United States District Court, D. Connecticut
ORDER FOR SUMMARY REMAND
Vanessa L. Bryant United States District Judge
case involves Plaintiff Jonathan Hull's removal of
criminal case Connecticut v. Hull,
HHB-CR17-0067679-S. Mr. Hull asserts that removal is valid
under 28 U.S.C. §§ 1455 and 1443. For the foregoing
reasons, the Court determines removal improper and REMANDS
this case. I. Background The Court has assessed the
docket associated with his state criminal case
number. It appears as if Mr. Hull was arrested on
August 14, 2017 for the criminal violation of restraining
order under Conn. Gen. Stat. § 53a-223b(c)(1). Mr. Hull
was released from custody based on a promise to appear, but a
re-arrest was ordered on September 22, 2017. There is no
indication that Mr. Hull has been arrested, arraigned, or
provided a trial date since that time.
Hull already attempted and failed to remove various state
cases to federal court in Hull v. Hull, case number
3:17-cv-1525 (AVC), which was initially filed on September
11, 2017. Specifically, he filed Notices of removal for the
following state cases: (1) HHB-FA16-5017639-S, [Dkt. 1]; (2)
H17B-CR17-0067679-S, [Dkt. 7]; (3) HHB-FA17-4040349, [Dkt.
15]; (4) HHB-CV17-4040347, [Dkt. 16]; (5) HHB-FA16-4038834-S,
[Dkt. 32]. The contents of docket 7, “Notice of Removal
by Jonathan L. Hull from Bristol Superior Court, Bristol, CT
case number H17B-CR17-0067679-S, ” do not actually
pertain to the criminal case; rather, it referenced
HHB-CV17-4040347 and HHB-FA17-4040349. See [Dkt. 7
at 1, 3]. However, he referred to his criminal case again in
subsequent filings, suggesting his initial reference to the
criminal case was not in error. See, e.g., [Dkt. 46
(Notice of Removal Sent to Courts) at 2]. It therefore
appears as if Mr. Hull intended to remove his criminal
Covello sua sponte remanded the actions to state
court on September 29, 2017, for failure to establish subject
matter jurisdiction. See [Dkt. 58 (citing 28 U.S.C.
§§ 1441(a), 1446, 1447)]. Mr. Hull appealed this
ruling. See [Dkt. 67]. He thereafter filed another
Notice of Removal for HB17-CR17-0067679-S, [Dkt. 72], in
addition to notices for the other state court cases,
see [Dkt. 69 (HHB-FA-16-4038834-S); Dkt. 70
(HHB-FA17-4040349); Dkt. 71 (HHB-CV17-4040347-S)]. Judge
Covello found as moot Mr. Hull's motion for leave to
proceed in forma pauperis, [Dkt. 80], and denied his
motion to stay pending appeal, [Dkt. 81]. Mr. Hull has
appealed these rulings as well.
of a state criminal case to federal court is only available
pursuant to 28 U.S.C. § 1443, which in relevant part
enables a defendant to remove an action “[a]gainst 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 all persons
within the jurisdiction thereof.” To satisfy this
standard, a defendant must demonstrate (1) he has a civil
right explicitly set forth by federal statute protecting
racial equality; and (2) he cannot protect these rights in
State court. See Johnson v. Mississippi, 421 U.S.
213, 219 (1975) (citing Georgia v. Rachel, 384 U.S.
780 (1966)). Restrictive interpretation is given to 28 U.S.C.
§ 1443. California v. Sandoval 434 F.2d 635
(9th Cir. 1970), cert denied, 402 U.S. 909 (1971).
order to properly remove a criminal case, a defendant must
file 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.” 28 U.S.C.
§ 1455(a). The removal must occur “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” a district court may grant leave to file
notice after the deadline. 28 U.S.C. § 1455(b).
case must be remanded for several reasons. At the outset, Mr.
Hull has not addressed and therefore fails to show whether
there is subject matter jurisdiction over the case given the
appeal presently pending before the Second Circuit
challenging Judge Covello's remand in Hull v.
Hull, 17-cv-1525. Federal courts are courts of limited
jurisdiction and a party seeking to invoke the Court's
jurisdiction has the burden to establish jurisdiction.
Blockbuster, Inc. v. Galeno, 472 F.3d 53 (2006). As
a general rule, the “filing of the notice of appeal
divests the district court of jurisdiction” over the
action. Ching v. United States, 298 F.3d 174, 180
n.5 (2d Cir. 2002) (citing Griggs v. Provident Consumer
Disc. Co., 459 U.S. 56, 58, 74 L.Ed.2d 225, 103 S.Ct.
400 (1982)). The notice of appeal “divests the district
court of its control over those aspects of the case involved
in the appeal.” Griggs, 459 U.S. at 58. It
precludes the district court from ruling “on any motion
affecting an aspect of the case that [is] before [the
appellate court] . . . while that appeal [is] pending.”
Ching, 298 F.3d at 180; Hallock v. Bonner,
No. 03-CV-195 (DNH/DRH), 2003 WL 22519644, at *4 (N.D.N.Y.
Nov. 4, 2003); see generally, United States v.
Mickens, 1989 WL 20643, at *2 (E.D.N.Y. Feb. 14, 1989)
(“[A] default judgment has been entered in the first of
the related civil forfeiture actions and, since it is now on
appeal, this Court has no jurisdiction to affect the subject
matter of that suit.”).
