Sabino v. Port Authority Police Department

Background

Saul Sabino, who was detained at the Anna M. Kross Center and was proceeding without a lawyer, filed what he called a notice of removal concerning his pending New York state criminal prosecution. The notice also referred to a civil-rights action and named the Port Authority Police Department in its caption. The court concluded that, despite those references, Sabino intended to seek removal of his state criminal case under 28 U.S.C. § 1455.

Sabino’s state criminal case began with his August 10, 2020 arrest. A grand jury returned a true bill on October 26, 2020, and Sabino was arraigned on December 23, 2020, where he pleaded not guilty. In his filing, he alleged prosecutorial and judicial misconduct, ineffective assistance of counsel, denial of a speedy trial, and improper denial of discovery. He argued that delays in the state proceedings made his notice timely because state corrective procedures were unavailable.

Removal of the Criminal Proceeding

Under 28 U.S.C. § 1455, a defendant generally must file a notice to remove a state criminal case within 30 days after arraignment or before trial, whichever comes first. The court found that Sabino’s notice was given to prison officials for mailing around June 4, 2022—about 18 months after his December 2020 arraignment. The notice therefore did not meet the statute’s timing requirement.

The court also explained that federal removal jurisdiction over state criminal prosecutions is limited. Removal may be available for a state prosecution against a federal officer or member of the armed forces for conduct under official authority, or when the defendant is denied or cannot enforce an equal-civil-rights protection in state court. The court found that Sabino alleged neither circumstance and therefore had not shown a statutory basis for removal.

Disposition and Additional Relief

The court concluded that removal was improper and remanded the criminal proceedings to the New York Supreme Court-Criminal Term under 28 U.S.C. § 1455. It directed the Clerk to send that court a copy of the order and close this federal action.

Because Sabino’s filing also invoked 28 U.S.C. § 2241 and raised additional grounds for relief, including double-jeopardy and speedy-trial claims, the court directed the Clerk to open a new civil action. The Clerk was directed to file Sabino’s initial pleading in that action as a petition challenging his detention under Section 2241, along with his application to proceed without paying filing fees. The court stated that Sabino would have an opportunity to withdraw the new action if he did not wish to proceed with that petition.