USA v. Dan Belc

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-12558
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DAN BELC,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Northern District of Florida
D.C. Docket No. 5:22-cr-00008-MW-MJF-1
____________________
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2 Opinion of the Court 22-12558
Before J ORDAN , BRANCH, and G RANT, Circuit Judges.
PER CURIAM:
Dan Belc, proceeding pro se, appeals the district court’s
order remanding his state court prosecution. The government
responds by moving for summary affirmance, arguing that the
district court correctly found that Belc’s notice of removal was
untimely and without merit under any removal statute. Belc then
filed several motions to strike the government’s motion for
summary affirmance and its responses to his motions as untimely
and for an invalid certificate of interested persons. We grant the
government’s motion for summary affirmance and deny Belc’s
motions to strike.1
I.
We review de novo whether the district court had subject
matter jurisdiction after removal. Castleberry v. Goldome Credit
Corp., 408 F.3d 773, 780–81 (11th Cir. 2005). Ordinarily, we lack
jurisdiction to review an order remanding a case to state court, but
when a case is removed pursuant to 28 U.S.C. §§ 1442 or 1443, we
may review the remand order. 28 U.S.C. § 1447(d). Section 1443
permits a defendant in a criminal state court action to remove the
1 Belc also requests a writ of mandamus in his appellant brief, though he did
not file an original petition in this appeal. In an earlier proceeding, we already
denied his mandamus petition on the requested grounds. See In re: Dan Belc,
No. 22-12639 (11th Cir. Nov. 1, 2022). To the extent Belc attempts to renew
his mandamus request here, we deny.
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22-12558 Opinion of the Court 3
action to federal court if it is against a person who is denied or
cannot enforce in the state courts “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.” Id. § 1443(1).
We construe pro se pleadings liberally. Campbell v. Air
Jamaica Ltd., 760 F.3d 1165, 1168 (11th Cir. 2014). But “this leniency
does not give a court license to serve as de facto counsel for a party,
or to rewrite an otherwise deficient pleading in order to sustain an
action.” Id. at 1168–69 (quotation omitted).
II.
Summary disposition is appropriate where “the position of
one of the parties is clearly right as a matter of law so that there can
be no substantial question as to the outcome of the case, or where,
as is more frequently the case, the appeal is frivolous.” Groendyke
Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969).2 Summary
affirmance is warranted here, for two reasons.
First, Belc’s notice of removal was not timely. A notice of
removal must be filed no later than thirty days after the
arraignment in state court, or at any time before trial, whichever is
earlier. 28 U.S.C. § 1455(b)(1). If a defendant shows good cause, a
district court may enter an order granting a defendant leave to file
a notice of removal later. Id. Belc filed his notice of removal over
2 Decisions by the former Fifth Circuit handed down before October 1, 1981
are binding on this Court. Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th
Cir. 1981) (en banc).
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4 Opinion of the Court 22-12558
three years after his arraignment, well outside the thirty-day limit.
And he does not argue that he had good cause for this delay.
Second, even if we could excuse Belc’s untimely notice of
removal, he is not entitled to removal on the merits. To properly
remove a case under § 1443(1), a petitioner must satisfy a
two-prong test: he must show (1) that removal was based on a
federal law “providing for specific civil rights stated in terms of
racial equality,” and (2) that “he has been denied or cannot enforce
that right in the state courts.” Alabama v. Conley, 245 F.3d 1292,
1295 (11th Cir. 2001) (quotation omitted).
As to the first prong, the “phrase any law providing for equal
civil rights refers to laws providing for specific civil rights stated in
terms of racial equality, and does not include rights of general
application available to all persons or citizens.” Id. (alteration
adopted and quotation omitted). A defendant’s “right to a fair trial
and equal protection of the laws and his rights under 42 U.S.C.
§ 1983 do not arise from legislation providing for specific civil rights
in terms of racial equality.” Id. (alteration adopted and quotation
omitted).
For the second prong, the petitioner must show that he has
been denied or cannot enforce that right in the state courts. Id.
This must generally be “manifest in a formal expression of state
law.” Id. at 1296 (quotation omitted). Charges “that the defendant
is unable to obtain a fair trial in a particular state court are
insufficient to support removal under § 1443(1).” Id. at 1298–99
(quotation omitted).
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22-12558 Opinion of the Court 5
Belc’s allegations of racial and national origin discrimination
and violations of his constitutional rights are not based on a federal
law “providing for specific civil rights stated in terms of racial
equality.” Id. at 1295 (quotation omitted). Nor has Belc asserted
that a state law prevents a state court from enforcing his rights. See
id. His attempt to remove thus fails on the merits.
III.
Belc also moved to strike the government’s motion for
summary affirmance and its responses to his motions on the
grounds that they were untimely and included a defective
certificate of interested persons. We deny these motions. The
government’s motion was timely because it was filed within thirty
days of Belc’s brief. See Fed. R. App. P. 31(a)(1); 11th Cir. R. 31-1(c).
Each subsequent response was also timely, having been filed
within ten days of Belc’s respective motion to strike. See Fed. R.
App. P. 27(a)(3)(A). And the government’s certificate of interested
persons was accurate.
* * *
Because the government’s position is clearly correct as a
matter of law, summary affirmance is appropriate. We GRANT
the government’s motion for summary affirmance and DENY
Belc’s motions to strike.
AFFIRMED.
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