Mitchell v. State of Texas

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
KENNETH R. MITCHELL, §
#25054391, §
PETITIONER, §
§
V. § CIVIL CASE NO. 3:26-CV-124-E-BK
§
STATE OF TEXAS, §
RESPONDENT. §
FINDINGS, CONCLUSIONS AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to 28 U.S.C. § 636(b) and Special Order 3, this pro se civil action was
automatically referred to the United States magistrate judge for case management, including the
issuance of findings and a recommended disposition when appropriate. On January 15, 2026,
Petitioner Kenneth R. Mitchell filed a Notice of Removal, Doc. 3, resulting in the attempted
removal of state criminal actions from the Dallas County Criminal District Court No. 1. For the
reasons that follow, this case should be REMANDED sua sponte to the state court.
I. BACKGROUND
Mitchell, a Dallas County Jail pretrial detainee, seeks to remove two Dallas County
criminal cases on the basis of alleged federal civil rights violations. Doc. 3 at 1. He lists the
State of Texas as the Plaintiff and himself as the Defendant. Mitchell asserts that the State of
Texas refuses to enforce the holding in Carmell v. Texas, 529 U.S. 513 (2000)1, denying his due
1 Invalidating in the titular case the Texas Court of Criminal Appeals’ retroactive application of a
new statute (which went into effect on September 1, 1993) that changed the amount of testimony
required to convict a sex offender, in some cases requiring less corroborating evidence than
previously needed for conviction.
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process rights. According to online records, in 2020, Mitchell was charged by separate
indictments with failure to register as a sex offender (enhanced) and evading arrest. State v.
Mitchell, Nos. F2018942 and F2018930 (Dallas Cnty). He is scheduled for trial on May 18,
2026.2
Upon review, it is apparent that Mitchell lacks the right to remove his pending felony
criminal proceedings. Therefore, this action should be remanded sua sponte.
II. ANALYSIS
The Court should always examine, sua sponte, if necessary, the threshold question of
whether it has subject matter jurisdiction. The Lamar Co., L.L.C. v. Mississippi Transp.
Comm'n, 976 F.3d 524, 528 (5th Cir. 2020); FED. R. CIV. P. 12(h)(3) (“If the court determines at
any time that it lacks subject-matter jurisdiction, the court must dismiss the action.”).
28 U.S.C. § 1455(a) provides for removal of criminal prosecutions to federal court.
When a criminal case is removed, however, the court must “examine the notice 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. §
1455(b)(4). Because § 1455 does not set out any substantive requirement for removal, the Court
turns to the other removal statutes to determine if removal is appropriate. See Louisiana v.
Hunter, Civ. A. No. 14-931, 2014 WL 7139463, at *5 (E.D. La. Dec. 15, 2014) (noting that the
United States Court of Appeals for the Fifth Circuit has yet to construe § 1455 and that the
statute is purely procedural and provides no substantive requirements for removal).
2 The court takes judicial notice of the state court docket sheets for each case, which are available
on the Dallas County website at https://www.dallascounty.org/services/record-search/ (last
accessed on Jan. 22, 2026).
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The Court liberally construes Mitchell’s filings with all possible deference due a pro se
litigant. Erickson v. Pardus, 551 U.S. 89, 94 (2007) (pro se pleadings “must be held to less
stringent standards than formal pleadings drafted by lawyers”); cf. FED. R. CIV. P. 8(e)
(“Pleadings must be construed so as to do justice.”). However, even assuming a proper notice of
removal under § 1455(a) and (b), within the requisite 30-day period, Mitchell cannot establish a
legal right to remove his pending criminal case.
A. Mitchel is not in the group of officials whose criminal cases may be removed
Federal statutes provide for the removal of state criminal cases that charge certain classes
of officials. See 28 U.S.C. § 1442 (providing for removal of criminal actions against federal law
enforcement officers or officials for acts taken in their official duties); 28 U.S.C. § 1442a
(providing for removal of prosecutions of members of the armed forces); 28 U.S.C. § 1443(2)
(providing for removal of prosecutions of officials enforcing civil rights statutes). Mitchell has
not alleged or demonstrated that he is a federal officer, a member of the armed forces, or an
official enforcing civil rights. Thus, these provisions do not apply here.
B. The provisions of § 1443(1) are also inapplicable
Section 1443(1) authorizes the removal of a pending state criminal prosecution “[a]gainst
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, or of all persons within the
jurisdiction thereof.” 28 U.S.C. § 1443(1). Thus, to remove under that section, the defendant
must show both that (1) the right allegedly denied him arises under a federal law providing for
specific rights stated in terms of racial equality; and (2) that he cannot enforce the specified
federal right in state court. Johnson v. Mississippi, 421 U.S. 213, 219 (1975) (quoting Georgia v.
Rachel, 384 U.S. 780 (1966)). Mitchell cannot and has not demonstrated either.
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Mitchell’s pleadings are silent as to the denial of any federal civil right protecting racial
equality. Indeed, Mitchell mentions only a due process violation because the State of Texas
allegedly refuses to enforce Carmell v. Texas, 529 U.S. 513 (2000). Doc. 3 at 1. Such
conclusory allegations of civil rights violations are clearly insufficient to remove a pending state
criminal prosecution to federal court. See State of Tex. v. Gulf Water Benefaction Co., 679 F.2d
85, 86-87 (5th Cir. 1982) (finding conclusory allegations of civil rights violations insufficient to
support removal of on-going state criminal prosecution and affirming the district court’s
dismissal). In any event, Mitchell does not establish that he cannot enforce the specified federal
rights in state court, as is also his burden.
III. RECOMMENDATION
For the foregoing reasons, Mitchell’s felony offenses in Case Nos. F2018942 and
F2018930 should be REMANDED sua sponte to the Dallas County Criminal District Court No.
1 for lack of jurisdiction. 28 U.S.C. § 1455(b)(4).
SO RECOMMENDED on January 26, 2026.
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INSTRUCTIONS FOR SERVICE AND
NOTICE OF RIGHT TO APPEAL/OBJECT
A copy of this report and recommendation will be served on all parties in the manner provided by
law. Any party who objects to any part of this report and recommendation must file specific
written objections within 14 days after being served with a copy. See 28 U.S.C. § 636(b)(1); FED.
R. CIV. P. 72(b). To be specific, an objection must identify the specific finding or recommendation
to which objection is made, state the basis for the objection, and specify the place in the magistrate
judge’s report and recommendation where the disputed determination is found. An objection that
merely incorporates by reference or refers to the briefing before the magistrate judge is not specific.
Failure to file specific written objections will bar the aggrieved party from appealing the factual
findings and legal conclusions of the magistrate judge that are accepted or adopted by the district
court, except upon grounds of plain error. See Douglass v. United Servs. Auto. Ass’n, 79 F.3d
1415, 1417 (5th Cir. 1996), modified by statute, 28 U.S.C. § 636(b)(1) (extending the time to object
to 14 days).
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