United States District Court, E.D. Wisconsin
ORDER SUMMARILY REMANDING STATE COURT CRIMINAL CASE
(DKT. NO. 1)
PAMELA PEPPER, UNITED STATES DISTRICT JUDGE
November 28, 2017, the court received a “Notice of
Removal pursuant to 28 U.S.C. §1455” from Shafia
Jones, asking the court to remove a state criminal case (Fond
du Lac County Case No. 2016CF115) from Fond du Lac County
Circuit Court to this court. Dkt. No. 1. While the defendant
did not attach a copy of the state criminal complaint, public
records reflect that the State of Wisconsin has charged the
defendant with an assault by a prisoner under Wis.Stat.
§946.43(2m)(a) and disorderly conduct under Wis.Stat.
§947.01(1). http://wcca.wicourts.gov (visited
Dec. 6, 2017).
defendant lists several grounds why this court should permit
the removal. She argues proceeding in front of any judge in
Fond du Lac county would result in a due process violation
under the Fourteenth Amendment to the United States
Constitution, because “the alleged ‘victim'
is the court baliff [sic] and friend of the judges of this
circuit which makes the judge or any other judge prejudice
[sic] and non impartial as they would have a personal
interest in the outcome/disposition.” Dkt. No. 1 at 1.
She also argues, in several different ways, that she was
improperly convicted by the State of Wisconsin in a previous
case, and that proceeding in federal court will prevent
further constitutional violations and prosecutorial
misconduct. Id. at 1-2.
1455 of Title 28 of the United States Code outlines the steps
that a defendant in a state court criminal case must take in
order for a federal court to consider whether to remove the
(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 . . . .
(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 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. . . .
(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 attached
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.
28 U.S.C. §1455.
the statute, this court must examine the notice of removal
and order summary remand if “it appears on the face of
the notice and any exhibits attached thereto that removal
should not be permitted.” 28 U.S.C. §1455(b)(4).
The court notes that the defendant did not attach any
exhibits to her notice of removal; §1455(a) requires the
defendant to attach “a copy of all process, pleadings,
and orders served upon such defendant or defendants in such
action” 28 U.S.C. §1455(a). Further, public
records show that the Fond du Lac County Circuit court held
an arraignment hearing on May 20, 2016; the defendant's
November 28, 2017 notice of removal is untimely by roughly
eighteen months under §1455(b)(1).
http://wcca.wicourts.gov (last visited Dec. 6.
2017). These facts alone are enough to require the court to
remand the case to state court.
removal notice also is insufficient. The defendant correctly
identified 28 U.S.C. §1455 as the statute that provides
the procedure for removing state criminal cases to
federal court. But “[s]ection 1455 merely provides the
procedures that must be followed when removing a criminal
case from state court; it does not provide a criminal
defendant with the right to do so.” Illinois v.
Sadder-Bey, No. 17-cv-4999, 2017 WL 2987159 (N.D. Ill.
July 13, 2017). In order for this court to allow the removal,
the defendant must point to some other statute that would
permit or require her to move forward in federal court.
defendant did not cite any such statutes, even though there
are some. 28 U.S.C. §1442 and §1442a allow removal
to federal court, but they apply to defendants who either are
employed as federal officers or are ...