United States District Court, D. Kansas
DAMIAN I. HALLACY, Petitioner,
STATE OF KANSAS, Respondent.
MEMORANDUM AND ORDER AND ORDER OF REMAND
CROW, U.S. SENIOR DISTRICT JUDGE
matter is before the court on petitioner's Notice of
Removal and Motion for Writ of Habeas Corpus (Doc. #1).
Petitioner faces several criminal charges in the District
Court of Sedgwick County in No. 2018CR000048. He seeks to
remove the criminal action to the federal district court.
petitioner proceeds pro se, the Court liberally construes his
claims. Hall v. Bellmon, 935 F.2d 1106, 1110
(10th Cir. 1991). However, “removal statutes
are to be strictly construed … and all doubts are to
be resolved against removal.” Fajen v. Foundation
Reserve Ins. Co, Inc., 683 F.2d 331, 333
(10th Cir. 1982)(citation omitted).
considered the matter, the Court will summarily remand the
matter to the state district court.
seeks removal under 28 U.S.C. § 1455, which governs the
removal of state criminal actions to federal court. The
statute provides as follows:
(a) Notice of removal. - A defendant or
defendants 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 Civil Procedure 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 or defendants in such
(b) Requirements. - (1) A notice of removal
of a criminal prosecution shall be filed not later than 30
days after the arraignment in the State court, or at any time
before trial, whichever is earlier, except that for good
cause shown the United States district court may enter an
order granting the defendant or defendants leave to file the
notice at a later time.
(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.
(3) The filing of a notice of removal of a criminal
prosecution shall not prevent the State court in which such
prosecution is pending from proceeding further, except that a
judgment of conviction shall not be entered unless the
prosecution is first remanded.
(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.
(5) If the United States district court does not order the
summary remand of such prosecution, it shall order an
evidentiary hearing to be held promptly and, after such
hearing, shall make such disposition of the prosecution as
justice shall require. If the United States district court
determines that removal shall be permitted, it shall so
notify the State court in which prosecution is pending, which
shall proceed no further.
(c) Writ of habeas corpus. - If the
defendant or defendants are in actual custody on process
issued by the State court, the district court shall issue its
writ of habeas corpus and the marshal shall thereupon take
such defendant or defendants into the marshal's custody