Abdel-Malak v. People of the State of California

• Court: District Court, N.D. California
• Decided: April 19, 2022
• Docket: 3:22-cv-01324
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 ABANOOB ABDEL-MALAK, Bk. No. Case No. 22-cv-01324-CRB (PR) 2111341403, 8 ORDER OF DISMISSAL AND Petitioner, REMAND 9 v. (ECF Nos. 8 & 9) 10 PEOPLE OF THE STATE OF 11 CALIFORNIA,

12 Respondent.

13 I. 14 Petitioner, a pretrial detainee at the San Bernardino County Jail, has filed a pro se request 15 for removal and “criminal notice of removal” of a petition for a writ of mandate/prohibition/ 16 habeas corpus he filed in the Supreme Court of California, Case No. S273046, challenging a 17 pending state criminal prosecution commenced against him in May 2021 in San Bernardino 18 County Superior Court, Case No. FWV21001748. Petitioner invokes this court’s removal 19 jurisdiction under 28 U.S.C. §§ 1443 and 1455 but after reviewing the request and notice of 20 removal and supporting documents and pertinent law, the court concludes that it lacks subject- 21 matter jurisdiction over the removal petitioner seeks. 22 II. 23 A criminal defendant may remove a pending state court prosecution to federal court if he 24 can demonstrate that he will be unable to vindicate his federal rights in state court. The 25 controlling removal statute, 28 U.S.C. § 1443, provides: 26 Any of the following civil actions or criminal prosecutions, commenced in a State court may be removed by the defendant to the 27 district court of the United States for the district and division (1) Against any person who is denied or cannot enforce in the courts 1 of such State a right under any law providing for the equal civil rights of citizens of the United States or within the jurisdiction thereof; 2 (2) For any act under color of authority derived from any law 3 providing for equal rights, or for refusing to do any act on the ground that it would be inconsistent with such law. 4 28 U.S.C. § 1443. 5 A notice of removal of a criminal prosecution pursuant to § 1443 must comply with several 6 procedural requirements. Specifically, a petitioner is required to file a verified notice of removal 7 with the federal district court in which the criminal prosecution is pending and attach copies of all 8 pleadings in the case to the notice. 28 U.S.C. § 1455(a). Absent good cause, a removal petitioner 9 must file the notice of removal within 30 days after his arraignment or at any time before trial, 10 whichever is earlier. Id. § 1455(b)(1). Further, the failure to state grounds which exists at the time 11 of the filing of the notice of removal shall constitute a waiver of such grounds and, absent a 12 showing of good cause, a second notice may be filed only on grounds not existing at the time of 13 the original notice. Id. § 1455(b)(2). 14 To remove a case under § 1443, a petitioner also must satisfy a two-pronged substantive 15 test. First, “it must appear that the right allegedly denied the removal petitioner arises under a 16 federal law ‘providing for specific civil rights stated in terms of racial equality.’” Johnson v. 17 Mississippi, 421 U.S. 213, 219 (1975) (quoting Georgia v. Rachel, 384 U.S. 780, 792 (1966)). 18 Second, it must appear that the removal petitioner cannot enforce the specified federal right in the 19 state courts because a state law or constitutional provision denies the petitioner an opportunity to 20 raise the federal right in state court. See Johnson, 421 U.S. at 219; see also California v. 21 Sandoval, 434 F.2d 635, 636 (9th Cir. 1970) (allegation must be supported by reference to state 22 statute or constitutional provision that purports to command state courts to ignore federal rights at 23 issue). 24 III. 25 Petitioner does not seek to remove to this court the state criminal prosecution pending 26 against him in San Bernardino County Superior Court because §§ 1443 and 1455 make clear that 27 such removal must be to the United States District Court for the Central District of California, 1 Eastern Division (the federal district court for the district and division within which the San 2 Bernardino County Superior Court prosecution is pending, 28 U.S.C. § 84(c)(1)). See 28 U.S.C. 3 §§ 1443, 1455(a). Petitioner attempted to do this in October 2021 but the United States District 4 Court for the Central District of California, Eastern Division (Holcomb, J.) summarily remanded 5 the action to San Bernardino County Superior Court for failure to satisfy the procedural and 6 substantive requirements for removing a state criminal prosecution to federal court. See United 7 States v. Hate Crime Victim Jane/John Doe, No. 21-cv-00213-JWH (C.D. Cal. Nov. 1, 2021) 8 (order remanding action to San Bernardino County Superior Court). 9 Petitioner instead seeks to remove to this court pursuant to §§ 1443 and 1455 his 10 subsequent petition to the Supreme Court of California asking the state high court to stay/dismiss 11 the pending state criminal proceedings against him in San Bernardino County Superior Court. 12 Although the Supreme Court of California sits within the venue of this court, this court lacks 13 jurisdiction to entertain the removal petitioner seeks. As noted above, a criminal defendant may 14 remove a pending state court prosecution to the federal district court within which the criminal 15 prosecution is pending if he can show that he will be unable to vindicate certain federal rights in 16 state court. But this does not mean that a criminal defendant may remove to federal court any 17 appeal or petition for collateral relief that he may file in a state appellate court in connection with 18 an underlying state criminal prosecution. Put simply, neither §§ 1443 nor 1455 confer on this 19 court jurisdiction to take over the petition for a writ of mandate/prohibition/habeas corpus 20 petitioner filed in the Supreme Court of California. See also Younger v. Harris, 401 U.S. 37, 43- 21 54 (1971) (federal courts should not interfere with ongoing state criminal proceedings absent 22 extraordinary circumstances). 23 Nor has petitioner satisfied the two-pronged substantive test for removal under §§ 1443 24 and 1455. His dissatisfaction with the Supreme Court of California’s handling of his petition for a 25 writ of mandate/prohibition/habeas corpus thus far is a far cry from asserting a right arising under 26 a federal law providing for specific civil rights stated in terms of racial equality and showing that 27 he cannot enforce the specified federal right in the state courts because a state law or constitutional ] at 219; see also Sandoval, 434 F.2d at 636 (civil nghts arising under Civil Rights Act of 1964 “are 2 || not within the coverage of section 1443”). 3 IV. 4 For the foregoing reasons, the request for removal and notice of removal of Supreme Court 5 of California Case Number $273046 are DISMISSED and REMANDED for lack of subject- 6 || matter jurisdiction and petitioner’s motions for corresponding relief (ECF Nos. 8 & 9) are 7 || DISMISSED as moot.! 8 IT ISSO ORDERED. 9 || Dated: April 19, 2022 10 za BK YY CHARLES R. BREYER United States District Judge 12

2B

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Z 18 19 20 21 22 23 24 25 26 27 ' Petitioner’s action is also dismissed for failure to pay the requisite filing fee or file an 28 application for leave to proceed in forma pauperis (IFP). See ECF No. 2 (Mar. 2, 2022 notice of deficiency and providing petitioner 28 days to pay filing fee or file IFP application).