United States District Court, E.D. Virginia, Richmond Division
Hannah Lauck, United States District Judge.
matter comes before the Court on Defendant Ayem EPs Motion to
Proceed in Forma Pauperis pursuant to 28 U.S.C.
§ 1915(a)(1). (ECF No. 1.) This matter also comes before
the Court upon examination of Ayem El's Notice of Removal
from the Hopewell General District Court, filed pursuant to
28 U.S.C. § 1455 and Ayem El's second Notice of Removal
(the "Supplemental Notice of
Removal"). (ECF Nos. 1-1, 5.) The Court confronts
Ayem El's third spurious endeavor to remove his state
criminal case to this federal court. Twice this Court has
liberally construed Ayem El's filings, and twice this
Court has denied Ayem El's efforts, offering a detailed
explanation as to why Ayem El's attempts so fully fail to
meet any standard this Court could be required to evaluate.
(See Commonwealth v. Ayem El, No. 3:15cv718 (ECF No.
3) (remanded July 12, 2016); Commonwealth v. Ayem
El, No. 3:15cv633 (ECF No. 3) (remanded Nov. 6, 2015).)
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. 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 all incorporated motions and claims as
Procedural and Factual Background
March 3, 2016, Ayem El filed a Notice of Removal with this
Court pursuant to Section 1455. (ECF No. 1-1.) On April 11, 2016,
without leave of Court, Ayem El filed his Supplemental Notice
of Removal (ECF No. 5.) Ayem El attaches to the Notice of
Removal and the Supplemental Notice of Removal a plethora of
documents regarding the state court proceedings in an
apparent attempt to comply with 28 U.S.C. § 1455(a),
without regard to the Federal Rules of Evidence as to the
propriety of such attachments. These documents suggest that
Ayem El was arrested on September 17, 2015 for three moving
violations: (1) reckless driving; (2) driving on a revoked or
suspended license; and, (3) continuing to drive after a law
enforcement command to stop. (Not. Removal, Ex. 4, at 11.)
The Hopewell General District Court released Ayem El on
September 22, 2015 with the following pretrial conditions:
(1) posting of a $7, 500 bail; (2) submission to drug and
alcohol screening and testing; (3) a 7:00 p.m. to 7:00 a.m.
curfew; and, (4) supervision in accordance with the local
pre-trial services agency. (Not. Removal, Ex. 4, at 3, 11.)
October 22, 2015, a Show Cause Summons was issued, alleging
that Ayem El breached the conditions of his release by
violating curfew twice and receiving new criminal
charges. (Not. Removal, Ex. 4, at 5.) On November
30, 2015, the Hopewell General District Court ordered Ayem El
held without bail. (Not. Removal, Ex. 4, at 9.) On February 9,
2016, the Hopewell General District Court released Ayem El on
bail a second time. (Supp'l Not. Removal, Ex. 7, at 25,
ECF 5-7.) The Court ordered conditions similar to Ayem
El's first release, but lowered the bond to $1, 500,
removed a nightly call-in requirement, and required a weekly
meeting with a local pre-trial services agency.
Notice of Removal and Supplemental Notice of Removal, as in
his prior attempted removals to this Court, Ayem El claims he
has suffered from a number of violations to his
constitutional rights: that his bail violates the Eighth
Amendment to the United States Constitution because it is
excessive; that the administration of his bail has been
arbitrary and discriminatory; and, that the conditions on his
bail prevent him from engaging in profitable commerce. These
allegations failed to support Ayem El's prior removals,
and they cannot support removal in this action.
also adds new claims to his third removal effort. He asserts
that the Commonwealth has unduly delayed his case in
violation of his Sixth Amendment right to a speedy
trial.He notes that his next hearing date is
nearly a year after the original charge. Ayem El avers that
the Hopewell General District Court has erred by not hearing
his case in a more timely manner. Ayem El claims he was
denied his due process rights in violation of the Fourteenth
Amendment. He contends that he "did not
receive a bail determination hearing" at his November
30, 2015 hearing for violating the conditions of his bail.
(Not. Removal 3.) These new allegations have no impact on
whether Ayem El can satisfy Section 1455. As in his prior
attempts, and for the following reasons, Ayem El cannot
remove his Virginia criminal case to this Court.
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.
Dugas, 2008 WL 4153765, at *2. "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 Cal v.
Kinney, No. 3:15cv1552, 2015 WL 3488408, at *2 (N.D.
Cal. June 2, 2015).
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. For the
reasons stated in the remand orders issued by this Court on
November 6, 2015 and July 12, 2016, Ayem El's third
Ayem El Cannot Remove His Criminal Prosecution ...