State v. Strahan

          Richard Maximus Strahan, pro se Corey M. Belobrow, Esq. J. Joseph McKittrick, Esq. Eric Alexander Maher, Esq.

          REPORT AND RECOMMENDATION

          ANDREA K. JOHNSTONE, UNITED STATES MAGISTRATE JUDGE.

         Before the court are documents (Doc. No. 1) filed by Richard Maximus Strahan, removing a pending misdemeanor prosecution from the New Hampshire Circuit Court to this court. The matter is here for review under 28 U.S.C. § 1455 and LR 4.3(d)(3).

         Standard

         State criminal defendants may remove state criminal prosecutions to federal court in rare circumstances. See 28 U.S.C. §§ 1442 (criminal prosecutions against federal agencies and officers), 1442(a) (criminal prosecution against members of the armed services), 1443 (denial of racial equality in state criminal prosecutions). A federal statute, 28 U.S.C. § 1455(b), sets out the procedures which apply when state prosecutions are removed.

         Section 1455(b)(4) authorizes the court to remand summarily those state criminal prosecutions that do not appear on the face of the removal documents to be properly removed to this court:

The United States district court in which such notice [of removal] is filed shall examine the notice promptly. If it clearly appears on the face of the notice and any exhibits annexed thereto that removal should not be permitted, the court shall make an order for summary remand.

Id. § 1455(b)(4). See also LR 4.3(d)(3) (initial filings of pro se removal defendants, not proceeding in forma pauperis, are forwarded to magistrate judge for preliminary review to determine if court has subject matter jurisdiction). Given Strahan's pro se status, this court construes his notice of removal liberally. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam).

         Background

         Strahan was arraigned in May 2017 in a state criminal case, State v. Strahan, No. 432-2017-CR-1148 (N.H. Cir. Ct., 7th Cir., Dist. Div.-Dover (“Dover District Court”)), on charges arising from an incident in Lee, New Hampshire: specifically, a charged misdemeanor offense of leaving the scene of an accident involving damage to another car, and a violation of the state law prohibiting the use of a hand-held cellphone while driving. In his notice of removal, Strahan alleges discriminatory police enforcement and discriminatory prosecution as to the laws he is charged with violating.

         Specifically, Strahan asserts that he is being prosecuted out of a “hateful discriminatory animus . . . for his bringing lawsuits against the police, for being indigent, and owing to his race.” Doc. No. 1, at 2. His “race, ” which he calls, “White Negro, ” includes “indigent peoples not born nor raised in . . . New Hampshire.” Id. Strahan asserts that the presiding judge in the state prosecution has ruled that the court will not hear Strahan's civil rights claims against the police and prosecutor in the context of the state criminal trial.

         Discussion

         I. Untimely Filing

         “A notice of removal of a criminal prosecution must be filed within thirty days of arraignment or before trial, whichever is earlier, except that the federal court may extend that deadline for good cause.” 28 U.S.C. § 1455(b)(1). Strahan's filing of removal documents occurred in December 2017, approximately six months after the expiration of the 30-day time limit set by § 1455(b)(1). Strahan has asserted that the belated removal should ...