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Rosenberg v. State

United States District Court, D. New Jersey

March 1, 2019

RUDOLPH ROSENBERG, Petitioner,
v.
STATE OF NEW JERSEY, Respondent.

          MEMORANDUM OPINION

          KEVIN McNULTY UNITED STATES DISTRICT JUDGE.

         Procedural Background

         Rudolph Rosenberg is the defendant in a municipal court case in Englewood, New Jersey (i.e., Superior Court of New Jersey, Bergen County, Municipal Division. By Summons # S.C. 2017 010638, he is charged with hindering apprehension, in violation of N.J. Stat. Ann. 2C:29-3B(4) (giving false information to an officer). (DE 1 at 18)

         Mr. Rosenberg seeks to remove his Englewood municipal court criminal case to federal court under a little-used statute:

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....

28 U.S.C. § 1443(1). On June 18, 2018, Mr. Rosenberg filed in this Court a document styled as a "Notice of Removal. . . [and] Order to Show Cause for Leave to File Past 30 Days." ("Notice", DE 1) By contrast with the more familiar notice of removal in a civil case, which is self-executing, a § 1443 notice of removal does not automatically deprive the state court of jurisdiction and lodge it in the federal court. Indeed, "[t]he 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).

         This Notice was filed using the caption of the state criminal case, but the clerk has properly docketed the matter under a civil number, because it is in substance a petition for removal. Only if the petition is granted will this matter be filed in federal court as a criminal case. Accordingly, in an earlier order, I realigned the parties, deeming Mr. Rosenberg to be the petitioner and the State to be the respondent. (DE 3) The State has filed a response in the form of a motion to dismiss. (DE 15). By two Orders to Show Cause, I directed Mr. Rosenberg to file a reply, the second requiring that it be filed on or before March 1, 2019. (DE 22) No. such reply has been received.

         Notice of Removal

         Mr. Rosenberg's Notice of Removal contains a recitation of facts, and attaches a number of exhibits. I summarize it as follows.

         "[T]he judicial officials named herein are involved in what amounts to being a RICO CRIMINAL AND CIVIL CONSPIRACY to fix a trial against Defendant Rosenberg." (Notice ¶ 1) They have engaged in "multiple fraudulent prosecution attacks upon Rosenberg from December 2017" that have lulled him into believing his right to counsel would be protected. (Id. ¶¶ 2-4) Vital records have been "stolen or misappropriated by third parties." (Id. ¶ 7) The judiciary has "fabricated a false court record to hold that Rosenberg has waived his right to counsel." (Id. ¶ 2)

         The criminal complaint and summons, as well as the underlying police report, were filed and received by Mr. Rosenberg on January 28, 2018. The report of arrest contains false allegations about a police investigation of "harassment." (Id. ¶¶ 5-6)

         The relevant police reports are attached to Mr. Rosenberg's Notice of Removal. (See Exs. B & C, DE 1 at pp. 20-26.) The arrest report of the complaining witness, an Englewood police officer, states that the charges arose from an altercation in a Starbucks coffee shop on December 18, 2017:

ACTOR HARASSED THE VICTIMS IN STARBUCKS COFFEE, AND THEN STATE "YOU PEOPLE ARE ALWAYS BOTHERING WHITE PEOPLE!" DURING THE COURSE OF AN INVESTIGATION, ACTOR GAVE FALSE PEDIGREE INFORMATION TO A SWORN POLICE OFFICER, ...

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