Opinion
C/A No. 0:17-3406-MGL-PJG
01-23-2018
York County, Plaintiff, v. Sehkmet Re El, Defendant.
REPORT AND RECOMMENDATION
The defendant, Sehkmet Re El, filed this Notice of Removal from the York County Court of General Sessions purporting to remove criminal matter 2010GS4602070. The Notice of Removal has been filed pursuant to 28 U.S.C. § 1915. This matter is before the court pursuant to 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.). Having reviewed the Notice of Removal and accompanying documents in accordance with applicable law, the court concludes this matter should be remanded.
Defendant's actual name appears to be Brian Lamont Harbison.
Defendant filed a motion to proceed in forma pauperis, which is hereby granted. (ECF No. 2.)
I. Factual and Procedural Background
Defendant provides no facts in the Notice of Removal, other than to allege that the underlying criminal action based on a charge of domestic violence was commenced on February 13, 2010 without proper service of process effected against him. Defendant alleges York County has violated the Fair Debt Collections Practices Act, multiple treaties, and the Religious Freedom Restoration Act. He seeks adjudication of the criminal action in this court.
II. Discussion
To the extent Defendant seeks to remove criminal matter 2010GS4602070 from the York County Court of General Sessions, the court notes criminal defendants may only remove state criminal prosecutions to federal court in rare circumstances. See 28 U.S.C. § 1442 (criminal prosecutions against federal agencies and officers), § 1442(a) (criminal prosecution against members of the armed services), & § 1443 (denial of racial equality in state criminal prosecutions). Federal law requires:
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.28 U.S.C. § 1455(a). A notice of removal must also include the grounds for such removal, and a failure to state grounds that exist at the time of the filing of the notice constitutes waiver of such grounds. 28 U.S.C. § 1455(b)(2).
Defendant does not contend that his attempted removal of his state criminal prosecution falls under any of the permissible circumstances enumerated by law. Rather, Defendant asserts the court has jurisdiction over this matter because he alleges York County violated various federal laws and treaties, which is not sufficient to meet the requirements for removal. See generally Johnson v. Mississippi, 412, U.S. 213, 219 (1975) ("Claims 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 [for removal under § 1443]."); State v. Ivory, 906 F.2d 999, 1002 (4th Cir. 1990) ("The regulation of crime is pre-eminently a matter for the States, and there is a strong judicial policy against federal interference with state criminal proceedings.") (citing Meas v. California, 489 U.S. 121 (1989)) (quotations omitted).
Also, Defendant failed to file the necessary state court documents required by § 1455(a) and he also failed to demonstrate the matter was timely removed pursuant to § 1455(b)(1). Bowen v. State, 194 F.3d 1303 (4th Cir. 1999) (Table) (finding district court did not err in failing to remand attempted removal of state prosecution where the removal was untimely). Because Defendant fails to establish that the court has jurisdiction over this matter, the court finds the matter should be remanded to the York County Court of General Sessions. See 28 U.S.C. § 1455(b)(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."); see also North Carolina v. Dupree, 521 F. App'x 181 (4th Cir. 2013) (Table) (finding district court lacked subject matter jurisdiction over removal of state criminal prosecution because defendant did not make the requisite showing for removal under § 1443, and thus, remand to state court was appropriate); Commonwealth of Va. v. El, Civil Action No. 3:16cv128, 2016 WL 4507814, at *3 (E.D. Va. Aug. 26, 2016) (collecting cases).
III. Conclusion
Accordingly, the court recommends this matter be remanded to the York County Court of General Sessions. January 23, 2018
Columbia, South Carolina
/s/_________
Paige J. Gossett
UNITED STATES MAGISTRATE JUDGE
Defendant's attention is directed to the important notice on the next page.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. "[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must 'only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'" Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
901 Richland Street
Columbia, South Carolina 29201
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).