Walker v. Basker et al

Filing 3

MEMORANDUM OPINION. Signed by District Judge Henry E. Hudson on 2/7/2017. Copy mailed to Pro Se Petitioner. (jsmi, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division
JERMAINE KEITH WALKER,
Petitioner,

v.
FAITH ELIZABETH BASK.ER
and CHESTERFIELD JUVENILE
DOMESTIC RELATIONS COURT,
Respondents.

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Civil Action No. 3:17CV21-HEH

MEMORANDUM OPINION
(Remanding Matter to State Court)
Jermaine Keith Walker, proceeding prose, requests to remove his state criminal
prosecution to this Court. For the reasons that follow, the request will be denied and the
matter will be remanded to state court.

I. PROCEDURAL HISTORY
On December 23, 2016, the Juvenile and Domestic Relations Court for the County
of Chesterfield issued an arrest warrant for Walker for violating the terms of a protective
order. (ECF No. 1-1, at 1.) On January 11, 2017, Walker filed a document in this Court
wherein.he petitioned to remove the above proceedings to this Court. (ECF No. 1, at 1.)
As explained below, Walker fails to demonstrate that removal is proper.

· II. REMOVAL OF CRIMINAL PROCEEDINGS
Removal of a criminal action is proper if a defendant meets the substantive
requirements of 28 U.S.C. § 1443. That statute provides:

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. The Supreme Court has stated that removal under 28 U.S.C. § 1443(2)
"is available only to state officers." Greenwood, Miss. v. Peacock, 384 U.S. 808,
824 n.22 ( 1966). Thus, Walker must demonstrate that removal is appropriate under 28

u.s.c. § 1443(1).
A "[p]rerequisite to a removal of a pending criminal prosecution under 28
U.S.C.A. § 1443(1) is a showing that the defendant is being denied rights guaranteed
under a federal law 'providing for specific civil rights stated in terms of racial equality.'"
South Carolina v. Moore, 447 F.2d 1067, 1070 (4th Cir. 1971) (quoting Georgia v.
Rachel, 3 84 U.S. 780, 792 (1966)) (internal footnote omitted). Nevertheless, "broad

contentions of deprivation of equal protection and due process under the Fourteenth
Amendment do not support removal of claims under§ 1443(1)." Dugas v. Hanover
Cnty. Circuit Court, 3:08CV72, 2008 WL 4153765, at *3 (E.D. Va. Sept. 5, 2008)

(quoting New Mexico v. Gutierrez, 409 F. Supp. 2d 1346, 1349 (D.N.M. 2006).
It is not enough to support removal under § 1443(1) to allege or show that
the defendant's federal equal civil rights have been illegally and corruptly
denied by state administrative officials in advance of trial, that the charges
against the defendant are false, or that the defendant is unable to obtain a
fair trial in a particular state court. The motives of the officers bringing the

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charges may be corrupt, but that does not show that the state trial court will
find the defendant guilty if he is innocent, or that in any other manner the
defendant will be 'denied or cannot enforce in the courts' of the State any
right under a federal law providing for equal civil rights. . . . 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.

Id. (emphasis added) (citing cases); see South Carolina v. Grace, 234 F. App'x 103, 104
(4th Cir. 2007).
Walker does not identify any law of general application from which it can be
clearly predicted that he would not be able to enforce specified federal rights during his
state prosecution. 1 Greenwood, 384 U.S. at 828. Moreover, because Walker "has failed
to allege that his federal rights cannot be redressed at the appellate level in the [Virginia]
judicial system[,] Section 1443(1) has thus not been satisfied." Delavigne v. Delavigne,
530 F.2d 598, 600 (4th Cir. 1976).

III. CONCLUSION
Walker has failed to demonstrate that the requisite jurisdiction exists to allow him
to remove his criminal cases to this Court. The Court is inclined to simply dismiss the
whole matter as frivolous. Nevertheless, for the sake procedural clarity, the matter will
be remanded to the Juvenile and Domestic Relations Court for the County of
Chesterfield. See Northrup v. North Carolina, 461 F. App'x 211, 212 (4th Cir. 2012)
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For example, in Georgia v. Rachel, 384 U.S. 780 (1966), twenty African-American
individuals were prosecuted in state court for criminal trespass violations as a result of their
attempts to obtain service at a privately owned restaurant in Atlanta, Georgia. In contrast,
federal law required such a restaurant to serve persons of all races, thus immunizing the conduct
for which they were being prosecuted.
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(concluding "the proper disposition upon a determination of the lack of subject matter
jurisdiction is to remand the case to the state court, rather than dismiss the action" (citing
28 U.S.C. §§ 1446(c)(3), (4), 1447(c); Hunt v. Lamb, 427 F.3d 725, 727 (10th Cir.
2005))). The Court notes that Walker's frivolous submissions have no effect on any state
criminal prosecution. 2
An appropriate Order shall accompany this Memorandum Opinion.

~Isl

HENRY E. HUDSON
UNITED STATES DISTRICT JUDGE

Date: 'fc..~ 1 2olt
Richmond, Virginia

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Walker has not paid the filing fee or been granted leave to proceed informa pauperis,
thus action has not been properly filed.

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