United States District Court, C.D. California
Presented by: ROZELLA A. OLIVER UNITED STATES MAGISTRATE
ORDER SUMMARILY REMANDING CASE TO STATE COURT AND
DENYING REQUEST TO PROCEED IN FORMA PAUPERIS AND FOR
APPOINTMENT OF COUNSEL.
Honorable Beverly R. O'Connell United States District
February 8, 2017, the Court received from Petitioner Michael
Langrock (“Petitioner”) a “Notice of
Removal Under 28 U.S. Code § 1455, Permission to Proceed
in forma Pauperis, Request for Attorney” (the
“Notice”). (Dkt. No. 1.)
Notice, Petitioner asserts that his constitutional rights
under the First, Fourth, Fifth, Sixth, Eighth, Ninth, and
Fourteenth Amendments have been, and continue to be, denied.
(Dkt. No. 1 at 4.) Petitioner alleges that he has been
appointed constitutionally ineffective counsel in his pending
state criminal prosecution in Ventura County Superior Court.
(Id.) Petitioner also alleges that Ventura County
Sheriff's Department deputies at the jail where
Petitioner is /// currently incarcerated prevented Petitioner
from appearing in court, despite Petitioner having been
ordered by the court to appear. (Id. at 5.)
Notice, Petitioner requests to proceed in forma
pauperis and also seeks to have counsel appointed to
represent him. (Dkt. No. 1 at 6.)
Petitioner's Notice states that federal question
jurisdiction exists pursuant to 28 U.S.C. § 1331 (Dkt.
No. 1 at 1; see Id. at 3), a review of the Notice
makes clear that this Court does not have jurisdiction over
this state criminal action.
REMOVAL OF CRIMINAL PROCEEDINGS FROM STATE
courts are courts of limited jurisdiction, having subject
matter jurisdiction only over matters authorized by the
Constitution and statute. See, e.g., Kokkonen v. Guardian
Life Ins. Co., 511 U.S. 375, 377, 114 S.Ct. 1673, 128
L.Ed.2d 391 (1994). It is this Court's duty always to
examine its own subject matter jurisdiction, see Arbaugh
v. Y&H Corp., 546 U.S. 500, 514, 126 S.Ct. 1235, 163
L.Ed.2d 1097 (2006), and the Court may remand a case
summarily if there is an obvious jurisdictional issue.
Cf. Scholastic Entm't, Inc. v. Fox Entm't Grp.,
Inc., 336 F.3d 982, 985 (9th Cir. 2003) (“While a
party is entitled to notice and an opportunity to respond
when a court contemplates dismissing a claim on the merits,
it is not so when the dismissal is for lack of subject matter
jurisdiction.”) (omitting internal citations).
section 1455, 
[a] defendant or defendants desiring to remove any criminal
prosecution from a State court shall file in the district
court of the United States for the district and division
within which such prosecution is pending a notice of removal
signed pursuant to Rule 11 of the Federal Rules of Civil
Procedure and containing a short and plain statement of the
grounds for removal, together with a copy of all process,
pleadings, and orders served upon such defendant or
defendants in such action.
28 U.S.C. § 1455(a). The notice of removal “shall
include all grounds for such removal.” 28 U.S.C. §
1445(b)(2). A state-court defendant's “failure to
state grounds that exist at the time of the filing of the
notice shall constitute a waiver of such grounds, and a
second notice may be filed only on grounds not existing at
the time of the original notice.” Id.
state-court criminal defendant's filing of a notice of
removal, the district court receiving the notice must examine
it promptly, and “[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.” 28 U.S.C. § 1445(b)(4).
only “[u]nder narrow and limited circumstances [that]
state-court criminal prosecutions may be removed to federal
court.” El v. L.A. Police Dep't, No. CV
16-7013-JAK (PLA), 2016 WL 5419402, at *2 (C.D. Cal. Sept.
27, 2016). Section 1445 “merely describes the
procedural mechanism for removing criminal cases. It does not
provide substantive grounds for removing criminal
cases.” City of North Las Vegas v. Davis, No.
2:13-cv-00156-MMD-NJK, 2013 WL 2394930, at ...