United States District Court, D. New Jersey
MCNULTY United States District Judge.
March 1, 2019, I filed an opinion and order (DE 23, 24)
pursuant to 28 U.S.C. § 1455(b)(4), denying removal of a
criminal case under 28 U.S.C. § 1443(1) and remanding
this matter to municipal court. On April 30, 2019, Mr.
Rosenberg moved to vacate that order. (DE 26) It came to my
attention that the docket contained a typographical error in
the plaintiffs address and that he had not received that
opinion and order, as well as possibly other filings. I
ordered that the address be corrected; that a photocopy of
the complete docket and filings be sent to Mr. Rosenberg;
that he would be permitted to show cause in writing on or
before June 7, 2019, why the prior opinion and order should
be vacated. Given the communication difficulties, the order
stated explicitly that I would entertain that application
without regard to the usual high standard for
reconsideration. Mr. Rosenberg has responded to the order to
show cause. ("June 3 Brf.", DE 29) I consider that
June 3 Brief, and his earlier motion to vacate (DE 26),
de novo. I amend my prior opinion as follows.
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)
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).
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 was
received, although it now appears that a faulty address in
the docket may be to blame.
noted above, I now have the benefit of Mr. Rosenberg's
motion to vacate (DE 26) and response (DE 29) to my order to
show cause. They will be considered in my analysis.
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.
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)
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)
relevant police reports are attached to Mr. Rosenberg's
Notice of Removal. (See Exs. B 6s 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,
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,
AND HAD AN OUSTANDING WARRANT OUT OF HOBOKEN, NJ
(DE 1 at 20) According to the officer, Mr. Rosenberg, when
confronted, falsely stated that his first name was
"Heinrick" and that his date of birth was July 5,
1959. When his genuine name and date of birth were
ascertained, it emerged that he had ...