Michigan, State of v. Johnson #312836
Filing
18
OPINION ; signed by Judge Robert Holmes Bell (Judge Robert Holmes Bell, kcb)
UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION
STATE OF MICHIGAN,
Plaintiff,
Case No. 2:14-cv-146
v.
Honorable Robert Holmes Bell
LYONELL JOHNSON,
Defendant.
____________________________________/
OPINION
This matter is before the Court on Defendant Lyonell Johnson’s pro se notice of
removal of his Chippewa County state-court criminal proceedings to this Court pursuant to 28 U.S.C.
§§ 1443, 1446. In the notice, Defendant alleges that he has been charged with “Criminal Enterprise
Rackete[e]ring Proceeds” and that his constitutional rights will be violated if the case proceeds to
trial.1 (Notice of Removal, docket #1, Page ID#1.) He allegedly requested a “25% black jury poll,”
but his appointed counsel informed him that “there were no blacks available in the jury poll and if
any appear, the Prosecution would have them excluded.” (Id.) Defendant also contends that the
prosecution has engaged in “fraud, conspiracy, corruption and intentional violation” of his rights by
“inciting and creating perjury and the presentation of false evidence” against him. (Id. at Page
ID##1-2.) In addition, Defendant’s appointed attorney allegedly refuses to represent Defendant.
1
According to documents filed after the notice of removal, it appears that Defendant has since pleaded guilty
to the charges against him, but he has challenged the plea because he contends that it was involuntary. (See Notice of
Hr’g for Mot. to W ithdraw Plea, 50th Cir. Ct. for Chippewa Cnty. (Aug. 12, 2014), docket #16-1, Page ID#258; Notice
to Appear for Sentencing, 50th Cir. Ct. for Chippewa Cnty. (Aug. 5, 2014), docket #15.)
Defendant seeks removal to this Court to afford him his “constitutional right to a black jury,
competent counsel and fair representation.” (Id. at Page ID#2.)
A state defendant may remove his criminal prosecution only as provided in 28 U.S.C.
§ 1443.2 This section permits removal of a criminal action by a defendant:
(1) Against any person who is denied or cannot enforce in the courts of [a] 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.
With respect to subsection (1), a removal petition must satisfy a two-pronged test.
See 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 State of Georgia v. Rachel, 384 U.S.
780, 792 (1966)). Second, a petitioner must show that he cannot enforce the specified federal right
in state court. Id. “This provision normally requires that the denial be manifest in a formal
expression of state law, such as a state legislative or constitutional provision, rather than a denial first
made manifest in the trial of the case.” Id. (quoting Rachel, 384 U.S. at 799, 803) (internal quotation
marks omitted).
2
Defendant also cites 28 U.S.C. § 1446 as a basis for removal, but that section provides a procedure for removal
of a criminal prosecution. It does not provide for a substantive right of removal.
-2-
Even if Defendant could satisfy the first prong, his petition wholly fails to satisfy the
second prong because he fails to allege a “formal expression of state law” that prohibits his enforcing
his federal rights in state court. As the United States Supreme Court has explained:
It is not enough to support removal under § 1443(1) to allege or show that the
defendant’s federal equal civil rights have been illegally and corruptly denied by state
administrative officials in advance of trial, that the charges against the defendant are
false, or that the defendant is unable to obtain a fair trial in a particular state court.
The motives of the officers bringing the charges may be corrupt, but that does not
show that the state trial court will find the defendant guilty if he is innocent, or that
in any other manner the defendant will be “denied or cannot enforce in the courts”
of the State any right under a federal law providing for equal civil rights. The civil
rights removal statute does not require and does not permit the judges of the federal
courts to put their brethren of the state judiciary on trial. 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 defendant to trial in the state court.
City of Greenwood v. Peacock, 384 U.S. 808, 827-28 (1966). Defendant cannot show that the state
trial and appellate courts will not be able to vindicate his rights.3 Thus, removal is not proper under
§ 1443(1).
Furthermore, Defendant’s criminal action does not satisfy the alternative bases for
removal under § 1443(2). “The first clause [of subsection (2)], ‘for any act under color of authority
derived from any law providing for equal rights . . . [,]’ has been examined by the Supreme Court
and held available only to federal officers and to persons assisting such officers in the performance
of their official duties.” Detroit Police Lieutenants & Sergeants Ass’n v. City of Detroit, 597 F.2d
566, 568 (6th Cir. 1979) (citing Peacock, 384 U.S. at 815). As to the second clause of § 1443(2)
(“for refusing to do any act on the ground that it would be inconsistent with such law”), the Supreme
3
Indeed, if he is convicted and a judgment is entered against him, Defendant has a right to appeal that judgment
in the Michigan Court of Appeals. If he is unsuccessful, he may seek leave to appeal in the Michigan Supreme Court.
-3-
Court has noted that “[i]t is clear that removal under that language is available only to state officers.”
Peacock, 384 U.S. at 824 n.22; Detroit Police Lieutenants & Sergeants Ass’n, 597 F.2d at 568 (“We
believe that this provision of the statute was designed to protect state officers from being penalized
for failing to enforce discriminatory state laws or policies by providing a federal forum in which to
litigate these issues.”). As Defendant does not allege that he is a federal officer, a person assisting
a federal officer in the performance of that officer’s duties, or a state officer, § 1443(2) does not
apply.
Conclusion
Because removal is not authorized under § 1443, this Court is without jurisdiction
to review Defendant’s criminal proceedings at this time.4 By separate Order, the Court will
summarily remand the matter to state court pursuant to 28 U.S.C. § 1446(c)(4). Under that section,
“[i]f it clearly appears on the face of the notice [of removal] and any exhibits . . . that removal should
not be permitted, the court shall make an order for summary remand.”
An order consistent with this Opinion will be entered.
Dated: September 3, 2014
/s/ Robert Holmes Bell
ROBERT HOLMES BELL
UNITED STATES DISTRICT JUDGE
4
The party seeking removal bears the burden of demonstrating that the district court has jurisdiction over the
matter, and “all doubts [are] resolved in favor of remand.” Eastman v. Marine Mech. Corp., 438 F.3d 544, 549-50 (6th
Cir. 2006). Defendant has failed to meet his burden.
-4-
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?