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United States v. Kwang-Wei Han

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA


May 26, 2011

UNITED STATES, PLAINTIFF,
v.
KWANG-WEI HAN, DEFENDANT.

The opinion of the court was delivered by: Dean D. Pregerson United States District Judge

ORDER DENYING REMOVAL AND REMANDING

Notice of Removal filed on Feb. 22, 2011

Presently before the court is Defendant Kang-wei Han's Notice of Removal. Defendant filed his petition on February 22, 2011. Because Defendant's petition is untimely, the court DENIES the petition.

Defendant's petition for removal is governed by 28 U.S.C. § 1446(c)(1), which provides:

A notice for 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 petitioner leave to file the petition at a later time.

Here, Defendant was arraigned in the Superior Court for the County of Los Angeles on November 5, 2010. (Def.'s Ex. A.) Defendant petitioned for removal on February 22, 2011. (Dkt. No.1.) Accordingly, Defendant's petition was more than thirty days after the arraignment. Defendant's removal petition was therefore untimely. See, e.g. United States ex rel. Walker v. Gunn, 511 F.2d 1024, 1026 (9th Cir. 1975) (holding that removal petition was untimely and summary dismissal was proper course of action).

Moreover, Defendant neither demonstrated nor alleged good cause for the delay. Under 28 U.S.C. § 1446(c)(3), "a failure to state grounds which exist at the time of the filing of the notice shall constitute a waiver of such grounds." Thus, Defendant waived any right to removal by failing to file a timely petition pursuant to 28 U.S.C. § 1446(c)(1).

Under 28 U.S.C. § 1446(c)(4), "[i]f it clearly appears on the face of the notice and any exhibits annexed thereto that removal should not be permitted, the court shall make an order for summary remand." Accordingly and for the reasons stated above, Defendant's removal request is DENIED and the matter is REMANDED.

IT IS SO ORDERED.

20110526

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