Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Baker v. Harris County District Attorney

United States District Court, S.D. Georgia, Statesboro Division

July 9, 2018

ROGER LEE BAKER, JR., Petitioner,
v.
HARRIS COUNTY DISTRICT ATTORNEY, et al., Respondents.

          ORDER AND MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          R. STAN BAKER UNITED STATES MAGISTRATE JUDGE

         Petitioner Roger Lee Baker (“Baker”), who is currently incarcerated at Jenkins Correctional Facility in Millen, Georgia, filed this action seeking this Court to intervene in a prosecution that resulted in his conviction in Talbot County, Georgia, Superior Court. (Doc. 1.) Baker also filed a Motion for Leave to Proceed in Forma Pauperis, (doc. 5), and a Motion to Vacate, Reverse, or Overturn Conviction, (doc. 3.) The Court DENIES Baker's Motion to Proceed in Forma Pauperis because this Court lacks jurisdiction to hear his claims. For the same reason, I RECOMMEND that the Court DISMISS this action and DENY Baker's Motion to Vacate, Reverse, or Overturn Conviction. I also RECOMMEND that the Court DENY Baker a Certificate of Appealability and DENY him in forma pauperis status on appeal.

         BACKGROUND

         Though Baker's original and supplemental pleadings are far from a picture of clarity, he essentially asks this Court to reverse convictions for murder and other crimes that he received in the Superior Court of Talbot County. (Docs. 1-3, 5, 7, 8.) Throughout his pleadings, he essentially contends that the State of Georgia concealed evidence that would have proven his innocence. For instance, he contends that the victim's autopsy report reveals that the murder weapon was a .22 caliber gun and not Baker's .45 caliber firearm. (Doc. 7, pp. 1-2.)

         DISCUSSION

         I. Dismissal Under 28 U.S.C. §§ 1443 & 1455

         In his original pleading, Baker cited 28 U.S.C. § 1443 and asked this Court to intervene in his state criminal prosecution. (Doc. 1.) 28 U.S.C. § 1455 governs removal of state criminal actions and provides, in part:

(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.

28 U.S.C. § 1455(a), (b)(1).

         Baker failed to file a notice of removal within thirty days of his arraignment in state court or prior to his trial. Baker's state criminal case was concluded years ago, and nothing in Section 1443 or 1455 allows Baker to remove the case to this Court following his conviction. Consequently, he cannot rely upon the Court's removal power to invoke this court's jurisdiction. Muhammad v. Michigan Dep't of Corr., No. 1:17-CV-68, 2017 WL 743943, at *3 (W.D. Mich. Feb. 27, 2017) (“[T]he statute permits removal of a criminal action only before trial, and removal is not permitted after conviction. Because removal is not authorized under § 1443, this Court is without jurisdiction to entertain Plaintiff's criminal action at this time.”) Additionally, Baker has not complied with Section 1455(a), because he did not provide the Court “with a copy of all process, pleadings, and orders served upon” him in the criminal action.

         Moreover, Section 1455 provides that, when a notice of removal of a criminal action is filed, the district court “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.” 28 U.S.C. § 1455(b)(4). In this regard, 28 U.S.C. § 1443, permits removal of the following “criminal prosecutions[] commenced in a State court”:

(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.

         The United States Supreme Court has held that a notice of removal under Section 1443(1) must satisfy a two-pronged test. Johnson v. Mississippi, 421 U.S. 213, 219 (1975) (citing Georgia v. Rachel, 384 U.S. 780 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.