The State of The People of New York v. Best

Filing 4

Order of Remand to State Court. For the reasons set forth in the attached, Plaintiff's case is remanded to the Criminal Court of the City of New York, Queens County, case number CR-11739-22QN. Ordered by Judge Nina R. Morrison on 1/17/2023. (JL)

Case 1:23-cv-00026-NRM-LB Document 4 Filed 01/17/23 Page 1 of 4 PageID #: 29

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
No. 1:23-cv-00026-NRM-LB

The People of the State of New
York,

Memorandum and Order

Plaintiff,
v.
Hilary Best,
Defendant.

NINA R. MORRISON, United States District Judge:
Defendant Hilary Best, appearing pro se, claims that a complainant
conspired with arresting officers and the judge now presiding over his
pending state court criminal case to file a criminal complaint against him
under false accusations, ultimately depriving him of liberty without due
process of law. See Notice of Removal at 3–4, ECF No. 1. Defendant filed a
Notice of Removal seeking to remove his pending criminal case in the
Criminal Court of the City of New York, Queens County, Docket Number CR011739-22QN, for Stalking in the Fourth Degree, and two counts of
Harassment in the Second Degree, to this Court, and has paid the required
filing fee. See Notice of Removal at 1; see also ECF No. 2. For the reasons
discussed below, the action is remanded to the Criminal Court of the City of
New York, Queens County.

STANDARD OF REVIEW
To remove a criminal action to federal district court, a defendant
. . . 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
-1-

Case 1:23-cv-00026-NRM-LB Document 4 Filed 01/17/23 Page 2 of 4 PageID #: 30

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.
28 U.S.C. § 1455(a). If it appears “on the face of a notice of removal” that
removal of a criminal case is impermissible, the district court must
summarily remand the action to state court. 28 U.S.C. § 1455(b)(4).

DISCUSSION
Defendant’s notice of removal does not establish that removal of this
action is proper. State court criminal prosecutions may be removed to
federal court in two very limited instances: (1) where the prosecution is
directed against a federal officer or member of the armed forces for actions
taken under the color of office, see 28 U.S.C. §§ 1442(a), 1442a, or (2) where
the defendant shows that he has been “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.” 28 U.S.C. § 1443(1). Courts strictly construe
statutory procedures for removal and must “resolve any doubts against
removability.” See Taylor v. Medtronic, Inc., 15 F.4th 148, 150 (2d Cir. 2021)
(citations omitted). Here, Defendant does not allege that he is a federal
officer or member of the armed forces being prosecuted for actions taken
under the color of office. See generally Notice of Removal. Thus, removal of
his criminal proceedings is not proper under sections 1442 and 1442a.
Under section 1443(1), a removal petition must satisfy a limited, twopronged test. “First, it must appear that the right allegedly denied the
removal petitioner [in state court] arises under a federal law providing for
specific civil rights stated in terms of racial equality.” Johnson v. Mississippi,
421 U.S. 213, 219 (1975) (internal quotation marks and citation omitted); see
also Suffolk Cnty. Dep’t of Soc. Servs. v. Clarke, 807 Fed. App’x 133, 135 (2d
Cir. 2020) (summary order) (“[T]he Supreme Court has held that
[section 1443] applies only to removals based on claims of racial
discrimination.”). “Claims that prosecution and conviction will violate rights
under constitutional or statutory provisions of general applicability or under
statutes not protecting against racial discrimination, will not suffice.” New
-2-

Case 1:23-cv-00026-NRM-LB Document 4 Filed 01/17/23 Page 3 of 4 PageID #: 31

York v. Smith, No. 09-CV-2221, 2011 WL 2470065, at *2 (E.D.N.Y. June 17,
2011) (quoting Johnson, 421 U.S. at 219). “Second, it must appear on the face
of the notice that the removal petitioner is denied or cannot enforce the
specified federal rights in the courts of (the) State.” Id. (citation omitted).
“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. (citation
omitted).
Here, Defendant seeks to remove his state court criminal action to
federal court, “upon the grounds that [he is] being subjected to a criminal
conspiracy by the prosecuting parties, i.e., the complainant; the arresting
police officer; the Queens County District Attorney’s Office, and Queens
County Criminal Court Judge Denise N. Johnson, J.C.C., to jeopardize my
life . . . ” Notice of Removal at 1. These grounds stem from Defendant’s
claims that a criminal complaint for harassment and stalking was filed
against Defendant without being “verified,” see id. at 3, that the judge
presiding over Defendant’s pending criminal case deprived him of due process
by denying his motion to dismiss for lack of timely prosecution, see id. at 4,
and that the complainant allegedly conspired with the officer who arrested
Defendant to subject him to false accusations. See id. at 5. But Defendant
does not argue that his state court prosecution has resulted or will result in
the denial of any federal right to be free from discrimination based on race;
nor, in the history of his arrest and prosecution that he details in the petition,
does Defendant plead any facts from which a court could find that his
prosecution in state court would violate those protected rights. Defendant’s
allegations thus do not satisfy the requirements for removal under section
1443.

CONCLUSION
Accordingly, the Notice of Removal is denied, and this action is
remanded to the Criminal Court of the City of New York, Queens County. 28
U.S.C. § 1455(b)(4).
The Clerk of Court is directed to mail a copy of this Memorandum and
-3-

Case 1:23-cv-00026-NRM-LB Document 4 Filed 01/17/23 Page 4 of 4 PageID #: 32

Order to Defendant, and to note the mailing on the docket. The Clerk of
Court is further respectfully directed to immediately send a certified copy of
this Order to the Clerk of the Criminal Court of the City of New York,
Queens County, note service on the docket, and close this case.
The Court certifies pursuant to 28 U.S.C. § 1915 (a)(3) that any in
forma pauperis appeal from this order would not be taken in good faith. See
Coppedge v. United States, 369 U.S. 438, 444–45 (1962).
SO ORDERED.

/s/ NRM
NINA R. MORRISON
United States District Judge
Dated:

-4-

January 17, 2023
Brooklyn, New York