United States District Court, E.D. Missouri, Eastern Division
GEORGE A. BRUTCHER, Plaintiff,
STATE OF MISSOURI, Defendant.
MEMORANDUM AND ORDER
W. SIPPEL UNITED STATES DISTRICT JUDGE.
matter is before the Court upon the notice of removal filed
by plaintiff George A. Brutcher, seeking to remove a state
court criminal case to this Court. This action will be
case at bar, plaintiff cites his state court criminal case as
case number 23CR304-1919-01, a case that was adjudicated in
the Circuit Court of Jefferson County, Missouri. Review
reveals that, on June 22, 2006, a jury convicted plaintiff of
felonious restraint, resisting arrest, assault of a law
enforcement officer, class A first-degree assault,
first-degree burglary, armed criminal action, victim
tampering, class B first-degree assault, and unlawful use of
a weapon. On September 11, 2006, the Court sentenced
plaintiff to life imprisonment plus 109 years. Plaintiff is
presently incarcerated at the Jefferson City Correctional
Center in Jefferson City, Missouri. Plaintiff appealed his
convictions and sentences to the Missouri Court of Appeals,
which affirmed on January 22, 2008. Plaintiff subsequently
sought and was denied Supreme Court review. State v.
Brutcher, 248 S.W.3d 66 (Mo.Ct.App. 2008). Plaintiff
filed a post-conviction motion in the trial court based upon
ineffective assistance of counsel. That motion was denied,
plaintiff appealed such denial to the Missouri Court of
Appeals, and on February 8, 2011, the Court affirmed the
trial court's decision. Plaintiff subsequently sought and
was denied Supreme Court review. Brutcher v. State,
333 S.W.3d 516 (Mo.Ct.App. 2011). On September 16, 2011,
plaintiff filed an action in this Court pursuant to 28 U.S.C.
§ 2254, and relief was denied on September 26, 2014.
Brutcher v. Dormire, No. 4:11-cv-1613-ACL.
case at bar, plaintiff seeks to remove his state court case
to this Court because he is “being held on sentence
without jurisdiction from Jefferson County, MO, ” and
because the Jefferson County Court is “intentionally
frustrating a timely appeal to correct that wrong. A
substantive motion was filed, rubber stamped, an appeal was
filed and the Court is maliciously obstructing the process of
appeal, notwithstanding defendant complains and
complains.” (Docket No. 1 at 1, 6). Plaintiff does not
explain the nature of the appeal he claims is being
frustrated. As noted above, plaintiff has sought and been
denied appellate review in the state court system, and has
been denied habeas relief in this Court.
basis for removal, plaintiff writes “28 U.S.C.
§§ 1443 - 1447(c)(d).” (Docket No. 1, Attach.
1). Plaintiff provides no explanation why removal is
appropriate under any of those statutes, and it appears that
he simply lumped them together without considering their
applicability. Nevertheless, the Court will consider the
notice of removal, beginning with considering whether removal
is appropriate under 28 U.S.C. § 1443.
1443 allows for the removal of a state criminal
prosecution “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.” 28 U.S.C. § 1443(1). Removal
jurisdiction under § 1443(1) is very limited. City
of Greenwood v. Peacock, 384 U.S. 808, 828
(1966); see also Minnesota v. Bey, Nos. 12-CR-0256
& 12-CR-0257 (JRT), 2012 WL 6139223, at *1 (D. Minn. Dec.
11, 2012). In order for a state criminal prosecution to be
removed under § 1443(1), the removal petition must
satisfy a two-prong test. Johnson v. Mississippi,
421 U.S. 213, 219-20 (1975). First, it must appear that the
right allegedly denied the petitioner arises under a federal
law providing for civil rights stated in terms of racial
equality. Georgia v. Rachel, 384 U.S. 780, 792
(1966). Second, it must appear that the petitioner is denied
or cannot enforce the specified federal rights in state
court. Id. at 803. Satisfaction of the second prong
typically requires that the “denial be manifest in a
formal expression of state law, ” such as a state
legislative or constitutional provision, “rather than a
denial first made manifest in the trial of the case.”
state court criminal case plaintiff seeks to remove has been
adjudicated, and can no longer be considered a state criminal
prosecution that can be removed pursuant to 28 U.S.C. §
1443. Even if plaintiff were seeking removal of a state court
prosecution, he would fail to satisfy either prong of the
§ 1443(1) test. He fails to allege that he is being
denied a right stated in terms of racial equality, and he
fails to show that there is a state law preventing him from
raising his federal claims in state court. Section 1443(2) is
no more availing, as it applies to those acting under the
“color of authority” derived from any law
providing for civil rights. The Supreme Court has held that
the “color of authority” clause of § 1443(2)
is limited to enforcement activity by federal officers and
those acting under them, City of Greenwood, Miss. v.
Peacock, 384 U.S. 808, 823 (1966), and there is no
indication in any of plaintiff's filings that he
the other statutes plaintiff references authorize the removal
of this action. Title 28 U.S.C. § 1444 applies to
foreclosure actions against the United States; § 1445
sets forth civil actions that are expressly non-removable;
§ 1446 concerns procedures for removal of civil actions;
and § 1447 sets forth the procedures district courts
follow after removal. Subsections (c) and (d) of § 1447,
which plaintiff specifically cites, concern remand. Plaintiff
does not cite, nor is the Court aware, of any federal statute
allowing for the removal of the instant case. Even if there
were such a statute, this action would be remanded because
plaintiffs notice of removal is untimely, and he offers
nothing tending to demonstrate good cause therefor.
See 28 U.S.C. § 1455(b)(2).
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.” 28
U.S.C. § 1455(b)(4). For the reasons provided above,
removal is not permitted in this case. The Court therefore
summarily remands this matter to the Circuit Court for
Jefferson County, Missouri.
IT IS HEREBY ORDERED that defendant's motion to proceed
in forma pauperis (Docket No. 2) is DENIED as moot.
FURTHER ORDERED that this action is REMANDED to the Circuit