1

DLD

- 169 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

___________
No. 1 2

- 1455

___________
COMMONWEALTH OF PENNSYLVANIA

v.

TORRE RANDOLPH,

Appellant

____________________________________ On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Criminal No. 12

- cr

- 00005 ) District Judge: Honorable Gene E. K. Pratter

____________________________________ Submitted for Possible Summary Action Under Third Circuit LAR 27.4 and I.O.P . 10.6 April 26, 2012 Before: AMBRO, JORDAN and VANASKIE, Circuit Judges

(Opinion filed : M ay 1 5
, 2012 )

_________
OPINION

_________
PER CURIAM

Appellant Torre Randolph appeals from the District Court ‟s order summarily

remandin g his case to the state court. For the reasons that follow, we will affirm.

Randolph filed a notice of removal with the United States District Court for the2

Eastern District of Pennsylvania seeking removal of a criminal action from Pennsylvania

state court. After reviewing Randolph ‟s removal petition , the District Court determined

that it appeared Randolph was attempting to remove his case pursuant to 28 U.S.C. §

1443. 1 The District Court then held that the allegations of Randolph‟s notice were

in sufficient to support removal under § 1443
, denied the petition
, and remanded the case

to the state court

. Randolph timely appealed.

“An order remanding a case to the State court from which it was removed is not

reviewable on appeal” unless the case was removed pursuant to § 1443. See 28 U.S.C.

§ 1447(d). Thus, to the extent that Randolph challenges the District Court‟ s remand

order with respect to any bases for removal other than § 1443
, we will dismiss the a ppeal

for lack of jurisdiction. Davis v. Glanton , 107 F.3d 1044, 1047 (3d Cir. 1997). We have

jurisdiction to review the remand order to the extent that Randolph asserts that removal

was proper under § 1443

. Id.

Section 1443 (1) authorizes the removal o f a state law action “[a]gainst 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

wi thin the jurisdiction thereof.” 28 U.S. C. § 1443

. For this provision to apply, “a state

court defendant must demonstrate both: (1) that he is being deprived of rights guaranteed

by a federal law „providing for . . . equal civil rights‟ ; and (2) that he is „denied or cannot

1 Rando lph does not dispute the District Court‟s characterization of his petition . In any event, we are not aware of any other provision permitting removal of the State‟s criminal3

e nforce that right i n the courts‟ of the state.” Davis v. Glanton , 107 F.3d at 1047 (quoting

State of Georgia v. Rachel , 384 U.S. 780, 788 (1966)). Under the first requirement, the

defendant must allege a deprivation of rights guaranteed by a federal law “providing for

spec ific civil rights stated in terms of racial equality.” Id. (internal cit ations and

quotations omitted). Under the second requirement, removal i s available where the

defendant‟ s federal civil rights would “inevitably be denied by the very act of being

bro ught to trial in state court.” Id. at 1949. (internal citations and quotations omitted).

The District Court correctly determined that Randolph did not allege in his petition

that the state court litigation involv es issues of racial inequality, and he of fers no

ar gument on appeal to dispute that determination.

Randolph likewise failed to allege anything that might permit removal under

§ 1443(2). Indeed, “[t ]he second subsection of § 1443 confers a privilege of removal

only upon federal officers or age nts 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, Miss. v. Peacock , 384 U.S. 808, 824 (1966). Randolph does not

purport to fall into any of those categories

. Accordingly, the District Court correctly determined that § 1443 did not apply to

Randolph‟ s removal petition and appropriately remanded the case to the state court. See

28 U.S.C. § 1455(b)(4). 2

prosecution against Randolph.
2 Moreover, we agree with the District Court that th e removal petition was not timely4

For the these reasons, we will summarily aff irm the j udgment of the District

Court. See Third Cir. LAR 27.4; I.O.P. 10.6. Appellant‟s “motion to dismiss based upon

excessive and prejudicial delay between the criminal incident and a rrest ,” and motion for

appointment of counsel
, are denied.

filed. See id. at § 1455 (b)(1).