Opinion
CV 23-9895-DDP(E)
02-15-2024
KIMBERLY MICOLE GLEN, Petitioner, v. COUNTY OF LOS ANGELES, CA, Respondent.
ORDER DENYING PETITION, DISALLOWING REMOVAL OF STATE PROSECUTION AND REMANDING MATTER TO STATE COURT
DEAN D. PREGERSON, UNITED STATES DISTRICT JUDGE
On November 20, 2023, Petitioner filed a “Petition for Writ of Habeas Corpus, etc.,” which includes a “Notice of Removal to Remove Case: No. BA508882-01 to Federal Court.” The Petition and Notice of Removal seek to challenge and remove to federal court a criminal proceeding currently pending against Petitioner in Los Angeles Superior Court.
All relief requested must be denied and the matter remanded summarily to state court. Except under narrow circumstances not here present, federal courts abstain from interfering with pending state criminal proceedings. See Younger v. Harris, 401 U.S. 37 (1971); see also 28 U.S.C. § 2283. “Our circuit has stated that Younger abstention is appropriate if: < (1) there are ongoing state judicial proceedings, (2) the proceedings implicate important state interests, and (3) there is an adequate opportunity in the state proceedings to resolve federal questions.'” Dubinka v. Judges of the Superior Ct., 23 F.3d 218, 223 (9th Cir. 1994)(quoting Gartrell Constr., Inc. v. Aubry, 940 F.2d 437, 441 (9th Cir. 1991)). Petitioner's state criminal proceedings, which manifestly implicate important state interests, are ongoing. Petitioner has an adequate opportunity in the state proceedings to resolve any federal questions that may arise therein.
Petitioner's purported removal of the state prosecution to this Court is procedurally and substantively infirm. Petitioner failed to append to her papers the state charging document, as required by 28 U.S.C. section 1446(a). More fundamentally, Petitioner has failed to allege any proper substantive grounds for removal. A notice of removal (pursuant to 28 U.S.C. section 1443(1)) must satisfy a two-part test. The notice must assert: (1) “as a defense to the prosecution, rights that are given to [the defendant] by explicit statutory enactment protecting equal racial civil rights”; and (2) that such rights cannot be enforced because of “a state statute or a constitutional provision that purports to command the state courts to ignore federal rights.” Patel v. Del Taco, Inc., 446 F.3d 996, 998-99 (9th Cir. 2006) (citing, inter alia, Georgia v. Rachel, 384 U.S. 780, 788-92 (1966), and City of Greenwood v. Peacock, 384 U.S. 808, 824-25 (1966); internal quotations omitted), abrogated on other grounds, BP P.L.C. v. Mayor and City Council of Baltimore, 141 S.Ct. 1532 (2021). Plaintiff alleges no facts showing that removal under these standards is authorized under section 1443(1).
Section 1443(2) authorizes removal only if the defendant is a state or federal officer or a person assisting such an officer. ASAP Copy and Print v. Canon Bus. Solutions, Inc. 643 Fed. App'x 650, 652 (9th Cir. 2016) (citing City of Greenwood v. Peacock, 384 U.S. at 815, 824 n.22). Plaintiff is not a federal or state officer or a person assisting such an officer.
For all of the foregoing reasons, the Petition is denied without prejudice, removal of the state prosecution against Petitioner is disallowed and the matter is remanded summarily to state court.
CHARLES F. EICK, UNITED STATES MAGISTRATE JUDGE