State of Texas v. Kearns

Filing 4

ORDER THAT THIS CASE IS DISMISSED, and all pending motions are DENIED as MOOT. re 3 Supplement filed by Michael Joseph Kearns, 1 MOTION to Proceed in forma pauperis filed by Michael Joseph Kearns, 2 MOTION for Declaratory Judgment filed by Michael Joseph Kearns, Motions Referred, Motions terminated: 1 MOTION to Proceed in forma pauperis filed by Michael Joseph Kearns, 2 MOTION for Declaratory Judgment filed by Michael Joseph Kearns. The Clerk of the Court shall send a copy of this Order to the Williamson County Court of Law #1, 405 Martin Luther King St., Georgetown, Texas 78626. Signed by Judge David A. Ezra. (wg)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION

STATE OF TEXAS,

)
)
Plaintiff,
)
)
vs.
)
)
MICHAEL JOSEPH KEARNS,
)
)
Defendant.
)
________________________________ )

CV. NO. 5:14-CV-27-DAE

ORDER: (1) DISMISSING CASE; (2) REMANDING TO STATE COURT
Before the Court is a “Declaratory Judgment and Appropriate Writ of
Mandamus” filed by Michael Joseph Kearns (“Kearns”), which this Court
construes as a Notice of Removal pursuant to 28 U.S.C. § 1443. For the reasons
that follow, the Court DENIES Kearns’s Notice and REMANDS the case to state
court.
BACKGROUND
Public records available from the Williamson County Court at Law
# 1 show that Kearns is charged in Case No. 13-03809-1 with making or using a
record of a fraudulent court (i.e., creating and using fraudulent documents and
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attributing those documents to a court that does not exist) in violation of Texas
Penal Code § 37.13.
On January 13, 2014, Kearns filed a “Declaratory Judgment and
Appropriate Writ of Mandamus.” (Dkt. # 2.) Kearns requested that the district
court “issue a writ of prohibition to the State of Texas, Count of Williamson, to the
officers, agents, and employees thereof, in regards to Williamson County Court at
Law # 1, Case NO. 13-03809-1, to cease and desist all activities of any nature
whatsoever” until further order from the district court. (Id. at 2.)
DISCUSSION
As a preliminary matter, the Court observes that pleadings of a pro se
litigant are held to a less stringent standard than those drafted by an attorney, and
therefore must be liberally construed. Haines v. Kerner, 404 U.S. 519, 520 (1972).
As such, the Court construes Kearns’ “Declaratory Judgment and Appropriate Writ
of Mandamus” as a Notice of Removal.
When a defendant removes a criminal prosecution from state court, it
is incumbent upon the United States District Court “in which such notice is filed
[to] examine the notice promptly.” 28 U.S.C. § 1455(b)(4). “If 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.” Id.
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The federal removal statute governing the removal of criminal
prosecutions from state court provides two avenues for removal:
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;
(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.
A notice of removal under 28 U.S.C. § 1443(1) must satisfy a
two-pronged test. See Johnson v. Mississippi, 421 U.S. 213, 219 (1975) (citing
Georgia v. Rachel, 384 U.S. 780 (1966); City of Greenwood v. Peacock, 384 U.S.
808 (1966)). First, it must appear that the right allegedly denied the removing
defendant arises under a federal law “providing for specific civil rights stated in
terms of racial equality.” Johnson, 421 U.S. at 219 (emphasis added) (internal
quotation marks and citations omitted). 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
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suffice. Id. Similarly, assertions that a removing defendant will be denied due
process of law because the criminal law under which he is being prosecuted is
allegedly vague or that the prosecution is a sham, corrupt, or without evidentiary
basis will not satisfy the requirements of § 1443(1). Id. (citation omitted).
Second, it must appear, in accordance with the provisions of
§ 1443(1), that the removing defendant is “denied or cannot enforce” the specified
federal rights “in the courts of (the) State.” Johnson, 421 U.S. at 219. 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 and internal
quotation omitted). 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, 384 U.S. at 828. Failure to satisfy either prong of § 1443(1)’s
two-pronged test is fatal to removal. Williams v. State of Miss., 608 F.2d 1021,
1022 (5th Cir. 1979).
For a notice of removal under § 1443(2), the removal must be “[f]or
any act under color of authority derived from any law providing for equal rights, or
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for refusing to do any act on the ground that it would be inconsistent with such
law.” The first clause under § 1443(2), dealing with “any act under color of
authority,” confers the right to remove only upon “federal officers or agents and
those authorized to act with or for them in affirmatively executing duties under any
federal law providing for equal civil rights.” Taylor v. Phillips, 442 F. App’x 441,
443 (11th Cir. 2011) (citing City of Greenwood, 384 U.S. at 824). The second
clause under § 1443(2), dealing with “refusing to do any act on the ground that it
would be inconsistent with such law,” allows the right to remove only to state
officers. City of Greenwood, 384 U.S. at 824 (citations omitted).
Kearns’s removal petition is without merit under either § 1443(1) or
§ 1443(2). Kearns fails both prongs of § 1443(1)’s two-part test pursuant to
Johnson. First, Kearns does not identify how Texas law denies him a federal right
insuring racial equality. Kearns only asserts that the state government has
committed “intrinsic fraud” on him. 1 Second, Kearns does not explain how Texas
courts are inadequate to enforce or vindicate his federal rights to racial equality.

