Federal Removal of State Criminal Case
August 04, 2004, 14:37Shannon Edmonds
Federal Removal of State Criminal Case
OK, who here knew that under 28 USC 1440 et seq., a criminal defendant in a state case can try to have his prosecution removed to the local federal district court? It's basically limited to civil rights violations stemming from racist state laws/courts, which no longer exist, but I sure didn't know it was still on the books.
If anyone has experience with getting such removals remanded (and preferably sanctioning the defendant/inmate for filing a frivolous removal), please give me a call at the home office: 512-474-2436.
August 05, 2004, 09:09Scott Brumley
I suspect that few such cases probably will crop up. In the main, that's because the last thing most criminal defense lawyers want is to wind up in federal court. That aside, section 1440 only provides the authority for removal; like 42 U.S.C. sec. 1983, it doesn't create any substantive rights. The immediate presenting problem with removing a pending state criminal case is the Younger
abstention doctrine. Outside of a violation of civil rights case, it also is difficult to imagine the pleadings in a state criminal case asserting anything remotely construable as a federal claim to support federal question jurisdiction. I haven't done the research to comment eloquently on the issue of diversity jurisdiction if the defendant is from out of state, but I think in most cases that Younger
will avert that problem before it needs to be addressed.
August 05, 2004, 09:28Ray
If I understood what the eloquent Esquire Brumley said I would wholeheartedly agree. Since I am not Younger nor understanding of those who use or are (pronounced r r) Younger, I will have to abstain. Yikes I think I did understand. For youngsters like Shannon please review a little flick called Mississippi Burning for a reverse of the issue addressed in said US code.
August 05, 2004, 09:30Ray
I tried to use italics on my Younger but it wouldn't work. We have this new fangled computer system.
August 05, 2004, 11:31Shannon Edmonds
Our civil brethren have hit the proverbial nail on the head. But while I agree that most defense attorneys have no desire to remove a case to federal court, that disinclination seems lacking in those defendants who profess to proceed pro se
. Not that any of them succeed, mind you, but it can apparently create quite a problem if the state court adjudicates the case before the rare-but-ridiculous removal has been remanded. A lesson to be learned there, no doubt.
Thanks to those of you who called, too.
August 05, 2004, 15:13Scott Brumley
A prime reason you may not see many of these cases is that removal under 28 U.S.C. sec. 1443 (allowing removal of criminal cases involving deprivation of civil rights) requires a specific allegation that the defendant is being deprived of federal civil rights relating to race. Few are able to do so within the confines of the statute. Where they fail to do so, the federal court to which the case is removed has authority to sua sponte remand the case without a hearing and without opportunity to amend. Davis v. Super. Ct. of State of Cal.
, 464 F.2d 1368, 1369 (9th Cir. 1972); Varney v. Georgia
, 446 F.2d 1368, 1369 (5th Cir. 1971).
August 09, 2004, 12:26JDL
Here is a quick, but tinely question in regards to this topic.
I have a defendant who was placed on deferred for two charges of indecency and one child porn case. The defendnat filed for a speedy revocation hearing and the hearing is set for today. We are ready to go. However, within the last hour, the court recieved a Notice of Removal to Federal Court. The grounds are absolutely frivolous and do not deal with racial discrimination in any way.
My question is this: Due to the fact that the Notice of Removal was filed, regardless of the merits or rather lack of mertis contained in the Notice of Removal, isn't the State barred from going forward until the Federal Court remands the case. My belief is that we are, and that belief is based on my limited understanding of Federal Jurisdiction. I am of the belief that once filed, no matter how friviolus the filing may be, the State temporarily loses jurisdiction. Am I wrong?
August 09, 2004, 14:18Scott Brumley
Your understanding is correct. The removal statutes provide for a immediate stay of state proceedings upon removal. That's the presumptive basis for the authority of federal courts to remand frivolous criminal removals sua sponte that I mentioned above. As an aside, it would appear that your defendant, by filing his notice of removal, has essentially waived his speedy trial claim as it pertains to the state proceedings.