Bethel v. State of Nebraska

Filing 5

MEMORANDUM AND ORDER that Bethel's request for removal of his criminal case is denied. Accordingly, this case is dismissed and the court will enter judgment by a separate document. Bethel's request for leave to proceed in forma pauperis (Filing No. 2) is denied as moot. To the extent a remand of this case is necessary, this case is remanded to the Nebraska state court having jurisdiction over Bethel's pending criminal case. Ordered by Senior Judge Joseph F. Bataillon. (Copy mailed to pro se party)(ADB)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
JAMES BETHEL,
Plaintiff,
v.
STATE OF NEBRASKA,
Defendant.

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4:16CV3009

MEMORANDUM
AND ORDER

James Bethel was cited for driving under suspension and obstructing a peace
officer in violation of Nebraska state statutes on September 18, 2014. (Filing No. 1
at CM/ECF p. 5.) A criminal prosecution followed in the Dawson County Court in
Dawson County, Nebraska. Here, Bethel seeks to remove the criminal case to this
court pursuant to 28 U.S.C. § 1443. For the reasons that follow, the court will deny
Bethel’s request for removal of his criminal case.
A.

28 U.S.C. § 1455

A defendant who wishes to remove a criminal prosecution from a state court
must file a notice of removal “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 . . . in such action.” 28 U.S.C. § 1455(a). In addition, “[a] notice of
removal of a criminal prosecution shall be filed not later than 30 days after the
arraignment in the State court, or 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 . . . leave to file the notice at a later time.” 28 U.S.C. § 1455(b)(1).
Further, “[i]f 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.” 28 U.S.C. § 1455(b)(4).

Bethel did not provide this court “with a copy of all process, pleadings, and
orders” served on him. Thus, he has not complied with § 1455(a). Moreover, Bethel
set forth that he has not complied with § 1455(b)(1)—requiring removal within 30
days of arraignment—but asks the court to find good cause for his failure to do so.
The court cannot discern good cause from the allegations contained in Bethel’s notice
of removal. Moreover, even if Bethel had shown good cause, as discussed below,
removal is improper under 28 U.S.C. § 1443.
B.

28 U.S.C. § 1443

The federal statute governing the removal of criminal prosecutions from state
court to federal court states, in relevant part:
Any of the following civil actions or criminal prosecutions, commenced
in a State court may be removed by the defendant to the district court of
the United States for the district and division embracing the place
wherein it is pending:
(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 . . . .
28 U.S.C. § 1443.
To demonstrate that removal is proper under § 1443(1), a defendant “must
show that he relies upon a law providing for equal civil rights stated in terms of racial
equality.” Neal v. Wilson, 112 F.3d 351, 355 (8th Cir. 1997). Stated differently, “the
right denied defendant must be one that arises under a federal law that provides for
specific civil rights stated in terms of racial equality” and “the defendant must be
unable to or be denied the opportunity to enforce these specified federal rights in the

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courts of the state in question.” Conrad v. Robinson, 871 F.2d 612, 614-15 (6th Cir.
1989) (citing Johnson v. Mississippi, 421 U.S. 213, 219 (1975)).
Here, Bethel does not allege he was denied any civil rights on racial grounds
or under a federal equal rights law. Rather, Bethel asks this court to intervene on his
behalf because the state court has not allowed him to compel a witness to testify in
his criminal case. He also takes issue with the state court’s refusal to accept filings
unsupported by notary certification. These arguments fail to demonstrate that
removal of Bethel’s criminal case is proper where his request is not based on any
allegations of racial discrimination.
IT IS THEREFORE ORDERED that:
1.
Bethel’s request for removal of his criminal case is denied. Accordingly,
this case is dismissed and the court will enter judgment by a separate document.
2.
Bethel’s request for leave to proceed in forma pauperis (Filing No. 2) is
denied as moot.
3.
To the extent a remand of this case is necessary, this case is remanded
to the Nebraska state court having jurisdiction over Bethel’s pending criminal case.
DATED this 29th day of January, 2016.
BY THE COURT:

s/ Joseph F. Bataillon
Senior United States District Judge

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