UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK
December 22, 2008
STATE OF NEW YORK, PLAINTIFF,
JOHN REDMAN, DEFENDANT.
The opinion of the court was delivered by: Gary L. Sharpe U.S. District Judge
DECISION AND ORDER
Defendant John Redman ("Redman") is charged in the Town of Roxbury Justice Court, Delaware County, with numerous traffic violations and the misdemeanor offense of obstructing governmental administration in the second degree. Redman seeks to remove the action to this court pursuant to 28 U.S.C. § 1446. For the reasons set forth below, the court has sua sponte determined that removal is inappropriate and orders the action remanded.
A defendant seeking to remove an action from state court must file a notice of removal with the federal court to which removal is sought. See 28 U.S.C. § 1446(a). Where the action to be removed is a criminal prosecution, the notice of removal "shall include all grounds for such removal." 28 U.S.C. § 1446(c)(2).
In the present instance, Redman has not indicated the statutory grounds for removal of his criminal prosecution, beyond his general invocation of section 1446. However, it is apparent that 28 U.S.C. § 1443(1) is the only possible basis for removal here.*fn1 That section provides for the removal of a state criminal prosecution "[a]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." The Supreme Court has interpreted section 1443(1) to allow removal only where a defendant's prosecution under a state statute would have the effect of denying racial equality rights granted specifically by federal law. See Georgia v. Rachel, 384 U.S. 780, 792 (1966). See also Negron v. New York, No. 02-CV-1688, 2002 WL 1268001, at *1 (E.D.N.Y. Apr. 1, 2002); New York v. Bell, 617 F. Supp. 47, 49 (E.D.N.Y. 1985).
In light of the narrow circumstances under which removal is appropriate pursuant to section 1443(1) it is clear that remand is required here. Redman does not allege his state prosecution implicates any federal statute specifically providing racial equality rights. Indeed, race is not even mentioned in the notice of removal. Rather, to the extent Redman's submissions are coherent, he alleges only that various officials violated his constitutional rights through actions leading to his criminal prosecution.*fn2
The Supreme Court has made it clear, however, that [i]t is not enough to support removal under § 1443(1) to allege or show that the defendant's federal equal civil rights have been illegally and corruptly denied by state ... 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). "Rather, removal of a criminal case is appropriate only where 'defendant is charged with exactly that conduct which a federal law [providing for racial equality] explicitly makes legal.'" Negron, 2002 WL 1268001, at *1 (quoting New York v. Foster, No. 86 Civ. 7126, 1987 WL 5356, at *2 (S.D.N.Y. Jan. 7, 1987)). Clearly, charges for motor vehicle infractions and obstructing governmental administration do not meet this standard.
Accordingly, as there is no statutory authority for the removal of Redman's criminal prosecution, his case is remanded to the Town of Roxbury Justice Court pursuant to 28 U.S.C. § 1446(c)(4).*fn3
WHEREFORE, for the foregoing reasons, it is hereby ORDERED that the petition for removal is DISMISSED; and it is further
ORDERED that this matter be REMANDED to the state court in which the proceeding was commenced; and it is further
ORDERED that the Clerk of the Court serve a certified copy of this Order to the state court; and it is further
ORDERED that the Clerk of the Court provide a copy of this Order to the parties.
IT IS SO ORDERED.