Mary Beck Briscoe, Circuit Judge
(D.C. No. 1:23-MJ-00079-KLM-1) (D. Colo.)
Before MATHESON, BRISCOE, and EID, Circuit Judges.
ORDER
Mary Beck Briscoe, Circuit Judge
Defendant Marcus Allen Murphy, appearing pro se, appeals from an order issued by the district court summarily remanding to Colorado state court a pending criminal case that Murphy attempted to remove to federal court. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we conclude that the district court's order is not reviewable and therefore dismiss this appeal.
I
On April 28, 2023, Murphy filed a pro se notice of removal in the United States District Court for the District of Colorado. The case that Murphy sought to remove was a pending criminal proceeding against Murphy in El Paso County (Colorado) District Court. According to Murphy, he has been charged in the case with driving under the influence (DUI).
In his notice of removal, Murphy alleged that he "ha[d] been unlawfully &unconstitutionally incarcerated, on Excessive Bail of $35K, without warrant or Indictment, for 78-days since Wed., Jan. 25, 2023." ROA, Vol. 1 at 3. Murphy asked the district court to "hold an evidentiary hearing promptly &issue a writ of habeas corpus." Id. at 4.
In an affidavit submitted with his notice of removal, Murphy alleged that he was a licensed attorney in the State of Colorado and "a federal court-officer (i.e., D-Co &10th Cir.)." Murphy further alleged that on September 30, 2022, he "was on-call as a Traffic-Control Officer" and was wearing his "unofficial informal State-Dept uniform" when he was involved in a traffic accident in Colorado Springs, Colorado, that apparently led to the DUI charge against him. Id. at 5, 6.
On May 2, 2023, the district court issued an order for summary remand. The district court concluded in its order that Murphy had failed to comply with 28 U.S.C. § 1455(a), which requires a defendant seeking to remove a pending state criminal case to include in his notice of removal "a short and plain statement of the grounds for removal" and to include "a copy of all process, pleadings, and orders served upon such defendant . . . in such action." The district court noted that Murphy failed to include with his notice of removal copies of these required documents. The district court also concluded that Murphy had "fail[ed] to establish a jurisdictional basis for removal." ROA, Vol. 1 at 12. The district court noted in support that Murphy's notice of removal cited 28 U.S.C. § 1442(a), which authorizes the removal of certain criminal prosecutions brought against federal officers and agencies. But the district court concluded that the allegations in Murphy's affidavit failed to "demonstrate that removal of his state prosecution to federal court [wa]s permitted under § 1442(a)(1) or § 1442(a)(3)." Id. at 14. More specifically, the district court concluded that his "vague allegation that he [wa]s a 'State Traffic Control Officer and Federal Court Officer' fail[ed] to establish" that "he was 'acting under' the authority of a federal officer or agency within the meaning of § 1442(a)(1)." Id. The district court also concluded that Murphy's allegations failed to show "that he [wa]s an 'officer of the courts of the United States['] within the meaning of § 1442(a)(1)." Id. The district court "summarily remanded" the case "to the state court pursuant to 28 U.S.C. § 1455(b)(4)." Id. at 15.
Murphy appealed from the district court's order summarily remanding the case to state court. After Murphy filed his notice of appeal, the Clerk of this court issued an order directing Murphy to file a memorandum brief addressing the following question: whether this court has authority to consider an order summarily remanding a removed state criminal prosecution to state court from which it was removed? Murphy complied with the order and filed a pro se memorandum brief addressing that question. The matter is now before us for disposition.
II
Section 1447(d) of Title 28 addresses situations in which a district court remands a removed case to state court. It provides:
An order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise, except that an order remanding a case to the State court from which it was removed pursuant to
section 1442 or 1443 of this title shall be reviewable by appeal or otherwise.
