Opinion
CIVIL ACTION NO. 18-14251 SECTION: "E"(1)
03-01-2019
RICHARD NATHANIEL MILLER v. STATE OF LOUISIANA, ET AL.
REPORT AND RECOMMENDATION
Richard Nathaniel Miller, a state prisoner, filed a pro se pleading entitled "Motion for Removal of Criminal Prosecution." The matter was thereafter referred to the undersigned United States Magistrate Judge for the issuance of a Report and Recommendation.
Rec. Doc. 3.
Miller's pleading is rambling and difficult to decipher. Nevertheless, based on the references to dates and court cases he mentions therein, it appears that he is attempting to remove his state criminal proceeding, Orleans Parish Criminal District Court Case No. 396-824, to this federal court. The online Docket Master concerning that case, a copy of which is attached to this Report and Recommendation, reflects the following information: That state prosecution was initiated by the filing of a bill of information on April 3, 1998, and Miller was arraigned on April 20, 1998. On April 12, 1999, he was convicted under Louisiana law of possession of cocaine and distribution of marijuana. On May 24, 1999, he was sentenced as follows: on the cocaine conviction to a term of fifty years imprisonment without the benefit of probation, parole, or suspension of sentence; and on the marijuana conviction to a concurrent term of twenty years imprisonment. On June 15, 1999, he was then adjudicated a multiple offender and resentenced as such on the cocaine conviction to a term of fifty years imprisonment without the benefit of probation, parole, or suspension of sentence.
Further research reflects that Miller's convictions were subsequently affirmed by the Louisiana Fourth Circuit Court of Appeal on March 20, 2002. State v. Miller, 817 So.2d 511 (La. App. 4th Cir. 2002) (Table). The Louisiana Supreme Court denied his related writ application. State v. Miller, 843 So.2d 388 (La. 2003).
However, according to the decision concerning Miller's related federal habeas corpus application, "[t]he court of appeal amended Miller's habitual offender sentence on the cocaine count to prohibit parole eligibility for only the first ten years, and affirmed as amended." Miller v. LeBlanc, Civ. Action No. 12-2806, 2014 WL 115271, at *3 n.9 (E.D. La. Mar. 21, 2014). --------
After Miller was then unsuccessful in his efforts to obtain post-conviction relief in the state courts, he filed a federal habeas corpus petition seeking relief pursuant to 28 U.S.C. § 2254. That petition was dismissed with prejudice by United States District Judge Jay C. Zainey on March 21, 2014. Miller v. LeBlanc, Civ. Action No. 12-2806, 2014 WL 1154271 (E.D. La. Mar. 21, 2014). The United States Fifth Circuit Court of Appeals denied his related motion for a certificate of appealability on February 5, 2015. Miller v. LeBlanc, No. 14-30441 (5th Cir. Feb. 5, 2015).
Miller then sued the judges of both this court and the Fifth Circuit who were involved in the denial of his federal habeas corpus petition, as well as various other individuals and the State of Louisiana. That lawsuit was dismissed with prejudice. Miller v. Clement, Civil Action No. 16-5778, 2016 WL 4530620 (E.D. La. Aug. 10, 2016), adopted, 2016 WL 4512034 (E.D. La. Aug. 29, 2016), appeal dismissed, 704 F. App'x 398 (5th Cir. 2017).
Miller also attempted to file another federal habeas corpus petition with this Court. However, in light of the fact that he had already had a prior such petition dismissed on the merits, Judge Zainey construed the petition in part as a motion for authorization to file a second or successive petition and transferred it to the United States Fifth Circuit Court of Appeals. Miller v. Louisiana, Civ. Action No. 16-13039 (E.D. La. Nov. 1, 2016). The Fifth Circuit denied authorization. In re Miller, No. 16-31135 (5th Cir. Dec. 13, 2016).
Miller then continued his efforts to seek post-conviction relief in the Louisiana state courts which, according to the aforementioned Docket Master, apparently resulted in him ultimately being resentenced on the cocaine conviction to a term of twenty-two years imprisonment without benefit of probation, parole, or suspension of sentence on January 18, 2019.
In the interim, Miller had filed the instant "Motion for Removal of Criminal Prosecution" seeking removal pursuant to 28 U.S.C. § 1455. In pertinent part, that statute provides:
(a) Notice of removal. - A defendant or defendants desiring to remove any criminal prosecution from a State court shall file in the district court of the United States for the district and division within which such prosecution is pending a notice of removal signed pursuant to Rule 11 of the Federal Rules of Civil Procedure and 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 or defendants in such action.
(b) Requirements. - (1) 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.
(2) A notice of removal of a criminal prosecution shall include all grounds for such removal. A failure to state grounds that exist at the time of the filing of the notice shall constitute a waiver of such grounds, and a second notice may be filed only on grounds not existing at the time of the original notice. For good cause shown, the United States district court may grant relief from the limitations of this paragraph.
(3) The filing of a notice of removal of a criminal prosecution shall not prevent the State court in which such prosecution is pending from proceeding further, except that a judgment of conviction shall not be entered unless the prosecution is first remanded.
(4) The United States district court in which such notice is filed shall examine the notice promptly. 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.28 U.S.C. § 1455.
(5) If the United States district court does not order the summary remand of such prosecution, it shall order an evidentiary hearing to be held promptly and, after such hearing, shall make such disposition of the prosecution as justice shall require. If the United States district court determines that removal shall be permitted, it shall so notify the State court in which prosecution is pending, which shall proceed no further.
Critically, the foregoing statute refers to criminal "prosecutions," consistent with the notion that the point of removal is to have the trial go forward in a federal, rather than state, court. 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. Here, Miller filed his notice of removal more than twenty years after he was arraigned in state court on April 20, 1998. Moreover, he was ultimately convicted in state court on April 12, 1999, and the statute clearly does not contemplate removal of a case after conviction. See Smith-El v. Louisiana, Civ. Action No. 16-cv-1310, 2016 WL 8900203, at *1 (W.D. La. Sept. 27, 2016), adopted, 2017 WL 1821111 (W.D. La. May 3, 2017); see also Barber v. Vance, Case No. 3:16-cv-2105, 2019 WL 267874, at *2 (D. Ore. Jan. 18, 2019) ("[Plaintiff's] criminal case is 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))".); 8A Fed. Proc, L. Ed. § 22:59 ("The general rule is that a criminal prosecution can be removed from a state to a federal court only after indictment and before trial.").
Miller's notice of removal is thus obviously untimely. Moreover, he has not demonstrated any good cause to extend the removal deadline, and, in any event, doing so would be futile since his state criminal prosecution has already concluded. Simply put: there is no longer a "prosecution" to remove.
Lastly, although summary remand is ordinarily required under the applicable statute, the posture of this case is such that there is no court to which it may be remanded. In light of that fact, dismissal is appropriate.
RECOMMENDATION
It is therefore RECOMMENDED that this matter be DISMISSED.
A party's failure to file written objections to the proposed findings, conclusions, and recommendation in a magistrate judge's report and recommendation within fourteen (14) days after being served with a copy shall bar that party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the district court, provided that the party has been served with notice that such consequences will result from a failure to object. 28 U.S.C. § 636(b)(1); Douglass v. United Services Auto. Ass'n, 79 F.3d 1415, 1430 (5th Cir. 1996) (en banc).
New Orleans, Louisiana, this first day of March, 2019.
/s/ _________
JANIS VAN MEERVELD
UNITED STATES MAGISTRATE JUDGE
Image materials not available for display.