Opinion
Civil Action 2:23-cv-1030 2:23-cv-1031
10-05-2023
DANA FREDRICK BROWN, JR., Petitioner, v. COMMONWEALTH OF PENNSYLVANIA, Respondent. DANA FREDRICK BROWN, JR., Petitioner, v. COMMONWEALTH OF PENNSYLVANIA, Respondent.
REPORT AND RECOMMENDATION
PATRICIA L. DODGE United States Magistrate Judge.
I. Recommendation
The above-captioned cases are before this Court on Notices filed by Dana Fredrick Brown, Jr. in which he purports to remove his state criminal prosecutions here. For the reasons set forth below, it is respectfully recommended that the Court issue an order in each case stating that removal is not permitted and, therefore, the case is closed and summarily remanded to state court.
II. Report
Brown is a criminal defendant awaiting trial in two cases pending before the Court of Common Pleas of Allegheny County. He is housed at the Allegheny County Jail.
The address Brown provided to the Court is labeled “in care of” and is for a private residence located in Pittsburgh. However, the Court has confirmed that Brown is an inmate at the Allegheny County Jail. Therefore, a copy of this Report and Recommendation will be mailed to Brown at both his address of record and to the jail.
In what will be referred to as Case 1, the Commonwealth of Pennsylvania has charged Brown with several counts of theft, forgery and related crimes. When Case 1 was before the magisterial district judge, the criminal docket number for it was MJ-05236-CR-0000019-2023.In May 2023, all but one of the counts filed against Brown were held for court. The case then was transferred to the Court of Common Pleas and assigned criminal docket number CP-02-CR-3766-2023.
The Court takes judicial notice of the information contained on the state court's dockets sheets for Brown's criminal cases, which are available to the public online at https://ujsportal.pacourts.us (last visited October 5, 2023.)
In what will be referred to as Case 2, Brown is charged with one count each of filing a false insurance claim and insurance fraud. When this case was before the magisterial district judge, the criminal docket number for it was MJ-05236-CR-0000031-2023. The counts filed against Brown in Case 2 were held for court and the case was then transferred to the Court of Common Pleas and assigned criminal docket number CP-02-CR-3784-2023.
Attorney Patrick Allen Sweeney is Brown's court appointed counsel in Cases 1 and 2. The state court docket sheets for these cases reflect that Case 1 is still in pretrial proceedings and that Brown's non-jury trial in Case 2 is currently scheduled for October 16, 2023.
Brown initiated proceedings in this Court by filing noticespurporting to remove his state criminal prosecutions to this Court. In certain very limited circumstances, a defendant can remove his or her criminal prosecution from state court to a United States District Court. The procedure for removal of criminal prosecutions from state court is set out in 28 U.S.C. § 1455 and the substantive grounds are set out in 28 U.S.C. §§ 1442, 1442a and 1443.
Along with the notices of removal, Brown (or an individual asserting that he or she can act on his behalf) has submitted documents that contain rambling, almost incoherent language indicating that Brown is an adherent to the “sovereign citizenship” movement. Some of these submissions appear to be signed not by Brown but by other individuals also associated with that movement.
Brown also filed pro se in state court notices of removal in Cases 1 and 2. Pennsylvania does not permit “hybrid” representation and thus the state courts generally will not review pro se filings submitted by represented defendants. Pa. R. Crim. Pro. 576; see, e.g., Commonwealth v. Ellis, 626 A.2d 1137, 1139-41 (Pa. 1993).
In support of removal, Brown cites to 28 U.S.C. § 1441(c) and § 1446(d). See, for example, ECF 1-1 at pp. 2, 4 in 2:23-cv-1030. These statutes apply to the removal of civil actions and do not apply here because Brown is seeking to remove his state criminal prosecutions. Because Brown is proceeding pro se, the Court discusses the law applicable to the removal of state criminal prosecutions even though Brown has not cited to that law. Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 244 (3d Cir. 2013) (discussing court's obligation to liberally construe the filings of pro se litigants and apply the relevant law even when the litigant has failed to cite it).
Sections 1442 and 1442a allows for removal of criminal prosecution commenced in state court to a federal district court in some cases when the defendant is a federal officer or a member of the armed forces. There is no basis to conclude that either statute applies to Brown.
As for § 1443, it provides that a criminal prosecution commenced in state court may be removed by a defendant to a federal district court when the state criminal prosecution is pending: (1) “[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”; or (2) “[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(1) & (2). There is no basis to conclude that either ground applies to Brown. See, e.g., Pennsylvania v. Tejada, No. 1:19-cv-142, 2019 WL 2997015, at *1 (W.D. Pa. June 7, 2019) (recommending that the case be summarily remanded to the state court because the state defendant did not meet the narrow criteria of § 1443(1)), report and recommendation adopted by 2019 WL 2996281 (W.D. Pa. July 9, 2019); Gloria Sun Jung Yun, 2018 WL 1178546, at *1 (same). See also § 1:11. Removal of state prosecution to federal court, 1 Wharton's Criminal Procedure § 1:11 (14th ed.) (available on Westlaw).