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Kearns does not provide any factual basis for the alleged fraud. Instead, Kearns
filed a 254-page Supplement to Notice of Removal containing docket sheets and
filings in Kearns’s state court proceedings. (Dkt. # 3.) Kearns does not point to—
and the Court has searched in vain for—evidence suggesting that the Texas state
court has denied Kearns a federal right.
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Kearns also fails to show that he is a state or federal officer, or working for one, in
order to be entitled to removal under § 1443(2).
Moreover, the federal Anti-Injunction Act, 28 U.S.C. § 2283,
prohibits this Court from enjoining state criminal proceedings except where
expressly authorized by Congress or where necessary in aid of this Court’s
jurisdiction, and neither of these exceptions apply to the present case. See
Younger v. Harris, 401 U.S. 37, 41 (1971).
The Court also notes that Kearns has a history of filing frivolous cases
in federal court. See, e.g., Chase Home Fin. v. Kearns, No. A-12-CV-5 (W.D.
Tex. Jan. 17, 2012) (sanctioning Kearns $1,000 and enjoining him from filing or
removing cases to federal court without paying the sanction or receiving
permission from a federal judge or the Fifth Circuit); Kearns v. Fed. Home Loan
Mortg. Corp., No. A-11-CV-642 (W.D. Tex. Nov. 23, 2011) (sanctioning Kearns
$5,000 for filing a frivolous complaint for damages); Kearns v. Caraway, No. SA08-CV-393-FB (W.D. Tex. May 15, 2008) (sanctioning Kearns $5,000 for filing a
frivolous notice of removal). Just as Chief Judge Biery, Judge Sparks, and Judge
Yeakel have continuously warned, the continued filing of such notices of removal
in direct contradiction of Supreme Court case law and the law of this Court would
clearly be grounds for further—and more severe—sanctions in the future.
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CONCLUSION
Therefore, Kearns’s Notice of Removal Williamson County Court at
Law # 1 Case No. 13-03809-1 is DENIED. This case is DISMISSED
WITHOUT PREJUDICE. All other pending motions are DENIED as moot.
The Court also ORDERS that Williamson County Court at Law # 1
Case No. 13-03809-1 is REMANDED to the Williamson County Court at Law
# 1. The Clerk of Court shall send a copy of this Order to the Williamson County
Court at Law # 1, 405 Martin Luther King St., Georgetown, Texas 78626.
IT IS SO ORDERED.
DATED: San Antonio, Texas, January 23, 2014.

_____________________________________
David Alan Ezra
Senior United States Distict Judge

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