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States v. Bucklew

United States District Court, N.D. Texas, Dallas Division

May 1, 2019

STATE OF TEXAS, Plaintiff,



         Defendant Sarah Marie Bucklew removed to this Court her ongoing state misdemeanor criminal prosecution pending in Dallas County. See Dkt. No. 1; see also State v. Bucklew, No. M-1804091-D (Cnty. Ct. of Crim. App. No. 1, Dallas Cnty., Tex.). Her action has been referred to the undersigned United States magistrate judge for screening under 28 U.S.C. § 636(b) and a standing order of reference from United States District Judge Jane J. Boyle. The undersigned enters these findings of fact, conclusions of law, and recommendation that the Court should sua sponte remand this action to the County Court of Criminal Appeals No. 1 of Dallas County, Texas.

         Legal Standards and Analysis

         The federal courts' jurisdiction is limited, and federal courts generally may only hear a case if it involves a question of federal law or where diversity of citizenship exists between the parties. See 28 U.S.C. §§ 1331, 1332; see also Borden v. Allstate Ins. Co., 589 F.3d 168, 172 (5th Cir. 2009) (federal question jurisdiction under Section 1331 “exists when ‘a well-pleaded complaint establishes either that federal law creates the cause of action or that the plaintiff's right to relief necessarily depends on resolution of a substantial question of federal law'” (quoting Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 463 U.S. 1, 27-28 (1983))); cf. Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 583-84 (1999) (federal courts have an independent duty to examine their own subject matter jurisdiction).

         28 U.S.C. § 1455, however, provides for the removal of criminal prosecutions. “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.'” Texas v. Kearns, No. 5:14-cv-27-DAE, 2014 WL 258786, at *1 (W.D. Tex. Jan. 23, 2014) (quoting 28 U.S.C. § 1455(b)(4)). And, “[i]f 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.” 28 U.S.C. § 1455(b)(4); cf. Pennsylvania v. Brown-Bey, 637 Fed.Appx. 686 (3d Cir. 2016) (per curiam) (“summarily affirm[ing] the order of the District Court summarily remanding [defendant's] criminal case to state court”).

         As the United States Court of Appeals for the Fifth Circuit has now explained, Section 1455

does not provide criminal defendants with a separate right to remove their cases from state court. Rather, as the provision's heading and plain language indicate, § 1455 merely provides procedures that must be followed in order to remove a criminal case from state court when a defendant has the right to do so under another provision, such as 28 U.S.C. § 1443.

Kruebbe v. Beevers, 692 Fed.Appx. 173, 176 (5th Cir. 2017); accord SolamunBey v. City of Mesquite, No. 3:17-cv-1750-G-BN, 2017 WL 3173019, at *1 (N.D. Tex. July 4, 2017) (collecting cases), rec. accepted, 2017 WL 3149368 (N.D. Tex. July 25, 2017); see also Mnuk v. Texas, No. A-14-cv-1128-SS, 2015 WL 1003863, at *2 (W.D. Tex. Mar. 5, 2015) (“Only a very small class of criminal cases are removable to federal court. 28 U.S.C. § 1442 (criminal actions against federal law enforcement officers or officials for acts taken in their official duties); 28 U.S.C. § 1442a (prosecutions of members of the armed forces); 28 U.S.C. § 1443 (prosecutions against officials enforcing or persons protected by civil rights statutes).”), rec. adopted, 2015 WL 4395376 (W.D. Tex. July 16, 2015).

         Turning to Section 1443, the only substantive provision of the federal removal statute that could be applicable here, this provision “is construed narrowly, ” City of Houston v. Club Fetish, Civ. A. No. H-13-0944, 2013 WL 1767777, at *3 (S.D. Tex. Apr. 24, 2013) (citing Smith v. Winter, 717 F.2d 191, 194 (5th Cir. 1983)), and in pertinent part provides that

         [a]ny 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[.]

28 U.S.C. § 1443(1).

         As another judge of this Court has explained,

[i]n Texas v. Gulf Water Benefaction Co., 679 F.2d 85 (5th Cir. 1982), the Fifth Circuit articulated a two-prong test to determine whether ...

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