OPINION AND ORDER
MYRON H. THOMPSON, District Judge.
This action is before the court on defendant Lorenzo Pearson's removal of a criminal case currently pending against him in a state court. Pearson seeks to remove the action pursuant to 28 U.S.C. § 1443. Pursuant to § 1443:
"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. When a defendant seeks the removal of a state-court prosecution, the district court is required to "examine the notice promptly" to determine whether removal is appropriate, and, if it "clearly appears on the face of the notice and any exhibits annexed thereto that removal should not be permitted, the court shall make an order for summary remand." § 1455(b)(4).
The Supreme Court addressed the scope of removal under § 1443 in Georgia v. Rachel, 384 U.S. 780 (1966), and articulated the two-pronged test that still controls today. First, a defendant must show "that the right upon which [he] rel[ies] is a `right under any law providing for ... equal civil rights.'" Id. at 788 (quoting § 1443(1)). Second, the defendant must show that he is "`denied or cannot enforce' that right" in the state court in which the action currently sits. Id.
Pearson argues that the state court's actions of having him restrained and silenced and having the public cleared from the courtroom resulted in the denial of his rights under 42 U.S.C. § 1981 and § 2000a-21, as well as under the First, Fifth, and Fourteenth Amendments.2 As to Pearson's reliance upon the First, Fifth, and Fourteenth Amendments, these rights do not fall within the scope of § 1443(1), because they provide rights of "general application available to all persons or citizens," and § 1443(1) encompasses only those rights that "`provid[e] for specific civil rights stated in terms of racial equality.'" Alabama v. Conley, 245 F.3d 1292, 1295-96 (11th Cir. 2001) (quoting Rachel, 384 U.S. at 792). Pearson's allegation of the violation of his rights afforded under § 1981, however, would support a valid claim for removal under § 1443(1). Id. at 1296. This is because, as the Supreme Court explained in City of Greenwood, Mississippi v. Peacock, 384 U.S. 808, 825 (1966), § 1981 is a statute "providing for `equal civil rights' within the meaning of § 1443(1)." The same applies to his claim under § 2000a-2. See Wyche v. State of La., 394 F.2d 927, 929 (5th Cir. 1967) (in prosecution removed to federal court by defendant who alleged violation of § 2000a-2, reversing motion to remand based on Rachel).3
Despite meeting prong one of the test provided in Rachel v. Georgia, Pearson's removal petition fails because he is unable to meet Rachel's second prong. "Generally, the denial of the petitioner's equal civil rights must be `manifest in a formal expression of state law.'" Conley, 245 F.3d at 1296 (quoting Rachel, 384 U.S. at 803). As the Eleventh Circuit has explained, "This requirement ensures that removal is available only in cases where the denial of the right can be clearly predicted and avoids involving federal judges in `the unseemly process of prejudging their brethren of the state courts.'" Id. (quoting Rachel, 384 U.S. at 803-04). Under Rule 9.2 of the Alabama Rules of Criminal Procedure, a facially neutral rule, an Alabama state court may have a disruptive criminal defendant restrained and silenced under certain conditions.4
The Supreme Court has created a narrow exception to allow the removal of an action grounded upon the violation of a facially neutral law "if the very act of bringing the state court proceedings will constitute a denial of the rights conferred" by the applicable federal statute. Id. To fall within this exception, however, it is not enough to allege that one's civil rights have been "illegally and corruptly" denied prior to trial, "that the charges are false, or that the defendant is unable to obtain a fair trial in a particular state court." City of Greenwood, 384 U.S. at 827. As the Supreme Court has highlighted, it is insufficient to rely solely upon allegations as to the underlying motives of the charging officers or other applicable parties, because such motives do not necessitate that a defendant will be found guilty in state court if he is innocent "or that in any other manner the defendant will be `denied or cannot enforce in the courts' of the State any right under a federal law providing for equal civil rights." Id. (quoting § 1443(1)). Unlike Rachel, in which the defendants were prosecuted in state court despite being immunized from suit by the federal right relied upon, the vindication of Pearson's federal rights are appropriately left to the state courts because those rights are not being denied by the mere act of bringing him to trial. See Rachel, 384 U.S. at 804; Conley, 245 F.3d at 1298 ("In Rachel, it was only because section 203(c) of the Civil Rights Act of 1964 expressly immunized the defendants from prosecution [for the applicable activity] ... that `the mere pendency of the prosecution enable[d] the federal court to make the clear prediction that the defendants w[ould] be `denied or c[ould] enforce in the courts of (the) State' the right to be free of any `attempt to punish' them for [the] protected activity.").
***
Based on the foregoing analysis, it is ORDERED that this case is remanded to the District Court of Dale County, Alabama.
It is further ORDERED that all pending motions are left for resolution by the state court after remand.
The Clerk of the Court is DIRECTED to take the steps necessary to effect remand to state court.
This case is closed in this court.
A copy of this checklist is available at the website for the USCA, 11th Circuit at www.ca11.uscourts.gov Effective on December 1, 2013, the new fee to file an appeal will increase from $455.00 to $505.00.
