Majors v. Commonwealth of Kentucky, No. 5:2014cv00188 - Document 3 (E.D. Ky. 2014)

Court Description: MEMORANDUM OPINION & ORDER: (1) Petitioner's 1 Notice of Removal is DISMISSED. (2) This action is REMANDED to Jessamine County Circuit Court. (3) Clerk shall FORWARD a certified copy of this Order to the Clerk of Jessamine County Circuit Cour t, referencing case No. 07-cr-190. (4) Jessamine County Circuit Court may proceed with this action without further impediment. (5) Petitioner's 2 Motion for Jury Trial is DENIED AS MOOT. (6) This matter be STRICKEN FROM THE ACTIVE DOCKET. (7) Clerk shall FORWARD a copy of this Order to Petitioner's last known address which is Northpoint Training Center. Signed by Judge Joseph M. Hood on June 5, 2014. (AWD) cc: Petitioner via US Mail,certified copy to Jessamine County Circuit Court

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY CENTRAL DIVISION at LEXINGTON CHRISTOPHER M. MAJORS, ) ) ) ) ) ) ) ) ) Petitioner, v. COMMONWEALTH OF KENTUCKY, Respondent. Civil Action No. 5:14-cv-188-JMH MEMORANDUM OPINION AND ORDER *** This matter is before the Court upon Petitioner s Notice of Removal Pursuant to Rule 11 of the Federal Rules of Civil Procedure [D.E. 1] and Petitioner s Motion for a Jury Trial. [D.E. 2]. The Court having reviewed the Petition and Motion, and being otherwise sufficiently advised, these matters are ripe for review. Petitioner states numerous federal statues as grounds for filing his Petition, but based upon the styling of the motion, and the relief requested therein, the Court construes Petitioner s filing as a notice of removal pursuant to 28 U.S.C. §§ 1443, 1455.1 For the reasons that follow, the Court dismisses Petitioner s petition. A defendant in a state criminal prosecution may remove the prosecution to federal court by filing in the district court of 1 If the Court has misconstrued the relief requested, Petitioner is not prejudiced to filing a new petition clarifying the relief sought. the United States for the district and division within which such prosecution is pending a notice of removal signed pursuant to Rule 11 containing of a the short Federal and Rules plain of Civil statement of Procedure the grounds and for removal. 28 U.S.C. § 1455(a). A state court prosecution may be removed to federal court if the defendant is denied or cannot enforce in the courts of [the] State a right under any law providing for the equal rights of citizens of the United States, or of all the persons within the jurisdiction thereof, id. § 1443(1), or if the prosecution is based upon an act under color of authority derived from any law providing for equal rights, or for refusing to do any act on the ground that it would be inconsistent with such law. Id. § 1443(2). Subsection two is inapplicable to this matter because it applies only to federal officers and to persons assisting such officers in the performance of their official duties. City of Greenwood v. Peacock, 384 U.S. 808, 815 (1966). To remove the prosecution right under allegedly § 1443(1), denied . . Petitioner . arises must under show a that federal the law providing for specific civil rights stated in terms of racial equality and that [he] is denied or cannot enforce the specified federal rights in the courts of the State. Johnson v. Mississippi, 421 U.S. 213, 219 (internal quotation marks omitted). 2 (1975) (citations omitted) Petitioner s Petition for Removal must be dismissed because Petitioner does not allege a deprivation of a civil right stated in terms of racial inequality. See Conrad v. Robinson, 871 F.2d 612, 614 (6th Cir. has the defendant 1989) burden ( [Under of 28 U.S.C. establishing § 1443,] removal that the is proper. (citations omitted)). Moreover, Petitioner s appeals in state court exhibit that his unhappiness with the state court prosecution stems from his classification as a first-degree persistent felony offender under KRS 532.080(3)(c)(1). Major v. Commonwealth, No. 2008-CA-1855-MR, 2009 WL 4060490, at *1 (Ky. Ct. App. Nov. sentencing 532.080. 25, statute 2009). applies Furthermore, even The persistent equally assuming to all felony offender races. See Petitioner had KRS alleged a meritorious civil rights violation, his notice of removal is untimely. See 28 U.S.C. § 1455(b)(1) ( A notice of removal of a criminal prosecution shall be filed not later than 30 days after the arraignment in the State court. ); Major v. Commonwealth, No. 2011-CA-459-MR, 2012 WL 3136814, at *1 (Ky. Ct. App. Aug. 3, 2012) ( On March 17, 2008, Major entered a guilty plea . . . . ). As Petitioner cannot remove his prosecution, the Court will deny his motion for jury trial as moot. The Court also notes that it appears Petitioner s state court prosecution is closed because the Kentucky Supreme Court denied discretionary review of 3 Petitioner s latest appeal on March 13, 2013. See Major v. Commonwealth, No. 2012-SC-557-D, 2013 Ky. LEXIS 65, at *1 (Ky. Mar. 13, 2013). By its terms, 28 U.S.C. § 1455 only applies to pending prosecutions. See 28 U.S.C. § 1455. However, to the extent there remains an ongoing proceeding and to prevent prejudicing any rights Petitioner may have in state court, the Court will remand this matter back to the Jessamine County Circuit Court. Accordingly, for the foregoing reasons, IT IS ORDERED: (1) that Petitioner s Notice of Removal Pursuant to Rule 11 of the Federal Rules of Civil Procedure [D.E. 1] be, and the same hereby is, DISMISSED; (2) that this action is REMANDED to the Jessamine County Circuit Court; (3) Order to that the Clerk shall FORWARD a certified copy of this the Clerk of the Jessamine County Circuit Court, referencing case No. 07-cr-190. (4) The Jessamine County Circuit Court may proceed with this action without further impediment. (5) That Petitioner s Motion for Jury Trial [D.E. 2] be, and the same hereby is, DENIED AS MOOT. (6) That this matter be STRICKEN FROM THE ACTIVE DOCKET. (7) That the Clerk shall FORWARD a copy of this Order to Petitioner s last known address in this matter, which is as follows: 4 CHRISTOPHER M. MAJORS Northpoint Training Center Highway 33 Inmate Mail/Parcels P.O. Box 479 Burgin, KY 40310 This the 5th day of June, 2014. 5

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