New Hampshire, State of v. Strahan

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
State of New Hampshire
v. Case No. 17-cr-183-JL
Richard Maximus Strahan
REPORT AND RECOMMENDATION
Before the court are documents (Doc. No. 1) filed by
Richard Maximus Strahan, removing a pending misdemeanor
prosecution from the New Hampshire Circuit Court to this court.
The matter is here for review under 28 U.S.C. § 1455 and LR
4.3(d)(3).
Standard
State criminal defendants may remove state criminal
prosecutions to federal court in rare circumstances. See 28
U.S.C. §§ 1442 (criminal prosecutions against federal agencies
and officers), 1442(a) (criminal prosecution against members of
the armed services), 1443 (denial of racial equality in state
criminal prosecutions). A federal statute, 28 U.S.C. § 1455(b),
sets out the procedures which apply when state prosecutions are
removed.
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Section 1455(b)(4) authorizes the court to remand summarily
those state criminal prosecutions that do not appear on the face
of the removal documents to be properly removed to this court:
The United States district court in which such notice
[of removal] is filed shall examine the notice
promptly. If it clearly appears on the face of the
notice and any exhibits annexed thereto that removal
should not be permitted, the court shall make an order
for summary remand.
Id. § 1455(b)(4). See also LR 4.3(d)(3) (initial filings of pro
se removal defendants, not proceeding in forma pauperis, are
forwarded to magistrate judge for preliminary review to
determine if court has subject matter jurisdiction). Given
Strahan’s pro se status, this court construes his notice of
removal liberally. See Erickson v. Pardus, 551 U.S. 89, 94
(2007) (per curiam).
Background
Strahan was arraigned in May 2017 in a state criminal case,
State v. Strahan, No. 432-2017-CR-1148 (N.H. Cir. Ct., 7th Cir.,
Dist. Div.-Dover (“Dover District Court”)), on charges arising
from an incident in Lee, New Hampshire: specifically, a charged
misdemeanor offense of leaving the scene of an accident
involving damage to another car, and a violation of the state
law prohibiting the use of a hand-held cellphone while driving.
In his notice of removal, Strahan alleges discriminatory police
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enforcement and discriminatory prosecution as to the laws he is
charged with violating.
Specifically, Strahan asserts that he is being prosecuted
out of a “hateful discriminatory animus . . . for his bringing
lawsuits against the police, for being indigent, and owing to
his race.” Doc. No. 1, at 2. His “race,” which he calls,
“White Negro,” includes “indigent peoples not born nor raised in
. . . New Hampshire.” Id. Strahan asserts that the presiding
judge in the state prosecution has ruled that the court will not
hear Strahan’s civil rights claims against the police and
prosecutor in the context of the state criminal trial.
Discussion
I. Untimely Filing
“A notice of removal of a criminal prosecution must be
filed within thirty days of arraignment or before trial,
whichever is earlier, except that the federal court may extend
that deadline for good cause.” 28 U.S.C. § 1455(b)(1).
Strahan’s filing of removal documents occurred in December 2017,
approximately six months after the expiration of the 30-day time
limit set by § 1455(b)(1). Strahan has asserted that the
belated removal should be permitted because he is representing
himself in both state and federal court and lacks familiarity
with removal procedures.
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It is doubtful that Strahan’s pro se status provides good
cause for missing the thirty-day removal deadline. See Iowa v.
Johnson, 976 F. Supp. 812, 815 (N.D. Iowa 1997) (“pro se
defendants are not so easily excused from other timeliness
requirements”). This court need not decide whether Strahan’s
untimely notice of removal alone provides grounds for a remand,
as the court lacks jurisdiction over the removed proceeding.
II. Removal Jurisdiction
A. Section 1443(1)
A removal petitioner must set forth the grounds for the
federal court’s removal jurisdiction; additional grounds not
pleaded may be waived unless good cause for the failure to plead
is shown. See 28 U.S.C. § 1455(b)(2). Strahan relies on 28
U.S.C. § 1443 as providing authority for the removal of his
criminal case to this court. That statute provides, in
pertinent part, that criminal prosecutions implicating federal
racial equality rights may be removed pretrial if instituted:
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 . . . .
28 U.S.C. § 1443(1). To remove a case under § 1443(1), the
criminal defendant must demonstrate: (1) “that the right
allegedly denied . . . arises under a federal law providing for
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specific civil rights stated in terms of racial equality” and
(2) that the “specified federal rights” are denied or cannot be
enforced “in the courts of [the] State.” Johnson v.
Mississippi, 421 U.S. 213, 219 (1975) (internal quotation marks
omitted) (quoting Georgia v. Rachel, 384 U.S. 780, 792, 803
(1966)). Neither part of that test is satisfied here, as
explained below.
1. Rights Arising under Federal Racial Equality Laws
With respect to the first part of the test for § 1443(1)
removability, “[t]he phrase ‘any law providing for . . . equal
civil rights’ . . . does not include rights of ‘general
application available to all persons or citizens.’” Alabama v.
