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NEW YORK v. MITCHELL

June 26, 1986

PEOPLE OF THE STATE OF NEW YORK
v.
DAVID MITCHELL, a/k/a HAROLD JONES, Defendant



The opinion of the court was delivered by: CEDARBAUM

MEMORANDUM AND ORDER

CEDARBAUM, J.

The petitioner, David Mitchell ("Mitchell") seeks the removal, pursuant to 28 U.S.C. §§ 1443(1) and 1446, of a criminal case pending against him in the Supreme Court of the State of New York, New York County. After carefully considering the petition for removal and construing all allegations most favorably to petitioner, I find that the petition fails to state adequate grounds for removal of the proceeding to federal court. In addition, the petition must be dismissed as time-barred under the time limitation prescribed by 28 U.S.C. § 1446(c)(1).

 Background

 As set forth in the petition for removal, Mitchell has been arrested pursuant to three different, but related, indictments in the state court. His first arrest was in November 1984, when he surrendered purporting to be Harold Jones whom the police sought on charges of forgery. *fn1" Mitchell had no prior record and was released on his own recognizance. On or about July 16, 1985 Mitchell again surrendered on an arrest warrant intended for Harold Jones. *fn2" Mitchell was arraigned on the second indictment and released on his own recognizance.

 On December 11, 1985, while the charges under the first two indictments were pending, the prosecution discovered that Mitchell was not Harold Jones. Petitioner was then arrested and charged *fn3" with criminal impersonation of Harold Jones and forgery of fingerprint cards. After arraignment on these charges, Mitchell was held for a number of days without bail. He sought and was granted federal habeas corpus relief in December 1985, and was ultimately released on his own recognizance.

 Petitioner alleges that, thereafter on May 6, 1986, he was remanded to custody in violation of his right to a bail hearing. On May 8, 1986, petitioner applied to this Court for further habeas corpus relief. The court denied his application because he had failed to exhaust his state remedies. Petitioner is now being held on $15,000 bail.

 The Petitioner Has Failed to Allege

 Adequate Grounds for Removal

 Mitchell seeks to remove the prosecution pending against him for criminal impersonation and forgery of fingerprint cards pursuant to 28 U.S.C. §§ 1443(1) and 1446. Petitioner claims that because he is black, he "cannot enforce in the Courts of the State of New York his rights under the laws providing for the equal civil rights of the citizens of the United States." *fn4"

 Section 1443(1) *fn5" provides for the removal to the federal district court of any action pending against any person who is denied or cannot enforce in the state court a right under any law providing for the equal civil rights of citizens of the United States. The right to remove a proceeding from state court to federal court is created by statute rather than derived from the Constitution. Because the removal statutes constitute a congressionally authorized encroachment by the federal court upon the sovereignty of the state courts, they should be strictly construed and their procedures rigidly adhered to. People of the State of New York v. Bell, 617 F. Supp. 47 (E.D.N.Y. 1985); People of State of New York v. Muka, 440 F. Supp. 33 (N.D.N.Y. 1977). Moreover, Section 1443 was not intended to work a wholesale dislocation of the historic relationship between the state and federal courts in the administration of the criminal law. City of Greenwood v. Peacock, 384 U.S. 808, 831, 16 L. Ed. 2d 944, 86 S. Ct. 1800 (1966).

 The Supreme Court has developed a two-pronged test to analyze the merits of a petition for removal. First, the court must determine that the right allegedly being denied arises under a federal statute providing for a specific civil right which is stated in terms of racial equality. Second, the court must determine that the petitioner cannot enforce the specified federal right in state court. Johnson v. Mississippi, 421 U.S. 213, 44 L. Ed. 2d 121, 95 S. Ct. 1591 (1975).

 Mitchell sets forth as grounds for removal only the general allegation that because he is black he cannot enforce his civil rights in the New York state court. As evidence thereof, he asserts that of the seven defendants involved in the three indictments he describes, only two are black; that the white defendants have all been released upon their own recognizance; and that the black defendants have been "pressured" individually to enter into a deal with the prosecution, while remaining in custody the entire time. Petitioner claims that this reflects a record of unequal treatment of the black defendants and the white defendants, resulting in a violation of his civil rights.

 Defendant's allegations amount to a general contention, based largely on conjecture, that he cannot obtain a fair trial in the state court. To the extent that Mitchell relies on violations of general constitutional rights other than civil rights that are expressed in terms of racial equality, those rights are inadequate to support the petition for removal. In ...


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