Copeland v. State of Arkansas

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IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FAYETTEVILLE DIVISION
RICHARD BRIAN COPELAND 	PLAINTIFF
v. 	CIVIL NO. 26-5006
STATE OF ARKANSAS 	DEFENDANT
REPORT AND RECOMMENDATION OF A MAGISTRATE JUDGE
Plaintiff, Richard Brian Copeland (“Plaintiff”), proceeding pro se, filed this Notice of
Removal of his State Criminal Prosecution under 28 U.S.C. §§ 1443 and 1455. (ECF No. 1). Before
the undersigned are Plaintiff’s motions to proceed in forma pauperis and for service upon the
named Defendant. (ECF No. 2). For reasons discussed herein, the undersigned recommends
Plaintiff’s motion to proceed in forma pauperis be denied as moot and the matter be summarily
remanded to the State court.
I. 	BACKGROUND
On January 9, 2026, Plaintiff filed a “Notice of Removal of Criminal Prosecution under 28
U.S.C. §§ 1443 and 1455,” which the Clerk docketed as a civil complaint filed pursuant to 42
U.S.C. § 1983 (i.e., a civil rights action). (ECF No. 1). The following documents are attached to
Plaintiff’s Notice of Removal: a supplemental declaration by Plaintiff in support of his motion to
relieve and appoint substitute counsel with a request for a hearing; pro se motions filed by Plaintiff
in his State court criminal case; a request for reassignment of counsel; a client autonomy notice;
and an Order from the State court judge presiding over Plaintiff’s criminal case dated October 28,
2025 (striking Plaintiff’s pro se motions as he is represented by counsel). (ECF No. 1, Exhibits A,
C, D). Plaintiff alleges removal of his criminal case is warranted due to malicious prosecution and
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due-process deprivations, search and seizure violations, chain-of-custody and evidence tampering
irregularities, and Sixth Amendment autonomy and ineffective assistance in the state forum.
II. 	DISCUSSION
A defendant removing a criminal action to federal court is generally required to file a notice
of removal in the appropriate federal district court “not later than 30 days after the arraignment in
the State court, or at any time before trial, whichever is earlier. 28 U.S.C. § 1455(b)(1). The
criminal defendant must file with the notice of removal “a copy of all process, pleadings, and
orders served upon such defendant or defendants in such action.” 28 U.S.C. § 1455(a). “The filing
of a notice of removal of a criminal prosecution shall not prevent the State court in which such
prosecution is pending from proceeding further, except that a judgment of conviction shall not be
entered unless the prosecution is first remanded. 28 U.S.C. § 1455(b)(3). Further, “[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 of summary remand.” 28 U.S.C. § 1455(b)(4). 28 U.S.C.
§ 1455 does not, itself, provide a substantive basis for removal jurisdiction, but merely sets forth
the procedural requirements for removing a criminal case from state court.
Plaintiff’s Notice of Removal does not include a copy of the state court docket and related
filings or provide the date he was arraigned in the Washington County Circuit Court. However, a
review of publicly held court records indicates that Plaintiff was charged with video voyeurism –
a Class D Felony – and arraigned in State court on May 28, 2025. See State of Arkansas v. Richard
Copeland, Case No. 72CR-25-871. Plaintiff did not file the Notice of Removal in this Court until
January 9, 2026, and thus, has not complied with § 1455 (a) or (b)(1).1 Moreover, the Court need
1 28 U.S.C. § 1455 provides the following procedures for removal of criminal prosecutions:
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not address whether Plaintiff provided good cause for untimely filing the Notice of Removal
because removal is improper under 28 U.S.C. § 1443(1).2
28 U.S.C. § 1443(1) allows for the removal of a state criminal prosecution “[a]gainst any
person who is denied or cannot enforce in the court 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.” Removal jurisdiction under §1443(1) is very limited. Generally, “vindication of the
defendant’s federal rights is left to the state courts.” City of Greenwood v. Peacock, 384 U.S. 808,
828 (1966). Removal of a state criminal prosecution to federal court is therefore only permitted
“in the rare situations where it can be clearly predicted by reason of operation of a pervasive and
explicit state or federal law that those rights will inevitably be denied by the very act of bringing
defendant to trial in the state court.” Id. For a state criminal prosecution to be removed under 28
U.S.C. § 1443(1), the removal petition must satisfy a two-prong test. Johnson v. Mississippi, 421
U.S. 213, 2219-220 (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
(a) Notice of removal. -- 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.
