Opinion
Civil Action 3:23-cv-01277
08-02-2023
COMMONWEALTH OF PENNSYLVANIA, v. ANTONELLO BOLDRINI, Defendant.
BRANN, C.J.
REPORT AND RECOMMENDATION
JOSEPH F. SAPORITO, JR. UNITED STATES MAGISTRATE JUDGE
This matter comes before the court on a pro se, fee-paid notice of removal. The defendant, Antonello Boldrini, is the subject of criminal proceedings before the state courts in Commonwealth v. Boldrini, Docket No. MJ-11104-CR-0000215-2023 (Luzerne Cnty. (Pa.) Magis. Dist. Ct.).
Boldrini has filed a pro se “Notice of Removal to Federal Court,” which we liberally construe as a notice of removal of criminal prosecution pursuant to 28 U.S.C. § 1455. See generally Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 244-46 (3d Cir. 2013) (discussing a federal court's obligation to liberally construe the filings of pro se litigants). We have reviewed the notice pursuant to 28 U.S.C. § 1455(b)(4). For the reasons set forth below, we recommend that the matter be summarily remanded to the state courts for further proceedings.
Boldrini cites 28 U.S.C. § 1443 and § 1455 as a basis for removal. While § 1443 provides substantive grounds for removal of both civil actions and criminal prosecutions, § 1455 provides the procedure for removal of criminal prosecutions.
I. Background
Based on the notice (Doc. 1) and publicly available state court records,it appears that on July 11, 2023, a criminal complaint was filed against Boldrini based on an encounter with police that occurred on July 3, 2023.
Boldrini has attached copies of some of these state court records as exhibits to his complaint.
Based on the affidavit of probable cause attached as an exhibit to the defendant's notice of removal, a police officer had responded to a call that Boldrini, who had recently been evicted following the foreclosure sale of his former home, was harassing workers cleaning out the residence. When the police officer arrived, Boldrini began driving away. The police officer activated his lights and sirens in an attempt to conduct a traffic stop, but Boldrini disregarded these signals and continued to drive away. After running a stop sign, Boldrini eventually stopped and was taken into custody. After being placed in the police car, he complained of chest pains. He was then released from police custody and transported to a hospital for evaluation and treatment. On July 11, 2023, Boldrini was charged with the misdemeanor offenses of fleeing or attempting to elude an officer and disorderly conduct by engaging in fighting, and he was charged with the summary offenses of harassment (three counts) and failure to stop at a stop sign.
Boldrini was arrested on July 20, 2023, and brought before a state magisterial district judge for a preliminary arraignment. He was released on unsecured bail and a preliminary hearing is currently scheduled to take place on September 5, 2023.
On July 31, 2023, Boldrini filed the instant notice of removal, seeking to remove the state criminal proceedings to this court.
II. Discussion
Section 1455 sets out the procedure for removal of criminal prosecutions from state court. It provides as follows:
(a) Notice of removal.-A defendant or defendants desiring to remove any criminal prosecution from a 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 signed pursuant to Rule 11 of the Federal Rules of Civil Procedure and containing a short and plain statement of the grounds for removal, together with a copy of all
process, pleadings, and orders served upon such defendant or defendants in such action.
(b) Requirements.-(1) A notice of removal of a criminal prosecution shall be filed not later than 30 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 or defendants leave to file the notice at a later time.
(2) A notice of removal of a criminal prosecution shall include all grounds for such removal. A failure to state grounds that exist at the time of the filing of the notice shall constitute a waiver of such grounds, and a second notice may be filed only on grounds not existing at the time of the original notice. For good cause shown, the United States district court may grant relief from the limitations of this paragraph.
(3) The filing of a notice of removal of a criminal prosecution shall not prevent the State court in which such prosecution is pending from proceeding further, except that a judgment of conviction shall not be entered unless the prosecution is first remanded.
(4) 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.
(5) If the United States district court does not order the summary remand of such prosecution, it shall order an evidentiary hearing to be held promptly and, after such hearing, shall make such disposition of the prosecution as justice shall require. If the United States district court determines that removal shall be permitted, it shall so notify the State court in which prosecution is
pending, which shall proceed no further.
(c) Writ of habeas corpus.-If the defendant or defendants are in actual custody on process issued by the State court, the district court shall issue its writ of habeas corpus, and the marshal shall thereupon take such defendant or defendants into the marshal's custody and deliver a copy of the writ to the clerk of such State court.28 U.S.C. § 1455.
