United States District Court, N.D. Ohio, Eastern Division
ORDER OF REMAND
HONORABLE SARA LIOI UNITED STATES DISTRICT JUDGE
Cohen (“Cohen”), acting pro se,
initiated this action by filing a Notice of Removal (Doc. No.
1) and Amended Notice of Removal (Doc. No. 2) purporting to
remove a state criminal case pending against him in the
Lorain County Court of Common Pleas, Case No. 19CR101341
(“Criminal Case”). For the reasons that follow,
this case is remanded to the Lorain County Court of Common
was indicted on November 21, 2019 for tampering with
evidence, carrying concealed weapons, and improperly handling
firearms in a motor vehicle. (Doc. No. 1-1.) He was arraigned
on November 27, 2019 where, proceeding pro se, he
entered a plea of Not Guilty. (Doc. No. 1-2.) Cohen removed
the Criminal Case to this Court on December 10, 2019 pursuant
to 28 U.S.C. § 1443.
se pleadings must be liberally construed. Erickson
v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d
1081 (2007) (citation omitted). Such liberal construction
applies to notices of removal. See Ditech Fin., LLC v.
Dyer, No. 3:18-CV-00789-GNS, 2019 WL 438382, at *1 n.1
(W.D. Ky. Feb. 4, 2019).
criminal defendant who desires to remove a criminal
prosecution from state court must file a notice of removal
containing a short and plain statement of the grounds for
removal and comply with certain procedural requirements. 28
U.S.C. § 1455. Another federal statute governs the
limited substantive grounds upon which a state criminal
action may be removed:
the following civil actions or criminal prosecutions,
commenced in a State court may be removed by the defendant to
the district court of the United States for the district and
division embracing the place wherein it is pending:
(1) Against any person who is denied or cannot enforce in the
courts of such State a right under any law providing for the
equal civil rights of citizens of the United States, or of
all persons within the jurisdiction thereof;
(2) For any act under color of authority derived from any law
providing for equal rights, or for refusing to do any act on
the ground that it would be inconsistent with such law.
28 U.S.C. § 1443.
order for a removed state criminal case to come within the
provisions of subsection (1), “it must appear that the
right allegedly denied the removal petitioner arises under a
federal law ‘providing for specific civil rights stated
in terms of racial equality.'” Johnson v.
Mississippi, 421 U.S. 213, 219, 95 S.Ct. 1591, 44
L.Ed.2d 121 (1975) (quoting Georgia v. Rachel, 384
U.S. 780, 792, 86 S.Ct. 1783, 16 L.Ed.2d 925 (1966)).
“Claims that prosecution and conviction will violate
rights under constitutional or statutory provisions of
general applicability or under statutes not protecting
against racial discrimination, will not suffice. That a
removal petitioner will be denied due process of law because
the criminal law under which he is being prosecuted is
allegedly vague or that the prosecution is assertedly a sham,
corrupt, or without evidentiary basis does not, standing
alone, satisfy the requirements of § 1443(1).”
Id. (citing City of Greenwood v. Peacock,
384 U.S. 808, 825, 86 S.Ct. 1800, 16 L.Ed.2d 944 (1966)).
rambling notice and amended notice of removal are difficult
to discern. He appears to argue that the Ohio Revised Code
provisions under which he has been indicted are inconsistent
with the United States Constitution because the State of Ohio
has converted a liberty interest under the Constitution into
a privilege to which it attaches a license requirement and
fee. Thus, Cohen contends that traffic infractions are not a
crime and, if his Criminal Case is not heard in federal
Court, the State of Ohio will have an unfair advantage. (Doc.
No. 1 at 1.) In the amended notice, Cohen alleges that
Court of Common Pleas Judge Mark Betleski lacks jurisdiction
over the Criminal Case because, among other reasons, he has
refused to honor the Writ in the Nature of Discovery.
(See Doc. No. 2 at 25-27.) Cohen further alleges he
has been subjected to racial discrimination in the Criminal
Case because he was denied the “rights of indigenous
people, ” denied discovery requests because
“it's Moorish Bullshit, ” discriminated
against by being called African-American, and deprived of his
rights under the Zodiac Constitution as secured by the
American Constitution. (See id. at 29.) Lastly,
Cohen refers the Court to Northern District of Ohio
(“NDOH”) Case No. 1:19-cv-2017 for exhibits
regarding the instant action. (Id. at 25.)
Cohen's allegations in the notice or amended notice
suggest racial discrimination or provide a basis for
concluding that he has been denied specific civil rights
under federal law with respect to racial equality, as
required by 28 U.S.C. § 1443(1) in order to remove the
Criminal Case. See e.g. Minnesota v. Bey, Nos.
12-256 (JRT), 12-257 (JRT), 2012 WL 6139223, at *2 (D. Minn.
Dec. 11, 2012) (criminal defendant's allegations that
criminal proceedings are unfair and the State is
discriminating against him because he is Moorish-American are
insufficient to establish the right to removal under §
1443(1)) (citing City of Greenwood, 384 U.S. at 826
(rejecting as reasons for removal the defendants' claims
that the state criminal statues were selectively enforced
against them due to their race, that they were innocent, and
that they would not receive a fair trial)); Illinois v.
Sadder-Bey, No. 17-CV-4999, 2017 WL 2987159, at *3 (N.D.