United States District Court, E.D. Virginia, Richmond Division
MEMORANDUM OPINION (GRANTING DEFENDANT'S MOTION
TO PROCEED IN FORMA PAUPERIS AND REMANDING
MATTER TO STATE COURT)
E. Hudson United States District Judge.
matter is before the Court on Defendant Christopher V.
Smalls's ("Defendant") Motion to Proceed In
Forma Pauperis, filed on March 22, 2018. Upon due
consideration, the Court concludes that Defendant is unable
to pay the required fees. Therefore, Defendant's Motion
to Proceed In Forma Pauperis is hereby GRANTED.
Defendant may proceed in this case without paying the
Court's filing fee. The Clerk is DIRECTED to file
Defendant's Notice of Removal. (ECF No. 1-1.) For the
reasons set forth herein, however, the Court will remand the
matter to state court.
February 23, 2018, the Circuit Court for the City of Newport
News ("Circuit Court") found Smalls in contempt for
failure to pay child support and revoked the ten months and
five days remaining of his suspended sentence. (ECF No. 1-2.)
The Circuit Court re-suspended eight months and five days and
granted Smalls a delayed report date of May 23, 2018. On
March 22, 2018, Smalls filed a document in this Court wherein
he petitioned to remove the above proceedings to this Court.
(Notice of Removal 1.) As explained below, Smalls fails to
demonstrate that removal is proper.
REMOVAL OF CRIMINAL PROCEEDINGS
of a criminal action is proper if a defendant meets the
substantive requirements of 28 U.S.C. § 1443. That
Any of the following civil actions or criminal prosecutions,
commenced in a State court may be removed by the defendant to
the district court of the United States for the district and
division embracing the place wherein it is pending:
(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;
(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. The Supreme Court has stated that
removal under 28 U.S.C. § 1443(2) "is available
only to state officers." Greenwood v. Peacock,
384 U.S. 808, 824 n.22 (1966). Thus, Smalls must demonstrate
that removal is appropriate under 28 U.S.C. § 1443(1).
"[p]requisite to a removal of a pending criminal
prosecution under 28 U.S.C.A. § 1443(1) is a showing
that the defendant is being denied rights guaranteed under a
federal law 'providing for specific civil rights stated
in terms of racial equality.'" South Carolina v.
Moore, 447 F.2d 1067, 1070 (4th Cir. 1971) (quoting
Georgia v. Rachel, 384 U.S. 780, 792 (1966))
(internal footnote omitted). Nevertheless, '"broad
contentions of deprivation of equal protection and due
process under the Fourteenth Amendment do not support removal
of claims under § 1443(1).'" Dugas v.
Hanover Cnty. Circuit Court, 3:08CV72, 2008 WL 4153765,
at *3 (E.D. Va. Sept. 5, 2008) (quoting New Mexico v.
Gutierrez, 409 F.Supp.2d 1346, 1349 (D.N.M. 2006). The
Supreme Court has made clear that allegations of the ilk
advanced here by Smalls do not warrant removal.
Greenwood, 384 U.S. at 827-28.
It is not enough to support removal under § 1443(1) to
allege or show that the defendant's federal equal civil
rights have been illegally and corruptly denied by state
administrative officials in advance of trial, that the
charges against the defendant are false, or that the
defendant is unable to obtain a fair trial in a particular
state court. The motives of the officers bringing charges may
be corrupt, but that does not show that the state trial court
will find the defendant guilty if he is innocent, or that in
any other manner the defendant will be 'denied or cannot
enforce in the courts' of the State any right under a
federal law providing for equal civil rights.... Under §
1443(1), the vindication of the defendant's federal
rights is left to the state courts except in the rare
situations where it can be clearly predicted by reason of the
operation of a pervasive and explicit state or federal law
that those rights will inevitably be denied by the very act
of bringing the defendant to trial in the state court.
Id. (emphasis added) (citing cases); see South
Carolina v. Grace, 234 Fed.Appx. 103, 104 (4th Cir.
does not identify any law of general application from which
it can be clearly predicted that he would not be able to
enforce specified federal rights during his state
prosecution.Greenwood, 384 U.S. at 828.
Smalls's conclusory allegations are not sufficient to
make "an equally firm prediction that [he] would be
'denied or cannot enforce' ... ...