Opinion
C. A. 9:23-04137-TMC-MHC
10-05-2023
State of South Carolina, Plaintiff, v. Robert Young, a/k/a Robert A. Young, Defendant.
REPORT AND RECOMMENDATION
MOLLY H. CHERRY UNITED STATES MAGISTRATE JUDGE
The pro se Defendant, Robert Young, filed a notice of removal on August 18, 2023, which purports to remove two criminal actions (case numbers K163985 and K163982) from the Court of Common Pleas for Spartanburg County. See Notice of Removal, ECF No. 1. Defendant also filed a motion for reduction of sentence (this appears to be a copy of a motion Defendant previously filed in the Court of Common Pleas for Spartanburg County). ECF No. 2. Under 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.), pretrial proceedings in this action have been referred to the assigned United States Magistrate Judge.
Records from Spartanburg County indicate that Defendant filed a motion for reduction in sentence in state criminal case number K163985 on August 1, 2023. See Spartanburg County Seventh Judicial Circuit Public Index, https://publicindex.sc index.sccourts.org/Spartanburg/Pub_licIndex/PISearch.aspx (last visited October 4, 2023). This Court may take judicial notice of factual information located in postings on government websites. See Tisdale v. South Carolina Highway Patrol, No. 0:09-1009-HFF-PJG, 2009 WL 1491409, at *1 n. 1 (D.S.C. May 27, 2009), aff'd, 347 Fed.Appx. 965 (4th Cir. 2009); In re Katrina Canal Breaches Consol. Litig., No. 05-4182, 2008 WL 4185869, at * 2 (E.D. La. Sept. 8, 2008) (noting that courts may take judicial notice of governmental websites including other courts' records).
I. BACKGROUND
Defendant is a state prisoner at the Kershaw Correctional Institution of the South Carolina Department of Corrections. In February 2008, after a jury trial in the Court of Common Pleas for Spartanburg County, Defendant was found guilty of armed robbery and assault and battery with intent to kill (ABWIK), and was sentenced to a total of fifty years' imprisonment (consecutive sentences of thirty years on the armed robbery conviction and twenty years on the ABWIK conviction). See Young v. Warden of Kershaw Corr. Inst., No. CV 9:18-2721-TMC-BM, 2018 WL 6980961 (D.S.C. Dec. 12, 2018), report and recommendation adopted, 2019 WL 134063 (D.S.C. Jan. 8, 2019).
In January 2015, Defendant filed a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (§ 2254) in this Court (case number 9:15-90-TMC-BM) in which he requested habeas relief as to the same convictions and sentences challenged in this action. The respondent in the § 2254 action filed a motion for summary judgment, the motion was granted, and the petition was dismissed with prejudice. See Young v. McFadden, No. 9:15-90-TMC, 2016 WL 228353 (D.S.C. Jan. 19, 2016). Defendant filed a second § 2254 petition in this Court (case number 9:18-2721-TMC-BM) that was dismissed as a successive petition. See Young v. Warden of Kershaw Corr. Inst., 2018 WL 6980961 (D.S.C. Dec. 12, 2018), report and recommendation adopted, 2019 WL 134063 (D.S.C. Jan. 8, 2019).
Defendant asserts his basis of removal is 28 U.S.C. § 1443(1). He contends that he, as an alleged first-time offender, has been deprived of equal protection under the law. Defendant argues that “his sentence is grossly disproportionate to those handed down to similarly situated first-time offenders.” ECF No. 1 at 2. He asserts that his “claim extends not only to the sentence's severity but also to the apparent bias in the state court's unwillingness to grant a fair and objective hearing for the sentence reduction.” Id.
II. STANDARD OF REVIEW
As a pro se litigant, Defendant's pleadings are accorded liberal construction and held to a less stringent standard than formal pleadings drafted by attorneys. See Erickson v. Pardus, 551 U.S. 89, 94 (2007). However, even under this less stringent standard, this case is subject to sua sponte remand. See 28 U.S.C. § 1455(b)(4); see also Ellenburg v. Spartan Motors Chassis, Inc., 519 F.3d 192, 198-99 (4th Cir. 2008).
