Gonzalez v. Clark

Background

Alvin D. Gonzalez filed a notice seeking to remove his criminal proceedings in Bronx County Criminal Court to the U.S. District Court for the Southern District of New York. He filed in federal court without a lawyer. The submission largely consisted of legal terminology and could be understood to allege that his due process rights were being violated in the ongoing state criminal proceedings. The opinion states that Gonzalez was represented by counsel in those proceedings.

The court had previously allowed Gonzalez to proceed without prepaying filing fees. It also noted information from the New York State Office of Court Administration indicating that Gonzalez was arrested on April 10, 2018, and arraigned on April 11, 2018.

Reasoning

Federal law strictly limits removal of state criminal prosecutions. A criminal defendant generally must file a removal notice no later than 30 days after arraignment or before trial, whichever comes first, and must include copies of the process, pleadings, and orders served in the state case.

The court found that Gonzalez’s notice did not provide facts showing that it was filed within 30 days after his arraignment. It also did not include information about, or pleadings from, the state criminal proceeding. Because the notice did not satisfy the procedural requirements for removal, the court concluded that the case had to be sent back to state court.

The court further explained that, even if the procedural requirements had been met, Gonzalez had not identified a legal basis for removing the criminal prosecution. He did not allege that he was a federal officer or armed-forces member being prosecuted for actions taken under federal authority. He also did not allege that he was unable to enforce in state court a right to racial equality. The court therefore found no statutory basis for removal.

Ruling

Judge Colleen McMahon remanded the action to Bronx County Criminal Court under 28 U.S.C. § 1447(c) because removal was improper. The clerk was directed to send the order to Gonzalez and the Bronx County Criminal Court, record service, and close the federal case.

The court certified under 28 U.S.C. § 1915(a)(3) that any appeal would not be taken in good faith and denied Gonzalez permission to appeal without prepaying fees. The order addressed whether the criminal case could be removed to federal court; it did not decide the underlying state criminal proceedings or Gonzalez’s due process allegation.