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Santa Fe County Magistrate Court v. Joyce

United States District Court, D. New Mexico

October 5, 2017

SANTA FE COUNTY MAGISTRATE COURT, Plaintiff,
v.
JAMES K. JOYCE, Defendant.

          MEMORANDUM OPINION AND ORDER OF REMAND

         This matter is before the Court sua sponte. Having considered the Defendant's Notice of Removal [Doc. 1], the relevant case law, and otherwise being fully advised in the premises, the Court will summarily remand this case back to the Santa Fe County Magistrate Court[1].

         BACKGROUND

         Defendant James K. Joyce (“Joyce”) faces criminal charges in two separate cases brought in the Santa Fe County Magistrate Court. In the first, M-49-TR-201607200, Joyce is charged with driving without insurance and driving with expired registration of his motor vehicle, based on a citation filed in November of 2016. In the second M-49-TR-201701973, he faces the same charges based on a citation filed in April of 2017. He seeks to remove these two criminal proceedings to this federal district court.

         STANDARDS

         “Removal statutes are to be strictly construed . . . and all doubts are to be resolved against removal.” Fajen v. Foundation Reserve Ins. Co., Inc., 683 F.2d 331, 333 (10th Cir. 1982) (citation omitted). Pursuant to 28 U.S.C. § 1455, the following procedures govern the removal of state criminal actions to Federal Court:

(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.
(2) A notice of removal of a criminal prosecution shall include all grounds for such removal. A failure to state grounds that exist at the time of the filing of the notice shall constitute a waiver of such grounds, and a second notice may be filed only on grounds not existing at the time of the original notice. For good cause shown, the United States district court may grant relief from the limitations of this paragraph.
(3) The filing of a notice of removal of a criminal prosecution shall not prevent the State court in which such prosecution is pending from proceeding further, except that a judgment of conviction shall not be entered unless the prosecution is first remanded.
(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.
(5) If the United States district court does not order the summary remand of such prosecution, it shall order an evidentiary hearing to be held promptly and, after such hearing, shall make such disposition of the prosecution as justice shall require. If the United States district court determines that removal shall be permitted, it shall so notify the State court in which prosecution is pending, which shall proceed no further.

(c) Writ of habeas corpus.--If the defendant or defendants are in actual custody on process issued by the State court, the district court shall issue its writ of habeas corpus, and the marshal shall thereupon take such defendant or defendants into the marshal's custody and deliver a copy of the writ to the clerk of such State court.

28 U.S.C. § 1455.

         Although neither the Tenth Circuit Court of Appeals nor the District Court for the District of New Mexico have had an opportunity to construe § 1455, “other courts have concluded that the statute is purely procedural, and provides no substantive requirements for removal.” Louisiana v. Hunter, Civil Action No. 14-931, 2014 WL 7139463, *5 (E.D. La. December 15, 2014) (citing cases). Pursuant to 28 U.S.C. § 1442 a “criminal prosecution commenced in a State court against any of the following” may be removed to Federal Court:

(1) The United States or any agency thereof or any officer (or any person acting under that officer) of the United States or of any agency thereof, in an official or individual capacity, for or relating to any act under color of such office or on account of any right, title or authority claimed under any Act of Congress ...

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