Opinion
3:23-cv-1432-X-BN
07-13-2023
PHILLIP JAY STERLING, JR., #0496891, Plaintiff, v. THE STATE OF TEXAS, Defendant.
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
DAVID L. HORAN UNITED STATES MAGISTRATE JUDGE
Plaintiff Phillip Jay Sterling, Jr., an inmate at the Tarrant County jail, submitted a pro se filing titled Emergency 28 USC 1443 [Dkt. No. 2], through which he states his intent to remove a criminal proceeding pending against him in Tarrant County, Texas, for continuous sexual abuse of a child under 14, State v. Sterling, No. 1583147 (432d Dist. Ct., Tarrant Cnty., Tex.).
United States District Judge Brantley Starr referred this resulting action to the undersigned United States magistrate judge for pretrial management under 28 U.S.C. § 636(b) and a standing order of reference.
And the undersigned enters these findings of fact, conclusions of law, and recommendation that the Court should sua sponte remand this action to the Tarrant County court from which it was removed.
“Within constitutional bounds, Congress decides what cases the federal courts have jurisdiction to consider.” Bowles v. Russell, 551 U.S. 205, 212 (2007); see also Stockman v. Fed. Election Comm'n, 138 F.3d 144, 151 (5th Cir. 1998) (“Federal courts are courts of limited jurisdiction, and absent jurisdiction conferred by statute, lack the power to adjudicate claims.”). Correspondingly, federal courts have an independent duty to examine their own subject matter jurisdiction. See Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 583-84 (1999) (“Subject-matter limitations ... keep the federal courts within the bounds the Constitution and Congress have prescribed. Accordingly, subject-matter delineations must be policed by the courts on their own initiative even at the highest level.” (citations omitted)).
Federal courts generally may only hear a case if it involves a question of federal law or where diversity of citizenship exists between the parties. See 28 U.S.C. §§ 1331, 1332. But 28 U.S.C. § 1455 provides for the removal of state criminal prosecutions.
“When a defendant removes a criminal prosecution from state court, it is incumbent upon the United States District Court ‘in which such notice is filed [to] examine the notice promptly.'” Texas v. Kearns, No. 5:14-cv-27-DAE, 2014 WL 258786, at *1 (W.D. Tex. Jan. 23, 2014) (quoting 28 U.S.C. § 1455(b)(4)). 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.” 28 U.S.C. § 1455(b)(4); cf. Pennsylvania v. Brown-Bey, 637 Fed.Appx. 686 (3d Cir. 2016) (per curiam) (“summarily affirm[ing] the order of the District Court summarily remanding [defendant's] criminal case to state court”).
As the United States Court of Appeals for the Fifth Circuit has explained, Section 1455
does not provide criminal defendants with a separate right to remove their cases from state court. Rather, as the provision's heading and plain
language indicate, § 1455 merely provides procedures that must be followed in order to remove a criminal case from state court when a defendant has the right to do so under another provision, such as 28 U.S.C. § 1443.Kruebbe v. Beevers, 692 Fed.Appx. 173, 176 (5th Cir. 2017); accord SolamunBey v. City of Mesquite, No. 3:17-cv-1750-G-BN, 2017 WL 3173019, at *1 (N.D. Tex. July 4, 2017) (collecting cases), rec. accepted, 2017 WL 3149368 (N.D. Tex. July 25, 2017); see also Mnuk v. Texas, No. A-14-cv-1128-SS, 2015 WL 1003863, at *2 (W.D. Tex. Mar. 5, 2015) (“Only a very small class of criminal cases are removable to federal court. 28 U.S.C. § 1442 (criminal actions against federal law enforcement officers or officials for acts taken in their official duties); 28 U.S.C. § 1442a (prosecutions of members of the armed forces); 28 U.S.C. § 1443 (prosecutions against officials enforcing or persons protected by civil rights statutes).”), rec. adopted, 2015 WL 4395376 (W.D. Tex. July 16, 2015).
Turning to Section 1443, invoked by Sterling - and the only substantive provision of the federal removal statute that could be applicable here - this provision “is construed narrowly,” City of Hous. v. Club Fetish, Civ. A. No. H-13-0944, 2013 WL 1767777, at *3 (S.D. Tex. Apr. 24, 2013) (citing Smith v. Winter, 717 F.2d 191, 194 (5th Cir. 1983)), and in pertinent part provides that
[a]ny of the following civil actions or criminal prosecutions, commenced in a State court may be removed by the defendant to the district court of the United States for the district and division embracing the place wherein it is pending:
(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[.]28 U.S.C. § 1443(1).