28 U.S.C. § 1447(d). Thus, the general rule under
§ 1447(d) is that an order remanding a removed case to state court is not reviewable on appeal. The only two exceptions to this general rule are cases that fall within the scope of
28 U.S.C. §§ 1442 or 1443.
In this case, Murphy "claims Federal court-officer status under 28 U.S.C. § 1442(3) &violation of his civil-rights under § 1443." Aplt. Mem. Br. at 1. We shall proceed to address these claims in turn.
Section 1442 of Title 28 is titled "Federal officers or agencies sued or prosecuted." Although Murphy cites to § 1442(3), the statute contains no such subsection. We therefore presume that Murphy intended to refer to § 1442(a)(3).
That subsection provides:
(a) A civil action or criminal prosecution that is commenced in a State court and that is against or directed to any of the following may be removed by them to the district court of the United States for the district and division embracing the place wherein it is pending:
(3) Any officer of the courts of the United States, for or relating to any act under color of office or in the performance of his duties ....
28 U.S.C. § 1442(a)(3). Murphy appears to allege in his memorandum brief that he falls within the scope of
§ 1442(a)(3) because he is "a licensed-Attorney . . . &bar-Member of the Federal-courts (D-CO &10th Cir.)." Aplt. Mem. Br. at 1. Even if we were to assume that this allegation was sufficient to qualify Murphy as an
"officer of the courts of the United States," he fails to explain how the criminal prosecution that is pending against him in Colorado is "for or relating to any act under color of office or in the performance of his duties" as an officer of the courts of the United States.
See Jefferson Cty. v. Acker, 527 U.S. 423, 431 (1999) (holding that the removing "officer must show a nexus, a causal connection between the charged conduct and asserted official authority") (internal quotations omitted). We therefore reject Murphy's assertion that removal was proper under
§ 1442(a)(3).
Section 1443 of Title 28, titled "Civil rights cases," provides as follows:
Any of the following civil actions or criminal prosecutions, commenced in a State court may be removed by the defendant to the district court of the United States for the district and division embracing the place wherein it is pending:
(1) Against 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;
(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. Although Murphy cites to
§ 1443 in his memorandum brief, he does not specify which of the two subsections he is invoking. Nor, other than generally claiming "violation of his federal civil-rights," does Murphy provide any specific allegations of fact that could reasonably bring his case within the scope of either of these two statutory subsections. Aplt. Mem. Br. at 3. We therefore conclude that Murphy has failed to establish that the state criminal case that is pending against him is removable under
§ 1443.
Finally, we note that Murphy alleges in his memorandum brief that he was "perform[ing] . . . his official-duties as a Level-V Consultant for the 25th Air-Force Wing (i.e., AFISRA/NRO) both on Jan. 7, 2022 (1-7-22 Presidential Motorcade in Boulder (CO)) and on Sept. 30, 2022 (9-30-22 Club-Q suspect investigation in Colorado Springs (CO))." Id. at 1-2. Murphy, however, makes no attempt to explain how this allegation brings his case within the scope of §§ 1442 or 1443. Based upon our own independent review, the allegation could possibly be relevant for purposes of § 1442(a)(1). That subsection refers, in relevant part, to "[a] . . . criminal prosecution that is commenced in a State court . . . against . . . any officer . . . of the United States or of any agency thereof, in an official or individual capacity." 28 U.S.C. § 1442(a)(1). But, even assuming, for purposes of argument, that Murphy qualifies as an officer of the United States or any agency thereof, the allegations in his memorandum brief and other pleadings fail to establish that the state criminal proceeding currently pending against him in Colorado state court is "for or relating to any act under color of such office or on account of any right, title or authority claimed under any Act of Congress for the apprehension . . . of criminals." Id. We thus conclude that Murphy has failed to establish that the state criminal case is removable under § 1442(a)(1).
Because Murphy has failed to establish that the state criminal case is removable under either § 1442 or § 1443, we conclude that the district court's order remanding the case to Colorado state court "is not reviewable on appeal." 28 U.S.C. § 1447(d).
III
The appeal is DISMISSED. Murphy's motion to proceed on appeal without prepayment of costs and fees and his motion to produce all files are DENIED.