State of West Virginia et al v. Ziegler

Filing 7

MEMORANDUM OPINION AND ORDER directing that this matter be remanded to the Clay County Magistrate Court. Signed by Judge John T. Copenhaver, Jr. on 9/19/2019. (cc: counsel of record; any unrepresented parties) (kew)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
State of West Virginia,
Plaintiff,
v.

Civil Action No. 2:19-cv-00325

Joseph Ziegler,
Defendant.
MEMORANDUM OPINION AND ORDER
This matter is before the court sua sponte.

On April

26, 2019, defendant Joseph Ziegler, acting pro se, filed a
Notice of Removal, seeking to bring a misdemeanor criminal case,
Case No. 19-M08M-00187, pending against him in the Magistrate
Court of Clay County, West Virginia.

The state charges against

defendant include (1) reckless driving, (2) driving without car
insurance, (3) driving an unregistered vehicle, (4) driving
without an operator’s license, and (5) driving under the
influence.

See Commitment Order, ECF 3-1.

Defendant filed his Notice of Removal on the ground
that plaintiff “blatantly violat[ed] this Pro Se DefendantPetitioner’s clearly established Federal Civil Rights
unambiguously protected under Equal Protection Clause Right to
Fair Jury Trial, Due Process of Law, Access to the Courts, Right

to Property, Right to Association, Freedom of the Press,
Interstate Travel, Commerce, Privileges, Immunities and Comity
Clause and/or Federal Constitutional Rights protected under
Federal Law under Law-of-the-Case Doctrine.”

Not. Removal 2.

Defendant justifies removal of the criminal case
against him based on 28 U.S.C. §§ 1443, 1446-1447.

Section 1443

allows for removal in cases where a criminal prosecution is:
(1) Against any person who is denied or cannot enforce
in the courts of [a State] a right under any law
providing for the equal civil rights of citizens of
the United States...;
(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.

Sections 1446-1447 govern the procedures for

removal.
Removal under § 1443(1) is “limited to rare
situations.”

North Carolina v. Lewis, 505 F. App’x 259, 260

(4th Cir. 2013).

“First, it must appear that the right

allegedly denied the removal petitioner 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) (quoting Georgia v. Rachel, 384 U.S. 780, 792 (1966)).
federal district court cannot grant removal under § 1443(1)
solely based on “[c]laims that prosecution and conviction will
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violate rights under constitutional or statutory provisions of
general applicability.”

Id.

Moreover, allegations that

“removal petitioner 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 assertedly a sham, corrupt, or
without evidentiary basis does not, standing alone, satisfy the
requirements of § 1443(1).”

Id.

Second, the court must find

“that the removal petitioner is denied or cannot enforce the
specified federal rights in the courts of the State, which
normally requires that the denial be manifest in a formal
expression of state law.”

A & D Sec. Consultants v. Gray, 481

F. App’x 63 (4th Cir. 2012) (quoting Johnson, 421 U.S. at 219).
Section 1443(2), “is only available to federal
officers ‘and to persons assisting such officers in the
performance of their official duties.’”

North Carolina v.

Grant, 452 F.2d 780, 782 (4th Cir. 1972) (quoting City of
Greenwood v. Peacock, 384 U.S. 808, 815 (1965).

This subsection

“confers a privilege of removal 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.”

City of Greenwood, 384 U.S. 808, 824

(1966).

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Even construing defendant’s allegations liberally, the
Notice of Removal does not “seek[] the protection of any law
which provides for specific civil rights stated in terms of
racial equality.”

Grant, 452 F.2d at 782.

charged with misdemeanor traffic offenses.

Defendant was
In Grant, the United

States Court of Appeals for the Fourth Circuit found that
similar assertions of “possible violations of [appellant’s]
respective rights to a fair trial and fundamental due process in
the state courts” related to charges of larceny, burglary,
kidnapping, and armed robbery “cannot support a valid claim for
removal under 28 U.S.C. § 1443(1).”

Id.

The Notice of Removal also asserts that defendant is a
“Federal Informant regarding the ongoing Federal Investigation
concerning the Ambush and Execution of Corrupt Police Officers
in Clay County West Virginia” and was “acting under color of
law.”

Not. Removal 5-6.

Yet, the “color of authority” clause

in § 1443(2) is available only to “federal officers or agents
and those authorized to act with or for them in affirmatively
executing duties under federal law providing for equal civil
rights.”

City of Greenwood, 384 U.S. at 824.

The Notice of

Removal offers no support to show defendant was an authorized
informant.

Moreover, even if he was “acting under color of

authority derived from any law providing for equal rights,” he

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was not charged for his acts as an informant but for misdemeanor
traffic violations.

Bald Head Ass’n v. Curnin, No. 7:09-CV173-

F, 2010 WL 1904268, at *6 (E.D.N.C. May 10, 2010), aff’d in
part, appeal dismissed in part, 429 F. App’x 360 (4th Cir. 2011)
(denying removal because defendant “is not being sued for his
actions as an informant”).
Under the standards described above, the Notice of
Removal lacks allegations setting forth a valid basis for
removal of defendant’s criminal case to this court.
Accordingly, it is ORDERED this matter be, and it
hereby is, remanded to the Clay County Magistrate Court.
The Clerk is directed to transmit copies of this order
to all counsel of record and any unrepresented parties.
ENTER: September 19, 2019

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