3:26-cv-00124•Mitchell v. State of Texas
Texte intégral
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. Case 3:26-cv-00124-E-BK Document 4 Filed 01/26/26 Page 1 of 5 PageID <pageID>
Page 2 of 5 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). Case 3:26-cv-00124-E-BK Document 4 Filed 01/26/26 Page 2 of 5 PageID <pageID>
Page 3 of 5 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. Case 3:26-cv-00124-E-BK Document 4 Filed 01/26/26 Page 3 of 5 PageID <pageID>
Page 4 of 5 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. Case 3:26-cv-00124-E-BK Document 4 Filed 01/26/26 Page 4 of 5 PageID <pageID>
Page 5 of 5 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). Case 3:26-cv-00124-E-BK Document 4 Filed 01/26/26 Page 5 of 5 PageID <pageID>
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