United States District Court, D. Nebraska
MEMORANDUM AND ORDER
RICHARD G. KOPF SENIOR UNITED STATES DISTRICT JUDGE.
matter is before the court on a “Notice of
Removal” (Filing No. 1) filed by Plaintiff Angeline May
Marsh. The documents attached to Marsh's motion reflect
that she has been charged with fraudulently filing a
financial statement, a Class IV felony under Neb. Rev. Stat.
§ 28-935, in the District Court of Howard County,
Nebraska. It appears Marsh's state criminal proceeding is
scheduled for trial on February 22, 2018. (SeeFiling No. 1 at
construed, Marsh seeks to remove her criminal cases to this
court pursuant to 28 U.S.C. § 1443. For the reasons that
follow, the court will deny Marsh's request for removal
of her criminal case.
28 U.S.C. § 1455
defendant who wishes to remove a criminal prosecution from a
state court must file a notice of removal “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 . . . in such action.” 28
U.S.C. § 1455(a). In addition, “[a] notice of
removal of a criminal prosecution shall be filed not later
than 30 days after the arraignment in the State court, or at
any time before trial, whichever is earlier, except that for
good cause shown the United States district court may enter
an order granting the defendant . . . leave to file the
notice at a later time.” 28 U.S.C. § 1455(b)(1).
Further, “[i]f 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.” 28 U.S.C. § 1455(b)(4).
did not provide this court “with a copy of all process,
pleadings, and orders” served on him. Thus, she has not
complied with § 1455(a). Moreover, Marsh did not seek to
remove her criminal case within 30 days of her arraignment.
(SeeFiling No. 1 at CM/ECF p.9.) Thus, she has not complied
with § 1455(b)(1). Even if Marsh had complied with the
procedures outlined in § 1455, removal is improper under
28 U.S.C. § 1443.
28 U.S.C. § 1443
federal statute governing the removal of criminal
prosecutions from state court to federal court states, in
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 . . . .
28 U.S.C. § 1443.
demonstrate that removal is proper under § 1443(1), a
defendant “must show that he relies upon a law
providing for equal civil rights stated in terms of racial
equality.” Neal v. Wilson, 112 F.3d 351, 355
(8th Cir. 1997). Stated differently, “the right denied
defendant must be one that arises under a federal law that
provides for specific civil rights stated in terms of racial
equality” and “the defendant must be unable to or
be denied the opportunity to enforce these specified federal
rights in the courts of the state in question.”
Conrad v. Robinson, 871 F.2d 612, 614-15 (6th Cir.
1989) (citing Johnson v. Mississippi, 421 U.S. 213,
Marsh does not allege she was denied any civil rights on
racial grounds or under a federal equal rights law. Rather,
Marsh complains that she is being denied due process of law
to “use my commercial affidavid process, my uniform
commercial code, and the maxiums of law.” (Filing No. 1
at CM/ECF p.1 (capitalization removed; spelling in
original).) These arguments fail to demonstrate that removal
of Marsh's criminal case is proper where her request is
not based on any allegations of racial discrimination.
See Johnson, 421 U.S. at 219 (“That a removal
petitioner will be denied due process of law because the
criminal law under which he is being prosecuted ...