United States District Court, N.D. Indiana, Fort Wayne Division
OPINION AND ORDER
A. BRADY JUDGE
Witt Bey, a prisoner without a lawyer in this court, sent the
clerk a document captioned, “Legal Notice of
Removal” attempting to remove the State criminal case,
State v. Witt, 34D04-1904-F5-1170 (Howard Superior
Court filed April 12, 2019). Pursuant to 28 U.S.C. §
1455(b)(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.” Here,
removal should not be permitted. This case will be summarily
remanded for several reasons.
Howard County is in the geographical boundaries of the United
States District Court for the Southern District of Indiana. A
State criminal case may only be removed to “the
district and division embracing the place wherein it is
pending . . . .” 28 U.S.C. § 1442(a) and 28 U.S.C.
§ 1443. See also 28 U.S.C. § 1442a.
the notice of removal does not include a copy of any process,
pleadings, or orders served in the State case. However, a
notice of removal must include “a copy of all process,
pleadings, and orders served upon such defendant or
defendants in such action.” 28 U.S.C. § 1455(a).
the notice of removal is untimely. The notice must be filed
“not later than 30 days after the arraignment in the
State court, or at any time before trial, whichever is
earlier.” 28 U.S.C. § 1455(b)(1). Tanisha Witt Bey
was arraigned on May 9, 2019.
The notice of removal was not signed until more than three
months later, on August 19, 2019. (ECF 1 at 11.) For good
cause that deadline can be extended. 28 U.S.C. §
1455(b)(1). Here however, the notice of removal provides no
explanation (much less good cause) for why the deadline
should be extended.
the notice of removal does not specify any grounds that could
properly support federal jurisdiction. There are three
statutes which permit the removal of a State criminal case.
The notice of removal does not specifically cite to any of
them. Rather, it generally cites to 28 U.S.C. §
1441-1446. Pursuant to 28 U.S.C. § 1442, a federal
officer may remove a State criminal case in some
circumstances. Pursuant to 28 U.S.C. § 1442a, members of
the armed forces may remove a State criminal case in some
circumstances. Here, the notice of removal does not mention
that the defendant is either a federal officer or a member of
the armed forces. Therefore, neither of those statutes are
to 28 U.S.C. § 1443, anyone may remove a State criminal
case if the defendant 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). “The Supreme Court has
interpreted th[at] statute to apply only if the right alleged
arises under a federal law providing for civil rights based
on race and the petitioner must show that he cannot enforce
the federal right due to some formal expression of state
law.” State v. Haws, 131 F.3d 1205, 1209 (7th
Cir. 1997) (first citing Georgia v. Rachel, 384 U.S.
780 (1966); then citing Chapman v. Houston Welfare Rights
Org., 441 U.S. 600, 621 (1979)). Here, the notice of
removal does not allege the denial of any rights arising
under a federal law providing for civil rights based on race.
See Johnson v. Mississippi, 421 U.S. 213, 219 (1975)
(“First, it must appear that the right allegedly denied
the removal petitioner arises under a federal law
‘providing for specific civil rights stated in terms of
racial equality.'”) (quoting Rachel, 384
U.S. at 792)). Nor is there any reason to believe the
defendant's rights cannot be enforced in State court.
See Johnson, 421 U.S. at 220 (“[T]he
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.”).
the notice of removal argues that the “State of Indiana
Superior Court is an unconstitutional, private
corporation.” ECF 1 at 3 (emphasis omitted). It argues
that the State criminal court does not have jurisdiction over
her because she is an “Aboriginal, Indigenous Moorish
American National.” Id. However,
“[r]egardless of an individual's claimed status of
descent . . . that person is not beyond the jurisdiction of
the courts. These theories should be rejected summarily,
however they are presented.” United States v.
Benabe, 654 F.3d 753, 767 (7th Cir. 2011).
these reasons, pursuant to 28 U.S.C. § 1455(b)(4), this
case is ...