[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 20-10656

Non-Argument Calendar

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D.C. Docket No. 6:18-cv-00006-RSB-BWC

STATE OF GEORGIA, 

 Plaintiff-Appellee,

versus

WASEEM DAKER, 

 Defendant-Appellant.

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Appeal from the United States District Court

for the Southern District of Georgia

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(April 27, 2021)

Before MARTIN, BRANCH, and LUCK, Circuit Judges.

PER CURIAM: 

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Waseem Daker appeals the district court’s orders dismissing his notice of 

removal of his state criminal prosecution and remanding to state court and denying 

his rule 59(e) motion. He argues that the district court erred because he had a valid 

basis for removal under 28 U.S.C. section 1443(1) and because his rule 59(e) motion 

was timely. We affirm. 

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Daker is serving a life sentence in Georgia state prison. After getting into an 

altercation with prison officials over the length of his beard, Daker was charged in 

state court with two counts of obstruction of an officer. 

Daker filed a notice to remove his state court charges to federal court under

28 U.S.C. sections 1443 and 1446 and 42 U.S.C. section 2000cc—the Religious 

Land Use and Institutionalized Persons Act. Daker alleged that removal was 

appropriate because the state prosecution violated the First and Fourteenth

Amendments, and the Act. The state prosecution violated his constitutional and 

statutory rights, Daker argued, because it was retaliation for the exercise of his 

religious beliefs. Daker also argued that the state prosecution violated the Eighth 

Amendment because the correctional officers attacked and forcibly shaved him. 

Finally, Daker alleged that he could not enforce these federal rights in state court 

because Georgia did not recognize the Act “as a defense to criminal cases.” 

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The district court dismissed Daker’s notice of removal and remanded the 

prosecution to state court. The district court concluded that the Act was not a federal 

law providing “specific civil rights stated in terms of racial equality” and therefore 

was not a basis for removal under section 1443(1). Daker’s efforts to remove his 

state prosecution also failed, the district court explained, because his claim that the 

state prosecution violated his First, Eighth, and Fourteenth Amendment rights 

implicated broad constitutional guarantees of general application rather than “rights 

implicating racial equality.” The district court also denied Daker’s pending motion 

for law library access as moot. 

The district court entered judgment on March 8, 2019. On April 4, 2019,

Daker signed a rule 59(e) motion to vacate the district court’s judgment. This 

motion was filed and placed on the district court’s docket on April 24, 2019. Daker 

argued that the district court erred by denying his motion for law library access as 

moot because he was unable to identify additional valid grounds for removal without 

access to the law library. 

The district court denied Daker’s postjudgment motion. The district court 

found that the motion had been filed more than twenty-eight days after judgment, 

which was untimely for a rule 59(e) motion. The district court treated it as a 

rule 60(b) motion and concluded it did not satisfy any of the grounds for relief 

provided by rule 60(b). This is Daker’s appeal. 

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STANDARDS OF REVIEW

We review de novo whether the district court had subject matter jurisdiction 

after removal. Castleberry v. Goldome Credit Corp., 408 F.3d 773, 780–81 (11th 

Cir. 2005). Ordinarily, we lack jurisdiction to review an order remanding a removed

case for lack of subject matter jurisdiction. See 28 U.S.C. § 1447(c), (d); Alvarez v. 

Uniroyal Tire Co., 508 F.3d 639, 641 (11th Cir. 2007). But we have jurisdiction to 

review the district court’s judgment that the removing party did not meet the 

requirements for section 1443 removal. See Alabama v. Conley, 245 F.3d 1292, 

1293 n.1 (11th Cir. 2001). 

We review the district court’s denial of a postjudgment motion for an abuse 

of discretion. See Am. Bankers Ins. Co. of Fla. v. Nw. Nat’l Ins. Co., 198 F.3d 1332, 

1338 (11th Cir. 1999) (rule 60(b) motions); Lambert v. Fulton Cnty., Ga., 253 F.3d 

588, 598 (11th Cir. 2001) (rule 59(e) motions). 

