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Commonwealtha v. Ayem El

United States District Court, E.D. Virginia, Richmond Division

July 12, 2016

COMMONWEALTH OF VIRGINIA,
v.
AYEM EL, Defendant.

          MEMORANDUM OPINION

          M. HANNAN LAUCK UNITED STATES DISTRICT JUDGE.

         This matter comes before the Court on Defendant Ayem El's Motion to Proceed in Forma Pauperis pursuant to 28 U.S.C. § 1915(a)(1).[1] (ECF No. 1.) This matter also comes before the Court upon Ayem El's[2] examination of the Notice of Removal from the Hopewell General District Court, filed pursuant to 28 U.S.C. § 1455.[3] 28 U.S.C. § 1455(b)(4) requires that this Court order a summary remand if it "clearly appears on the face of the notice and any exhibits annexed thereto that removal should not be permitted." 28 U.S.C. § 1455(b)(4). For the reasons that follow, "it clearly appears" that "removal should not be permitted" in this action. Id. Therefore, this Court lacks subject matter jurisdiction in this action. The Court will summarily remand this matter to the Hopewell General District Court. The Court will further deny Ayem El's Motion to Proceed in Forma Pauperis and any incorporated motions as moot.

         I. Procedural and Factual Background

         On November 25, 2015, Ayem El filed a Notice of Removal with this Court pursuant to Section 1455.[4] (ECF No. 1-1.) To the Notice of Removal, Ayem El attaches a Show Cause Summons, dated October 27, 2015, ordering him to appear before the Hopewell General District, to answer for violations of conditions of release, specifically "curfew violations [and] received [sic] new charge [sic]." (Mot. Ex. 2, at 1 ("Show Cause Summons"), ECF No. 1-2.) Ayem El also attaches two subpoenas duces tecum seemingly submitted to the Hopewell General District Court, which sought the "most recent edition of the 'Magistrate Manual'" and the "EIN established for the feeder organization known as the 'City of Hopewell.'" (Mot. Ex. 2, at 2-3, ECF No. 1-2.) Ayem El provides no information about any relevance of these subpoenas.

         The substance of Ayem EPs Notice of Removal alleges that the conditions placed upon his release by the Hopewell General District Court, including a $7, 500 bail, violate various federal rights. Ayem El avers that this amount of bail violates his rights under the Eighth Amendment to the United States Constitution[5] because it is excessive. Ayem El further contends that the administration of his bail has been arbitrary and discriminatory. Ayem El asserts that the Hopewell General District Court requires certain conditions to his bail that he is unable to meet. Specifically, Ayem El claims that he cannot call his pre-trial officer every day, as required, because he cannot afford telephone service and bond conditions, including curfew, prevent him from engaging in profitable commerce. Additionally, Ayem El maintains that he cannot attend his weekly meeting at the pre-trial facility because it is nearly 10 miles away and he has no personal transportation.

         II. Analysis

         A defendant in a criminal proceeding in state court may properly remove the action only when he or she meets the substantive requirements of 28 U.S.C. § 1443 and the procedural requirements of 28 U.S.C. § 1455.[6] Dugas, 2008 WL 4153765, at *2.[7] "Thus, the Court must determine whether the removal of his state criminal court cases complies with the pertinent federal removal statutes, thereby providing this Court with [subject matter] jurisdiction to hear these matters." Id. If the removing party fails to make a proper showing under Section 1443, this Court lacks subject matter jurisdiction to hear the case. North Carolina v. Dupree, 521 F.App'x 181, 182 (4th Cir. 2013); accord Lott v. Duffy, 579 F.App'x 87, 89-90 (3d Cir. 2014); New York v. Smith, 494 F.App'x 138, 139-40 (2d Cir. 2012); Hawaii v. Jim, 31 F.App'x 426, 426-27 (9th Cir. 2002); Supreme Court of Cat. v. Kinney, No. 3:15cvl552, 2015 WL 3488408, at *2 (N.D. Cal. June 2, 2015).

         A criminal defendant seeking to remove a matter pursuant to Section 1443 must show that the prosecution proceeds:

(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; [or, ]
(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. To determine whether Ayem El's attempted removal is proper, the Court examines, seriatim, the two avenues to removal provided by Section 1443.

         A. Ayem El Cannot Remove His Criminal Prosecution Pursuant to Section 1443(1)

         1. Standard For Removal Under Section 1443(1)

         This Court uses a two-prong test to determine whether a criminal action in state court may be properly removed to federal court under Section 1443(1). First, the removing party must show that the "'right allegedly denied ... arises under a federal law providing for specific civil rights stated in terms of racial equality.'" Lee-Baatista v. Bautista, 633 F.App'x 148, 149 (4th Cir. 2016) (quoting Johnson v. Mississippi, 421 U.S. 213, 219 (1975)); accord Upchurch v. Wheeler,878 F.2d 1431, 1989 WL 74875, at *1 (4th Cir. July 6, 1989) (per curiam) (unpublished table decision). Second, "it must appear... that the removal petitioner 4is denied or cannot enforce' the specified rights" in state court. Lee-Bautista, 633 F.App'x at 149 (citing Georgia v. Rachel,384 U.S. 780, 803 (1966)); accord Upchurch, 1989 WL 74875, at *2. This provision typically requires a showing that the "denial [of that right] be manifest in a formal expression of state law." Upchurch, 1989 WL 74875, at *2 (quoting Johnson, 421 U.S. at 219); see City of Greenwood, SC v. Peacock,384 U.S. 808, 828 (1966) ("Under Section 1443(1), the vindication of the defendant's federal rights is left to the state courts except ...


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