Conley, 245 F.3d 1292, 1295 (11th Cir. 2001) (quoting Rachel,
384 U.S. at 792).
[Section] 1443 applies only to rights that are granted in
terms of equality and not to the whole gamut of
constitutional rights . . . . When the removal statute
speaks of any law providing for equal rights, it refers to
those laws that are couched in terms of equality, such as
the historic and the recent equal rights statutes, as
distinguished from laws, of which the due process clause
and 42 U.S.C. § 1983 are sufficient examples, that confer
equal rights in the sense, vital to our way of life, of
bestowing them upon all.
Rachel, 384 U.S. at 792 (1966).
Strahan’s references to violations of his rights arising
under the First Amendment, the Equal Protection Clause, the Due
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Process Clause, and the “Civil Rights Act” (i.e., 42 U.S.C.
§ 1983), do not support his claim for removal of the criminal
case under § 1443(1). See Conley, 245 F.3d at 1295–96 (“broad
assertions” of equal protection violations, and violations
actionable under 42 U.S.C. § 1983, “are insufficient to support
a valid claim for removal under § 1443(1)”); see also Rachel,
384 U.S. at 792 (alleged violation of due process does not
support valid claim for removal under § 1443(1)); Florida v.
Weber, 665 F. App’x 848, 850 (11th Cir. 2016). Cf. 28 U.S.C.
§ 1455(b)(2) (grounds for removal not pleaded are generally
waived). Strahan’s claims of race discrimination, which he
asserts he cannot enforce in the state criminal trial, are based
on allegations of differential treatment due to his poverty and
place of upbringing. People, grouped together by their lack of
wealth and out-of-state background, do not comprise a racial
group, as that term is understood in federal law. See Harris v.
McRae, 448 U.S. 297, 323 (1980) (“poverty, standing alone” is
not a suspect class); Ekweani v. Maricopa Cty. Sheriff’s Office,
No. CV-08-1551-PHX-FJM, 2009 WL 976520, at *3, 2009 U.S. Dist.
LEXIS 30641, at *6 (D. Ariz. Apr. 9, 2009) (out-of-state
residents “are not a protected class” under 42 U.S.C. § 1985).
Accordingly, Strahan fails to show that his case satisfies the
first part of the test for removability under section 1443(1).
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2. Rights Denied or Unenforceable in State Courts
The second part of the test for removability under
§ 1443(1) provides a separate ground for remanding the criminal
case.
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 v. Peacock, 384 U.S. 808, 827-28 (1966).
Rachel is a case where the “very act of bringing the defendant
to trial” violated the defendant’s rights, Peacock, 384 U.S. at
828. The federal racial equality statute at issue in Rachel
immunized the defendants from attempts to punish them for
disobeying an order to leave public accommodations based on
their race, making the trespass prosecution itself a violation
of the federal right. See Rachel, 384 U.S. at 805. Here, no
comparable federal law immunizes Strahan from prosecutions for
leaving the scene of an accident or using a cell phone while
driving.
Relying on a ruling of the presiding Dover District Court
judge, Doc. No. 1, at 2, which Strahan asserts indicates that
the trial court will not hear Strahan’s civil rights claims in
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his criminal case, Strahan seeks to show that he cannot enforce
his federal rights in state court. As that lower state court
ruling regarding the scope of matters at issue in the criminal
case would not appear to be binding on appeal in the New
Hampshire Supreme Court, this court cannot predict with the
requisite degree of certainty that Strahan’s federal racial
equality rights are unenforceable in the state courts. For
these reasons, this court lacks removal jurisdiction over the
prosecution under 28 U.S.C. § 1443(1).
B. Remaining Sources of Removal Jurisdiction
Strahan’s state prosecution does not otherwise fit within
this court’s removal jurisdiction for criminal cases. Strahan
is neither a federal officer, nor a member of the armed forces,
nor a state officer or agent who has refused to enforce a law
that violates federal racial equality laws. Cf. 28 U.S.C.
§§ 1442, 1442(a), 1443(2); Peacock, 384 U.S. at 824 & n.22
(discussing limited scope of 28 U.S.C. § 1443(2)). Accordingly,
the district judge should remand this case.
Conclusion
For the foregoing reasons, the district judge should remand
this criminal prosecution to the Dover District Court. Any
objections to this Report and Recommendation must be filed
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within fourteen days of receipt of this notice. See Fed. R.
Civ. P. 72(b)(2). The fourteen-day period may be extended upon
motion. Failure to file specific written objections to the
Report and Recommendation within the specified time waives the
right to appeal the district court’s order. See Santos-Santos
v. Torres-Centeno, 842 F.3d 163, 168 (1st Cir. 2016).
__________________________
Andrea K. Johnstone
United States Magistrate Judge
December 19, 2017
cc: Richard Maximus Strahan, pro se
Corey M. Belobrow, Esq.
J. Joseph McKittrick, Esq.
Eric Alexander Maher, Esq.
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