The substantive grounds for removal of a criminal prosecution are set out in 28 U.S.C. §§ 1442, 1442a, and 1443. See Pennsylvania v. Williams, No. 3:15-CV-1022, 2015 WL 3440273, at *1 (M.D. Pa. May 27, 2015). Section 1442 allows for removal of criminal prosecutions in certain instances against federal officers or agencies, and section 1442a allows for removal of criminal prosecutions in certain instances against members of the armed forces. See id.
Section 1443 allows for removal in two situations. Section 1443(1) authorizes the removal of a state law civil or criminal action “[a]gainst 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.” 28 U.S.C. § 1443(1). Under this provision, “a state court defendant must demonstrate both: (1) that he is being deprived of rights guaranteed by a federal law ‘providing for . . . equal civil rights'; and (2) that he is ‘‘denied or cannot enforce' that right in the courts' of the state.” Davis v. Glanton, 107 F.3d 1044, 1047 (3d Cir. 1997) (quoting Georgia v. Rachel, 384 U.S. 780, 788 (1966)).
Under the first requirement, the defendant must allege a deprivation of rights guaranteed by a federal law “providing for specific civil rights stated in terms of racial equality.” Under the second requirement, removal is available where the defendant's federal civil rights would “inevitably be denied by the very act of being brought to trial in state court.”New Jersey v. Thomas, 344 Fed. App'x 727, 728 (3d Cir. 2009) (per curiam) (quoting Davis, 107 F.3d at 1047, 1049) (citations omitted).
Section 1443(2) permits removal of a state law civil or criminal action “[f]or 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(2). This provision “confers a privilege of removal only upon federal officers or agents and those authorized to act with or for them in affirmatively executing duties under any federal law providing for equal civil rights,” or upon state officers who refuse to enforce racially discriminatory laws. City of Greenwood, Miss. v. Peacock, 384 U.S. 808, 824 & n.22 (1966).
Here, Boldrini satisfies none of the substantive criteria for removal of a criminal prosecution. Boldrini is not a federal officer, a state officer, or a member of the armed forces, leaving only § 1443(1) as a possible substantive ground for removal. See 28 U.S.C. §§ 1442, 1442a, 1443(2).
As the Third Circuit has summarized,
the removal permitted by 28 U.S.C. § 1443[(1)] is narrow.... Where the party seeking removal asserts the violation of his constitutional rights phrased in terms of general rights applicable to all citizens, rather than provisions couched in the specific language of racial equality, there is no basis for removal of an action to federal court. Thus, a defendant seeking to remove a case under § 1443(1) must demonstrate that the rights claimed arise under a provision of the Constitution or federal law specifically designed to promote racial equality, and must also specifically allege that he has been denied or cannot enforce in the state court the right that was created by the civil rights law under which he seeks protection. The allegation of illegal or corrupt acts of individual state officials that might be corrected by the state judiciary, or the mere possibility of an unfair trial in state court, will not justify removal to the federal court under § 1443(1).Pennsylvania v. Brown-Bey, 637 Fed. App'x 686, 688 (3d Cir. 2016) (per curiam) (citing Peacock, 384 U.S. at 829-30; Rachel, 384 U.S. At 792; Davis, 107 F.3d at 1047).
Boldrini's “rambling, generalized, and unsupported allegations do not meet the specific criteria for § 1443[(1)] removal.” Christ v. Vora, 294 Fed. App'x 752, 753 (3d Cir. 2008) (per curiam). He has not alleged “racial discrimination or inequality of any kind,” nor has he demonstrated that he “will be unable to enforce his civil rights in state court.” Delaware v. Burr, 523 Fed. App'x 895, 897 (3d Cir. 2013) (per curiam).
Accordingly, because it clearly appears on the face of the notice and exhibits annexed thereto that removal should not be permitted, we recommend that the petition be summarily remanded to state court for further proceedings there, pursuant to 28 U.S.C. § 1455(b)(4).
III. Recommendation
For the foregoing reasons, it is recommended that:
1. This matter be summarily REMANDED forthwith to the Luzerne County Magisterial District Court for District 11-1-04, where it is docketed as Commonwealth v. Boldrini, Docket No. MJ-11104-CR-0000215-2023; and
2. The Clerk be directed to mark this case as CLOSED.
NOTICE
NOTICE IS HEREBY GIVEN that the undersigned has entered the foregoing Report and Recommendation dated August 2, 2023. Any party may obtain a review of the Report and Recommendation pursuant to Local Rule 72.3, which provides:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636(b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in
whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.
Failure to file timely objections to the foregoing Report and Recommendation may constitute a waiver of any appellate rights.