A little-known law allows for criminal defendants in state court proceedings to remove their cases to federal court. The law, 28 U.S. Code § 1455, sets out the procedures for removing a state court case to federal court.
The defendant bears the responsibility for moving the federal court to accept their case. A request must be made within 30 days of the state court arraignment. A notice of removal must follow Rule 11 of the Federal Rules of Criminal Procedure, and contain a plain statement of the grounds for removal, along with a complete copy of the documents from the state court case. Although filing fees are generally required to file a civil complaint, a filing fee is not required to commence a removal action under 28 U.S. Code § 1443.
Grounds for removal
For example, 28 U.S. Code § 1443 allows removal of a state criminal case to federal court for the following situations:
(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.
Under 28 U.S. Code § 1442a, a criminal prosecution against a member of the armed forces regarding an act done “under color of his office or status” may remove the case to federal court. In that circumstance, the removal may be done at any time prior to trial in the state court action.
In assessing a petitioner’s request under 28 U.S.C. § 1443(2), the First Circuit Court of Appeals endorsed a Massachusetts District Court Judge’s remanding of petition for removal. “Despite the somewhat broad language of the statute, the Supreme Court has held that it ‘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.” Commonwealth of Massachusetts v. Martin, No. CV 16-1 1028-FDS, 2016 WL 3461189, at *2 (D. Mass. June 21, 2016)(quoting çjy. of Greenwood v. Peacock, 384 U.S. 808, 824 (1966)). Ardaneh does not allege that he is a federal officer or agent, and therefore does not fall within the statute.]
In a Southern Alabama District Court decision, the court noted that “[t]he Supreme Court has held that a notice of removal under 28 U.S.C. § 1443(1) must satisfy a two-pronged test…First, it must appear that the right allegedly denied the removing defendant arises under a federal law ‘providing for specific civil rights stated in terms of racial equality.’ Claims that prosecution and conviction will violate rights under constitutional or statutory provisions of general applicability or under statutes not protecting against racial discrimination will not suffice. Similarly, assertions that a removing defendant will be denied due process of law because the criminal law under which he is being prosecuted is allegedly vague or that the prosecution is assertedly a sham, corrupt, or without evidentiary basis does not, standing alone, satisfy the requirements of Section 1443(1). Second, it must appear, in accordance with the provisions of Section 1443(1), that the removing defendant is ‘denied or cannot enforce’ the specified federal rights ‘in the courts of (the) State.’ This provision 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.’”
If you are seeking to remove your criminal case from state court to federal court, feel free to call us 781-797-0555 for a free telephone consultation.