DISCUSSION

Daker argues that the district court erred by: (1) concluding that he had not 

established a valid basis for removal under section 1443(1); and (2) concluding that 

his rule 59(e) motion was untimely, construing it as a rule 60(b) motion, and denying 

it. We address each argument in turn. 

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Removal 

A defendant may remove a state criminal prosecution to federal court where

the defendant “is denied or cannot enforce in [the state courts] a right under any law 

providing for the equal civil rights of citizens of the United States . . . .” 28 U.S.C. 

§ 1443(1). A valid section 1443(1) removal notice must satisfy a two-part test. 

Conley, 245 F.3d at 1295. “First, the petitioner must show that the right upon which 

the petitioner relies arises under a federal law ‘providing for specific civil rights 

stated in terms of racial equality.’” Id. (quoting Georgia v. Rachel, 384 U.S. 780, 

792 (1966)). “The phrase ‘any law providing for . . . equal civil rights’ refers to laws 

‘providing for specific civil rights stated in terms of racial equality,’ and does not 

include rights of ‘general application available to all persons or citizens.’” Id.

(quoting Rachel, 384 U.S. at 792). “Second, the petitioner must show that he has 

been denied or cannot enforce that right in the state courts.” Id. 

Daker argued in the district court that he was entitled to removal under section 

1443(1) because the Act “protects his rights to religious exercise and equal 

protection,” and the state courts “do not recognize the [Act] as a defense to criminal 

cases[.]” But the Act is not a law “providing for specific civil rights stated in terms 

of racial equality.” Rachel, 384 U.S. at 792. Rather, “Congress enacted [the Act]

. . . to provide very broad protection for religious liberty.” Holt v. Hobbs, 574 U.S.

352, 356 (2015) (quotation omitted). Because the Act’s purpose is to protect 

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religious liberty rather than to safeguard racial equality, it is not a basis for removal 

under section 1443(1). See Rachel, 384 U.S. at 792. 

Notwithstanding the first prong of Rachel, Daker argues that he was entitled 

to removal under section 1443(1) for four reasons. First, Daker argues that Rachel’s

first prong is “atextual,” “incorrect,” and contrary to the plain language of section 

1443(1). But “we are bound to follow [the] Supreme Court,” Overlook Gardens 

Props., LLC v. ORIX USA, L.P., 927 F.3d 1194, 1201 (11th Cir. 2019), even if we 

think its decision is incorrect or atextual. See Jaffree v. Wallace, 705 F.2d 1526, 

1533 (11th Cir. 1983) (“If the Supreme Court errs, no other court may correct it.”); 

Hutto v. Davis, 454 U.S. 370, 375 (1982) (“[A] precedent of this Court must be 

followed by the lower federal courts no matter how misguided the judges of those 

courts may think it to be.”).

Second, Daker argues that the Act superseded the first prong of Rachel’s twopart test because Congress mandated that the Act “shall be construed in favor of a 

broad protection of religious exercise, to the maximum extent permitted by the terms 

of this chapter and the Constitution.” 42 U.S.C. § 2000cc-3(g). But section 1443(1) 

protects racial equality rather than religious liberty; thus, it was unaffected by the 

Act’s passage. The Act’s entitlement to a broad construction does not change how 

we must interpret section 1443(1). When construing the phrase “any law providing 

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for the equal civil rights,” we remain bound by the interpretation given to us by the 

Supreme Court in Rachel.

Third, Daker argues that Rachel allows for removal under section 1443(1) for 

any claim couched in terms of equality generally. But that is not how we have

interpreted Rachel. We have interpreted Rachel to limit removal under section 

1443(1) to federal laws “providing for specific civil rights stated in terms of racial 

equality.” See Conley, 245 F.3d at 1295 (quoting Rachel, 384 U.S. at 792); Sinclair 

v. Louisiana, 384 F.2d 310, 310 (5th Cir. 1967) (“[T]he removal statute contemplates 

civil rights stated in terms of racial equality.”); Bass v. Mississippi, 381 F.2d 692, 

697 (5th Cir. 1967) (same). In the same way that we are bound by Supreme Court 

precedent, we are also bound by our prior panel precedent. See United States v. 

