State of Oklahoma vs. Smith, No. 06-6238 (10th Cir. 2007)

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F I L E D United States Court of Appeals Tenth Circuit UNITED STATES CO URT O F APPEALS March 5, 2007 TENTH CIRCUIT Elisabeth A. Shumaker Clerk of Court STATE OF OKLAHOM A, A State of the Union, No. 06-6238 Plaintiff-Appellee, v. (W .D. Oklahoma) BRUCE CLYDE SM ITH, an individual, (D.C. No. CR-06-143-l) Defendant-Appellant. OR D ER AND JUDGM ENT * Before H E N RY, TYM K O VICH , and HO LM ES, Circuit Judges. ** Bruce Clyde Smith appeals the district court s order rejecting his request for removal of a state criminal prosecution and remanding the case to the District Court of Texas County, Oklahoma. For substantially the same reasons set forth in its June 13, 2006 order, we affirm the district court s decision. * This order and judgment is not binding precedent except under the doctrines of law of the case, res judicata and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1and 10th Cir. R. 32.1. ** After examining the briefs and appellate record, this panel has determined unanimously to grant the parties request for a decision on the briefs without oral argument. See Fed. R.App. P. 34(f) and 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. As the district court noted, M r. Smith sought removal of the state court case pursuant to 28 U.S.C. § 1443(2). However, that statute confers a privilege of removal only upon federal officers or agents and those authorized to act with and for them in affirmatively executing duties under any federal law providing for equal civil rights. City of Greenwood v. Peacock, 384 U.S. 808, 824 (1966). M r. Smith does not allege that he is a federal officer executing his duties pursuant to a federal civil rights law, and the statute is thus inapplicable. On appeal, M r. Smith cites no other statutory basis for removal. Creatively, but frivolously, he does argue that the case should now be removed from this court to a court of his own making, the one supreme Court, apparently established by M r. Smith and his associates on September 4, 2006 (after the district court remanded his case to the state court). There is no legal basis for that request. W e also note that M r. Smith s attempt to remove the state court criminal prosecution is inconsistent with the longstanding public policy against federal court interference with state court proceedings. Younger v. Harris, 401 U.S. 37, 43 (1971). Accordingly, we AFFIRM the district court s decision. Appellant s motion -2- to proceed in forma pauperis is denied. Entered for the Court, Robert H. Henry Circuit Judge -3-

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