Under this provision, which is set forth in § 1443(1), a state court defendant must show both that he or she is being: (1) deprived of rights guaranteed by a federal law providing for equal civil rights; and (2) denied or cannot enforce that right in the courts of the state. To satisfy the first factor, the defendant must allege a deprivation of rights guaranteed by a federal law providing for specific civil rights stated in terms of racial equality. As for the second factor, 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. See, e.g., New Jersey v. Thomas, 344 Fed.Appx. 727, 728 (3d Cir. 2009).
This provision, which is set forth in § 1443(2), “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. See, e.g., Pennsylvania v. Gloria Sun Jung Yun, No. 3:18-mc-00066, 2018 WL 1178546, at *1 (M.D. Pa. Feb. 13, 2018), report and recommendation adopted by 2018 WL 1175224 (M.D. Pa. Mar. 6, 2018).
Thus, Brown satisfies none of the substantive criteria for removal of a state criminal prosecution. He cannot remove either Case 1 or Case 2 to this Court.
Finally, it is noted that because of the difficulty in deciphering Brown's submissions to this Court, our Clerk of Court docketed both of his notices of removal as habeas petitions. Upon further review, none of the documents that Brown has submitted qualify as a federal habeas petition.
There is a $5.00 filing fee for a federal habeas petition. Brown did not pay that fee in either of the cases he commenced here, nor did he move for leave to proceed in forma pauperis.
The purpose of a writ of habeas corpus is to challenge the legal authority under which an individual is being held in custody and its function is to secure an order directing that the petitioner be released from illegal custody. See, e.g., Keitel v. Mazurkiewicz, 729 F.3d 278, 280 (3d Cir. 2013) (citing Preiser v. Rodriguez, 411 U.S. 475, 484 (1973)). “For state prisoners, federal habeas corpus is substantially a post-conviction remedy[.]” Moore v. DeYoung, 515 F.2d 437, 448 (3d Cir. 1975) (citing 28 U.S.C. § 2254 and Peyton v. Rowe, 391 U.S. 54 (1967)). However, the general habeas statute, 28 U.S.C. § 2241, provides federal courts with jurisdiction to issue a writ of habeas corpus before a state judgment is rendered (that is, on habeas petitions filed by pretrial detainees) but only in very limited circumstances. “[T]hat jurisdiction must be exercised sparingly in order to prevent in the ordinary circumstance ‘pre-trial habeas interference by federal courts in the normal functioning of state criminal processes.'” Duran v. Thomas, 393 Fed.Appx. 3 (3d Cir. 2010) (quoting Moore, 515 F.2d at 445-46).
Section 2241 provides: “The writ of habeas corpus shall not extend to a prisoner unless..,[h]e is in custody in violation of the Constitution or laws or treaties of the United States [.]” 28 U.S.C. § 2241(c)(3) (emphasis added). Thus, under this statute, a state criminal defendant has the mechanism in a federal habeas action to challenge the legality of his pretrial detention by arguing that he should not be in custody in the first place because, for example: (1) his upcoming trial violates his rights under the Double Jeopardy Clause, see, e.g., United States ex rel. Webb v. Court of Common Pleas, 516 F.2d 1034 (3d Cir. 1975); or, (2) he is being deprived of his constitutional right to a speedy trial, see, e.g., Braden v. Jud. Cir. Court of Kentucky, 410 U.S. 484, 492-93 (1973); or (3) the trial court has unconstitutionally denied or revoked bail, see, e.g., Atkins v. Michigan, 644 F.2d 543, 550 (6th Cir. 1981).
Brown does not raise any of these types of claims in his submissions to this Court. He is not seeking habeas relief and the Court should not construe any of his filings as a petition for a writ of habeas corpus.
III. Conclusion
Based on the above, it is respectfully recommended that the Court issue an order in Brown's cases at docket numbers 2:23-cv-1030 and 2:23-cv-1031 that states that removal is not permitted and thus the cases are closed and summarily remanded to state court.
Under the Magistrate Judges Act, 28 U.S.C. § 636(b)(1)(B) and (C), and Rule 72.D.2 of the Local Civil Rules, the parties may, within 14 days, file objections to this Report and Recommendation. Failure to do so will waive the right to appeal. Brightwell v. Lehman, 637 F.3d 187, 193 n.7 (3d Cir. 2011).