Sneed, 600 F.3d 1326, 1332 (11th Cir. 2010) (“[A] prior panel’s holding is binding 

on all subsequent panels unless and until it is overruled or undermined to the point 

of abrogation by the Supreme Court or by this court sitting en banc.”). 

Fourth and finally, Daker argues that even if Rachel is limited to civil rights 

laws stated in terms of racial equality, his notice of removal satisfied that standard. 

He argues that the state prison’s beard-length policy discriminates on the basis of 

race because it “reflects hostility” to “Arabs” whose “racial backgrounds and ethnic 

traditions have historically embraced beards.” Thus, Daker argues that the state’s 

“retaliatory prosecution” was “necessarily intertwined” with his race. But our focus 

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isn’t on whether there’s a racial component to the state proceeding. Our focus is on 

whether the civil rights law the removing party relies on as the basis for removal

provides for civil rights stated in terms of racial equality. Although Daker couches 

his allegations in terms of race, the Religious Land Use and Institutionalized Persons 

Act—the civil rights law he invokes as the basis for removal under section 

1443(1)—is one of “general application available to all persons or citizens.” See

Conley, 245 F.3d at 1295 (quoting Rachel, 384 U.S. at 792). In other words, the

religious liberties protected by the Act apply regardless of the prisoner’s race. See

Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 436 

(2006) (“[T]he [Act] . . . allows federal and state prisoners to seek religious 

accommodations”). Because the federal law underlying Daker’s notice of removal 

is stated only in terms of religious liberty rather than racial equality, section 1443(1) 

doesn’t support removal to federal court. See Williams v. Nichols, 464 F.2d 563, 

564 (5th Cir. 1972) (“Removal under [section] 1443(1) is permissible only when a 

right conferred by a law providing for specific civil rights stated in terms of racial 

equality is denied or cannot be enforced in the state court.”). 

Daker also failed to satisfy Rachel’s second prong. The second prong of 

Rachel required Daker to show that “he has been denied” an equal civil right under 

federal law “or cannot enforce that right in the state courts.” See Conley, 245 F.3d 

at 1295. “Generally, the denial of the petitioner’s equal civil rights must be ‘manifest 

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in a formal expression of state law.’” Id. at 1296 (quoting Rachel, 384 U.S. at 803). 

Daker’s notice of removal cites to no formal expression of state law prohibiting him 

from asserting his rights under the Act in state court, and he hasn’t cited to any on 

appeal.

But “under a narrow exception recognized by” Rachel, section 1443(1)

removal is proper “even where the action is premised upon a facially neutral state 

law” if “the very act of bringing the state court proceedings will constitute a denial 

of the rights conferred by the federal statute.” Id. Daker argues that the state charges

against him fell within Rachel’s “narrow exception” because they were retaliation 

for his assertion of his “religious rights” under the Act. Daker also argues that the 

charges satisfied Rachel’s “narrow exception” because the state trial court has thus 

far “stymied” his efforts to raise a defense under the Act. 

We reject Daker’s argument that removal was proper under Rachel’s narrow 

exception. “It is not enough to support removal under [section] 1443(1) to allege or 

show that the defendant’s federal equal civil rights have been illegally and corruptly 

denied by state administrative officials in advance of trial, and that the charges 

against the defendant are false, or that the defendant is unable to obtain a fair trial in 

a particular state court.” City of Greenwood v. Peacock, 384 U.S. 808, 827 (1966). 

In Rachel, the very act of bringing state trespass charges against the defendants—

who were arrested for protesting inside a segregated restaurant—violated the Civil 

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Rights Act of 1964 because that law barred state prosecutions for “peaceful attempts 

to be served upon an equal basis” in an establishment. 384 U.S. at 785. Here, there 

is no analogous provision in the Act barring the state prosecution for obstructing 

prison officials. The Act instead allows a party to “assert a violation of [the Act] as 

a claim or defense in a judicial proceeding . . . .” 42 U.S.C. § 2000cc-2(a). Because 

the Act provides only a defense to the proceeding, as opposed to barring the 

proceeding, Daker cannot show that the mere act of prosecuting him in state court

violates his rights under the Act. 

