Procedure for removal of criminal prosecutions

28 U.S.C. § 1455

• Title: 28 — Judiciary and Judicial Procedure
• Chapter: 89 — DISTRICT COURTS; REMOVAL OF CASES FROM STATE COURTS

Text

(a) Notice of Removal.—A defendant or defendants desiring to remove any criminal prosecution from a State court shall file in the district court of the United States for the district and division within which such prosecution is pending a notice of removal signed pursuant to Rule 11 of the Federal Rules of Civil Procedure and containing a short and plain statement of the grounds for removal, together with a copy of all process, pleadings, and orders served upon such defendant or defendants in such action.
(b) Requirements.—(1) A notice of removal of a criminal prosecution shall be filed not later than 30 days after the arraignment in the State court, or at any time before trial, whichever is earlier, except that for good cause shown the United States district court may enter an order granting the defendant or defendants leave to file the notice at a later time.
(2) A notice of removal of a criminal prosecution shall include all grounds for such removal. A failure to state grounds that exist at the time of the filing of the notice shall constitute a waiver of such grounds, and a second notice may be filed only on grounds not existing at the time of the original notice. For good cause shown, the United States district court may grant relief from the limitations of this paragraph.
(3) The filing of a notice of removal of a criminal prosecution shall not prevent the State court in which such prosecution is pending from proceeding further, except that a judgment of conviction shall not be entered unless the prosecution is first remanded.
(4) The United States district court in which such notice 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.
(5) If the United States district court does not order the summary remand of such prosecution, it shall order an evidentiary hearing to be held promptly and, after such hearing, shall make such disposition of the prosecution as justice shall require. If the United States district court determines that removal shall be permitted, it shall so notify the State court in which prosecution is pending, which shall proceed no further.
(c) Writ of Habeas Corpus.—If the defendant or defendants are in actual custody on process issued by the State court, the district court shall issue its writ of habeas corpus, and the marshal shall thereupon take such defendant or defendants into the marshal's custody and deliver a copy of the writ to the clerk of such State court.

History

(Added Pub. L. 112–63, title I, §103(c), Dec. 7, 2011, 125 Stat. 761.)

Editorial Notes

Editorial Notes

References in Text
The Federal Rules of Civil Procedure, referred to in subsec. (a), are set out in the Appendix to this title.

Statutory Notes and Related Subsidiaries

Effective Date
Section effective upon the expiration of the 30-day period beginning on Dec. 7, 2011, and applicable to any action or prosecution commenced on or after such effective date, with provisions for treatment of cases removed to Federal court, see section 105 of Pub. L. 112–63, set out as an Effective Date of 2011 Amendment note under section 1332 of this title.

Editorial Notes

Codification
Chapter 90, consisting of sections 1471 to 1482, which was added by Pub. L. 95–598, title II, §241(a), Nov. 6, 1978, 92 Stat. 2668, and which related to district courts and bankruptcy courts, did not become effective pursuant to section 402(b) of Pub. L. 95–598, as amended, set out as an Effective Date note preceding section 101 of Title 11, Bankruptcy.

Statutory Notes and Related Subsidiaries

Transition to New Court System
Pub. L. 95–598, title IV, §409, Nov. 6, 1978, 92 Stat. 2687, as amended by Pub. L. 98–249, §1(d), Mar. 31, 1984, 98 Stat. 116; Pub. L. 98–271, §1(d), Apr. 30, 1984, 98 Stat. 163; Pub. L. 98–299, §1(d), May 25, 1984, 98 Stat. 214; Pub. L. 98–325, §1(d), June 20, 1984, 98 Stat. 268; Pub. L. 98–353, title I, §121(d), July 10, 1984, 98 Stat. 346, which provided for transfer to the new court system of cases, and matters and proceedings in cases, under the Bankruptcy Act [former Title 11] pending at the end of Sept. 30, 1983, in the courts of bankruptcy continued under section 404(a) of Pub. L. 95–598, with certain exceptions, and cases and proceedings arising under or related to cases under Title 11 pending at the end of July 9, 1984, and directed that civil actions pending on July 9, 1984, over which a bankruptcy court had jurisdiction on July 9, 1984, not abate, but continuation of such actions not finally determined before Apr. 1, 1985, be removed to a bankruptcy court under this chapter, and that all law books, publications, etc., furnished bankruptcy judges as of July 9, 1984, be transferred to the United States bankruptcy courts under the supervision of the Director of the Administrative Office of the United States Courts, was repealed by Pub. L. 98–353, title I, §122(a), July 10, 1984, 98 Stat. 343, 346, eff. July 10, 1984.

Historical and Revision Notes

1949 Act
This section inserts in the analysis of chapter 91 of title 28, U.S.C., item 1505, corresponding to new section 1505.

Editorial Notes

Amendments
2006—Pub. L. 109–284, §4(1), Sept. 27, 2006, 120 Stat. 1211, substituted "chapter 37 of title 40" for "Contract Work Hours and Safety Standards Act" in item 1499.
1992—Pub. L. 102–572, title IX, §902(a)(1), Oct. 29, 1992, 106 Stat. 4516, substituted "UNITED STATES COURT OF FEDERAL CLAIMS" for "UNITED STATES CLAIMS COURT" as chapter heading.
1984—Pub. L. 98–369, div. A, title VII, §714(g)(3), July 18, 1984, 98 Stat. 962, added item 1509.
1982—Pub. L. 97–248, title IV, §402(c)(18)(B), Sept. 3, 1982, 96 Stat. 669, added item 1508.
Pub. L. 97–164, title I, §133(e)(2)(B), (f), (h), (j)(2), Apr. 2, 1982, 96 Stat. 41, substituted "UNITED STATES CLAIMS COURT" for "COURT OF CLAIMS" in chapter heading, substituted "Liquidated damages withheld from contractors under Contract Work Hours and Safety Standards Act" for "Penalties imposed against contractors under eight hour law" in item 1499, and struck out items 1504 "Tort Claims" and 1506 "Transfer to cure defect of jurisdiction".
1976—Pub. L. 94–455, title XIII, §1306(b)(9)(B), Oct. 4, 1976, 90 Stat. 1720, added item 1507.
1960—Pub. L. 86–770, §2(b), Sept. 13, 1960, 74 Stat. 912, added item 1506.
Pub. L. 86–726, §4, Sept. 8, 1960, 74 Stat. 856, substituted "Patent and copyright cases" for "Patent cases" in item 1498.
1954—Act Sept. 3, 1954, ch. 1263, §43, 68 Stat. 1241, inserted "; actions involving Tennessee Valley Authority" in item 1491 and struck out item 1493 "Departmental reference cases".
1949—Act May 24, 1949, ch. 139, §86, 63 Stat. 102, added item 1505.