United States District Court, S.D. Georgia, Brunswick Division
ORDER AND MAGISTRATE JUDGE'S REPORT AND
BENJAMIN W. CHEESBRO UNITED STATES MAGISTRATE JUDGE
Mr. Gilmore, initiated this action by filing an
“Affidavit of Truth” requesting removal of his
state court criminal case to federal court under 28 U.S.C.
§ 1443. (Doc. 1 at 1.) Mr. Gilmore alleges the
lack of funding for indigent defense prevented a proper
investigation into his case in violation of his due process
and equal protection rights. (Id. at 2-3.) Thus,
according to Mr. Gilmore, removal is authorized under 28
U.S.C. § 1443. (Id.) Because Mr. Gilmore fails
to plead a proper basis for removal jurisdiction under §
1443, I RECOMMEND the Court
REMAND this action to Glynn County Superior
Court and DIRECT the Clerk of Court to
CLOSE this case.
1443 allows criminal defendants to remove a criminal action
from state court to federal court in certain limited
circumstances, namely in cases involving laws that provide
for equal civil rights. See 28 U.S.C. § 1443;
Florida v. Bugoni, No. 8:13-CV-653, 2013 WL 1632134,
at *2 (M.D. Fla. Apr. 16, 2013). Courts must promptly examine
requests for removal under § 1443 and order a summary
remand when “it clearly appears on the face of the
notice . . . that removal should not be permitted.” 28
U.S.C. § 1455(b)(4); Alabama v. Thomason, 687
Fed.Appx. 874, 880 (11th Cir. 2017) (affirming the
court's sua sponte remand of a criminal
defendant's § 1443 removal request); Taylor v.
Phillips, 442 Fed.Appx. 441, 443 n.3 (11th Cir. 2011)
(internal quotation marks omitted) (“[T]he district
court may-and, indeed, must-remand a removed case sua
sponte if at any time before final judgment it appears
that the district court lacks subject matter
jurisdiction.”); Florida v. Walker, No.
6:15-CV-555, 2015 WL 4509667, at *2 (M.D. Fla. July 24, 2015)
(quoting Univ. of S. Ala. v. Am. Tobacco Co., 168
F.3d 405, 410 (11th Cir. 1999) (“A district court has
the obligation, at the earliest stage possible, to
‘inquire into subject matter jurisdiction sua
sponte whenever it may be lacking.'”)).
criminal defendant may seek removal under either §
1443(1) or (2), but subsection (2) is only available to
“federal officers or agents and those authorized to act
with or for them . . . .” Taylor, 442
Fed.Appx. at 443 (quoting City of Greenwood v.
Peacock, 384 U.S. 808, 824 (1966)); see also Jimenez
v. Wizel, 644 Fed.Appx. 868, 870 (11th Cir. 2016);
Marcus v. Galvez, 522 Fed.Appx. 878, 880-81 (11th
Cir. 2013). Mr. Gilmore's filings contain no indication
that he is a federal officer, federal agent, or was
authorized to act with or for any federal officer or agent.
Therefore, there is no basis for removal under §
requests under § 1443(1) must satisfy a two-part test
first articulated in Georgia v. Rachel. Georgia
v. Rachel, 384 U.S. 780, 800 (1966); Alabama v.
Conley, 245 F.3d 1292, 1295 (11th Cir. 2001).
“Failure to satisfy either prong of the two-pronged
test is fatal to removal.” Florida v. Beasley,
No. 3:13CV593, 2013 WL 6536920, at *2 (N.D. Fla. Dec. 13,
2013) (quoting Williams v. State of Mississippi, 608
F.2d 1021, 1022 (5th Cir. 1979)); see also Rachel,
384 U.S. at 788. Under § 1443(1), the party seeking
removal must first show that “the right upon which the
petitioner relies arises under a federal law providing for
specific civil rights stated in terms of racial
equality.” Taylor, 442 Fed.Appx. at 442
(quoting Conley, 245 F.3d at 1295). This first prong
of the Rachel test is frequently determinative:
removal is only appropriate for asserted violations of rights
premised in racial equality, not for violations of civil
rights laws of “general application available to all
persons or citizens.” Rachel, 384 U.S. at 792;
Taylor, 442 Fed.Appx. at 442-43 (“Blanket
charges that a defendant is unable to obtain a fair trial in
state court are insufficient to support removal.”);
Conley, 245 F.3d at 1295-96 (noting § 1443(1)
claims relying on the “right to a fair trial” or
based on “broad assertions under the Equal Protection
Clause . . . are insufficient”). If the petitioner
makes this showing, he must satisfy the second prong by
showing that he has “been denied or cannot enforce that
right in the state courts.” Id. Generally,
this requires a denial “manifest in a formal expression
of state law.” State v. Weber, 665 Fed.Appx.
848, 851 (11th Cir. 2016); Beasley, 2013 WL 6536920,
at *2 (quoting Rachel, 384 U.S. at 792) (noting
formal manifestations are usually “state legislative or
constitutional provision[s], ‘rather than a denial
first made manifest in the trial of the case.'”).
Mr. Gilmore alleges that a “funding ‘crisis'
that plagues Georgia's Indigent Defense System”
resulted in a denial of his equal protection and due process
rights. (Doc. 1 at 4.) He claims that state lawmakers,
agencies, and local officials failed to allocate adequate
funding for indigent defendants, and, therefore, prevented
him from proffering expert testimony about evidence used
against him and made a fair trial impossible. (Id.
at 1-2.) Under the first part of the Rachel test,
only denials of civil rights based on racial equality
suffice. Plaintiff alleges violations of equal protection and
due process rights, but these are “broad constitutional
guarantee[s] of general application[, ]” not laws based
on racial equality. Rachel, 384 U.S. at 792. Because
Mr. Gilmore's request for removal is not premised on
denial of a right implicating racial equality, the request
fails the first prong of the Rachel test. There is
no need to evaluate the second prong of the test. Removal is
not warranted under § 1443(1).
above-stated reasons, I RECOMMEND the Court
DENY Plaintiff's request,
REMAND these proceedings to the appropriate
Glynn County, Georgia, court, and DIRECT the
Clerk of Court to CLOSE this case and enter
the appropriate judgment of dismissal.
Court ORDERS any party seeking to object to
this Report and Recommendation to file specific written
objections within fourteen (14) days of the
date on which this Report and Recommendation is entered. Any
objections asserting that the Magistrate Judge failed to
address any contention must also be included. Failure to do
so will bar any later challenge or review of the factual
findings or legal conclusions of the Magistrate Judge.
See 28 U.S.C. § 636(b)(1)(C); Thomas v.
Arn, 474 U.S. 140 (1985). A copy of the objections must
be served upon all other parties to the action.
receipt of Objections meeting the specificity requirement set
out above, a United States District Judge will make a de
novo determination of those portions of the report,
proposed findings, or recommendation to which objection is
made and may accept, reject, or modify in whole or in part,
the findings or recommendations made by the Magistrate Judge.
Objections not meeting the specificity requirement set out
above will not be considered by a District Judge. A party may
not appeal a Magistrate Judge's report and recommendation
directly to the United States Court of Appeals for the
Eleventh Circuit. Appeals may be made only from a final
judgment entered by or at the direction of a District Judge.
The Court DIRECTS the Clerk of Court to
serve a copy of this Report and Recommendation upon Gilmore.
ORDERED and REPORTED and