Free Order - District Court of Delaware - Delaware

Case 1:06-cv-00034-JJF Document 4 Filed 02/09/2006 Page1 of 4
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
STATE OF DELAWARE, :
Plaintiff, ;
v. ; Civ. N0. 06-034-JJF
ERIC M. WHITTLE, Strawman, E
a/k/a Michah—El Ali, :
Defendant. 3
MEMORANDUM ORDER
Eric M. Whittle, a/k/a Micah-El Ali, filed a Notice of
Removal on January 17, 2006. (D.I. 2). He appears pgp gg and on
February 1, 2006, was granted ig fgrma pauperis status pursuant
to 28 U.S.C. § 1915. (D.I. 3).
I. FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff filed as an exhibit a Court of Common Pleas
Criminal Docket that indicates he was arrested on August 22,
2003. (D.I. 1, Ex.). A criminal case was filed against him in
the Delaware Criminal Court of Common Pleas on September 26,
2003. Plaintiff was released on his own recognizance and his
arraignment was scheduled for December 1, 2003. IQ. Plaintiff
pled not guilty on December 3, 2003, and at the same time
demanded a jury trial. Id. As of the date of the Notice of
Removal Plaintiff had yet to be tried although the trial was set
for March 15, 2004, April 25, 2005, and August 8, 2005. IQ. On
each occasion Plaintiff failed to appear and the trial was
continued. IQ. The last docket entry indicates that the jury

Case 1:06-cv-00034-JJF Document 4 Filed 02/O9/2006 Page 2 of 4
trial was set for January 18, 2006. IQ.
One day before the last scheduled trial date, on January 17,
2006, Plaintiff filed a Notice of Removal pursuant to 28 U.S.C. S
1441 and § 1446. (D.I. 2). Plaintiff alleges that the State of
Delaware has denied him due process of law. Attached to the
notice is a Declaration of Nationality and Constitutional
Protections of Rights and Immunities as well as a civil complaint
form entitled “IN THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF DELAWARE”. The Notice of Removal did not include any
process, pleadings or orders from the underlying state criminal
action. The Court was provided with only the criminal docket
sheet.
Plaintiff asks that all state actions “cease and desist",
for “a hearing in an Article III Constitutional Court", and
“removal of [the] hearing from the State’s Jurisdiction."
II. REMOVAL
Plaintiff filed his Notice of Removal pursuant to 28 U.S.C.
§ 1441 and § 1446. Section 1441 provides no basis for the
removal of a state criminal proceeding. 28 U.S.C. § 1441;
Pennsylvania v. Bolick, No. 05-1917, 144 Fed.Appx. 274 (3d. Cir.
Sept. 20, 2005). Accordingly, the Court turns to § 1446 which
does provide for removal of criminal prosecutions from a state
court.
Under § 1446, a notice of removal of a criminal prosecution
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Case 1:06-cv-00034-JJF Document 4 Filed 02/09/2006 Page 3 of 4
shall include all grounds for such removal. 28 U.S.C. §
l446(c)(2). A federal district court is to examine promptly the
notice of removal of a criminal prosecution. 28 U.S.C.
l446(c)(4). 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. LQ.
Section 1446(c)(1) provides that a notice of removal of a
criminal prosecution shall be filed not later than thirty days
after the arraignment in the State court, or at any time before
trial, whichever is earlier, except that for good cause shown the
United States district court may enter an order granting the
defendant or defendants leave to file the notice at a later time.
The Docket Sheet provided by Plaintiff indicates that he was
arraigned on December 3, 2003. State of Delaware v. Whittle,
Criminal Action Nos. MNO3094442, MN03094443, MN03094444,
MNO3094445, and MNO3094446. Plaintiff, however, did not file his
notice of removal until over two years later, on January 17,
2006. Plaintiff did not provide good cause for late filing.
Indeed, he filed the Notice of Removal without requesting or
obtaining leave to file it late as is required by § 1446(c)(1).
Therefore, the notice of removal is untimely.
Additionally, Plaintiff failed to comply with other
requisites for removal. He did not provide for the Court's
review any copies of process, pleadings, or orders from the state
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criminal proceeding. geg 28 U.S.C. § 1446(a). Nor does it
appear that he gave the State of Delaware notice of the removal.
Finally, Plaintiff asks that all state actions “cease and
desist”, for “a hearing in an Article III Constitutional Court",
and “removal of [the] hearing from the State's Jurisdiction.”
Section 1446(c)(3) specifically provides that the filing of a
petition for removal of a criminal prosecution shall not prevent
the state court in which the prosecution is pending from
proceeding further, except that a judgment of conviction shall
not be entered until the petition is denied. Hence, the statute
does not afford Plaintiff the type of relief he seeks.
Based upon the foregoing, it is clear from the face of the
Notice of Removal and the exhibits provided by Plaintiff that
removal cannot be permitted. Therefore, the case is summarily
remanded to the state courts of Delaware.
IV. CONCLUSION
NOW THEREFORE, at Wilmington this ij__ day of February,
2006, IT IS HEREBY ORDERED that the case is summarily remanded to
the state courts of Delaware.
UN T=D 81* 5S DISTRIC_ vGE
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