United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
A. ROSS UNITED STATES DISTRICT JUDGE.
April of 2016, defendant Octavian Henderson was charged by
Information for failing to pay child support in St. Louis
County Court. On August 1, 2016, Mr. Henderson filed a pro se
notice of removal in this Court, alleging that his
constitutional rights were being violated in the state
proceedings. Because there is no statutory basis for Mr.
Henderson to remove the state prosecution to federal court,
this matter will be summarily remanded to the St. Louis
Octavian Henderson, is the acknowledged legal parent of
Octavian Henderson [Jr.], born in 2013. According to legal
documents filed in defendant’s criminal action,
defendant was ordered to pay support on behalf of his son,
under the Missouri child support guidelines. Defendant was
found to be in arrears regarding his child support
obligations to his son, and the St. Louis County Prosecutor
filed an Information charging defendant with a failure to pay
in excess of an aggregate of twelve monthly payments, a
attempts to remove his charges to federal court pursuant to
two statutes: 28 U.S.C. §§ 1331 and 1443. As
explained below, however, neither of those provisions-or, for
that matter, any other federal statute-provides a basis for
removal of the state-court proceedings.
28 U.S.C. § 1331 cannot be the basis for removal of a
case from state court, as this statute can only be used to
initiate original civil actions in federal court. It cannot
be used for removal of criminal actions from state
court. Similarly, 28 U.S.C. § 1445 does not,
itself, provide a substantive basis for removal jurisdiction,
but merely sets forth the procedural requirements for
removing a criminal case from state court. See 28
U.S.C. § 1445.
said, the Court notes that three federal statutes allow for
the removal of certain criminal prosecutions from state to
federal court. Those statutes are extraordinarily limited,
however, and none of the three statutes allows for removal of
28 U.S.C. § 1442 provides that civil and criminal
actions commenced in state court against the United States
itself and against officers of the United States acting under
color of office may be removed to federal court. Nothing in
defendant’s notice of removal or any of the other
documents filed by defendant indicate that he is a federal
officer or otherwise meets the requirements of § 1442.
Defendant has not sought to invoke § 1442, and there is
no reason to believe that defendant could have successfully
invoked § 1442 if he had tried.
28 U.S.C. § 1442a allows for removal “of a civil
or criminal prosecution in a court of a State of the United
States against a member of the armed forces of the United
States” who was acting under color of his status as a
member of the armed forces. There is similarly no indication
in the documents filed by defendant that he is a member of
the United States armed forces or that he was acting under
color of his status as a member of the armed forces.
Defendant therefore cannot invoke (and has
not tried to invoke) § 1442a.
§ 1443 states of Title 28 states, in relevant part:
Any of the following civil actions or criminal prosecutions,
commenced in a State court may be removed by the defendant to
the district court of the United States for the district and
division embracing the place wherein it is pending:
(1) Against 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 of
all persons within the jurisdiction thereof . . .
(2) For any act under color of authority derived from any law
providing for equal rights, or for refusing to do any act on
the ground that it would be inconsistent with such law
jurisdiction under § 1443(1) is very limited. Generally
‘the vindication of the defendant's federal rights
is left to the state courts.’” Minnesota v.
Bey, Nos. 12-CR-0256 & 12- CR-0257 (JRT), 2012 WL
6139223, at *1 (D.Minn. Dec. 11, 2012) (quoting City of
Greenwood v. Peacock, 384 U.S. 808, 828 (1966)). In
order to remove a case under § 1443(1), a defendant must
show (1) “that the right allegedly denied the removal
petitioner arises under a federal law providing for specific
civil rights stated in terms of racial equality” and
(2) “that the removal petitioner is denied or cannot
enforce the specified federal rights in the courts of the
State.” Johnson v. Mississippi, 421 U.S. 213,
219 (1975) (quotations omitted).
satisfies neither prong of this test. Although defendant
alleges that his constitutional rights are being violated in
state court, defendant has pointed to nothing indicating that
the State ...