United States District Court, S.D. West Virginia, Charleston
MEMORANDUM OPINION AND ORDER
T. COPENHAVER, JR. SENIOR UNITED STATES DISTRICT JUDGE
matter is before the court sua sponte. On April 26, 2019,
defendant Joseph Ziegler, acting pro se, filed a Notice of
Removal, seeking to bring a misdemeanor criminal case, No.
19-M08M-00187, pending against him in the Magistrate Court of
Clay County, West Virginia. The state charges against
defendant include (1) reckless driving, (2) driving without
car insurance, (3) driving an unregistered vehicle, (4)
driving without an operator’s license, and (5) driving
under the influence. See Commitment Order, ECF 3-1.
filed his Notice of Removal on the ground that plaintiff
“blatantly violat[ed] this Pro Se
Defendant-Petitioner’s clearly established Federal
Civil Rights unambiguously protected under Equal Protection
Clause Right to Fair Jury Trial, Due Process of Law, Access
to the Courts, Right to Property, Right to Association,
Freedom of the Press, Interstate Travel, Commerce,
Privileges, Immunities and Comity Clause and/or Federal
Constitutional Rights protected under Federal Law under
Law-of-the-Case Doctrine.” Not. Removal 2.
justifies removal of the criminal case against him based on
28 U.S.C. §§ 1443, 1446-1447. Section 1443 allows
for removal in cases where a criminal prosecution is:
(1) Against any person who is denied or cannot enforce in the
courts of [a State] a right under any law providing for the
equal civil rights of citizens of the United States...;
(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.
28 U.S.C. § 1443. Sections 1446-1447 govern the
procedures for removal.
under § 1443(1) is “limited to rare
situations.” North Carolina v. Lewis, 505
Fed.Appx. 259, 260 (4th Cir. 2013). “First, it must
appear that the right allegedly denied the removal petitioner
arises under a federal law ‘providing for specific
civil rights stated in terms of racial
equality.’” Johnson v. Mississippi, 421
U.S. 213, 219 (1975) (quoting Georgia v. Rachel, 384
U.S. 780, 792 (1966)). A federal district court cannot grant
removal under § 1443(1) solely based on “[c]laims
that prosecution and conviction will violate rights under
constitutional or statutory provisions of general
applicability.” Id. Moreover, allegations that
“removal petitioner will be denied due process of law
because the criminal law under which he is being prosecuted
is allegedly vague or that the prosecution is assertedly a
sham, corrupt, or without evidentiary basis does not,
standing alone, satisfy the requirements of §
1443(1).” Id. Second, the court must find
“that the removal petitioner is denied or cannot
enforce the specified federal rights in the courts of the
State, which normally requires that the denial be manifest in
a formal expression of state law.” A & D Sec.
Consultants v. Gray, 481 Fed.Appx. 63 (4th Cir. 2012)
(quoting Johnson, 421 U.S. at 219).
1443(2), “is only available to federal officers
‘and to persons assisting such officers in the
performance of their official duties.’” North
Carolina v. Grant, 452 F.2d 780, 782 (4th Cir. 1972)
(quoting City of Greenwood v. Peacock, 384 U.S. 808,
815 (1965). This subsection “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.” City of Greenwood, 384 U.S. 808, 824 (1966).
construing defendant’s allegations liberally, the
Notice of Removal does not “seek the protection of
any law which provides for specific civil rights stated in
terms of racial equality.” Grant, 452 F.2d at 782.
Defendant was charged with misdemeanor traffic offenses. In
Grant, the United States Court of Appeals for the Fourth
Circuit found that similar assertions of “possible
violations of [appellant’s] respective rights to a fair
trial and fundamental due process in the state courts”
related to charges of larceny, burglary, kidnapping, and
armed robbery “cannot support a valid claim for removal
under 28 U.S.C. § 1443(1).” Id.
Notice of Removal also asserts that defendant is a
“Federal Informant regarding the ongoing Federal
Investigation concerning the Ambush and Execution of Corrupt
Police Officers in Clay County West Virginia” and was
“acting under color of law.” Not. Removal 5-6.
Yet, the “color of authority” clause in §
1443(2) is available only to “federal officers or
agents and those authorized to act with or for them in
affirmatively executing duties under federal law providing
for equal civil rights.” City of Greenwood,
384 U.S. at 824. The Notice of Removal offers no support to
show defendant was an authorized informant. Moreover, even if
he was “acting under color of authority derived from
any law providing for equal rights, ” he was not
charged for his acts as an informant but for misdemeanor
traffic violations. Bald Head Ass’n v. Curnin,
No. 7:09-CV173-F, 2010 WL 1904268, at *6 (E.D. N.C. May 10,
2010), aff’d in part, appeal dismissed in part, 429
Fed.Appx. 360 (4th Cir. 2011) (denying removal because
defendant “is not being sued for his actions as an
the standards described above, the Notice of Removal lacks
allegations setting forth a valid basis for removal of
defendant’s criminal case to this court.
it is ORDERED this matter be, and it hereby is, remanded to
the Clay County Magistrate Court.
Clerk is directed to transmit copies of this order to all
counsel of ...