ALD-061 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 10-3578

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STATE OF DELAWARE

v.

LEROY HEFLEY,

Appellant

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On Appeal from the United States District Court

for the District of Delaware

(D.C. Civ. No. 10-cv-00360)

District Judge: Honorable Sue L. Robinson

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Submitted for Possible Summary Action 

Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6

December 9, 2010

Before: SCIRICA, HARDIMAN and VANASKIE, Circuit Judges

(Filed: December 14, 2010)

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OPINION OF THE COURT

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PER CURIAM.

Appellant Leroy Hefley filed a Notice of Removal pro se pursuant to 28 U.S.C. § 

1446 in the United States District Court for the District of Delaware, seeking to remove 

his state criminal case, Del. Crim. No. 0709007937, from the Kent County Superior 
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Court. According to the state court criminal docket Hefley attached to the removal 

papers, he was charged with disorderly conduct, making terroristic threats, criminal 

mischief and harassment, and convicted in November, 2007. Hefley appealed the 

judgment of conviction, and it appears that he contended on appeal, at a minimum, that 

his constitutional rights to counsel and to confront his accuser were violated. The 

Delaware Superior Court affirmed on November 18, 2008, and the state supreme court 

dismissed an appeal on May 27, 2009. Hefley filed a motion for post-conviction relief on 

July 29, 2009, which was summarily dismissed. On January 15, 2010, the state supreme 

court affirmed the judgment of the Superior Court.

In his removal petition, which was filed on April 28, 2010, Hefley contended that 

the state court is racist and biased. He asserted that he cannot get a fair trial and the state 

supreme court “rubber stamps” the decisions of the Superior Court. In an order entered 

on July 26, 2010, the District Court ordered the matter remanded to state court. Noting 

that removal of state criminal matters is permitted under 28 U.S.C. § 1443(1), the court 

concluded that Hefley’s allegation of racism might provide a basis for subject matter 

jurisdiction. But Hefley also had to show that he cannot enforce his rights in state court, 

and clearly he had not done so. Moreover, his removal petition was untimely filed, and 

the District Court concluded that there was no good cause for his failure to timely remove 

his case.

Hefley appeals. Our Clerk advised him that his appeal was subject to summary 

affirmance under Third Cir. LAR 27.4 and I.O.P. 10.6. He was invited to submit 
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argument in writing, and he has done so. We have reviewed and considered that 

submission.

We will summarily affirm the order of the District Court because no substantial 

question is presented by this appeal. Third Circuit LAR 27.4 and I.O.P. 10.6. We have 

jurisdiction under 28 U.S.C. § 1447(d), which provides that: “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 to the State court from which it was removed 

pursuant to section 1443 of this title shall be reviewable by appeal or otherwise.” Id.

(emphasis added). As explained by the District Court, Hefley removed his criminal 

prosecution under section 1443.

The District Court properly ordered the matter remanded to state court. Section 

1443(1) provides: “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...: (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....” 28 U.S.C. § 1443(1). An individual seeking removal of a state criminal 

case to federal court must satisfy a two-part test: he must allege a denial of his rights on 

account of race, and that he cannot enforce his federal rights in state court. See Johnson 

v. Mississippi, 421 U.S. 213, 219-20 (1975). Moreover, “[a] notice of removal of a 

criminal prosecution shall include all grounds for such removal. A failure to state 

grounds which exist at the time of the filing of the notice shall constitute a waiver of such 

grounds....” 28 U.S.C. § 1446(c)(2).
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Hefley was able to exercise his right to appeal and to assert constitutional claims 

in state court and there is nothing unusual about his criminal prosecution. “Except in the 

unusual case ... it [is] to be expected that the protection of federal constitutional or 

statutory rights [can] be effected in the pending state proceedings, civil or criminal.” 

Johnson, 421 U.S. at 219-20. Removal is not warranted when it is based “solely on 

petitioners’ allegations that the statutes underlying the charges against them were 

unconstitutional, that there was no basis in fact for those charges, or that their arrest and 

prosecution otherwise denied them their constitutional rights.” Id. at 222. If Hefley 

believes that “he is in custody in violation of the Constitution or laws or treaties of the 

United States,” he may challenge his conviction by applying in federal court for a writ of 

habeas corpus pursuant to 28 U.S.C. § 2254.

Moreover, we agree with the District Court that the removal petition was not 

timely filed. Section 1446(c)(1) provides that a “notice of removal of a criminal 

prosecution shall be filed not later than thirty days after the arraignment in the State 

court, or at any time before trial, whichever is earlier, except that for good cause shown 

the United States district court may enter an order granting the defendant or defendants 

leave to file the notice at a later time.” Hefley was tried and convicted in 2007, and he 

has completed two rounds of appeals in state court. In the absence of any other evidence, 

the delay of 21⁄2 years weighs heavily against a finding of good cause. The District Court 

did not abuse its discretion in concluding that Hefley did not show good cause for the 

delay in removing his state criminal case to federal court.
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For the foregoing reasons, we will summarily affirm the order of the District Court 

remanding the matter to state court.