State of North Carolina v. Lorraine Lewis, No. 12-2298 (4th Cir. 2013)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-2298 STATE OF NORTH CAROLINA, Plaintiff - Appellee, v. LORRAINE BLACKWELL LEWIS, Defendant - Appellant. Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. Thomas D. Schroeder, District Judge. (1:12-cr-00316-TDS-1) Submitted: January 17, 2013 Decided: January 22, 2013 Before GREGORY, SHEDD, and KEENAN, Circuit Judges. Dismissed in part; affirmed in part by unpublished per curiam opinion. Lorraine Blackwell Lewis, Appellant Pro Se. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Plaintiff the State of North Carolina commenced a criminal prosecution against Defendant Lorraine Blackwell Lewis in North Carolina state court. Proceeding pro se, Lewis sought removal of the prosecution to the district court. Concluding that removal of the prosecution was not warranted, the district court denied Lewis removal request and remanded the case to state court. Lewis noted an appeal. We dismiss in part and affirm in part. In the removal notice and memorandum supporting removal, Lewis cited to 28 U.S.C.A. § 1441(a) (West 2006 & Supp. 2012), which grants removal jurisdiction to the district courts over certain civil action[s]. Lewis, however, also complained that she could not be assured of fair proceedings in state court on account of various violations of state allegedly committed by the prosecution. Lewis removal notice and supporting and federal law Liberally construing memorandum, Erickson v. Pardus, 511 U.S. 89, 94 (2007), she also sought removal under 28 U.S.C. § 1443(1) (2006). Under 28 U.S.C.A. § 1447(d) (West 2006 & Supp. 2012), [a]n order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise, except that an order remanding a case to the State court from which it was removed pursuant to . . . [28 U.S.C. §] 1443 . . . shall be 2 reviewable. The Supreme Court has limited § 1447(d) to insulate from appellate review those remand orders based on the grounds specified in § 1447(c): a defect in the procedure or a lack of subject matter jurisdiction. removal Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 711-12 (1996). Lewis matter attempted falling within a to remove class of removable under that provision. subject matter jurisdiction under cases § 1441(a) Congress a deemed legal non- The district court thus lacked over Lewis prosecution under § 1441(a), accord Ohio v. Doe, 433 F.3d 502, 506 (6th Cir. 2006) (concluding that the district court lacked proper subject matter jurisdiction to hear a matter that did not qualify as a civil action under 28 U.S.C.A. § 1442 (West 2006 & Supp. 2012)), and its remand ruling may be understood as based in part on the conclusion that it lacked subject matter jurisdiction over the prosecution under that provision. portion review. of the ruling is not Accordingly, this subject to appellate Severonickel v. Gaston Reymenants, 115 F.3d 265, 266-69 (4th Cir. 1997). Under 28 U.S.C. § 1443(1), a criminal prosecution commenced in state court may be removed by the defendant to federal court when the defendant 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 3 persons within the jurisdiction thereof. Removal under this provision, however, is limited to rare situations in which the defendant has been denied or cannot enforce the right to racial Georgia v. Rachel, 384 U.S. 780, equality in the state courts. 788 (1966); South (4th Cir. 1971). this Carolina does not indication that Lewis to system. Moore, 447 F.2d 1067, 1070 We conclude after review of the record that case right v. racial implicate has equality § 1443(1) been in denied the because or North cannot Carolina there is enforce state no the court Removal of the prosecution pursuant to § 1443(1) was not appropriate, and the district court properly rejected this effort. Accordingly, leave to proceed in we dismiss forma the pauperis, appeal deny in part, Lewis grant motion for calendar date, and affirm the district court s judgment in part. We dispense contentions with are oral argument adequately because presented in the facts and the materials legal before this court and argument would not aid the decisional process. DISMISSED IN PART; AFFIRMED IN PART 4
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