United States District Court, D. Colorado
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE AND
ORDER REDRAWING CASE
Y. WANG, MAGISTRATE JUDGE.
Carlson (“Defendant” or “Ms.
Carlson”), a defendant in two criminal proceedings in
San Miguel County Court, has filed with the court a Notice of
Removal pursuant to 28 U.S.C. § 1455(a), seeking to
remove her pending criminal matters to the United States
District Court for the District of Colorado on the basis that
the state court proceedings are tainted by fabricated and
falsified court orders. [#1 at 3]. Upon review of the Notice
of Removal and attached documents, the undersigned Magistrate
Judge finds that this case is not properly removed from state
court. Accordingly, the Clerk of the Court is
ORDERED to redraw this case to an Article
III Judge and it is further RESPECTFULLY
RECOMMENDED that this case be remanded back to San
Miguel County Court.
Carlson does not specify the statutory basis for removal,
only citing the procedural statute which authorizes such
removal, 28 U.S.C. § 1455(a). E.g., [#1 at 2].
On the merits, Ms. Carlson is alleging that certain
procedural irregularities in the underlying state court
proceedings jeopardize her constitutional rights, including
her “Fifth Amendment Due Process; Fifth Amendment
Double Jeopardy; Sixth Amendment Effective Assistance of
Counsel; Sixth Amendment Right of Confrontation; and Eighth
Amendment Cruel and Unusual Punishment” rights. [#1 at
8]. The court finds that, in substance, Ms. Carlson is
asserting removal under § 1443 which provides narrow
grounds for removal of certain state criminal proceedings.
requirements for removal under § 1443(1) are narrow and
well-defined. See Davis v. Glanton, 107 F.3d 1044,
1045 (3d Cir. 1997). “First, 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 (1975) (quoting
Georgia v. Rachel, 384 U.S. 780, 792 (1966)).
“A state court defendant's claim that
‘prosecution and conviction will violate rights under
constitutional or statutory provisions of general
applicability or under statutes not protecting against racial
discrimination' is insufficient for removal.”
Colorado v. Lopez, 919 F.2d 131, 132 (10th Cir.
1990) (quoting Johnson, 421 U.S. at 219).
it must appear . . . that the removal petitioner is
‘denied or cannot enforce' the specified federal
rights ‘in the courts of [the] State.'”
Johnson, 421 U.S. at 219 (quoting 28 U.S.C.§
1443(1)). The Supreme Court explained this requirement as
Under § 1443(1), the vindication of the defendant's
federal rights is left to the state courts except in the rare
situations where it can be clearly predicted by reason of the
operation of a pervasive and explicit state or federal law
that those rights will inevitably be denied by the very act
of bringing the defendant to trial in the state court.
City of Greenwood, Miss., v. Peacock, 384 U.S. 808,
828 (1966) see also Colorado v. Carrillo, 644
Fed.Appx. 826, 827 (10th Cir. 2016) (same). This requirement
must be supported by specific factual allegations. See
generally 14A Charles Alan Wright et al., Federal
Practice & Procedure § 3728 (2d ed. 1985).
Carlson does not allege facts that demonstrate she has been
denied any rights based on her race. Rather, her Notice of
Removal is premised on the alleged imminent violation of
generally applicable constitutional provisions.
Lopez, 919 F.2d at 132. But this is insufficient to
support removal and removal pursuant to § 1443(1) is not
pursuant to 28 U.S.C. § 1443(2) also is not appropriate.
Section 1443(2) “confers a privilege of removal only
upon federal officers or agents and those authorized to act
with or for them in affirmatively executing duties under any
federal law providing for equal civil rights.” City
of Greenwood, 384 U.S. at 824. Ms. Carlson does not
allege that she is either a federal officer or a person
assisting a federal officer in the performance of official
duties providing for equal civil rights. Therefore, because
it appears on the face of the notice of removal that removal
of this action should not be permitted, the action should be
remanded to the state court pursuant to 28 U.S.C. §
it is ORDERED that the Clerk of the court
shall redraw this case to an Article III Judge. It is further
RESPECTFULLY RECOMMENDED that this action be
remanded to San Miguel County Court.
 Within fourteen days after service of
a copy of the Recommendation, any party may serve and file
written objections to the Magistrate Judge's proposed
findings and recommendations with the Clerk of the United
States District Court for the District of Colorado. 28 U.S.C.
§ 636(b)(1); Fed.R.Civ.P. 72(b); In re Griego,
64 F.3d 580, 583 (10th Cir. 1995). A general objection that
does not put the District Court on notice of the basis for
the objection will not preserve the objection for de
novo review. “[A] party's objections to the
magistrate judge's report and recommendation must be both
timely and specific to preserve an issue for de novo review
by the district court or for appellate review.”
United States v. 2121 E. 30th Street,73 F.3d 1057,
1060 (10th Cir. 1996). Failure to make timely objections may
bar de novo review by the District Judge of the
Magistrate Judge's proposed findings and recommendations
and will result in a waiver of the right to appeal from a
judgment of the district court based on the proposed findings
and recommendations of the magistrate judge. See Vega v.
Suthers,195 F.3d 573, 579-80 (10th Cir. 1999) (District
Court's decision to review a Magistrate Judge's
recommendation de novo despite the lack of an
objection does not preclude application of the “firm
waiver rule”); Int'l Surplus Lines Ins. Co. v.
Wyo. Coal Ref. Sys., Inc.,52 F.3d 901, 904 (10th Cir.
1995) (by failing to object to certain portions of the
Magistrate Judge's order, cross-claimant had waived ...