‘[F]ederal courts are courts of limited jurisdiction,' constrained to exercise only the authority conferred by Article III of the Constitution and affirmatively granted by federal statute.” In re Bulldog Trucking, Inc., 147 F.3d 347, 352 (4th Cir. 1998) (quoting Owen Equip. and Erection Co. v. Kroger, 437 U.S. 365, 374 (1978)). Federal law severely limits the circumstances under which a litigant may remove a case from state court to federal court. See 28 U.S.C. §§ 1441-1455; see also Mulcahey v. Columbia Organic Chems. Co., 29 F.3d 148, 151 (4th Cir. 1994) (“Because removal jurisdiction raises significant federalism concerns, we must strictly construe removal jurisdiction.”). “The burden of establishing federal jurisdiction is placed upon the party seeking removal.” Mulcahey, 29 F.3d at 151.
In the context of criminal prosecutions, this court lacks subject matter jurisdiction, except in certain narrow circumstances pursuant to 28 U.S.C. §§ 1442 (Federal officers or agencies sued or prosecuted), 1442a (Members of armed forces sued or prosecuted), or 1443 (Civil rights cases). See, e.g., South Carolina v. Tucker, No. 3:17-1811-JFA-PJG, 2017 WL 3773137 (D.S.C. Aug. 11, 2017), report and recommendation adopted, 2017 WL 3730566 (D.S.C. Aug. 30, 2017); Virginia v. El, Civil Action No. 3:16cv128, 2016 WL 4507814, at *3 (E.D. Va. Aug. 26, 2016); South Carolina v. Guidetti, No. 6:11-3365-HMH-JDA, 2011 WL 6979991, at *2 (D.S.C. Dec. 20, 2011), report and recommendation adopted, 2012 WL 78793 (D.S.C. Jan. 10, 2012); Iowa v. Johnson, 976 F.Supp. 812, 816 (N.D. Iowa 1997) (“If this state criminal prosecution is removable to federal district court, it must be on the basis of one of three federal statutes, 28 U.S.C. § 1442, 28 U.S.C. § 1442a, or 28 U.S.C. § 1443.”).
When a defendant in a state criminal case files a notice of removal in a United States District Court, that court “shall examine the notice promptly.” 28 U.S.C. § 1455(b)(4). “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.” Id.
III. DISCUSSION
This action should be remanded to state court because removal of Defendant's criminal cases was not proper under the removal statutes. The removal statutes refer to the removal of pending cases. See, e.g., 28 U.S.C. § 1441(a) (providing for removal to the district court of the United States for the district and division embracing the place “where such action is pending”); 28 U.S.C. § 1443 (same); 28 U.S.C. § 1446(a) (same); 28 U.S.C. § 1455(a) (same). Here, Defendant's criminal cases were not pending at the time of removal.
Additionally, it is noted that Defendant failed to properly follow the procedural requirements to remove his criminal cases from state court. Under 28 U.S.C. § 1455(a), a defendant desiring to remove any criminal prosecution from a state court shall file a signed Notice of Removal “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 in such action. Id. Defendant fails to satisfy the procedural requirements of 28 U.S.C. § 1455, as he did not file all required state court documents.
The procedure for removal of criminal prosecutions is set forth in 28 U.S.C. § 1455, and provides that:
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.
28 U.S.C. § 1455(b)(1) (emphasis added). “Critically, the foregoing statute [§ 1455] refers to criminal ‘prosecutions,' consistent with the notion that the point of removal is to have the trial go forward in federal, rather than state, court.” Miller v. Louisiana, No. CV 18-14251, 2019 WL 1293273, at *2 (E.D. La. March 1, 2019), report and recommendation adopted, 2019 WL 1277522 (E.D. La. March 20, 2019). “That is reflected in the requirement that a notice of removal must generally be filed no later than thirty days after the arraignment in state court.” Id. Here, Defendant filed his notice of removal more than fifteen years after his February 2008 trial.