As another judge of this Court has explained,
[i]n Texas v. Gulf Water Benefaction Co., 679 F.2d 85 (5th Cir. 1982), the Fifth Circuit articulated a two-prong test to determine whether removal is proper under § 1443.
To gain removal to federal court under 28 U.S.C. § 1443, the defendant must show both that (1) the right allegedly denied it arises under a federal law providing for specific rights stated in terms of racial equality; and (2) the removal petitioner is denied or cannot enforce the specified federal rights in the state courts due to some formal expression of state law.
Id. at 86 (citing Johnson v. Mississippi, 421 U.S. 213, 219 (1975))....
Although not made explicit in the terms of § 1443(1), the Supreme Court clearly requires that a removal petitioner assert an allegation of a federal law violation pertaining to racial equality. Georgia v. Rachel, 384 U.S. 780, 791 (1966) (“The legislative history of the 1866 Act clearly indicates that Congress intended to protect a limited category of rights, specifically defined in terms of racial equality.”). In Johnson v. Mississippi, 421 U.S. 213 (1975), the Court reaffirmed this limitation, stating that “[c]laims that prosecution and conviction will violate rights under constitutional or statutory provisions of general applicability or under statutes not protecting against racial discrimination, will not suffice.” Id. at 219 (emphasis added). Accordingly, the first prong of the controlling test requires that the denied right arise under a federal law “providing for specific rights stated in terms of racial equality.” Gulf Water Benefaction Co., 679 F.2d at 86 (emphasis added).Tex. Dep't of Prot. & Regulatory Servs. v. Mitchell-Davis, No. 3:07-cv-1726-D, 2007 WL 4334016, at *1 (N.D. Tex. Dec. 11, 2007); see also City of Greenwood, Miss. v. Peacock, 384 U.S. 808, 828 (1966) (“Under § 1443(1), the vindication of the defendant's federal rights is left to the state courts except in the rare situations where it can be clearly predicted by reason of the operation of a pervasive and explicit state or federal law that those rights will inevitably be denied by the very act of bringing the defendant to trial in the state court.” (citations omitted)); Gee v. Texas, No. 18-1186 (5th Cir. Apr. 30, 2019) (per curiam) (“[U]nder the Supreme Court's and our own settled caselaw, ‘[t]o gain removal to federal court under 28 U.S.C. § 1443, the defendant must show both that (1) the right allegedly denied it arises under a federal law providing for specific rights stated in terms of racial equality; and (2) the removal petitioner is denied or cannot enforce the specified federal rights in the state courts due to some formal expression of state law.'” (footnote omitted)).
Further, “the federal Anti-Injunction Act, 28 U.S.C. § 2283, prohibits this Court from enjoining state criminal proceedings except where expressly authorized by Congress or where necessary in aid of this Court's jurisdiction.” Kearns, 2014 WL 258786, at *2 (citing Younger v. Harris, 401 U.S. 37, 41 (1971)).
Sterling has, under Section 1443, shown neither that the rights allegedly denied him “arise[] under a federal law providing for specific rights stated in terms of racial equality” nor that he was “denied or cannot enforce the specified federal rights in the state courts due to some formal expression of state law.” Gulf Water Benefaction Co., 679 F.2d at 86. See generally Dkt. Nos. 2, 3. He has therefore not shown that federal subject matter jurisdiction exists over this removed, pending state criminal prosecution, and the Court should summarily remand this action. See 28 U.S.C. § 1455(b)(4).
Recommendation
The Court should sua sponte remand this action to the Tarrant County, Texas from which it was removed.
A copy of these findings, conclusions, and recommendation shall be served on all parties in the manner provided by law. Any party who objects to any part of these findings, conclusions, and recommendation must file specific written objections within 14 days after being served with a copy. See 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72(b). In order to be specific, an objection must identify the specific finding or recommendation to which objection is made, state the basis for the objection, and specify the place in the magistrate judge's findings, conclusions, and recommendation where the disputed determination is found. An objection that merely incorporates by reference or refers to the briefing before the magistrate judge is not specific. Failure to file specific written objections will bar the aggrieved party from appealing the factual findings and legal conclusions of the magistrate judge that are accepted or adopted by the district court, except upon grounds of plain error. See Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1417 (5th Cir. 1996).