United States District Court, D. Arizona
G. Campbell United States District Judge
Richard Corley has attempted to remove his state criminal
case to this Court. Doc. 1. He attempted to do so once
before, and the case was remanded. See Case No.
CV-2018-00070-PHX-DGC, Doc. 4. The Court will remand the case
is charged with criminal trespass, criminal damage, and
assault. See Arizona v. Corley, CR2017-136311
(Maricopa Cty. Super. Ct. Aug. 10, 2017). He is in custody at
the Lower Buckeye Jail. It appears from the superior
court's docket that the case is set for trial later this
“a federal court should abstain from interfering with
ongoing state criminal proceedings[.]” Gedo v.
Idaho, No. CV 09-00166-E-BLW, 2009 WL 2848850, at *1 (D.
Idaho Aug. 28, 2009) (citing Younger v. Harris, 401
U.S. 37, 43-45 (1971)). A state prosecution may be removed to
federal court under the narrow circumstances set forth in 28
U.S.C. § 1443. Pursuant to 28 U.S.C. § 1446, the
federal court must examine the defendant's removal papers
“to determine whether removal is appropriate, and the
court has the authority to remand a case, sua sponte, for
lack of subject matter jurisdiction.” Id.
1443(1) authorizes removal where the criminal defendant
“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[.]” 28 U.S.C.
§ 1443(1). “This generally requires a state law or
constitutional provision that denies the defendant an
opportunity to raise a federal right.” Hollander v.
S.F. Cty. Super. Ct., No. C 09-519 SI (pr), 2009 WL
975428, at *1 (N.D. Cal. Apr. 9, 2009) (citing Johnson v.
Mississippi, 421 U.S. 213, 220 (1975)). Section 1443(1)
is strictly construed against removal as “it is
considered an encroachment on state court
jurisdiction.” Johnson v. Washington, No.
C07-0696-MJP, 2007 WL 2377141, at *1 (W.D. Wash. Aug. 15,
challenges the indictment and grand jury process in his
notice of removal. Doc. 1. He asserts that “removal at
the pretrial stage is permitted . . . due to the high
probabilities that he would suffer a denial of due process,
and [that] his inability to enforce law in the judicial
tribunals of the State would be a denial of his equal
protection of the law . . . secured to him by the U.S.
Constitution.” Id. at 4. But Defendant has
identified no state law or constitutional provision that
denies him the opportunity to raise a federal right in state
court, nor has he shown that he will be unable to enforce a
federal right in state court.
1443(2) authorizes removal “[f]or 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(2).
The Supreme Court has construed this provision as conferring
“‘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.'” Gedo,
2009 WL 2848850, at *1 (quoting City of Greenwood v.
Peacock, 384 U.S. 808, 824 (1966)). This case does not
fall within that category.
cites Local Rule of Civil Procedure 3.6 in support of
removal. Doc. 1 at 2-3. That rule sets forth this
District's removal procedures and several requirements
for notices of removal, but provides no independent basis for
removal jurisdiction. “The removal jurisdiction of the
federal courts is derived entirely from the statutory
authorization of Congress.” Libhart v. Santa Monica
Dairy Co., 592 F.2d 1062, 1064 (9th Cir. 1979); see
Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108-09
(1941) (“[A]cts of Congress regulating the jurisdiction
of federal courts is one calling for the strict construction
of such legislation. The power reserved to the states under
the Constitution to provide for the determination of
controversies in their courts, may be restricted only by the
action of Congress in conformity to the Judiciary Articles of
the Constitution.”); Gould v. Mut. Life Ins. Co. of
N.Y., 790 F.2d 769, 773 (9th Cir. 1986) (“Removal
jurisdiction is statutory and strictly construed.”).
Defendant has provided no appropriate statutory basis for
removal. His criminal case must be remanded.
IS ORDERED that the Clerk shall remand this case to
Maricopa County Superior Court. The Clerk shall reject any
further filings by Defendant in this case.
See The Judicial Branch of
Arizona, Maricopa County, http://www.superiorcourt .maricopa.
gov/docket/Criminal CourtCases/case Info.