State of Maryland v. Rembold

Filing 4

MEMORANDUM. Signed by Judge Ellen L. Hollander on 1/25/2018. (c/m 1/25/18 bas, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND

STATE OF MARYLAND
Plaintiff,
v.
DONALD REMBOLD
Defendant.

*
* CIVIL ACTION NO. ELH-18-100
*
*****
MEMORANDUM

On January 5, 2018, Donald G. Rembold, a state prisoner confined at the Maryland
Correctional Training Center, filed a Notice of Removal of a case he initiated in the Circuit Court for
Harford County. ECF 1.1 In effect, Rembold seeks to remove to this Court his State collateral
review action, a post-conviction petition, as to his convictions in Harford County, Maryland.
I. Background
In order to gain some perspective on the removal, it is helpful to examine Rembold’s State
criminal case and prior federal filings.2
A review of the State court docket shows that in March 2014, Rembold was indicted in the
Circuit Court for Harford County. In July 2016, he was found guilty of two counts of sexual abuse
of a minor See State v. Rembold., Case No. 12K140000396 (Cir. Ct. for Harford. Co.).3 Rembold’s
1

The notice of removal was assigned to a Northern Division Judge, even though Rembold’s
earlier cases had been assigned to Judges Grimm and Chuang in the Southern Division. This is
because the subject matter of the case sub judice concerns a matter transferred from a State court in
Harford County, Maryland.
2

This court may take judicial notice of matters of public record. Goldfarb v. Mayor & City
Council of Baltimore, 791 F.3d 500, 508 (4th Cir. 2015); Phillips v. Pitt. Cty. Mem’l. Hosp., 572
F.3d 176, 180 (4th Cir. 2009).
3

Rembold was also indicted in another case in Harford County. See State v. Rembold., Case
No. 12K140000397 (Cir. Ct. for Harford. Co.). Those charges were nolle prossed.

appeals were noted and his convictions were affirmed by Maryland’s intermediate appellate court on
August 3, 2017. There is no formal reference to the filing of a post-conviction petition on the State
court docket.4
With regard to Rembold’s recent filing in this court, on October 16, 2017, he filed a “Petition
For Writ Of Habeas Corpus[and] Motion For Temporary Restraining Order And Preliminary
Injunction.” See Rembold v. Dovey, Civil Action No. TDC-17-3023 (D. Md.). Rembold noted that
he had filed a petition for post-conviction relief in the Circuit Court for Harford County on May 30,
2016, and claimed that the petition was “suppressed” by the clerk, in violation of his federal and
State rights to due process. ECF 1 at 1. He also claimed that neither the State’s Attorney nor the
Public Defender responded, as required by Maryland Rule 4-404 and Rule 4-403. Id. at 1-2.

He

seeks to compel the Circuit Court for Harford County to act on his petition. Id., ECF 1. That case is
pending before Judge Chuang.
II. Discussion
A petition for post-conviction relief filed in the Maryland courts is a collateral and civil
proceeding. It is not an appeal from the judgment, but rather a “collateral attack designed to address
alleged constitutional, jurisdictional, or fundamental violations that occurred at trial.” Mosley v.
State, 378 Md. 548, 560-61, 836 A.2d 678, 685 (2003).
In his Notice of Removal, Rembold offers no jurisdictional basis for removing his postconviction petition to this court. Presumably, he is dissatisfied with the pace of review of his post4