Moreover, section 1443(1) removal is improper where “any denial of federal 

rights that might come to pass as the proceedings progressed could be redressed by 

direct review of the federal claims by the state appellate court and the United States 

Supreme Court or in other proceedings designed to remedy claims of unfair 

proceedings, denial of equal protection, and rights protected under [42 U.S.C. 

section 1983].” Conley, 245 F.3d at 1298. It is impossible to know at this stage

whether “the state trial court will find [Daker] guilty if he is innocent. ” See Peacock, 

384 U.S. at 827. And if Daker were to ultimately be found guilty, he would be 

entitled to direct review of his conviction by the state appellate court and, eventually, 

the Supreme Court. See id.; Conley, at 245 F.3d at 1298. Because Daker has 

multiple avenues to seek relief, he has not shown that the state courts “cannot 

enforce” his federal civil rights. See Conley, 245 F.3d at 1295, 1298.

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In sum, Daker has failed to satisfy Rachel’s first prong because the federal 

statute he relies on is not a civil rights law stated in terms of racial equality, and he 

has failed to satisfy Rachel’s second prong because he failed to show that he has 

been denied or cannot enforce that right in state court. Thus, we affirm the district 

court’s order dismissing Daker’s notice of removal and remanding the prosecution 

to state court. 

Rule 59(e)

Daker also argues that the district court erred by finding his rule 59(e) motion 

untimely and construing it as a rule 60(b) motion. Although the district court entered 

judgment on March 8, 2019 and Daker’s motion was filed on April 24, 2019—a gap 

of over twenty-eight days—he signed the motion on April 4. Thus, Daker argues 

that his motion was timely pursuant to the prison mailbox rule. 

We agree that Daker’s motion was filed on time. A rule 59(e) motion “must 

be filed no later than 28 days after the entry of the judgment.” Fed. R. Civ. P. 59(e). 

But “[u]nder the prison mailbox rule, a pro se prisoner’s court filing is deemed filed 

on the date it is delivered to prison authorities for mailing.” Jeffries v. United States, 

748 F.3d 1310, 1314 (11th Cir. 2014) (citation omitted). We presume, absent

evidence to the contrary, that a prisoner delivered a filing to prison authorities on the 

date that he signed it. Id. Because Daker’s rule 59(e) motion was signed on April 

4—fewer than twenty-eight days after the entry of judgment—it was timely.

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But any error by the district court was harmless. “The only grounds for 

granting [a rule 59] motion are newly-discovered evidence or manifest errors of law 

or fact.” In re Kellogg, 197 F.3d 1116, 1119 (11th Cir. 1999). Daker did not allege, 

much less establish, any of these grounds. Rather, he argued that the district court 

erred by dismissing his notice of removal because it should have first granted his 

motion for law library access so that he could do more research to determine whether 

he had “valid grounds for removal . . . .” 

The district court’s denial of Daker’s motion for law library access clearly 

wasn’t newly discovered evidence. Nor was it a manifest error of law; Daker 

conceded in his motion that he had access to numerous relevant legal materials. He 

conceded that he had access to multiple cases analyzing section 1443(1), including 

Rachel and Peacock, and had a “personal legal book” in his possession. He conceded 

that he was able to submit requests for the prison law librarian to print out statutes, 

cases, and rules. And he conceded that he was already familiar with the rules of civil 

procedure because of research he had done in his prior pro se lawsuits.

1

 Given these 

concessions, the district court didn’t commit a manifest error of law in denying 

1 These prior pro se lawsuits are not insignificant in number. Daker is a “serial litigant who 

has clogged the federal courts with frivolous litigation” by “submitt[ing] over a thousand pro se 

filings in over a hundred actions and appeals in at least nine different federal courts.” Daker v. 

Comm’r, Ga. Dep’t of Corr., 820 F.3d 1278, 1281 (11th Cir. 2016). 

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Daker’s motion for law library access. Thus, we affirm its order denying Daker’s 

rule 59(e) motion.

AFFIRMED.2

2 We deny all outstanding motions as moot. 

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