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

unanimously that oral argument would not materially assist 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not binding precedent, except under the doctrines of law of the case, res judicata,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

April 3, 2008

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

PEOPLE OF THE STATE

OF COLORADO,

Plaintiff-Appellee,

v.

DAVID JACKSON,

Defendant-Appellant.

No. 07-1237

(D.C. No. 07-cr-222-ZLW)

(D. Colo.)

ORDER AND JUDGMENT*

Before LUCERO, PORFILIO, Circuit Judges, and BRORBY, Senior Circuit

Judge.

Defendant-Appellant David Jackson, proceeding pro se, appeals the district

court’s order summarily remanding his criminal action to the County Court of

Adams County, Colorado. Because this court lacks jurisdiction over the district

court’s remand order, we DISMISS the appeal.
1 He cited 28 U.S.C. § 1446, but as the district court noted, this statute

merely provides the procedures that are applicable in removal actions, and does

not itself create a right of removal.

-2-

Jackson’s driving privileges were suspended after he failed to pay

court-ordered child support. He was subsequently charged in Colorado county

court with “driving under restraint.” The statute under which he was charged

provides for punishment of up to six months in county jail and a fine of up to

$500 for “[a]ny person who drives a motor vehicle . . . upon any highway of this

state with knowledge that such person’s license or privilege to drive . . . is under

restraint for any reason other than conviction of an alcohol-related offense . . . .” 

Colo. Rev. Stat. § 42-2-138(1)(a). 

Jackson filed an amended notice of removal in federal court, seeking

removal of his state criminal prosecution. He argued that the child support order

and the administrative judgment suspending his driving privileges violated his

federal constitutional rights to due process, equal protection, and a speedy trial. 

He further argued that he was unable to enforce these rights in state court.

In the removal notice, Jackson did not identify a federal statute permitting

the removal.1

 The district court analyzed his request under 28 U.S.C. § 1443(1)

and (2), which allow a defendant in a state court proceeding to remove to federal

court if he cannot enforce his civil rights in state court. With respect to

§ 1443(1), the district court found that Jackson’s claim failed to satisfy the
-3-

two-prong test for removal outlined in Johnson v. Mississippi, 421 U.S. 213, 219

(1975). Specifically, the court concluded that Jackson did not allege the denial of

any right based upon his race, and that he failed to provide the court with specific

factual allegations concerning his inability to enforce his constitutional rights in

the state criminal proceeding. Further, the court determined that § 1443(2) did

not provide a basis for removal because Jackson did not allege that he was a

federal officer or a person assisting a federal officer in the performance of official

duties providing for equal civil rights. The court summarily remanded the case to

state court.

“An order remanding a case to the State court from which it was removed is

not reviewable on appeal or otherwise, except that an order remanding a case . . .

pursuant to [28 U.S.C. § 1443] shall be reviewable by appeal or otherwise.” 

28 U.S.C. § 1447(d). Accordingly, we have jurisdiction to review a remand order

only if the case was removed under § 1443, and concomitantly lack jurisdiction if

“the allegations of the petition make clear that § 1443 is inapplicable.” Miller v.

Lambeth, 443 F.3d 757, 759 (10th Cir. 2006). We must resolve the issue of our

jurisdiction by reviewing the record to determine whether Jackson has alleged a

basis for removal under § 1443. Id. at 760.

Having reviewed Jackson’s amended removal notice, we agree with the

district court that § 1443(1) does not provide him with a basis for removal.

Although he alleged that the action by the Colorado state authorities violated a
2 Jackson contends that the district court misapprehended the basis on which

he sought removal. He argues that he did not allege that the criminal prosecution

violated his federal constitutional rights, but instead that he had been “denied a

Right of First Appeal, on a traffic infraction, which is an element of a criminal

charge.” But denial of a right of first appeal on a traffic infraction also fails to

constitute denial of a right to racial equality that we could review on appeal. 

-4-

number of his civil rights, including his right to due process, equal protection, and

a speedy trial, none of his claims arises “under a federal law providing for

specific civil rights stated in terms of racial equality.” Johnson, 421 U.S. at 219.2

Nor did he allege a basis for removal under § 1443(2), because he did not contend

that “he has been a federal officer or agent, [or] that he has been acting with or

for one . . . .” Miller, 443 F.3d at 761. We therefore lack jurisdiction to

consider this appeal. 

Jackson also argues that the district court should have provided him with

counsel. In light of the remand to state court and our lack of jurisdiction over this

appeal, this argument is moot. 

The appeal is DISMISSED for lack of appellate jurisdiction. Although we

have considered both of Jackson’s “opening briefs,” dated October 15, 2007

(amended October 16, 2007), and December 21, 2007, all of his other pending

motions relating to briefing and to this appeal are DENIED. 

ENTERED FOR THE COURT

Carlos F. Lucero

Circuit Judge