The State of North Carolina v. Anthony Dupree, Jr.

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-8040
THE STATE OF NORTH CAROLINA,
Plaintiff – Appellee,
v.
ANTHONY DUPREE, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. William L. Osteen,
Jr., Chief District Judge. (1:12-cr-00133-WO-1)
Submitted: April 4, 2013 Decided: May 22, 2013
Before SHEDD, DAVIS, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Anthony Dupree, Jr., Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Anthony Dupree, Jr., appeals the district court’s
order remanding his state criminal prosecution to state court.
We affirm.
In certain circumstances, a state criminal prosecution
may be removed to federal district court. See 28 U.S.C. § 1443(2012). Such removal is improper absent “a showing that the
defendant is being denied rights guaranteed under a federal law
providing for specific civil rights stated in terms of racial
equality.” South Carolina v. Moore, 447 F.2d 1067, 1070 (4th
Cir. 1971) (internal quotation marks omitted) (quoting
Johnson v. Mississippi, 421 U.S. 213, 219 (1975)); see also
Georgia v. Rachel, 384 U.S. 780, 792 (1966). “If at any time
before final judgment it appears that the district court lacks
subject matter jurisdiction, the case shall be remanded.” 28
U.S.C. § 1447(c) (2006).
We have reviewed the record and conclude that Dupree
has not made the requisite showing for removal under § 1443. *
Thus, the district court lacked subject matter jurisdiction over
*
Although Dupree also cited 28 U.S.C. § 1446 as a basis for
removal, this statute does not apply to him. At the time Dupree
filed his notice of removal, § 1446 no longer provided
procedures for removal of criminal prosecutions, other than
certain prosecutions of United States officers and agencies.
See 28 U.S.C.A. § 1446 (West Supp. 2012). For the same reason,
Dupree is not entitled to an evidentiary hearing.
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the removed prosecution and appropriately remanded the case to
state court. Accordingly, although we grant leave to appeal in
forma pauperis, we affirm the district court’s judgment. 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.
AFFIRMED
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