CIVIL APPEALS JURISDICTION CHECKLIST
1. Appealable Orders: Courts of Appeals have jurisdiction conferred and strictly limited by statute:
(a) Appeals from final orders pursuant to 28 U.S.C. § 1291: Only final orders and judgments of district courts, or final orders of bankruptcy courts which have been appealed to and fully resolved by a district court under 28 U.S.C.§ 158, generally are appealable. A final decision is one that "ends the litigation on the merits and leaves nothing for the court to do but execute the judgment." Pitney Bowes, Inc. v. Mestre, 701 F.2d 1 365, 1 368 (11th Cir. 1983). A magistrate judge's report and recommendation is not final and appealable until judgment thereon is entered by a district court judge. 28 U.S.C. § 636(c).
(b) In cases involving multiple parties or multiple claims, a judgment as to fewer than all parties or all claims is not a final, appealable decision unless the district court has certified the judgment for immediate review under Fed.R.Civ.P. 54(b). Williams v. Bishop, 732 F.2d 885, 885-86 (11th Cir. 1984). A judgment which resolves all issues except matters, such as attorneys' fees and costs, that are collateral to the merits, is immediately appealable. Budinich v. Becton Dickinson & Co., 486 U.S. 196, 201, 108 S.Ct. 1717, 1721-22, 100 L.Ed.2d 178 (1988); LaChance v. Duffy's Draft House, Inc., 146 F.3d 832, 837 (11th Cir. 1998).
(c) Appeals pursuant to 28 U.S.C. § 1292(a): Appeals are permitted from orders "granting, continuing, modifying, refusing or dissolving injunctions or refusing to dissolve or modify injunctions . . ." and from "[i]nterlocutory decrees . . . determining the rights and liabilities of parties to admiralty cases in which appeals from final decrees are allowed." Interlocutory appeals from orders denying temporary restraining orders are not permitted.
(d) Appeals pursuant to 28 U.S.C. § 1292(b) and Fed.R.App.P. 5: The certification specified in 28 U.S.C. § 1292(b) must be obtained before a petition for permission to appeal is filed in the Court of Appeals. The district court's denial of a motion for certification is not itself appealable.
(e) Appeals pursuant to judicially created exceptions to the finality rule: Limited exceptions are discussed in cases including, but not limited to: Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1225-26, 93 L.Ed. 1528 (1949); Atlantic Fed. Sav. & Loan Ass'n v. Blythe Eastman Paine Webber, Inc., 890 F.2d 371, 376 (11th Cir. 1989); Gillespie v. United States Steel Corp., 379 U.S. 148, 157, 85 S.Ct. 308, 312, 13 L.Ed.2d 199 (1964).
2. Time for Filing: The timely filing of a notice of appeal is mandatory and jurisdictional. Rinaldo v. Corbett, 256 F.3d 1276, 1278 (11th Cir. 2001). In civil cases, Fed.R.App.P. 4(a) and (c) set the following time limits:
(a) Fed.R.App.P. 4(a)(1): A notice of appeal in compliance with the requirements set forth in Fed.R.App.P. 3 must be filed in the district court within 30 days after the entry of the order or judgment appealed from. However, if the United States or an officer or agency thereof is a party, the notice of appeal must be filed in the district court within 60 days after such entry. THE NOTICE MUST BE RECEIVED AND FILED IN THE DISTRICT COURT NO LATER THAN THE LAST DAY OF THE APPEAL PERIOD — no additional days are provided for mailing. Special filing provisions for inmates are discussed below.
(b) Fed.R.App.P. 4(a)(3): "If one party timely files a notice of appeal, any other party may file a notice of appeal within 14 days after the date when the first notice was filed, or within the time otherwise prescribed by this Rule 4(a), whichever period ends later."
(c) Fed.R.App.P. 4(a)(4): If any party makes a timely motion in the district court under the Federal Rules of Civil Procedure of a type specified in this rule, the time for appeal for all parties runs from the date of entry of the order disposing of the last such timely filed motion.
(d) Fed.R.App.P. 4(a)(5) and 4(a)(6): Under certain limited circumstances, the district court may extend the time to file a notice of appeal. Under Rule 4(a)(5), the time may be extended if a motion for an extension is filed within 30 days after expiration of the time otherwise provided to file a notice of appeal, upon a showing of excusable neglect or good cause. Under Rule 4(a)(6), the time may be extended if the district court finds upon motion that a party did not timely receive notice of the entry of the judgment or order, and that no party would be prejudiced by an extension.
(e) Fed.R.App.P. 4(c): If an inmate confined to an institution files a notice of appeal in either a civil case or a criminal case, the notice of appeal is timely if it is deposited in the institution's internal mail system on or before the last day for filing. Timely filing may be shown by a declaration in compliance with 28 U.S.C. § 1746 or a notarized statement, either of which must set forth the date of deposit and state that first-class postage has been prepaid.
3. Format of the notice of appeal: Form 1, Appendix of Forms to the Federal Rules of Appellate Procedure, is a suitable format. See also Fed.R.App.P. 3(c). A pro se notice of appeal must be signed by the appellant.
4. Effect of a notice of appeal: A district court loses jurisdiction (authority) to act after the filing of a timely notice of appeal, except for actions in aid of appellate jurisdiction or to rule on a timely motion of the type specified in Fed.R.App.P. 4(a)(4).
