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.