rules of Civil Procedure
and containing a short and plain statement of the
grounds for removal, together with a copy of all
process, pleadings, and orders served upon such
defendant or defendants in such action.
(b)

Requirements. – (1) A notice of removal of a
criminal prosecution shall be filed not later
than 30 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 the defendant or defendants leave to
file the notice at a later time.
(2) A notice of removal of a criminal prosecution
shall include all grounds for such removal. A
failure to state grounds that exist at the time
of the filing of the notice shall constitute a
waiver of such grounds, and a second notice may
be filed only on grounds not existing at the time
of the original notice. For good cause shown, the
United States district court may grant relief
from the limitations of this paragraph.
(3) The filing of a notice of removal of a
criminal prosecution shall not prevent the State
court in which such prosecution is pending from
proceeding further, except that a judgment of
conviction shall not be entered unless the
prosecution is first remanded.
(4) The United States district court in which
such notice is filed shall examine the notice
promptly. 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.
(5) If the United States district court does not
order the summary remand of such prosecution, it
shall order an evidentiary hearing to be held
promptly and, after such hearing, shall make such
disposition of the prosecution as justice shall
require. If the United States district court
determines that removal shall be permitted, it

shall so notify the State court in which
prosecution is pending, which shall proceed no
further.
(c)

Writ of habeas corpus. – If the defendant or
defendants are in actual custody on process
issued by the State court, the district court
shall issue its writ of habeas corpus and the
marshal shall thereupon take such defendant or
defendants into the marshal’s custody and
deliver a copy of the writ to the clerk of such
State court.

28 U.S.C. § 1455.
While 28 U.S.C. § 1455 governs removal, it is a procedural
statute, and the Court must look to other provisions for
substantive guidance. Under 28 U.S.C. § 1442, a State criminal
action may be removed to federal court if it is brought against
any of the following:
(1)

(2)
(3)
(4)

The United States or any agency thereof or any officer
(or any person acting under that officer) of the United
States of any agency thereof, in an official or
individual capacity, for or relating to any act under
color of such office or on account of any right, title
or authority claimed under any Act of Congress for the
apprehension or punishment of criminals or the
collection of the revenue.
A property holder whose title is derived from any such
officer, where such action or prosecution affects the
validity of any law of the United States.
Any officer of the courts of the United States, for
or relating to any act under color of office or in the
performance of his duties.
Any officer of either House of Congress, for or
relating to any act in the discharge of his official
duty under an order of such House.

28 U.S.C. § 1442(a)(1)-(4).
Likewise, a state criminal prosecution brought against a
member of the armed forces of the United States may be removed

to a federal court. 28 U.S.C. § 1442a.
The materials before the Court do not show that petitioner is
a federal officer, a member of the armed services, an officer in the
House of Congress, or is otherwise entitled to consideration under
28 U.S.C. § 1442 or § 1442a.
Finally, a state criminal prosecution may be removed if it
is brought:
(1) 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;
(2) For any act under color of authority derived from any
law providing for equal rights, or for refusing to do any
act on the ground that it would be inconsistent with such
law.
28 U.S.C. § 1443.
Under §1443(1), the Court applies the two-part test established
by the Supreme Court in Johnson v. Mississippi, 421 U.S. 213 (1975).
“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, 421 U.S. at 219
(quoting Georgia v. Rachel, 384 U.S. 780, 792 (1966). Allegations by
a petitioner seeking removal that are based upon provisions of general
applicability or statutes that do not protect against racial
discrimination are not an adequate basis for removal. Colorado v.
Lopez, 919 F.2d 131, 132 (10th Cir. 1990)(quoting Johnson, 421 U.S.
at 219).
“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
removal petitioner has a heavy burden in satisfying this showing:
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 defendants to trial in the state court.
City of Greenwood, Miss. v. Peacock, 384 U.S. 808, 828 (1966).
The petition does not allege any facts to support a claim of
racial discrimination and does not show that petitioner cannot seek
relief effectively in his state criminal action. Therefore, he is not
entitled to removal under § 1443(1).
Under 28 U.S.C. §1443, subsection (2) has been interpreted to
“confer[] 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 v. Peacock, 384 U.S. 808, 824 (1966). Petitioner does
not allege any facts that suggest he meets this standard.
Conclusion
For the reasons stated, the Court concludes petitioner has failed
to establish any basis for the removal of his state criminal action
to federal court. Accordingly, this matter must be summarily remanded
to the state district court.
IT IS, THEREFORE, BY THE COURT ORDERED this matter is
remanded to the District Court of Sedgwick County, Kansas.
IT IS FURTHER ORDERED petitioner’s motion to appoint

counsel (Doc. #3) is denied).
IT IS SO ORDERED.
DATED:

This 8th day of May, 2018, at Topeka, Kansas.

S/ Sam A. Crow
SAM A. CROW
U.S. Senior District Judge