County of Yazoo v. Prewitt ( 2023 )

Case: 23-60073 Document: 00516960020 Page: 1 Date Filed: 11/07/2023
United States Court of Appeals
for the Fifth Circuit
____________ United States Court of Appeals
Fifth Circuit
No. 23-60073 FILED
Summary Calendar November 7, 2023
____________ Lyle W. Cayce
Clerk
County of Yazoo, Mississippi,
Plaintiff—Appellee,
versus
George Dunbar Prewitt, Jr.,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 3:22-CR-113-1
______________________________
Before Haynes, Graves, and Higginson, Circuit Judges.
Per Curiam: *
George Dunbar Prewitt, Jr. removed the adjudication of his speeding
ticket to federal district court citing, among other statutes, 28 U.S.C. § 1443.
He now appeals the district court’s order summarily remanding the case back
to the Yazoo County Court, as well as the district court’s denial of his motion,
pursuant to 28 U.S.C. § 2284, for a three-judge panel. He contends that the
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
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Yazoo County Court has no jurisdiction over him, arguing that Mississippi’s
entire governmental structure, including its court system, is illegitimate
because the 1890 Mississippi Constitution violated certain Reconstruction
Era statutes because it (1) was not ratified by the majority of the state’s
citizens and (2) improperly redrew the congressional districts by illegally
changing the state’s eastern boundaries. Prewitt has also filed motions to
stay the remand order and to suspend that motion to stay.
Generally, “[a]n order remanding a case to the State court from which
it was removed is not reviewable on appeal or otherwise.” 28 U.S.C.
§ 1447(d). However, § 1447(d) makes an exception for orders remanding
cases that were “removed pursuant to” § 1443. Here, Prewitt’s notice of
removal expressly relied on § 1443; therefore, we have jurisdiction to review
the remand order under the exception provided in § 1447(d). See BP P.L.C.
v. Mayor & City Council of Baltimore, 141 S. Ct. 1532, 1538 (2021); Whitaker
v. Carney, 778 F.2d 216, 219 (5th Cir. 1985).
We review de novo the district court’s remand order. Latiolais v.
Huntington Ingalls, Inc., 951 F.3d 286, 290 (5th Cir. 2020) (en banc). A
criminal prosecution commenced in a state court may be removed to a federal
district court if the prosecution is “[a]gainst any person who 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 persons within
the jurisdiction thereof.” § 1443(1). To remove a state case under § 1443(1),
the defendant must show both that (1) the right allegedly denied arises under
a federal law providing for specific rights stated in terms of racial equality and
(2) the defendant is denied or cannot enforce the specified federal rights in
the state courts due to some formal expression of state law. Johnson v.
Mississippi, 421 U.S. 213, 219-20 (1975). Significantly, the statute applies only
to rights that are stated in terms of racial equality and not to generally
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applicable constitutional rights. See Georgia v. Rachel, 384 U.S. 780, 792
(1966).
Prewitt appears to assert that the cited Reconstruction Era statutes
constitute the federal civil rights laws stated in terms of racial equality, as
required under the first prong of Johnson, 421 U.S. at 219. He also appears
to contend that the 1890 Mississippi Constitution is the formal expression of
state law by which he is being denied, or cannot enforce, his purported federal
rights under the Reconstruction Era statutes, as required by the second prong
of Johnson, 421 U.S. at 219-20. However, Prewitt has not shown that the
Reconstruction Era statutes “provide[] for specific civil rights stated in terms
of racial equality.” Johnson, 421 U.S. at 223 (internal quotation marks and
citation omitted). Moreover, he fails to explain how the provisions in
Mississippi’s 1890 Constitution deprive him, or prevent the enforcement, of
any race-based civil rights purportedly contained in the cited Reconstruction
Era statutes. See id. at 219-20. Accordingly, Prewitt has not made the
required showing for removal under § 1443(1).
Pursuant to § 2284(a), “[a] district court of three judges shall be
convened . . . when an action is filed challenging the constitutionality of the
apportionment of congressional districts or the apportionment of any
statewide legislative body.” Here, the district court determined that there
was not an action challenging the constitutionality of the voting districts,
given that the germane action in this case was Prewitt’s criminal proceeding
based on his speeding ticket, not his notice of removal. Because Prewitt has
failed to specifically address and allege error in the district court’s reasoning
on this point, he has abandoned any challenge to the denial of this motion.
See Brinkmann v. Dallas Cnty. Deputy Sheriff Abner, 813 F.2d 744, 748 (5th
Cir. 1987).
The judgment is AFFIRMED, and the motions are DENIED.
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