UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

THE PEOPLE OF THE STATE OF 

COLORADO, 

 Plaintiff - Appellee, 

v. 

ALFONSO CARRILLO, 

 Defendant - Appellant. 

No. 15-1294 

(D.C. No. 1:15-y-00040-LTB) 

(D. Colo.) 

_________________________________ 

ORDER AND JUDGMENT*

_________________________________ 

Before LUCERO, MATHESON, and BACHARACH, Circuit Judges. 

_________________________________ 

Alfonso Carrillo appeals following the district court’s remand of his criminal 

case to Colorado state court. Exercising jurisdiction under 28 U.S.C. § 1447(d), we 

affirm. 

I 

Carrillo was charged in Colorado state court with forgery, offering a false 

instrument, and theft. He filed a notice of removal, which he subsequently amended, 

 *

 After examining the briefs and appellate record, this panel has determined 

unanimously that oral argument would not materially assist in the determination of 

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore 

ordered submitted without oral argument. This order and judgment is not binding 

precedent, except under the doctrines of law of the case, res judicata, and collateral 

estoppel. It may be cited, however, for its persuasive value consistent with 

Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 

FILED 

United States Court of Appeals

Tenth Circuit 

March 28, 2016

Elisabeth A. Shumaker 

Clerk of Court
2 

claiming that his prosecution was motivated by racial discrimination. The district 

court summarily remanded the case to state court on June 24, 2015. Carrillo filed a 

motion for reconsideration on July 31, 2015.1

 The district court denied his motion on 

August 3, 2015. Carillo then filed a notice of appeal of both orders, which he 

certified was deposited in the prison mail system on August 14, 2015. 

II

 An order remanding a case to state court is generally not reviewable on appeal. 

See 28 U.S.C. § 1447(d). However, the statute contains an exception for cases 

“removed pursuant to section 1443 of this title,” which “shall be reviewable by 

appeal.” Id. Because Carrillo expressly relied on § 1443 in his notice of removal, we 

possess jurisdiction. See Colorado v. Lopez, 919 F.2d 131, 132 (10th Cir. 1990). 

 It is not clear whether an appeal from a remand order in a case removed under 

§ 1443 should be treated as civil or criminal. See Taos Cty. Magistrate Court v. 

Currier, 625 F. App’x 358, 360 (10th Cir. 2015) (noting that although such cases are 

criminal in nature, criminal defendants are required to adhere to Fed. R. Civ. P. 11 in 

filing a notice of removal). But Carrillo’s notice of appeal was untimely with respect 

to the remand order under either standard. See Fed. R. App. P. 4(a)(1)(a) (30-day 

deadline in civil cases); Fed. R. App. P. 4(b)(1)(A) (14-day deadline in criminal 

 1

 Although the motion is dated July 15, 2015, Carillo does not indicate when it 

was placed in the prison mail system and thus does not benefit from the prison 

mailbox rule. See Price v. Philpot, 420 F.3d 1158, 1165 (10th Cir. 2005). 
3 

cases).2

 However, Carrillo’s notice of appeal is timely as to the denial of his motion 

for reconsideration under either rule. See Fed. R. App. P. 4(a)(1)(A); Fed. R. App. P. 

4(b)(1)(A); see also Philpot, 420 F.3d at 1165 (prison mailbox rule for computing 

filing date). Accordingly, we review only the district court’s order denying 

reconsideration. 

III

 Under Johnson v. Mississippi, 421 U.S. 213 (1975), a defendant may remove a 

criminal case to federal court under § 1443(1) if: (1) “the right allegedly denied the 

removal petitioner arises under a federal law providing for specific civil rights stated 

in terms of racial equality”; and (2) “the removal petitioner is denied or cannot 

enforce the specified federal rights in the courts of the State.” Johnson, 421 U.S. at 

219 (quotation omitted).3 Ordinarily, “vindication of the defendant’s federal rights is 

left to the state courts” and thus removal is appropriate only if “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 v. Peacock, 384 U.S. 808, 828 (1966). 

 2

 Carrillo’s motion for reconsideration was not filed in time to toll the 

limitations period under either standard. See Fed. R. App. P. 4(a)(4)(A)(iv) (deadline 

to appeal tolled by timely filing of a Fed. R. Civ. P. 59 motion); Fed. R. Civ. P. 59(b) 

(motion to be filed within 28 days); Fed. R. App. P. 4(b)(3)(A) (tolling motions in a 

criminal case must be filed within 14 days). 

3

 Carrillo cited several other statutes in his notice of removal, but argues only 

§§ 1443(1) and 1446 on appeal. Section 1446 merely sets forth the procedural 

requirements for removal. 
4 

Even construing his pro se filings liberally, Hall v. Bellmon, 935 F.2d 1106, 

1110 (10th Cir. 1991), we agree with the district court that Carrillo failed to allege 

facts suggesting that the Colorado state courts will not protect his federal rights. 

Thus, the district court properly denied Carrillo’s motion for reconsideration of its 

summary remand order.4

 

IV

AFFIRMED. We GRANT Carrillo’s motion to proceed in forma pauperis. 

Entered for the Court 

Carlos F. Lucero 

Circuit Judge 

 4

 Because the allegations contained in the notice of removal were insufficient, 

we reject Carrillo’s argument that the district court should have held an evidentiary 

hearing. See Laughlin v. Kmart Corp., 50 F.3d 871, 873 (10th Cir. 1995) 

(jurisdiction should be determined from allegations in notice of removal), abrogated 

on other grounds by Dart Cherokee Basin Operating Co. v. Owens, 135 S. Ct. 574 

(2014).