United States District Court, S.D. Georgia, Statesboro Division
ORDER AND MAGISTRATE JUDGE'S REPORT AND
STAN BAKER UNITED STATES MAGISTRATE JUDGE
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.
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.)
Dismissal Under 28 U.S.C. §§ 1443 &
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
28 U.S.C. § 1455(a), (b)(1).
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.
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
(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.
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 ...