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Commonwealtha v. Ayem El

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

August 26, 2016

COMMONWEALTH OF VIRGINIA,
v.
AYEM EL, Defendant.

          MEMORANDUM OPINION

          M. Hannah Lauck, United States District Judge.

         This matter comes before the Court on Defendant Ayem EPs 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 examination of Ayem El's[2] Notice of Removal from the Hopewell General District Court, filed pursuant to 28 U.S.C. § 1455[3] and Ayem El's second Notice of Removal (the "Supplemental Notice of Removal").[4] (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).)

         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. 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 moot.

         I. Procedural and Factual Background

         On March 3, 2016, Ayem El filed a Notice of Removal with this Court pursuant to Section 1455.[5] (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), [6] 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.)

         On 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.[7] (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.)[8] 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. (Id.)

         In his 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:[9] that his bail violates the Eighth Amendment to the United States Constitution[10] 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.

         Ayem El 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.[11]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.[12] 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.

         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. Dugas, 2008 WL 4153765, at *2.[13] "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).

         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. For the reasons stated in the remand orders issued by this Court on November 6, 2015 and July 12, 2016, Ayem El's third effort fails.

         A. Ayem El Cannot Remove His Criminal Prosecution ...


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