United States District Court, W.D. Michigan, Northern Division
L. MALONEY UNITED STATES DISTRICT JUDGE.
matter before the Court involves two related cases in which
state defendants have attempted to remove their criminal
cases, which are currently pending in state court, to this
Court. For the forgoing reasons, the Court sua
sponte remands both of these cases to state court.
first case was initiated by Defendant Kacey Lee Smith. She
was arrested during a traffic stop and charged with three
misdemeanors: (1) assaulting, resisting, or obstructing a
police officer in violation of Mich. Comp. Laws §
750.81d(1); (2) operating a motor vehicle without security in
violation of Mich. Comp. Laws § 500.3102; and (3)
operating a motor vehicle with a suspended or revoked license
in violation of Mich. Comp. Laws § 257.904(3)(a). The
second case was initiated by Defendant Jeremy Allen Smith. He
was arrested during the same traffic incident and charged
with two misdemeanors: (1) assaulting, resisting, or
obstructing a police officer in violation of Mich. Comp. Laws
§ 750.81d(1); and (2) operating a motor vehicle without
security in violation of Mich. Comp. Laws § 500.3102.
Both cases are currently pending in the 93rd Judicial
District Court of the State of Michigan. Defendants have
filed nearly identical, sixty-one page, notice of removals.
(Case No: 2:17-cv-19, ECF No. 1, & Case No: 2:17-cv-21,
ECF No. 1.)
28 U.S.C. § 1455, a defendant who seeks to remove a
criminal prosecution from 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). “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 or defendants leave to file
the notice at a later time.” 28 U.S.C. §
1455(b)(1). The Court is required to examine the notice of
removal promptly. “If 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).
of a state court criminal action to a federal district court
is permitted in only rare circumstances. City of
Greenwood. v. Peacock, 384 U.S. 808, 827 (1966). For
example, criminal prosecutions against certain federal
officials and members of the armed forces are subject to
removal. See 28 U.S.C. §§ 1442, 1442a. In addition,
28 U.S.C. § 1443 (Civil rights cases) permits removal of
a criminal action by a defendant in certain scenarios:
(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, 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.
in their notice of removals, Defendants do not cite any
statutes that would permit the removal of a pending state
criminal case to this Court. Instead, Defendants argue that
this Court has subject matter jurisdiction under 28 U.S.C.
§§ 1331, 1332, 1441. However, none of these statutes
apply to cases where a defendant is attempting to remove a
pending state criminal action. Sections 1331 and 1332 do not
provide an independent basis for removal, and Section 1441
provides a basis for removing civil actions.
even assuming that Defendants are attempting to invoke
jurisdiction pursuant to Section 1443, Defendants have not
met their burden. Conrad v. Robinson, 871 F.2d 612,
614 (6th Cir. 1989) (“As with any removal statute, the
defendant has the burden of establishing that removal is
proper.”). Although it is far from clear, Defendants
appear to be arguing that they will not receive a fair trial
in state court because the trial judge is biased. Defendants
argue that the trial judge has a personal interest in the
case because he is a licensed member of the State Bar of
Michigan. This argument has no merit. Moreover, Defendants do
not assert that the state court is violating any of their
civil rights based on racial inequality. Defendants have
failed to allege any facts to establish that their cases
satisfy one of the rare circumstances in which removal of a
state court criminal prosecution is permitted.
the Court finds that Defendants do not satisfy the
requirements for removal of a state criminal proceeding to
federal court. Therefore, the Court remands both cases to the
93rd Judicial District Court of the State of Michigan.