Walling v. State of Kansas ( 1999 )


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  •                                                                           F I L E D
    United States Court of Appeals
    Tenth Circuit
    UNITED STATES COURT OF APPEALS
    FEB 18 1999
    TENTH CIRCUIT
    PATRICK FISHER
    Clerk
    TERRY FLOYD WALLING,
    Plaintiff - Appellant,
    vs.                                                     No. 98-3154
    (D.C. No. 98-3054-GTV)
    STATE OF KANSAS,                                         (D. Kan.)
    Defendant - Appellee.
    ORDER AND JUDGMENT *
    Before PORFILIO, KELLY, and HENRY, Circuit Judges. **
    Mr. Walling, an inmate appearing pro se and in forma pauperis, appeals
    from the district court’s dismissal of his notice of removal. It appears from the
    record that after being denied state post-conviction relief and filing a notice of
    appeal, Mr. Walling sought to remove his state action to federal court. The
    district court dismissed the notice/action on the grounds that Mr. Walling was not
    *
    This order and judgment is not binding precedent, except under the
    doctrines of law of the case, res judicata, and collateral estoppel. This court
    generally disfavors the citation of orders and judgments; nevertheless, an order
    and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
    **
    After examining the briefs and the appellate record, this three-judge panel
    has determined unanimously that oral argument would not be of material
    assistance in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th
    Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
    a defendant that could remove under 
    28 U.S.C. § 1441
    (a),     see Shamrock Oil &
    Gas Corp. v. Sheets , 
    313 U.S. 100
    , 104-07 (1941);   Conner v. Salzinger , 
    457 F.2d 1241
    , 1243 (3d Cir. 1972), nor could he remove under 
    28 U.S.C. § 1446
    (c).
    Merely because Mr. Walling was once a defendant in the state criminal action
    does not make him one for purposes of state post-conviction relief and removal.
    See Okot v. Callahan , 
    788 F.2d 631
    , 633 (9th Cir. 1986);    Attorney General ex rel.
    Mertz v. Yeager , 
    464 F.2d 553
    , 554 (3d Cir. 1972).
    We GRANT Mr. Walling’s motion to supplement the record on appeal filed
    February 8, 1999. This case is legally frivolous under 
    28 U.S.C. § 1915
    (e)(2)(B)(ii), and the appeal is hereby
    DISMISSED.
    Entered for the Court
    Paul J. Kelly, Jr.
    Circuit Judge
    2