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Hallacy v. State

United States District Court, D. Kansas

May 2, 2018

DAMIAN I. HALLACY, Petitioner,
v.
STATE OF KANSAS, Respondent.

          MEMORANDUM AND ORDER AND ORDER OF REMAND

          SAM A. CROW, U.S. SENIOR DISTRICT JUDGE

         This 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.

         Because 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).

         Having considered the matter, the Court will summarily remand the matter to the state district court.

         Analysis

         Petitioner 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 action.
(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 ...

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