A State court docket entry of July 15, 2016, reflects that three black binders, including
Rembold’s two criminal cases and his post-conviction, were sent to the Maryland Court of Special
Appeals. See State v. Rembold, Case No. 12K140000396 (Cir. Ct. for Harford. Co.), Docket No.
102.
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conviction petition in the State court.
Title 28 U.S.C. § 1441(a) provides:
Except as otherwise expressly provided by Act of Congress, any civil action brought
in a State court of which the district courts of the United States have original
jurisdiction , may be removed by the defendant or the defendanrs, to the district court
of the United States for the district and division embracing the place where such
action is pending.
Title 28 U.S.C. § 1447(c) provides:
A motion to remand the case on the basis of any defect other than lack of subject
matter jurisdiction must be made within 30 days after the filing of the notice of
removal under section 1446(a). If at any time before final judgment it appears that the
district court lacks subject matter jurisdiction, the case shall be remanded. An order
remanding the case may require payment of just costs and any actual expenses,
including attorney fees, incurred as a result of the removal. A certified copy of the
order of remand shall be mailed by the clerk to the clerk of the State court. The State
court may thereupon proceed with such case.
Section 1446(a) provides:
A defendant or defendants desiring to remove any civil action from a State court shall
file in the district court of the United States for the district and division within which
such action 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.
Courts are required to construe removal statutes narrowly, Shamrock Oil & Gas Corp. v.
Sheets, 313 U.S. 100, 108-09 (1941). This is because “the removal of cases from state to federal
court raises significant federalism concerns.” Barbour v. Int’l Union, 640 F.3d 599, 605 (4th Cir.
2011) (abrogated in part on other grounds by the Federal Courts Jurisdiction and Venue Clarification
Act of 2011, Pub. L. No. 112–63, 125 Stat. 758 (Dec. 7, 2011)). A civil action filed in state court
may be removed to federal court if it is one over which the district court has original jurisdiction. 28
U.S.C. § 1441(a). The burden of demonstrating jurisdiction and propriety of removal rests with the
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removing party. Dixon v. Coburg Dairy, Inc., 369 F.3d 811, 815 (4th Cir. 2004); see also McBurney
v. Cuccinelli, 616 F.3d 393, 408 (4th Cir. 2010); Robb Evans & Assocs., LLC v. Holibaugh, 609 F.3d
359, 362 (4th Cir. 2010). Therefore, “[i]f a plaintiff files suit in state court and the defendant seeks
to adjudicate the matter in federal court through removal, it is the defendant who carries the burden
of alleging in his notice of removal and, if challenged, demonstrating the court’s jurisdiction over the
matter.” Strawn v. AT&T Mobility LLC, 530 F.3d 293, 296 (4th Cir. 2008).
“Because removal jurisdiction raises significant federalism concerns, [courts] must strictly
construe removal jurisdiction.” Mulcahey v. Columbia Organic Chems. Co., 29 F.3d 148, 151 (4th
Cir. 1994) (citing Shamrock, 313 U.S. at 108–09). Indeed, a federal court “should construe removal
statutes narrowly, [with] any doubts...resolved in favor of state court jurisdiction.” Barbour, 640 F.3d
at 617; see also Cohn v. Charles, 857 F.Supp.2d 544, 547 (D. Md. 2012) (“Doubts about the
propriety of removal are to be resolved in favor of remanding the case to state court.”).
Federal courts are courts of limited jurisdiction and “may not exercise jurisdiction absent a
statutory basis.” Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 552 (2005). Further, a
federal court must presume that a case lies outside its limited jurisdiction unless and until jurisdiction
has been shown to be proper.” United States v. Poole, 531 F.3d 263, 274 (4th Cir. 2008) (citing
Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994)). A federal court has “an independent
obligation to determine whether subject-matter jurisdiction exists, even when no party challenges it.”
Hertz Corp. v. Friend, 559 U.S. 77, 94 (2010); see also Sucampo Pharmaceuticals, Inc. v. Astellas
Pharma, Inc., 471 F.3d 544, 548 (4th Cir. 2006).
It is a hornbook principle of federal jurisdiction that “for both removal and original
jurisdiction, the federal question must be presented by plaintiff's complaint as it stands at the time the
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petition for removal is filed. The federal question presented cannot exist merely as a matter of
defense or as a counterclaim.” See 14 C. Wright & A. Miller, Federal Practice and Procedure
§ 3722, at 557; Metro Ford Truck Sales, Inc. v. Ford Motor Co., 145 F.3d 320, 326-27 (5th Cir.
1998); Metropolitan Life Ins. Co. v. Balinas, 2002 WL 1298774, at *3 (E.D. La. June 10, 2002).
Rembold did not provide a record of the underlying State court proceeding, as required for
removal. See 28 U.S.C. § 1446. And, I am satisfied that this court has no jurisdiction over the State
post-conviction proceeding that he filed in a State circuit court.
Rembold has also failed to show that he is unable to enforce his federal rights in the
Maryland court. See Schaefgen v. O’Sullivan, 2015 WL 4572238, *5 (D. Md. 2015). Indeed, a party
to a state court proceeding is ordinarily able to raise objections in the state proceeding on the basis of
applicable federal constitutional provisions. “‘Under our system of dual sovereignty . . . state courts
have inherent authority, and are thus presumptively competent, to adjudicate claims arising under the
laws of the United States.’” Bullock v. Napolitano, 666 F.3d 281, 285 (4th Cir. 2012) (quoting
Yellow Freight Sys., Inc. v. Donnelly, 494 U.S. 820, 823 (1990)).
III. Conclusion
In light of the above, I conclude that Rembold is precluded from removing his postconviction petition to this federal district court. He has not met his burden to demonstrate that
jurisdiction is proper. Therefore, the case shall be remanded to the State court.5

5

To the extent that Rembold is seeking federal review over his Maryland convictions, he may
file a 28 U.S.C. § 2254 habeas corpus petition. The court offers no opinion as to the merits of such a
case, including as to issues concerning exhaustion.
5

An Order follows.

Date: January 25, 2018

/s/
Ellen L. Hollander
United States District Judge

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