United States District Court, M.D. Florida, Orlando Division
REPORT AND RECOMMENDATION
C. IRICK UNITES STATES MAGISTRATE JUDGE
cause comes before the Court sua sponte for
consideration of Defendant's Notice of Removal. Doc. 1-2
at 1-8. In the Notice, Defendant seeks to remove to this
Court his pending state court prosecution pending in the
Circuit Court for the Twelfth Judicial Circuit of Florida, in
and for Lee County, Florida. Doc. 1-1 at 3-6. There,
Defendant, who was arrested on October 8, 2016, is charged
with several felony violations of state law related to the
issuance of false arrest warrants and other false documents
against lawyers and state court judges in Lee County,
Florida. Id.; see Lee County Criminal Case
Number 16-000275-CF. According to the publicly-available
docket in Defendant's state court prosecution, on October
14, 2016, Defendant entered a written plea of not guilty in
that case. See Lee County Criminal Case Number
16-000275-CF. Arraignment occurred on November 7, 2016.
See id. In the Notice, Defendant seeks removal
because the underlying state prosecution involved federal
agents, federal investigatory process, transcends several
jurisdictions, and allegedly involves claims related to the
Federal Arbitration Act. Doc. 1-2.
to 28 U.S.C. § 1455, a defendant seeking to remove a
criminal prosecution from state court “shall file in
the district court of the United States for the district and
division within which such prosecution is pending a notice of
removal . . . .” 28 U .S.C. § 1455(a). The notice
of removal must be signed in accordance with Federal Rule of
Civil Procedure 11 and contain “a short and plain
statement of the grounds for removal, together with a copy of
all process, pleadings, and orders served upon” the
defendant in the removed action. Id. To be timely,
the notice of removal of a criminal case must “be filed
not later than thirty 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 . . . leave
to file the notice at a later time.” 28 U.S.C. §
1455(b)(1); see Kendrick v. Fla., No.
8:10-CV-2484-T-30, 2010 WL 4680880, at *1 (M.D. Fla. Nov. 10,
2010) (discussing a prior, but substantively identical
version of 28 U.S.C. § 1446(c)(1)).
United States district court in which such notice is filed
shall examine the notice promptly” and, “[i]f 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.” §
1455(b)(4). To properly remove a state criminal prosecution,
“[a] notice of removal of a criminal prosecution shall
include all grounds for such removal, ” and “[a]
failure to state grounds that exist at the time of the filing
of the notice shall constitute a waiver of such
grounds.” Id. § 1455(b)(2).
law provides limited circumstances when a state criminal
prosecution may be removed to federal court, including
certain prosecutions against or directed to officers of the
United States and members of the armed forces of the United
States.” Brevard Cty., Fla. v. Smaldore, No.
6:14-CV-2041-ORL-41, 2015 WL 3830737, at *3 (M.D. Fla. June
19, 2015) (citing 28 U.S.C. § 1442(a). Specifically, a
defendant may remove a state criminal prosecution:
(1) 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;
(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.
examination of Defendant's notice of removal and exhibits
attached thereto make it apparent that removal should not be
permitted because the Notice of Removal is defective and
Defendant has failed to state any recognized grounds for
removal of the state criminal prosecution.
Defendant's notice of removal is improper because a
defendant seeking to remove a criminal prosecution must file
his notice of removal “in the district court of the
United States for the district and division within which such
prosecution is pending.” See 28 U.S .C. §
1455(a). Lee County, Florida is located within the Ft. Myers
Division of the Middle District of Florida, not within the
geographic bounds of the Orlando Division of this Court,
which is where Defendant directed his filing.
Defendant failed to satisfy the procedural requirements of 28
U.S.C. § 1455 because his Notice of Removal is untimely.
Defendant's Notice of Removal was not filed within 30
days of his arraignment. Here, the public docket of his state
court case reflects that Defendant was arrested in October
2016 and arraignment occurred in November 2016, more than a
year prior to Defendant filing the Notice of Removal.
Although trial has not occurred, he “undoubtedly is
past the removal statute's 30-day-from-arraignment time
limit.” Faircloth v. Georgia, 2011 WL 4372956,
at *1 (S.D. Ga. Sept. 19, 2011), report and
recommendation adopted, 2011 WL 4827001 (S.D. Ga. Oct.
11, 2011) (citing Court of Common Pleas v. Kelly,
417 Fed.Appx. 126, 127 (3rd Cir. 2011) (“A notice of
removal of a criminal prosecution shall be filed no later
than 30 days after the arraignment in the state court, unless
good cause is shown and the district court elects to enter an
order granting the defendant leave to file the notice at a
later time.”)). Moreover, Defendant has failed to
demonstrate good cause for filing an untimely notice of
removal. Thus, Defendant's Notice of Removal is barred by
the time restraints of § 1455(b)(1).
Defendant's notice of removal is improper because there
is no statutory basis for removal. There is no suggestion
that Defendant is an officer of the United States or a member
of the United States' armed forces, such that removal
would be appropriate pursuant to §§ 1442 and 1442a.
As to removal pursuant to § 1443, a defendant must show
that (1) “the right upon which [he] relies arises under
a federal law ‘providing for specific civil rights
stated in terms of racial equality, ' “ and (2)
“he has been denied or cannot enforce that right in the
state courts.” Alabama v. Conley, 245 F.3d
1292, 1295 (11th Cir.2001) (citation omitted) (quoting
Georgia v. Rachel, 384 U.S. 780, 792, 794 (1966));
see Pridgeon v. Fla., No. 3:16-CV-473-J-34PDB, 2016
WL 5844154, at *5 (M.D. Fla. June 20, 2016), report and
recommendation adopted, No. 3:16-CV-473-J-34PDB, 2016 WL
5719351 (M.D. Fla. Oct. 3, 2016) (“The United States
Supreme Court has interpreted § 1443 to apply
“only to rights that are granted in terms of [racial]
equality and not to the whole gamut of constitutional
rights.”) (quoting Rachel, 384 U.S. at 792).
Defendant has not cited as the basis for removal any federal
civil rights law providing for specific civil rights stated
in terms of racial equality. Rather, as discussed above,
Defendant cites to the involvement of federal agents in the
investigation of his state court prosecution and the alleged
relevance of the Federal Arbitration Act, which implicates
rights of general application. Further, Defendant has not
shown that he is unable to enforce in state court, or that
the state courts have otherwise denied him, any specific
civil right arising from a federal law providing for that
right stated in terms of racial equality.
such, Defendant has failed to state any grounds for removal
of the state prosecution and he has waived any other grounds
for removal that may exist as of the filing of the notice of
removal. See 28 U.S.C. § 1455(b)(2).
Accordingly, the undersigned respectfully recommends that the
Court find that it is clearly apparent from the face of