People of the State of CO v. Carrillo

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT March 28, 2016
_________________________________
Elisabeth A. Shumaker
Clerk of Court
THE PEOPLE OF THE STATE OF
COLORADO,
Plaintiff - Appellee,
v. No. 15-1294
(D.C. No. 1:15-y-00040-LTB)
ALFONSO CARRILLO, (D. Colo.)
Defendant - Appellant.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before LUCERO, MATHESON, and BACHARACH, Circuit Judges.
_________________________________
Alfonso Carrillo appeals following the district court’s remand of his criminal
case to Colorado state court. Exercising jurisdiction under 28 U.S.C. § 1447(d), we
affirm.
I
Carrillo was charged in Colorado state court with forgery, offering a false
instrument, and theft. He filed a notice of removal, which he subsequently amended,
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
claiming that his prosecution was motivated by racial discrimination. The district
court summarily remanded the case to state court on June 24, 2015. Carrillo filed a
motion for reconsideration on July 31, 2015.1 The district court denied his motion on
August 3, 2015. Carillo then filed a notice of appeal of both orders, which he
certified was deposited in the prison mail system on August 14, 2015.
II
An order remanding a case to state court is generally not reviewable on appeal.
See 28 U.S.C. § 1447(d). However, the statute contains an exception for cases
“removed pursuant to section 1443 of this title,” which “shall be reviewable by
appeal.” Id. Because Carrillo expressly relied on § 1443 in his notice of removal, we
possess jurisdiction. See Colorado v. Lopez, 919 F.2d 131, 132 (10th Cir. 1990).
It is not clear whether an appeal from a remand order in a case removed under
§ 1443 should be treated as civil or criminal. See Taos Cty. Magistrate Court v.
Currier, 625 F. App’x 358, 360 (10th Cir. 2015) (noting that although such cases are
criminal in nature, criminal defendants are required to adhere to Fed. R. Civ. P. 11 in
filing a notice of removal). But Carrillo’s notice of appeal was untimely with respect
to the remand order under either standard. See Fed. R. App. P. 4(a)(1)(a) (30-day
deadline in civil cases); Fed. R. App. P. 4(b)(1)(A) (14-day deadline in criminal
1
Although the motion is dated July 15, 2015, Carillo does not indicate when it
was placed in the prison mail system and thus does not benefit from the prison
mailbox rule. See Price v. Philpot, 420 F.3d 1158, 1165 (10th Cir. 2005).
2
cases).2 However, Carrillo’s notice of appeal is timely as to the denial of his motion
for reconsideration under either rule. See Fed. R. App. P. 4(a)(1)(A); Fed. R. App. P.
4(b)(1)(A); see also Philpot, 420 F.3d at 1165 (prison mailbox rule for computing
filing date). Accordingly, we review only the district court’s order denying
reconsideration.
III
Under Johnson v. Mississippi, 421 U.S. 213 (1975), a defendant may remove a
criminal case to federal court under § 1443(1) if: (1) “the right allegedly denied the
removal petitioner arises under a federal law providing for specific civil rights stated
in terms of racial equality”; and (2) “the removal petitioner is denied or cannot
enforce the specified federal rights in the courts of the State.” Johnson, 421 U.S. at
219 (quotation omitted).3 Ordinarily, “vindication of the defendant’s federal rights is
left to the state courts” and thus removal is appropriate only if “it can be clearly
predicted by reason of the operation of a pervasive and explicit state or federal law
that those rights will inevitably be denied by the very act of bringing the defendant to
trial in the state court.” City of Greenwood v. Peacock, 384 U.S. 808, 828 (1966).
2
Carrillo’s motion for reconsideration was not filed in time to toll the
limitations period under either standard. See Fed. R. App. P. 4(a)(4)(A)(iv) (deadline
to appeal tolled by timely filing of a Fed. R. Civ. P. 59 motion); Fed. R. Civ. P. 59(b)
(motion to be filed within 28 days); Fed. R. App. P. 4(b)(3)(A) (tolling motions in a
criminal case must be filed within 14 days).
3
Carrillo cited several other statutes in his notice of removal, but argues only
§§ 1443(1) and 1446 on appeal. Section 1446 merely sets forth the procedural
requirements for removal.
3
Even construing his pro se filings liberally, Hall v. Bellmon, 935 F.2d 1106,
1110 (10th Cir. 1991), we agree with the district court that Carrillo failed to allege
facts suggesting that the Colorado state courts will not protect his federal rights.
Thus, the district court properly denied Carrillo’s motion for reconsideration of its
summary remand order.4
IV
AFFIRMED. We GRANT Carrillo’s motion to proceed in forma pauperis.
Entered for the Court
Carlos F. Lucero
Circuit Judge
4
Because the allegations contained in the notice of removal were insufficient,
we reject Carrillo’s argument that the district court should have held an evidentiary
hearing. See Laughlin v. Kmart Corp., 50 F.3d 871, 873 (10th Cir. 1995)
(jurisdiction should be determined from allegations in notice of removal), abrogated
on other grounds by Dart Cherokee Basin Operating Co. v. Owens, 135 S. Ct. 574(2014).
4