Cabello v. State of Texas , 71 F. App'x 315 ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS July 31, 2003
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
Clerk
No. 03-40279
Summary Calendar
EDDIE CABELLO,
Plaintiff-Appellant,
versus
STATE OF TEXAS; DOUGLAS LOWE, Criminal District Attorney,
Anderson County, Texas; JANIE COCKRELL, DIRECTOR, TEXAS
DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION; HEATHER
SCHITOSKEY, Correctional Officer, Texas Department of Criminal
Justice-Institutional Division; PETERSON, Warden, Correctional
Officer; MAXINE BARNETTE, District Clerk, Anderson County, Texas,
Defendants-Appellees.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 6:03-MC-1
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Before HIGGINBOTHAM, DAVIS, and PRADO, Circuit Judges.
PER CURIAM:*
Eddie Cabello, Texas prisoner # 441345, appeals the district
court’s order remanding his Texas state criminal prosecution to
Texas state court. The district court remanded the action after
determining that the allegations in Cabello’s removal petition
did not meet the requirements of 28 U.S.C. § 1443.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 03-40279
-2-
Cabello argues that 28 U.S.C. § 1443 does not require
allegations of racial discrimination. Cabello’s argument is
contrary to Johnson v. Mississippi, 421 U.S. 213, 219 (1975), in
which the Supreme Court emphasized that “[c]laims that
prosecution and conviction will violate rights under
constitutional or statutory provisions of general applicability
or under statutes not protecting against racial discrimination
will not suffice.” To accomplish removal pursuant to 28 U.S.C.
§ 1443, Cabello must demonstrate that his claims involve the
denial of rights that arise under a federal law providing
specific rights stated in terms of racial equality and that he
has been denied or cannot enforce the specified federal rights in
the state courts due to some formal expression of state law.
State of Texas v. Gulf Water Benefaction Co., 679 F.2d 85, 86
(5th Cir. 1982) citing Johnson, 421 U.S. at 219. Cabello
concedes that his claims do not involve racial discrimination and
he has therefore not made the required showing.
Cabello also seeks appointment of counsel and requests that
his attorney be granted leave to file a supplemental brief.
Cabello does not assert that exceptional circumstances exist to
warrant the appointment of counsel. See Ulmer v. Chancellor, 691
F.2d 209, 212-13 (5th Cir. 1982).
The district court’s decision is AFFIRMED; Motion for
appointment of counsel is DENIED.