Moreover, “the statute [§ 1455] clearly does not contemplate removal of a case after conviction.” Miller v. Louisiana, 2019 WL 1293273, at *2 (emphasis in original) (citing Smith-El v. Louisiana, Civ. Action No. 16-cv-1310, 2016 WL 8900203, at *1 (W.D. La. Sept. 27, 2016), report and recommendation adopted, 2017 WL 1821111 (W.D. La. May 3, 2017); see also Barber v. Vance, No. 3:16-cv-2105, 2019 WL 267874, at *2 (D. Ore. Jan. 18, 2019) (The plaintiff's criminal case was “finished at the state trial court level and removal to this trial court is improper after the case is closed (and untimely, because he would have needed to file a petition of removal within 30 days of his arraignment, see 28 U.S.C. § 1455(b)(1)).”); New Hampshire v. Woodham, No. 21-cr-128-JL, 2022 WL 1432069, at *2 (D. N.H. April 6, 2022), report and recommendation adopted, 2022 WL 1423608 (D. N.H. May 4, 2022) (“A state court criminal defendant may remove a state court ‘criminal prosecution[ ]' to federal district court in the district ‘within which such prosecution is pending.'”) (emphasis in original); Colombo v. Cty. of Suffolk, No. 10 CV 1134(SJF)(AKT), 2010 WL 1459196, at *1 (E.D.N.Y. April 8, 2010) (in addressing a motion to recuse, the court noted it previously denied an application to remove a closed criminal action, finding no good cause to extend the deadline to remove a criminal action and that the underlying criminal prosecution had concluded, leaving no action to remove). Defendant removed his cases more than fifteen years after his convictions.
Even if Defendant could meet the procedural requirements to remove his state criminal cases to this Court, he fails to meet the requirements of 28 U.S.C. § 1443(1). Under § 1443, a removing party must first show that the “‘right allegedly denied ... arises under a federal law providing for specific civil rights stated in terms of racial equality;'” Lee-Bautista v. Bautista, 633 Fed.Appx. 148, 149 (4th Cir. 2016) (quoting Johnson v. Mississippi, 421 U.S. 213, 219 (1975)); and “that the removal petitioner is ‘denied or cannot enforce' the specified rights” in state court, Johnson v. Mississippi, 421 U.S. at 219 (citing Georgia v. Rachel, 384 U.S. 780, 803 (1966)).
Here, Defendant has not alleged that he has been denied his civil rights in terms of racial equality, and Section 1443(1) does not serve to remedy “the violation of ... constitutional rights phrased in terms of general rights applicable to all citizens.” Pennsylvania v. Brown-Bey, 637 Fed.Appx. 686, 688 (3d Cir. 2016); see Dugas v. Hanover Cnty. Circuit Court, No. 3:08CV72, 2008 WL 4153765, at *3 (E.D.Va. Sept. 5, 2008). Although Defendant argues that Georgia v. Rachel, 384 U.S. 780 (1966) “clarified that this provision encompasses the equal rights of racial minorities to the due process of law...” ECF No. 1 at 2, he has not alleged any facts to indicate that his rights that were allegedly denied arose “under a federal law providing for specific civil rights stated in terms of racial equality.” See Lee-Bautista v. Bautista, 633 Fed.Appx. at 149; South Carolina v. Moore, 447 F.2d 1067, 1070 (4th Cir. 1971) (A “[p]rerequisite to a removal of a pending criminal prosecution under 28 U.S.C. § 1443(1) is a showing that the defendant is being denied rights guaranteed under a federal law ‘providing for specific civil rights stated in terms of racial equality.'”) (quoting Georgia v. Rachel, 384 U.S. at 792 (internal footnote omitted)). Instead, Defendant argues that his sentence is disproportionate to the sentences of similarly situated firsttime offenders. See ECF No 1 at 2.
Thus, the removed criminal cases should be remanded to the Spartanburg County Court of General Sessions and this Court should decline to rule on Defendant's motion for reduction in sentence. See 28 U.S.C. § 1455(b)(4); see also North Carolina v. Dupree, 521 Fed.Appx. 181 (4th Cir. 2013) (finding district court lacked subject matter jurisdiction over removal of state criminal prosecution because defendant did not make the requisite showing for removal under § 1443, and thus, remand to state court was appropriate); Virginia v. El, 2016 WL 4507814, at *3 (collecting cases).
IV. RECOMMENDATION
Based on the foregoing, it is recommended that the removed criminal actions be remanded to the Court of Common Pleas for Spartanburg County pursuant to 28 U.S.C. § 1455.
Defendant's attention is directed to the important notice on the following page.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
Post Office Box 835
Charleston, South Carolina 29402
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).