Mr. Hull has failed to satisfy the substantive requirements
under 28 U.S.C. § 1443. A claim that the prosecution and
conviction will violate rights under constitutional or
statutory provisions of general applicability or under
statutes not protecting against racial discrimination will
not suffice; nor will a claim that removal petitioner will be
denied due process of law because the criminal law under
which he is being prosecuted is allegedly vague or that the
prosecution is asserted to be a sham, corrupt, or without
evidentiary basis, standing alone, satisfy the requirements
of § 1443(1). Johnson, 421 U.S. at 219. The
vindication of the defendant's federal rights is left to
the state courts, except in the rare situation where a
pervasive and explicit state law or a state policy or
systemic practice or procedure would inevitably deprive the
movant of his federally protected right were the case
prosecuted in state court. See City of Greenwood v.
Peacock, 384 U.S. 808, 828 (1966); Georgia v.
Rachel, 384 U.S. at. 800. The denial of federal rights
must be explicitly expressed in a state legislative or
constitutional provision rendering the deprivation of the
protected federal right inevitable. Rachel, 384 U.S.
of illustration, in Rachel, removal was deemed
appropriate where African Americans sought to remove a
criminal case in which they were being prosecuted for
violating a state trespass law while exercising their right
to receive public accommodation and federal law prohibited
interference with the attempt to exercise the right to
receive such accommodations. Id. at 785. There, the
state and federal laws were in direct opposition and the
enforcement of one vitiated the other. In contrast, in
Johnson, 421 U.S. at 218, the Supreme Court affirmed
the Fifth Circuit's affirmance of remand where African
Americans attempted to remove a criminal prosecution under
state laws they allegedly violated while engaging in
non-violent protest of racially discriminatory exclusion. The
statute under which they were prosecuted was one of general
applicability and did not by its terms negate federally
protected rights of African Americans. See Id. at
219-224. Similarly, where a Native American identified no
federal law conferring upon him an absolute right to ignore
shellfish tagging requirements off-reservation, or offer any
reason for the court to conclude that the New York State
courts could not protect whatever federal rights he may
assert in his criminal proceeding, or ‘that those
rights would inevitably be denied, remand was required.
See New York v. Smith, 494 F. App'x 138, 140 (2d
Cir. 2012). Removal has also been found substantively
defective where a notice of removal did not reference any
civil rights law providing for racial equality and petitioner
generally alleges Fifth and Sixth Amendment violations.
People of New York v. Latnie, No. 1:14-CV-1581
(DNH/DEP), 2015 WL 512800, at *3 (N.D.N.Y. Feb. 6, 2015).
motion fails because he has not claimed he is being
prosecuted under any state law which expressly vitiates a
federally protected right accorded him based on his protected
classification. Having failed to identify any explicit state
law which would deprive him of his federal rights, Hull has
also failed to allege facts tending to show that the state
court cannot enforce his federally protected rights.
Connecticut v. Marshall, No. 3:15-R-00002 (JCH),
2015 WL 4723015, at *2 (D. Conn. Aug. 10, 2015) (remanding in
part because petitioner failed to adequately plead both
prongs of the two-prong Rachel test).
Hull has also failed to establish that he has timely invoked
the Court's jurisdiction under the statute separate and
distinct from the jurisdictional issue raised by his earlier
removal attempt and his appeal of the remand. He did not
follow required procedure and provide the Court with “a
copy of all process, pleadings, and orders served upon such
defendant” as required under 28 U.S.C. § 1455(a),
which could factually establish the timeliness of his motion
to remove. See Latnie, 2015 WL 512800, at *2
(finding the notice of removal procedurally defective in part
because petitioner did not provide state court records). Mr.
Hull has not stated when he was arraigned or his trial date.
As a result, Petitioner has failed to establish that he filed
his motion to remove conferring jurisdiction timely. On the
contrary, the facts alleged in the complaint suggest the
motion to remove is untimely. Mr. Hull alleges that he was
initially arrested on August 14, 2017, and he tacitly
acknowledges that his notice was not timely filed.
See [Dkt. 1-1 (Good Cause for Removal Past 30
timely filing were not jurisdictional, Mr. Hull fails to show
good cause for his failure to file timely. Hull appears to be
arguing that good cause exists for failing to remove the
action within 30 days because he was already litigating this
issue in Hull v. Hull, 17-cv-1525, and the matter is
pending before the Second Circuit. However, the Court is not
persuaded by Mr. Hull's unsupported argument that his
unsuccessful strategic decision to remove this case earlier
is good cause to try again beyond the statutory deadline.
contrary, the Second Circuit's ruling will likely
preclude this issue from being litigated a second time in
another matter. Boguslavsky v. Kaplan, 159 F.3d 715,
720 (2d Cir. 1998) (barring relitigation under collateral
estoppel doctrine if “(1) the identical issue was
raised in a previous proceeding; (2) the issue was actually
litigated and decided in the previous proceeding; (3) the
party had a full and fair opportunity to litigate the issue;
and (4) the resolution of the issue was necessary to support
a valid and final judgment on the merits.”) (internal
quotation marks omitted); Cadle v. Drubner, 303
F.Supp.2d 143, 146-47 (D. Conn. 2004) (stating that
“Issue preclusion [ ] prevents a party from
relitigating an issue that has been determined in a prior
suit”) (quoting CFM v. Chowdhury, 239 Conn.
375, 397 n.21 (1996)). III. Conclusion For the
reasons stated above establishing that ...