Smalls v. State of South Carolina

Filing 18

ORDER RULING ON REPORT AND RECOMMENDATION: The Court finds that the Magistrate Judge ably addressed the factual and legal issues in this matter and correctly concluded that there is no jurisdiction in federal court for Defenda nt'sremoved state criminal prosecution and that remand to the Charleston County Court of General Sessions is appropriate. The Court further agrees with the Magistrate Judge's recommendation that Defendant not be allowed to proceed in forma pauperis because of his previous "three strikes" determination and the absence of any reasonable showing of imminent danger. The Court adopts the R & R of the Magistrate Judge as the order of the Court and directs that thismatter be promptly remanded to the Charleston County Court of Common Pleas.AND IT IS SO ORDERED. Signed by Honorable Richard M Gergel on 3/5/2025. (ltap, )

IN THE UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
CHARLESTON DIVISION
State of South Carolina,

Case No. 9:24-5632-RMG

v.
Demetrius J. Smalls,

ORDER

Defendant.
Before the Court is the Report and Recommendation (“R & R”) of the Magistrate Judge
recommending that Defendant’s removal of his state criminal cases to federal court be summarily
denied and remanded to the Charleston County Court of General Sessions. (Dkt. No. 10). The
Magistrate Judge further recommended that Defendant be denied in forma pauperis status. (Id.)
Defendant has filed objections to the R & R. (Dkt. No. 17).
Legal Standard
The Magistrate Judge makes only a recommendation to this Court. The recommendation
has no presumptive weight, and the responsibility for making a final determination remains with
this Court. Mathews v. Weber, 423 U.S. 261, 270-71 (1976). The Court is charged with making a
de novo determination only of those portions of the Report to which specific objections are made,
and the Court may accept, reject, or modify, in whole or in part, the recommendation of the
Magistrate Judge, or recommit the matter to the Magistrate Judge with instructions. 28 U.S.C.
§ 636(b)(1). In the absence of specific objections, the Court reviews the Report for clear error. See
Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) (stating that “in
the absence of a timely filed objection, a district court need not conduct a de novo review, but

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instead must ‘only satisfy itself that there is no clear error on the face of the record in order to
accept the recommendation.’”) (quoting Fed. R. Civ. P. 72 advisory committee's note).
Discussion
The Magistrate Judge correctly concluded that the removal of a state criminal prosecution
to federal court is permitted in only a narrow set of circumstances, none of which are present
here. A removal of a state criminal prosecution is permitted where federal officers are
prosecuted for acts performed in the course of their duties, 28 U.S.C. § 1442, a member of the
armed forces of the United States is prosecuted for acts done under color of his office or status,
28 U.S.C. § 1442a, or a defendant asserts rights for racial equality under federal law in his state
prosecution which cannot be enforced in state court, 28 U.S.C. § 1443. (Dkt. No. 10 at 6-9).
Defendant asserts in his objections a number of alleged bases for federal jurisdiction, including
the Vienna Convention on Consular Relations, the Universal Declaration of Human Rights
prohibition against slavery, the Uniform Commercial Code and many others. (Dkt. No. 17).
None of the asserted bases for federal jurisdiction have any merit.
The Court finds that the Magistrate Judge ably addressed the factual and legal issues in
this matter and correctly concluded that there is no jurisdiction in federal court for Defendant’s
removed state criminal prosecution and that remand to the Charleston County Court of General
Sessions is appropriate. The Court further agrees with the Magistrate Judge’s recommendation
that Defendant not be allowed to proceed in forma pauperis because of his previous “three
strikes” determination and the absence of any reasonable showing of imminent danger. The
Court adopts the R & R of the Magistrate Judge as the order of the Court and directs that this
matter be promptly remanded to the Charleston County Court of Common Pleas.
AND IT IS SO ORDERED.
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_s/ Richard M. Gergel_
Richard Mark Gergel
United States District Judge
March 5, 2025
Charleston, South Carolina

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