State of Hawaii v. Christopher Deedy

FILED
NOT FOR PUBLICATION JUL 08 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
STATE OF HAWAII, No. 12-16981
Plaintiff - Appellee, D.C. No. 1:12-cv-00501-LEK-
BMK
v.
CHRISTOPHER DEEDY, MEMORANDUM*
Defendant - Appellant.
Appeal from the United States District Court
for the District of Hawaii
Leslie E. Kobayashi, District Judge, Presiding
Argued and Submitted June 11, 2013
Honolulu, Hawaii
Before: FARRIS, D.W. NELSON, and NGUYEN, Circuit Judges.
Christopher Deedy, a federal officer, was indicted in Hawaii state court for
second-degree murder and carrying or using a firearm in violation of Hawaii law.
Seven months later, Deedy moved pursuant to 28 U.S.C. § 1442(a)(1) and §
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
1446(c)(1) (amended 2011)1 to remove the case to federal district court. Although
he missed the thirty-day filing deadline, Deedy contended that he established
“good cause” for his untimely removal motion because the pre-trial publicity in
Hawaii would prejudice his trial and only a federal court could transfer the case to
a different state. The district court denied the motion, and Deedy appeals. We
affirm.2
We review for abuse of discretion a district court’s denial of an untimely
removal motion for lack of good cause. See Wei v. Hawaii, 763 F.2d 370, 371 (9th
Cir. 1985) (reviewing for abuse of discretion a district court’s dismissal of a
complaint for plaintiff’s failure to show good cause in failing to serve the
complaint within the prescribed period). A district court abuses its discretion if it
makes an error of law, or if its decision is “(1) illogical, (2) implausible, or (3)
without support in inferences that may be drawn from the facts in the record.”
1
Congress has since amended § 1446. See Federal Courts Jurisdiction and
Venue Clarification Act of 2011, Pub. L. 112-63, 125 Stat. 758, 758-62 (2011).
However, the amendments to § 1446 do not apply to this case because Deedy’s
state court prosecution commenced before January 6, 2012. See id. at § 105. All
citations to § 1446 refer to the statute prior to amendment.
2
The State of Hawaii’s requests for judicial notice are GRANTED to the
extent that they comply with Fed. R. Evid. 201 and “do not require the acceptance
of facts subject to reasonable dispute.” Cal. ex rel. RoNo, LLC v. Altus Fin. S.A.,
344 F.3d 920, 931 n.8 (9th Cir. 2003) (internal quotation marks omitted).
2
United States v. Hinkson, 585 F.3d 1247, 1262 (9th Cir. 2009) (en banc) (internal
quotations omitted).
Deedy first argues that the district court committed legal error by stating that
“removal jurisdiction must be strictly construed.” Deedy contends that the court
should have taken a more permissive approach to federal officer removal
jurisdiction as required by Willingham v. Morgan, 395 U.S. 402 (1969).
Deedy’s argument fails. He ignores the distinction between § 1442(a)(1) and
§ 1446(c)(1). It is correct that courts must liberally construe the substantive
elements of federal officer removal jurisdiction under § 1442(a)(1). See
Willingham, 395 U.S. at 407 (rejecting “a narrow, grudging interpretation of §
1442(a)(1)”) (emphasis added). However, the district court did not base its
decision on the substantive requirements for removal under § 1442(a)(1), but rather
on Deedy’s failure to meet the procedural requirements under § 1446(c)(1). In
interpreting a predecessor of § 1446(c)(1), we held that unlike the substantive
provisions of § 1442(a)(1), the procedural elements of the federal officer removal
statutes must be strictly construed. United States ex rel. Walker v. Gunn, 511 F.2d
1024, 1026 (9th Cir. 1975). The district court made no legal error.
Next, Deedy asserts that the district court erred in concluding that the
adverse pre-trial publicity and the potential need to transfer the case to a different
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federal district did not constitute good cause to excuse his untimely removal
motion. Deedy makes several related arguments that the district court misapplied
Fed. R. Crim. P. 21(a) when considering the potential need to transfer the case to a
federal district outside of Hawaii. However, Deedy’s arguments misconstrue the
district court’s order. The district court did not purport to apply Rule 21(a); the
only relevant statement by the court was that the alleged prejudice which might
necessitate a transfer was “entirely speculative.” Deedy’s arguments about the
district court’s alleged misapplication of Rule 21(a) are strawmen that attempt to
identify a “legal error” in order to evade abuse of discretion review.
Additionally, Deedy claims that the record does not support the district
court’s statement that he “could have reasonably anticipated” the negative pretrial
publicity within thirty days of his arraignment. This argument fails. The record
contains several negative articles published before Deedy’s arraignment, including
one reporting claims by the victim’s attorney that Deedy “was drunk and karate-
kicked” the victim before killing him, and another article highlighting the racial
tensions in the incident. These facts and others in the record “support [the]
inference[]” of the district court that Deedy should have anticipated future
publicity given the immediate attention his case raised in the Hawaiian press. See
4
Hinkson, 585 F.3d at 1262. Deedy fails to show that the district court’s holding is
otherwise “illogical” or “implausible.” See id.AFFIRMED.
5