United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER OF REMAND
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.
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.
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
(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
28 U.S.C. § 1455.
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 ...