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Ambassador at Large Potentate Abiyah Habin Yah House of Aharown Sanctuary ex rel. Smith v. Commonwealth

United States District Court, W.D. Kentucky, Louisville Division

February 9, 2017

AMBASSADOR AT LARGE POTENTATE ABIYAH HABIN YAH HOUSE OF AHAROWN SANCTUARY ex rel PAUL SMITH, Petitioner/Defendant,
v.
THE COMMONWEATLH OF KENTUCKY 14TH AMENDMENT CITIZENSHIP BENEFIT PAUL SMITH, Respondent/Plaintiff.

          MEMORANDUM OPINION

          DAVID J. HALE UNITED STATES DISTRICT COURT JUDGE.

         Unrepresented by counsel, Petitioner/Defendant, an inmate incarcerated at Louisville Metro Department of Corrections and identifying himself as “Ambassador at Large Potentate Abiyah Habin Yah House of Aharown Sanctuary ex rel: Paul Smith” (hereinafter, Petitioner), filed a notice of removal (DN 1) of state-court criminal proceedings to federal court. In the caption of the notice, he lists the following case numbers: 05-CR00364; 06-CR001816; 06-CR003726; 06-CR003935. Petitioner does not identify in what state court these matters are proceeding. For the reasons that follow, the Court will dismiss the action and remand the matters to state court.

         I.

         In the notice of removal, Petitioner asserts that he is the “Ambassador at large, Potentate of the House of Aharown Sanctuary, Messenger of Yahweh of Hosts: Abiyah Habin Yah (Ha Binyah) of a Foreign Sovereign Ecclesiastical Mission and Jurisdiction, doing the Great Work representing the Celestial lodge by Divine Providence[.]” He states that he “Petitions this Court for instant removal of above Pending cases Pursuant to Title 28 U.S.C. 1455, Article III Section 2 of the United States Constitution and Title 28 U.S.C. 1251 original jurisdiction.” He further states as follows:

According to Title 28 U.S.C. 1455(a) a defendant may remove “any” (emphasis added) criminal prosecution, this removal is warranted on the following grounds, these grounds shall be followed by an addendum with memorandum of law to further and support the establishment and warrant of removal of said Prosecution by court cases pending as noted above upon the grounds of Racial Equality, Civil Rights, 14th Amendment Due process and 1st Amendment Religious beliefs, association and worship. This Notice of removal is now filed with this Court and removal is instant and automatic and until this cause is adjudicated or remanded (Title 28 USC 1455(b)(3) the state court cannot proceed with any Judgement and is without Jurisdiction to enter any Judgement or conviction because this cause is now removed.

         (Parentheses by Petitioner.) While Petitioner makes references to “an addendum with memorandum of law, ” no such addendum is attached to the notice of removal. Nor does Petitioner attach any records from any of the criminal actions he seeks to remove.

         II.

         In support of removal, Petitioner cites 28 U.S.C. § 1455, which provides a procedure for removal of a criminal prosecution. While § 1455 governs the procedure for removal, it does not authorize the substantive right of removal. Rather, a state defendant may remove his criminal prosecution only as provided in 28 U.S.C. § 1443. This section permits removal of a criminal action by a defendant:

(1) Against any person who is denied or cannot enforce in the courts of [a] State a right under any law providing for the equal civil rights of citizens of the United States, or of all persons within the jurisdiction thereof;
(2) For any act under color of authority derived from any law providing for equal rights, or for refusing to do any act on the ground that it would be inconsistent with such law.

         28 U.S.C. § 1443.

         With respect to subsection (1), a removal petition must satisfy a two-pronged test. See Johnson v. Mississippi, 421 U.S. 213 (1975). “First, it must appear that the right allegedly denied the removal petitioner arises under a federal law ‘providing for specific civil rights stated in terms of racial equality.'” Id. at 219 (quoting Georgia v. Rachel, 384 U.S. 780, 792 (1966)).

Claims that prosecution and conviction will violate rights under constitutional or statutory provisions of general applicability or under statutes not protecting against racial discrimination, will not suffice. That a removal petitioner will be denied due process of law because the criminal law under which he is being prosecuted is allegedly vague or that the prosecution is assertedly a sham, corrupt, or without evidentiary basis does not, standing alone, satisfy the requirements of § 1443(1).

         Id. (citing City of Greenwood v. Peacock, 384 U.S. 808, 825 (1966)). Second, a petitioner must show that he cannot enforce the specified federal right in state court. Id. ‚ÄúThis provision normally requires that the denial be manifest in a formal expression of state law, such as a state legislative or constitutional provision, rather than a denial first made manifest in the ...


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