State of North Carolina v. Lorraine Lewis , 505 F. App'x 259 ( 2013 )

UNPUBLISHED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Dismissed in part; affirmed in part by unpublished per curiam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Unpublished opinions are not binding precedent in this circuit.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 and federal law
allegedly committed by the prosecution. Liberally construing
Lewis’ removal notice and supporting 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
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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 removal
procedure or a lack of subject matter jurisdiction. Quackenbush
v. Allstate Ins. Co., 517 U.S. 706, 711-12 (1996).
Lewis attempted to remove under § 1441(a) a legal
matter falling within a class of cases Congress deemed non-
removable under that provision. The district court thus lacked
subject matter jurisdiction 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. Accordingly, this
portion of the ruling is not subject to appellate
review. 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
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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
equality in the state courts. Georgia v. Rachel, 384 U.S. 780,
788 (1966); South Carolina v. Moore, 447 F.2d 1067, 1070
(4th Cir. 1971). We conclude after review of the record that
this case does not implicate § 1443(1) because there is no
indication that Lewis has been denied or cannot enforce the
right to racial equality in the North Carolina state court
system. Removal of the prosecution pursuant to § 1443(1) was
not appropriate, and the district court properly rejected this
effort.
Accordingly, we dismiss the appeal in part, grant
leave to proceed in forma pauperis, deny Lewis’ motion for
calendar date, and affirm the district court’s judgment in part.
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
DISMISSED IN PART;
AFFIRMED IN PART
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