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State v. Kearns

United States District Court, Fifth Circuit

January 23, 2014

STATE OF TEXAS, Plaintiff,
v.
MICHAEL JOSEPH KEARNS, Defendant.

ORDER: (1) DISMISSING CASE; (2) REMANDING TO STATE COURT

DAVID ALAN EZRA, Senior District Judge.

Before the Court is a "Declaratory Judgment and Appropriate Writ of Mandamus" filed by Michael Joseph Kearns ("Kearns"), which this Court construes as a Notice of Removal pursuant to 28 U.S.C. § 1443. For the reasons that follow, the Court DENIES Kearns's Notice and REMANDS the case to state court.

BACKGROUND

Public records available from the Williamson County Court at Law # 1 show that Kearns is charged in Case No. 13-03809-1 with making or using a record of a fraudulent court (i.e., creating and using fraudulent documents and attributing those documents to a court that does not exist) in violation of Texas Penal Code § 37.13.

On January 13, 2014, Kearns filed a "Declaratory Judgment and Appropriate Writ of Mandamus." (Dkt. # 2.) Kearns requested that the district court "issue a writ of prohibition to the State of Texas, Count of Williamson, to the officers, agents, and employees thereof, in regards to Williamson County Court at Law # 1, Case NO. 13-03809-1, to cease and desist all activities of any nature whatsoever" until further order from the district court. (Id. at 2.)

DISCUSSION

As a preliminary matter, the Court observes that pleadings of a pro se litigant are held to a less stringent standard than those drafted by an attorney, and therefore must be liberally construed. Haines v. Kerner , 404 U.S. 519, 520 (1972). As such, the Court construes Kearns' "Declaratory Judgment and Appropriate Writ of Mandamus" as a Notice of Removal.

When a defendant removes a criminal prosecution from state court, it is incumbent upon the United States District Court "in which such notice is filed [to] examine the notice promptly." 28 U.S.C. § 1455(b)(4). "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.

The federal removal statute governing the removal of criminal prosecutions from state court provides two avenues for removal:

Any of the following civil actions or criminal prosecutions, commenced in a State court may be removed by the defendant to the district court of the United States for the district and division embracing the place wherein it is pending:
(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.

28 U.S.C. § 1443.

A notice of removal under 28 U.S.C. § 1443(1) must satisfy a two-pronged test. See Johnson v. Mississippi , 421 U.S. 213, 219 (1975) (citing Georgia v. Rachel , 384 U.S. 780 (1966); City of Greenwood v. Peacock , 384 U.S. 808 (1966)). 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." Johnson , 421 U.S. at 219 (emphasis added) (internal quotation marks and citations omitted). 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. Id . Similarly, assertions that a removing defendant will be denied due process of law because the ...


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