UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
July 20, 2010
STATE OF CALIFORNIA, PLAINTIFF,
ROBERT HACKWORTH, DEFENDANT.
The opinion of the court was delivered by: Oliver W. Wanger United States District Judge
KINGS COUNTY SUPERIOR COURT CASE NO. 08 CM 7461 ORDER DENYING PETITION FOR REMOVAL PURSUANT TO 28 U.S.C. 1447, REMANDING ACTION, AND DIRECTING CLERK'S OFFICE TO CLOSE CASE
On July 9, 2010, Robert Hackworth, a state prisoner proceeding pro se, filed a petition for removal of the state criminal prosecution against him pursuant to 28 U.S.C. § 1447.*fn1
Certain petitioners who claim federally secured rights as a defense to a state prosecution have a right of removal under section 1447. California v. Sandoval, 434 F.2d 635, 636 (9th Cir. 1970) (per curiam). The right is restricted to petitioners who (1) "'assert, as defense to the prosecution, rights that are given to them by explicit statutory enactment protecting equal racial civil rights,'" and (2) assert "'the state courts will not enforce that right,... supported by a reference to a state statute or a constitutional provision that purports to command the state courts to ignore the federal rights.'" Patel v. Del Taco, Inc., 446 F.3d 996, 999 (9th Cir. 2006) (quoting Sandoval, 434 F.2d at 636). Bad experiences with the state court in question will not suffice as grounds for removal. Sandoval at 636.
In this instance, Hackworth seeks to remove the state court case because he is unhappy with his attorney and asserts he is being denied effective assistance of counsel, in violation of the Sixth Amendment of the United States Constitution.
Hackworth fails to meet the restrictive criteria for removal under section 1447, his petition for removal is HEREBY DENIED, and this matter is REMANDED to the Kings County Superior Court. Davis v. Superior Court, 464 F.2d 1272, 1273 (9th Cir. 1972). The Clerk of the Court is DIRECTED to serve a copy of this order on Kings County Superior Court and close this case.
IT IS SO ORDERED.