United States District Court, D. Hawaii
ORDER ALLOWING DEFENDANT TO FILE AMENDED NOTICE OF
REMOVAL; AND RESERVING RULING ON APPLICATION TO PROCEED IN
DISTRICT COURT WITHOUT PREPAYING FEES OR COSTS
E. Kobayashi United States District Judge.
February 6, 2017, pro se Defendant Svetlana Baksheeva-Pasha
(“Defendant”) filed her Legal Notice of Removal
(“Notice”) and an Application to Proceed in
District Court Without Prepaying Fees or Costs
(“Application”). [Dkt. nos. 1, 2.] The Court has
considered these matters without a hearing pursuant to Rule
LR7.2(e) of the Local Rules of Practice of the United States
District Court for the District of Hawai`i (“Local
Rules”). After careful consideration of the Notice and
the relevant legal authority, this Court HEREBY CONCLUDES
that the Notice is insufficient, but this Court will allow
Defendant to file an amended notice of removal. This Court
will reserve ruling on the Application until Defendant files
her amended notice of removal.
appears to be trying to remove a criminal prosecution against
her in the State of Hawai`i First Circuit Court. See
Notice at 1. 28 U.S.C. § 1455 governs the procedure to
remove a criminal prosecution from state court federal court.
Section 1445(a) states:
A defendant . . . 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 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 . . . in such action.
(Emphasis added.) Defendant did not attach copies of all of
the “process, pleadings, and orders” that she was
served with in the state court prosecution that she is
attempting to remove.
Court also notes that § 1445(b) states, in relevant
(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 the 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. For good cause shown, the
United States district court may grant relief from the
limitations of this paragraph.
. . . .
(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. § 1455(b)(2), (4) (emphases added). Without
the “process, pleadings, and orders” that
Defendant was served with in the underlying prosecution, this
Court cannot determine whether removal of the case was
proper. In addition, this Court notes that:
There are only narrow and limited grounds upon which a state
prosecution can be removed to federal court. Under 28 U.S.C.
§§ 1442(a) and 1442a, any officer of the United
States or its courts, any officer of either House of
Congress, or any member of the U.S. armed forces that is
subject to criminal prosecution may remove such an action
that arises from acts done under color of such office or
status. See 28 U.S.C. §§ 1442(a), 1442a. .
Hallal v. Mardel, Case No. 1:16-cv-01432-DAD-SAB,
2016 WL 6494411, at *2 (E.D. Cal. Nov. 2, 2016). Based on
this Court's review of Defendant's description of the
criminal prosecution in her Notice, it does not appear that
her case falls within the narrow and limited type of criminal
cases that can be removed to federal court.
Court therefore CONCLUDES that Defendant's Notice does
not establish a basis for federal jurisdiction over her state
court criminal prosecution. However, in light of the fact
that Defendant is proceeding pro se, this Court will allow
Defendant to file an amended notice of removal. Defendant
must: 1) attach all “process, pleadings, and
orders” that she was served with in the state court
prosecution to the amended notice of removal; and 2) describe
the legal authority supporting the removal of ...