Commonwealth of PA v. Torre Randolph

DLD-169 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 12-1455
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COMMONWEALTH OF PENNSYLVANIA
v.
TORRE RANDOLPH,
Appellant
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On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Criminal No. 12-cr-00005)
District Judge: Honorable Gene E. K. Pratter
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Submitted for Possible Summary Action Under Third Circuit LAR 27.4 and I.O.P. 10.6
April 26, 2012
Before: AMBRO, JORDAN and VANASKIE, Circuit Judges
(Opinion filed: May 15, 2012)
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OPINION
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PER CURIAM
Appellant Torre Randolph appeals from the District Court‟s order summarily
remanding his case to the state court. For the reasons that follow, we will affirm.
Randolph filed a notice of removal with the United States District Court for the
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Eastern District of Pennsylvania seeking removal of a criminal action from Pennsylvania
state court. After reviewing Randolph‟s removal petition, the District Court determined
that it appeared Randolph was attempting to remove his case pursuant to 28 U.S.C. §
1443.1 The District Court then held that the allegations of Randolph‟s notice were
insufficient to support removal under §1443, denied the petition, and remanded the case
to the state court. Randolph timely appealed.
“An order remanding a case to the State court from which it was removed is not
reviewable on appeal” unless the case was removed pursuant to § 1443. See 28 U.S.C.
§ 1447(d). Thus, to the extent that Randolph challenges the District Court‟s remand
order with respect to any bases for removal other than § 1443, we will dismiss the appeal
for lack of jurisdiction. Davis v. Glanton, 107 F.3d 1044, 1047 (3d Cir. 1997). We have
jurisdiction to review the remand order to the extent that Randolph asserts that removal
was proper under § 1443. Id.
Section 1443(1) authorizes the removal of a state law action “[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.” 28 U.S.C. § 1443. For this provision to apply, “a state
court defendant must demonstrate both: (1) that he is being deprived of rights guaranteed
by a federal law „providing for . . . equal civil rights‟; and (2) that he is „denied or cannot
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Randolph does not dispute the District Court‟s characterization of his petition. In any
event, we are not aware of any other provision permitting removal of the State‟s criminal
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enforce that right in the courts‟ of the state.” Davis v. Glanton, 107 F.3d at 1047 (quoting
State of Georgia v. Rachel, 384 U.S. 780, 788 (1966)). Under the first requirement, the
defendant must allege a deprivation of rights guaranteed by a federal law “providing for
specific civil rights stated in terms of racial equality.” Id. (internal citations and
quotations omitted). Under the second requirement, removal is available where the
defendant‟s federal civil rights would “inevitably be denied by the very act of being
brought to trial in state court.” Id. at 1949. (internal citations and quotations omitted).
The District Court correctly determined that Randolph did not allege in his petition
that the state court litigation involves issues of racial inequality, and he offers no
argument on appeal to dispute that determination.
Randolph likewise failed to allege anything that might permit removal under
§ 1443(2). Indeed, “[t]he second subsection of § 1443 confers a privilege of removal
only upon federal officers or agents and those authorized to act with or for them in
affirmatively executing duties under any federal law providing for equal civil rights.”
City of Greenwood, Miss. v. Peacock, 384 U.S. 808, 824 (1966). Randolph does not
purport to fall into any of those categories.
Accordingly, the District Court correctly determined that § 1443 did not apply to
Randolph‟s removal petition and appropriately remanded the case to the state court. See
28 U.S.C. § 1455(b)(4).2
prosecution against Randolph.
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Moreover, we agree with the District Court that the removal petition was not timely
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For the these reasons, we will summarily affirm the judgment of the District
Court. See Third Cir. LAR 27.4; I.O.P. 10.6. Appellant‟s “motion to dismiss based upon
excessive and prejudicial delay between the criminal incident and arrest,” and motion for
appointment of counsel, are denied.
filed. See id. at § 1455(b)(1).
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