Order For Summary Remand
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Chief Judge Lewis T. Babcock Criminal Action No. 03-CR-400-B (Removal from County Court, Denver City and County, Colorado The City and County of Denver v. Richard Stanley, Case No. 01-GS-606306) THE CITY AND COUNTY OF DENVER, Plaintiff v. RICHARD STANLEY Defendant ORDER FOR SUMMARY REMAND Defendant Richard Stanley ahs filed with the Court a pro se document titled "Verified Emergency Motion to Enjoin Denver County Court From Further Proceedings Under Rile 65 F.R. Civ. P." In the body of the Motion, Mr. Stanley states that he is removing a case from Colorado state court, because his rights are being violated pursuant to 28 U.S. C. 1443 (1) and (2). In particular, Mr. Stanley claims that he is scheduled to appear in Denver County Court on August 14 to begin a sentence, which includes wearing a bracelet for in-home detention and possible jail time. Defendant also claims that the Denver County Court has demonstrated hostility towards him, that he has exhausted all state remedies, and that he will suffer irreparable harm in that his liberty and property will be taken from him, even though there is a serious controversy over the constitutionality of the law under which he was convicted. Mr. Stanley also claims that this Court has jurisdiction under Rule 65(b) of the Federal Rule of Civil Procedure to enjoin the Denver County Court from further proceedings without prior notice to the adverse party. Section 1443 provides: Any of the following ……criminal prosecutions, commenced in a State court may Be removed by the defendant to the district court of the Untied 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 theequal civil rights of citizens of the United States, or all persons within the jurisdiction thereof; (2) For any act under color of authority derived from ay law providing for equal rights, or for refusing to do any act on the ground that it would be inconsistent with such law. Under 1443 (1) removal petitions must meet a two-part test. Johnson v. Mississippi, 421 U.S. 213 (1975); People of State of Colorado v. Lopez, 919 F. 2d 131, 132 (10th Cir. 1990). "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.'" Johnson, 421 U.S. at 219 (quoting Georgia v. Rachel, 384 U.S. 780, 792 (1966)). Second, to remove the prosecution a defendant must not be able to enforce the specified federal right in a state court. 28 U.S.C. 1443. "Second, it must appear…that the removal petitioner is 'denied or cannot enforce' the specified federal rights 'in the courts of [the] State.'" Johnson, 421 U.S. at 219 (quoting 28 U.S.C. 1443(1)). The Supreme Court explained this requirement as follows: 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. City of Greenwood, Miss., v. Peacock, 384 U.S. 808, 828 (1966). This requirement must be supported by specific factual allegations. See generally 14A Charles Alan Wright et al.,Federal Practice & Procedure 3728 (2d ed. 1985). Mr. Stanley has failed to provide the court with specific factual allegations regarding his inability to enforce his constitutional rights in the state court criminal prosecution. To the contrary, he asserts that as late as August 11, 2003, he filed a motion, in state court, to stay his sentencing pending the resolution of his claim that the law under which he was convicted is void. Nonetheless, mr. Stanley does not allege that he has been denied any rights based on his race. Therefore, removal pursuant to 1443(1) is not appropriate. Removal pursuant to 28 U.S.C. 1443(2) also is not appropriate in this action. Section 1443(2) "confers a privilege of removal only upon federal officers or agents and those authorized to act with or for them in affirmatively executing duties under any federal law providing for equal civil rights." City of Greenwood, 384 U.S. at 824. Mr. Stanley does nto allege that he is either a federal officer or a person assisting a federal officer in the performance of official duties providing for equal civil rights. Therefore, removal of the state prosecution in the instant action is not permitted under 1443. Furthermore, if Mr. Stanley has been both convicted and sentenced and is simply appearing on August 14, 2003, to begin his sentence, a petition in this Court seeking criminal removal is no longer appropriate as the prosecution is no longer pending. Accordingly, it is ORDERED that Case No. 01-GS-606306 is remanded summarily to the County Corut of Denver City and County, Colorado. It is FURTHERED ORDERED that the Clerk of this Court shall mail a certified copy of this Order to the Clerk of the County court of Denver City and County, Colorado. It is FURTHERED ORDERED that Mr. Stanley's Motion to enjoin the Denver County Court pursuant to Fed. R. Civ. P. 65(b) is denied as moot. DATED at Denver, Colorado this 14th Day of August, 2003 BY THE COURT LEWIS T. BABCOCK, Chief Judge United States District Court IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO CERTIFICATE OF SERVICE Civil Case No. 03-CR-400-B The undersigned certifies that a copy of the foregoing order was served on August 14, 2003 by delivery to Richard Stanley 6280 E. 39th Avenue Denver CO 80207 by depositing the same in the United States Mail, postage prepaid.
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