Opinion
01 CIV. 5062 (DLC)
June 20, 2001
MEMORANDUM OPINION and ORDER
On April 13, 2001, defendant Gonzalo Camprubi Soms ("Soms") was indicted by a grand jury for grand larceny in the third degree, two counts of forgery in the second degree, and two counts of criminal possession of a forged instrument in the second degree. On May 30, 2001, defendant removed this state criminal prosecution to federal court pursuant to 28 U.S.C. § 1446(c) ("Section 1446(c)"). On June 12, 2001, this Court accepted this action as related to Soms v. Aranda, 00 Civ. 9626 (DLC), a breach of contract claim relating to a contract for the lease and sale of a condominium currently pending before this Court. Having reviewed Soms' removal petition, however, this Court concludes that this action should be summarily remanded to state court.
Section 1446(c) governs the procedure for removal of criminal cases from state to federal court. Section 1446(c) provides, in relevant part, that
(2) A notice of removal of a criminal prosecution shall include all grounds for such removal.
. . . . (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.28 U.S.C. § 1446(c).
Soms' notice of removal does not reflect the grounds under which he seeks to remove this action, though his assertion that his criminal prosecution violates 42 U.S.C. § 1981, 1985(2) and 1983 indicates that he seeks to invoke 28 U.S.C. § 1443(1) ("Section 1443(1)"). Section 1443(1) provides, in relevant part, that a state criminal prosecution can be removed to federal court if it is pending
Subsection (2) of Section 1443 has been understood to apply only to federal officers and is, therefore, inapplicable to Soms' claim. See Brody v. New York State Div. of Parole, No. 89 Civ. 0987 (TCP), 1989 WL 87003, at *1 n. 1 (E.D.N.Y. July 25, 1989) (quoting City of Greenwood v. Peacock, 384 U.S. 808, 824 (1966)).
[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 of all persons within the jurisdiction thereof.
Soms' conclusory assertion that his rights under 28 U.S.C. § 1981, 1985(2) and 1983 have been violated is nowhere substantiated in Soms' removal petition or the attached exhibits. Moreover, Soms does not assert that any federal statute prevents New York State from prosecuting him for grand larceny, forgery in the second degree, and criminal possession of a forged instrument in the second degree. See Brody, 1989 WL 87003, at *1. Accordingly, in light of this Court's authority under Section 1446(c) to conclude, on the face of the notice for removal, that removal should not be permitted, it is hereby
ORDERED that Soms' petition for removal is dismissed.
IT IS FURTHER ORDERED that this action be remanded immediately to the State court. in which the Proceeding was commenced.
SO ORDERED.