Opinion
Case No. 18-xr-90790-PJH-1
08-03-2018
PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff, v. TANIA R. MCCASH, Defendant.
ORDER DISMISSING NOTICE OF REMOVAL OF CRIMINAL PROSECUTION AND RELATED STATE COURT ACTIONS
Before the court is the notice of removal, pursuant to Cal. C.C.P. § 394 and 28 U.S.C. §§ 1443 and 1446(d), of Alameda County Superior Court Case #RP18905959, which purports to include "Removed Santa Clara County Criminal Case #C1653807" among other matters, filed by litigant Tania R. McCash, appearing pro se. The court construes the notice as a notice of removal pursuant to 28 U.S.C § 1443 ("Not."). Having conducted an initial review of the notice of removal, the court determines that the notice fails to state a basis for removal under § 1443 and dismisses the notice of removal.
Section 1443 provides as follows:
Any 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:28 U.S.C. § 1443.
(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.
The notice of removal attaches only selected documents from the state court file. Liberally construed, the notice of removal asserts that Alameda County Superior Court probate case number RP18905959, is related to Santa Clara County Superior Court criminal case number C1653807, People v. Tania R. McCash, which resulted from McCash's arrest for alleged violation of a temporary restraining order ("TRO"). Not. ¶¶ 11, 14, 22. McCash asserts the following grounds for removal of her criminal case and related state court actions under § 1443: denial of her right to trial due to the state court accusing her of incompetency to stand trial in sham mental competency examinations; failure to give notice of a TRO issued by a court, resulting in denial of due process and equal protection of the law; loss of liberty and false arrest pursuant to a void TRO, resulting in due process and civil rights violations by the San Jose Police Department. Not. ¶ 52. She alleges, among other things, that the Family Court division of the Santa Clara County Superior Court did not have jurisdiction to issue a TRO, and that her civil rights protected by the Fourth, Fifth, Sixth, Seventh and Fourteenth Amendments have been violated in the state court. Not. ¶¶ 26, 29. She alleges that removal pursuant to 28 U.S.C. § 1443 is warranted because the state criminal prosecution "was never properly placed in the Criminal Division of the Superior Court, where a fair trial can not [sic] be obtained." Not. ¶ 49.
Section 1443 gives a right of removal to, among others, certain defendants who claim federally secured rights as a defense to a state prosecution. All notices of removal pursuant to § 1443(1) must satisfy two criteria:
First, the petitioners must assert, as a defense to the prosecution, rights that are given to them by explicit statutory enactment protecting equal racial civil rights. Second, petitioners must assert that the state courts will not enforce that right, and that allegation must be supported by reference to a state statute or a constitutional provision that purports to command the state courts to ignore the federal rights.People of State of Cal. v. Sandoval, 434 F.2d 635, 636 (9th Cir. 1970) (citing Georgia v. Rachel, 384 U.S. 780 (1966) and Greenwood v. Peacock, 384 U.S. 808 (1966)). Here, McCash does not assert, as a defense to her prosecution, civil rights that are based on specific statutory grants, but only broad constitutional guarantees of due process and equal protection of the law. "Such rights are not within the coverage of section 1443." Sandoval, 434 F.2d at 636 (citing Rachel, 384 U.S. at 788-792; Peacock, 384 U.S. at 825). See California v. Dawodu, 122 Fed. Appx. 884, 885 (9th Cir. 2004) (first Rachel requirement for removal not satisfied by alleged violations of Fourteenth Amendment, Section 1983, and Section 1985 because "[t]hese laws do not provide for specific civil rights 'stated in terms of racial equality'") (citing Rachel, 384 U.S. at 792). Nor does McCash point to any enactment of California state law that supports an inference that her rights will not be heard fully and fairly in the state courts. Sandoval, 434 F.2d at 636. For a defendant to remove a criminal prosecution from state court under § 1443, "[b]ad experiences with the particular court in question will not suffice." Id. See Peacock, 384 U.S. at 827 ("It 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.").
Because the notice fails to state a basis for removal of the state criminal prosecution, and granting leave to amend would be futile because a proper basis could not be stated on amendment of the present allegations challenging her prosecution, the notice of removal is DISMISSED WITHOUT PREJUDICE. Tomasino v. People of State of Cal., 451 F.2d 176, 177 (9th Cir. 1971). The action is hereby REMANDED to the Alameda County Superior Court.
IT IS SO ORDERED. Dated: August 3, 2018
/s/_________
PHYLLIS J. HAMILTON
United States District Judge USA, Plaintiff, v. TANIA R. MCCASH, Defendant.
CERTIFICATE OF SERVICE
I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California.
That on August 3, 2018, I SERVED a true and correct copy(ies) of the attached, by placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle located in the Clerk's office. Tania R. McCash
P.O. Box 53244
San Jose, CA 95153 Dated: August 3, 2018
Susan Y. Soong
Clerk, United States District Court
By:/s/_________
Kelly Collins, Deputy Clerk to the
Honorable PHYLLIS J. HAMILTON