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Dema v. State

United States District Court, D. Arizona

July 10, 2015

Victor O. Dema, Petitioner,
State of Arizona, Respondent.


NEIL V. WAKE, District Judge.

Before the Court is Defendant Victor O. Dema's Notice of Removal (Doc. 1), which the Court will treat as a petition for removal of criminal prosecution pursuant to 28 U.S.C. § 1455(a). Dema seeks to have his criminal case removed from Mesa Municipal Court. For the following reasons, the petition will be denied, and the case will be summarily remanded.

Under 28 U.S.C. § 1455(b)(4), the Court must promptly examine any notice of removal of a state criminal prosecution and summarily remand the case "[i]f it clearly appears on the face of the notice and any exhibits annexed thereto that removal should not be permitted." Dema is charged with hindering prosecution in the second degree and contributing to the dependency or delinquency of a minor. (Doc. 2 at 11.) In the petition, Dema argues the charges against him constitute "vindictive prosecution[]" and "selective enforcement" that are "motivated by racial animus in promotion and continuation of state court policies of racial discrimination and cultural intimidation." (Doc. 1 at 1.)

On the face of the notice, Mr. Fisher relies on 28 U.S.C. § 1446, which applies only to removal in civil actions, and § 1447, which describes post-removal procedures but does not confer any substantive right to remove from state court. In the interest of liberally construing the pleadings in order to protect a pro se litigant, Erickson v. Pardus, 551 U.S. 89, 94 (2007), the Court will treat the petition as one for removal under 28 U.S.C. § 1443, the only plausible authority under which this case might be removed. That provision allows for removal of "civil rights cases, " including criminal prosecutions "[a]gainst 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(1).

Generally, removal jurisdiction under § 1443 is very limited. Removal is not supported by a showing that "a 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." City of Greenwood v. Peacock, 384 U.S. 808, 827 (1966). Indeed, the "vindication of a defendant's federal rights is left to 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.

As a result, a defendant seeking removal of a criminal prosecution under § 1443 must satisfy a two-prong test in the petition. Johnson v. Mississippi, 421 U.S. 213, 219-20 (1975). First, the petitioner must show that the right allegedly denied "arises under a federal law providing for specific rights stated in terms of racial equality." Id. (citation omitted). In other words, claims that a criminal prosecution will violate rights under constitutional and statutory provisions of "general applicability" do not allow a defendant to remove a case from state court. Id. at 219. Second, the petitioner must show that he is being denied or cannot enforce specific federal rights in the state court. Id. at 219-20.

In this case, Dema claims his state court prosecution is an act of "racial discrimination." But even assuming this allegation satisfies Johnson 's first prong, Dema has not shown that the denial of his federal rights is "manifest in a formal expression of state law, such as a state legislative or constitutional provision, rather than a denial first made manifest at the trial of the case." Id. at 219 (citation and internal quotation marks omitted). There is no evidence that a "pervasive and explicit state or federal law" will inevitably deny Dema his federal rights. Id. at 220. As a result, it appears clear from the face of his petition that removal should not be permitted, and the case must be summarily remanded. 28 U.S.C. § 1455(b)(4). To the extent that Dema has alleged a denial of rights guaranteed to him under federal law, there are many other remedies available in the federal courts to redress those wrongs. City of Greenwood, 384 U.S. at 828-29. Removal of this criminal prosecution is simply not a remedy available to him.

IT IS THEREFORE ORDERED that this case is summarily remanded, and the clerk shall remand the case to the Mesa Municipal Court.

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