Opinion
02-CV-1688 (RR).
March 29, 2002
JOHN NEGRON, 99A0188, Green Haven Correctional Facility Stomville, NY, Plaintiff, pro se.
MEMORANDUM and ORDER
Defendant John Negron, proceeding pro se, seeks to remove his murder prosecution from New York State Supreme Court, Kings County, to federal court pursuant to 28 U.S.C. § 1443. See Notice of Petition of Removal of Criminal Prosecution against Person Denied Civil Rights. Removal is denied and the action is remanded for the reason set forth below.
An effective petition for the removal of a state action to federal court must allege a proper basis for the removal under sections 1441 through 1445 of Title 28. See Brody v. New York State Div. of Parole, No. 89-CV-0987 (TCP) 1989 WL 87003, at *1 (E.D.N.Y. July 25, 1989). With respect to criminal cases, 28 U.S.C. § 1443 provides for removal to federal court if the prosecution is
(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 (2002).
The Supreme Court has construed the phrase "any law providing for specific civil rights" in § 1443(1) to mean "any law providing for specific civil rights stated in terms of racial equality." Georgia v. Rachel, 384 U.S. 780, 792 (1966); Chestnut v. People of State of New York, 370 F.2d 1, 3 (2d Cir. 1966) ("broad contentions under the . . . Due Process Clause of the Fourteenth Amendment cannot support a valid claim for removal under § 1443, because the guarantees of those clauses are phrased in terms of general application available to all persons or citizens, rather than in the specific language of racial equality that § 1443 demands") (quoting Georgia v. Rachel, 384 U.S. at 792); People of the State of New York v. Mitchell, No. 87-C0047, 1987 WL 6477, at *1 (E.D.N.Y. Feb. 4, 1987).
In his removal petition, Negron does not allege that his murder case implicates any statute providing for racial equality. Instead, he alleges only that in state court he "is unable to obtain certain rights proscribed [sic] by statute, be guaranteed due process rights, be guaranteed equal protection of the law, and a fair trial guaranteed by the United States Constitution." Notice of Petitioner of Removal of Criminal Prosecution against Person Denied Civil Rights at 2, ¶ 3.
In Greenwood v. Peacock, however, the Supreme Court expressly ruled 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 administrative 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.Id., 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 explicitly makes legal." People of the State of New York v. Foster, No. 86-CV-7126, 1987 WL 5356, at *2 (S.D.N.Y. Jan. 7, 1987). Certainly, Negron does not claim that any federal law legalizes the murder with which he is charged.
Finally, § 1443(2) is available only to federal officers and to persons assisting such officers in the performance of their official duties,Greenwood v. Peacock, 384 U.S. at 815, which again is not Negron's status.
Accordingly, since there is no statutory basis for the removal of Negron' s criminal case from state to federal court, his petition must be dismissed and his case remanded to the New York State Supreme Court, Kings County, pursuant to 28 U.S.C. § 1446 (c)(4). The Court certifies pursuant to 28 U.S.C. § 1915 (a)(3) that any appeal taken from this order would not be taken in good faith. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962).
28 U.S.C. § 1446 (c)(4) states:
The United States district court in which such notice is filed shall examine the notice 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. § 1446 (c)(4) (2002).