United States District Court, D. North Dakota
ORDER FOR REMAND
L. Hovland, Chief Judge.
the Court is the Defendant's “Notice of
Removal” filed on March 3, 2017, whereby the Defendant
seeks to remove his criminal prosecution from North Dakota
state court to federal court. See Docket No. 1. For
the reasons set forth below, the matter is summarily remanded
to state court as required by statute.
December 5, 2016, the Defendant was issued a citation for
violating North Dakota's criminal trespass statute,
N.D.C.C. § 12.1-22-03, a class B misdemeanor. The
citation was issued as a result of protest activities related
to the Dakota Access Pipeline near Cannonball, North Dakota.
An arraignment was scheduled for January 10, 2017. On March
3, 2017, the Defendant filed a notice of removal to federal
court wherein he seeks to have the state court criminal
proceedings against him removed to federal court.
See Docket No. 1. In his notice, the Defendant
provides three grounds for removal: 1) the arrest occurred on
sovereign land where he was an invited guest, 2) the arrest
violated the Treaty of Fort Laramie, and 3) the State of
North Dakota has violated his Sixth Amendment rights. The
Defendant does not provide any case law or statutory
authority for the removal in his notice.
removal of cases from state court to federal court is
governed by 28 U.S.C. §§ 1441-1455. The only
sections which permit the removal of criminal prosecutions
are Sections 1442 and 1443. Section 1455 outlines the
procedure for the removal of criminal prosecutions. Section
1455(b)(1) provides that the removal of a criminal
prosecution must be done within 30 days after arraignment or
before trial, whichever is earlier. Section 1455(b)(4)
requires the prompt examination by the district court of any
notice of removal, and summary remand if it clearly appears
from the notice that removal should not be permitted.
notice of removal filed in this case appears untimely. The
Defendant's arraignment was scheduled for January 10,
2017. He filed the notice of removal on March 3, 2017, well
outside the 30-day removal window provided by Section
1455(b)(1). However, it is not clear from the record that the
Defendant's arraignment actually took place as initially
scheduled. Nevertheless, it is not necessary to resolve
whether the notice is timely as the Court concludes the
notice fails as a matter of law.
U.S.C. § 1442 only applies to criminal prosecutions
under certain circumstances, where the defendant is the
United States, an agency or officer of the United States, an
officer of the United States courts, or any officer of either
House of Congress. The Defendant has not asserted he is an
agent or officer of the United States and therefore Section
1442 does not provide a basis for removal.
jurisdiction under 28 U.S.C. § 1443(1) is limited. In
order for a state criminal prosecution to be removed under 28
U.S.C. § 1443(1), the removal petition must satisfy a
two-prong test. Johnson v. Mississippi, 421 U.S.
213, 219 (1975). “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.'” Id. at 219
(quoting Georgia v. Rachel, 384 U.S. 780, 792
(1966)). “Second, it must appear ... that the removal
petitioner is ‘denied or cannot enforce' the
specified federal rights ‘in the courts of (the)
State.'” Id. (quoting Rachel, 384
U.S. at 803). Claims that a state prosecution will violate
rights secured under constitutional or statutory provisions
of general applicability, or under statutes that do not
protect against racial discrimination, do not allow a
defendant to remove a case from state court to federal court.
Johnson, 421 U.S. at 219.
second prong of the test “normally requires that the
‘denial be manifest in a formal expression of state
law, ' such as a state legislative or constitutional
provision, ‘rather than a denial first made manifest in
the trial of the case.'” Id. (quoting
Rachel, 384 U.S. at 799, 803). The second prong usually
requires the denial of federal rights be “manifest in a
formal expression of state law.” Id.
(quoting Rachel, 384 U.S. at 803).
not enough to allege or show that a defendant's federal
civil rights have been denied by corrupt state administrative
officials in advance of trial, that the charges are false, or
that the defendant is unable to obtain a fair trial in a
particular state court, because it is expected the state
trial court will protect the defendant's rights. City
of Greenwood v. Peacock, 384 U.S. 808, 827-28 (1966).
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, at 828.
case, the Defendant has not alleged that he has been
subjected to any racial discrimination or that he is being
prosecuted in violation of a specific statute barring racial
discrimination. He has not cited any provision in his notice
which is specific to racial equality rights and he has not
alleged racial discrimination. Merely asserting claims that
rights secured by provisions of general applicability have
been violated, such as the Sixth Amendment, do not suffice.