Attorney General State of Nevada v. Ferm

Filing 8

ORDER. IT IS HEREBY ORDERED that the present action is REMANDED. Signed by Judge Kent J. Dawson on 2/22/17. (Copies have been distributed pursuant to the NEF - cc: Certified Copy of Order and Docket Sheet sent to State Court - MR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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ATTORNEY GENERAL STATE OF
NEVADA,

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Case No. 2:16-CV-02650-KJD-CWH
Plaintiff / Respondent,

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ORDER
v.

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JACK FERM,
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Defendant / Petitioner.
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Presently before the Court is Defendant Jack Ferm’s Petition for Removal (#1) and
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Emergency Ex Parte Motion for Order Suspending State Case (#7).
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On November 18, 2016, Jack Ferm (“petitioner”), purported to remove this criminal action
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from the Clark County, Nevada District Court by filing a “Notice of Petition and Petition for
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Removal” (#1) with the Court. No one has appeared for the named respondents before the Court to
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address the validity of petitioner's purported removal.
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Construing the pro se pleadings liberally, it appears that petitioner alleges that in or about
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March 2009, he was arrested in connection with a scheme to provide services in stopping foreclosure
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on victim’s homes for a fee. After his arrest and failure to plead guilty to a felony, the Nevada
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Attorney General sought and received a grand jury indictment of Petitioner on a felony charge of
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Theft–Obtaining Money in Excess off $2,500.00 by a Material Misrepresentation. On or about

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September 21, 2011, Petitioner signed a Nolo Contendre Plea Agreement in which he agreed to pay

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restitution in the amount of $192,168.00. According to the terms of the plea agreement, if Petitioner

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made full restitution during the probation period, the State would file an amended criminal

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information charging defendant with Attempted Theft, a gross misdemeanor. The State agreed to not

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oppose withdrawal of his felony plea and to allow him to plead guilty to the misdemeanor. However,

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according to Petitioner’s allegations, the State of Nevada then publicized that he had been convicted

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of a felony causing him harm.

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“Federal courts are courts of limited jurisdiction.... It is to be presumed that a cause lies

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outside this limited jurisdiction, and the burden of establishing the contrary rests upon the party

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asserting jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)

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(internal citations omitted). “The ‘strong presumption’ against removal jurisdiction means that the

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[removing party] always has the burden of establishing that removal is proper.” Gaus v. Miles, Inc.,

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980 F.2d 564, 566 (9th Cir. 1992) (per curiam). Federal courts must resolve all ambiguity in favor of

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remand. Hunter v. Philip Morris USA, 582 F.3d 1039, 1042 (9th Cir. 2009).

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Moreover, the Court has a duty to “establish subject matter jurisdiction over the removed

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action sua sponte, whether the parties [have] raised the issue or not.” United Investors Life Ins. Co.

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v. Waddell & Reed, Inc., 360 F.3d 960, 967 (9th Cir. 2004) (citing Feidt v. Owens Corning Fiberglas

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Corp., 153 F.3d 124, 128 (3d Cir. 1998)). “If at any time before final judgment it appears that the

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district court lacks subject matter jurisdiction, the case shall be remanded.” 28 U.S.C. § 1447(c).

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Whenever a state-court criminal prosecution is removed, the Court must “examine the notice [of

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removal] promptly” upon its filing, and “[i]f it clearly appears on the face of the notice and any

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exhibits annexed thereto that removal should not be permitted, the court shall make an order for

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summary remand.” 28 U.S.C. § 1455(b)(4).

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In his Notice, petitioner appears to assert that removal of his criminal action is proper under
28 U.S.C. § 1443 and a list of other code sections. He asserts that the State of Nevada has denied him
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procedural and substantive due process when the prosecutor failed to submit exculpatory evidence to

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a grand jury. He also asserts that he entered into a plea agreement that would result in his eventual

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conviction for a misdemeanor. He appears to contend, therefore, that because the plea agreement was

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not resolved as he intended that federal removal jurisdiction is available to him. Petitioner is

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mistaken.

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Under narrow and limited circumstances, state-court criminal prosecutions may be removed

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to federal court. Any criminal defendant may remove a criminal prosecution to federal court if he

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seeks to –– and, because of state law, cannot –– assert a defense to the prosecution based on federal

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laws protecting equal civil rights. See 28 U.S.C. § 1443; Patel v. Del Taco, Inc., 446 F.3d 996,

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998-99 (9th Cir. 2006). A petition for such a removal must satisfy a two-part test articulated by the

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Supreme Court in Georgia v. Rachel, 384 U.S. 780, 788-92, 794-804 (1966), and City of Greenwood,

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Miss. v. Peacock, 384 U.S. 808, 824-28 (1966). It must assert (1) “ ‘as a defense to the prosecution,

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rights that are given to [the petitioners] by explicit statutory enactment protecting equal racial civil

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rights,’ ” and (2) that such rights cannot be enforced because of “ ‘a state statute or a constitutional

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provision that purports to command the state courts to ignore the federal rights.’ ” Patel, 446 F.3d at

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998-99 (quoting California v. Sandoval, 434 F.2d 635, 636 (9th Cir. 1970)).

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Here, petitioner has not alleged a defense to the underlying prosecution arising from statutory

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enactments protecting equal racial civil rights and, in any event, he has pointed to “no formal

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expression of state law that prohibits [him] from enforcing [such] civil rights in state court[.]” Id. at

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999. Accordingly, petitioner may not rely on the removal provisions of § 1443. See Peacock, 384

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U.S. at 832 (petitioners alleged they were entitled to remove their criminal misdemeanor proceedings

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to federal court based on their race and their belief they would be unable to obtain a fair trial in the

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state court; the Supreme Court deemed this a “strained interpretation of § 1443(1)” and noted if this

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interpretation were to prevail, “every criminal case in every court of every State –– on any charge

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from a five dollar misdemeanor to first-degree murder –– would be removable ... upon a petition

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alleging (1) that the defendant was being prosecuted because of his race and that he was completely
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innocent of the charge brought against him, or (2) that he would be unable to obtain a fair trial in the

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state court”).

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Whenever a state-court criminal proceeding is removed to federal court, the notice of removal

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must include all grounds for such removal. 28 U.S.C. § 1455(a), (b)(2). Petitioner's Notice (#1) does

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not identify any statute or other authority empowering petitioner to remove this criminal action from

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the state court and Plaintiff has not identified that he belongs to a protected class that is intended to

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be protected by the statute. Petitioner has therefore failed to satisfy his burden of establishing that the

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Court has subject-matter jurisdiction over this action.

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Moreover, petitioner may not cure this deficiency by filing a second notice of removal stating

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additional grounds justifying removal. “A failure to state grounds that exist at the time of the filing of

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the notice shall constitute a waiver of such grounds, and a second notice may be filed only on

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grounds not existing at the time of the original notice.” 28 U.S.C. § 1455(b)(2). Thus, even to the

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extent that petitioner could cure his defective notice of removal by providing authority for removal of

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this criminal action (and it does not appear that any such authority exists), he has now waived the

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opportunity to do so. Therefore, petitioner has not established a proper basis for removal, and the

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Court lacks jurisdiction to consider his claim.

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Accordingly, IT IS HEREBY ORDERED that the present action is REMANDED.

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DATED this 22nd day of February 2017.

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_____________________________
Kent J. Dawson
United States District Judge

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