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State v. Cohen

United States District Court, N.D. Ohio, Eastern Division

January 10, 2020




         Andre 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 Pleas.

         A. Background

         Cohen 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.

         B. Discussion

         Pro 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).

         A 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:

         Any of 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.

         In 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)).

         Cohen's 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.[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.[2] (Id. at 25.)

         None of 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. Ill. ...

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