(b) Requirements. – (1) A notice of removal of a criminal prosecution shall be filed not
later than 30 days after the arraignment in the State Court, or at any time before trials, whichever
is earlier, except that for good cause shown the United States district court may enter an order
granting the defendant or defendants leave to file the notice at a later time.
…
2 The Court acknowledges 28 U.S.C. § 1443(2) but finds it is not applicable in this instance as this
subsection of the removal statute is available only to federal officers and to persons assisting such
officers in the performance of their duties. City of Greenwood v. Peacock, 384 U.S. 808, 824
(1966).
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equality.’” Id. at 219 (quoting Georgia v. Rachel, 384 U.S. 780, 792 (1966)). “Second, it must
appear…that the removal petitioner is ‘denied or cannot enforce’ the specified federal rights ‘in
the courts of (the) State.’” Id. (quoting Rachel, 384 U.S. at 803).
Plaintiff has failed to meet the first prong of the 28 U.S.C. § 1443(1) removal test. Plaintiff
suggests that his Fourth, Fifth, Sixth and Fourteenth Amendment rights have been violated, but
has not alleged that he is being prosecuted in violation of a specific statute barring racial
discrimination. Neal v. Wilson, 112 F.3d 351, 355 (8th Cir. 1997) (to demonstrate that removal is
proper under § 1443(1), a defendant “must show that he relies upon a law providing for equal civil
rights stated in terms of racial equality.”). Plaintiff appears to argue that he cannot receive a fair
trial in the Washington County Circuit Court. Such allegations alone are insufficient to establish
the right of removal under 28 U.S.C. § 1443(1). See City of Greenwood, 384 U.S. at 826 (rejecting
as reason for removal the defendants’ claims that the state criminal statutes were selectively
enforced against them due to their race, that they were innocent, and that they would not receive a
fair trial.). Even assuming that the State of Arkansas is prosecuting Plaintiff in violation of his
Constitutionally protected rights, Plaintiff still does not satisfy the threshold necessary to satisfy
the first prong of 28 U.S.C. § 1443(1)’s removal test. “Claims that prosecution and conviction will
violate rights under constitutional and statutory provisions of general applicability” do not allow a
defendant to remove a case from state court. Johnson, 421 U.S. at 219.
Plaintiff also failed to meet the second prong of the 28 U.S.C. § 1443(1) removal test. The
second prong of the test “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 trial of the case.’” Id. Plaintiff’s Notice of Removal references no formal expression
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of state law prohibiting him from asserting his constitutional rights and he has not demonstrated
he has been denied and/or cannot enforce his rights in State court.
Where “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). For the above stated reasons, the Court recommends summarily remanding this
matter to the Washington County Circuit Cout.
In accompaniment to the Notice of Removal, Plaintiff filed a Motion for leave to proceed
in forma pauperis. (ECF No. 2). A filing fee is not required for the removal of a state criminal
prosecution to federal court. See Lefton v. City of Hattiesburg, 333 F.2d 280, 285 (5th Cir. 1964).
Accordingly, Plaintiff Motion to proceed in forma pauperis in this matter should be denied as
moot.
III. 	CONCLUSION
Therefore, it is RECOMMENDED that Plaintiff’s motion to proceed in forma pauperis
be DENIED as moot and that this action be SUMMARILY REMANDED to the Circuit Court
of Washington County, Arkansas.
Status of Referral: 	Entry of this Report and Recommendation terminates the
referral.
The parties have fourteen (14) days from receipt of the Report and Recommendation
in which to file written objections pursuant to 28 U.S.C. § 636(b)(1). The failure to file timely
objections may result in waiver of the right to appeal questions of fact. 	The parties are
reminded that objections must be both timely and specific to trigger de novo review by the
district court.
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RECOMMENDED this 15th day of January 2026.
_________________________________
CHRISTY COMSTOCK
UNITED STATES MAGISTRATE JUDGE
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