State of Alabama v. Steven Thomason

Case: 16-13982 Date Filed: 05/04/2017 Page: 1 of 13

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
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No. 16-13982
Non-Argument Calendar
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D.C. Docket No. 2:16-cv-00417-WKW-SRW

STATE OF ALABAMA,

Plaintiff - Appellee,

versus

STEVEN THOMASON,

Defendant - Appellant.

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Appeal from the United States District Court
for the Middle District of Alabama
________________________

(May 4, 2017)

Before HULL, JULIE CARNES, and JILL PRYOR, Circuit Judges.

PER CURIAM:
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Steven Thomason, proceeding pro se, appeals the district court’s order

remanding his state criminal prosecution to the Circuit Court of Elmore County,

Alabama. Thomason sought removal under 28 U.S.C. § 1443(1), which allows

defendants to remove state actions under narrow circumstances where necessary

for the protection of civil rights. After careful review, we affirm.

I. BACKGROUND

A. Criminal Complaint

On October 2, 2014, the Alabama Home Builders Licensure Board (the

“Board”) initiated a criminal action against Thomason in the District Court of

Elmore County, Alabama. See Ala. Code. § 34-14A-14 (providing that the Board

may undertake a criminal complaint procedure for violations of the home building

licensure law). The criminal complaint accused Thomason of engaging in

residential home building without a license in violation of § 34-14A-14 of the

Alabama Code.

The criminal complaint alleged that in March 2014, Thomason and a

homeowner entered into a contract for residential home building in Millbrook,

Alabama. After Thomason sought to collect the money owed under this contract,

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the homeowner filed a complaint against Thomason with the Board, precipitating

the Board’s criminal prosecution. 1

On January 20, 2015, Thomason was convicted and sentenced in the District

Court of Elmore County. Thomason received a suspended sentence of ten days’

imprisonment and was ordered to complete twelve months’ unsupervised probation

and pay a fine. On January 23, 2015, Thomason appealed for a de novo trial in the

Circuit Court of Elmore County.

B. First Attempted Removal in 2015

On May 15, 2015, Thomason filed his first notice of removal in the United

States District Court for the Middle District of Alabama. In that initial notice,

Thomason sought removal of his criminal case and cited 28 U.S.C. §§ 1331, 1367,

1441, 1443, and 1446.

On May 22, 2015, the district court sua sponte remanded Thomason’s

criminal case to the Circuit Court of Elmore County. In its remand order, the

district court reasoned that the statutes pertaining to removal of civil actions were

inapplicable to Thomason’s criminal case. The district court also determined that

28 U.S.C. § 1455 governed the removal of criminal actions and that Thomason’s

notice of removal was untimely under § 1455.

1
In June 2014, Thomason applied to the Board for a residential home builder’s license.
The Board determined that Thomason’s application was incomplete for several reasons. It is
unclear from the record how the Board ultimately resolved Thomason’s application.
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C. Second Attempted Removal in 2016

On June 6, 2016, Thomason filed a second notice of removal, this time

relying on 28 U.S.C. §§ 1332 and 1443 as grounds for federal jurisdiction.

Principally, Thomason argued that the state criminal prosecution infringed upon

his right to make and enforce contracts as guaranteed by 42 U.S.C. § 1981.2

Thomason alleged that the Board denied him a home builder’s license on the basis

of his race and he was unable to enforce his equal contract rights in the Elmore

County criminal proceedings. Thomason asserted that, under these circumstances,

the state criminal action against him was removable pursuant to 28 U.S.C.

§ 1443(1).

As additional support for removal of his state criminal action, Thomason

argued: (1) that the Elmore County prosecution was punishment for his exercise of

the right to make and enforce contracts; (2) that the state criminal complaint

against him was unconstitutionally vague, overbroad, and racially discriminatory;

(3) that his criminal prosecution was barred by prior rulings of the Circuit Court of

Montgomery County, Alabama, in which he was acquitted of similar charges;

(4) that his arrest was unsupported by probable cause; (5) that the evidence against

him in the Elmore County prosecution was false or fraudulent; (6) that he was

2
In his notice of removal, Thomason also cited 42 U.S.C. § 1982 (providing for damages
in cases of intentional racial employment discrimination) and 42 U.S.C. § 2000a (prohibiting
discrimination and segregation in places of public accommodation). Thomason does not explain,
however, how he has been denied or is unable to enforce any rights guaranteed by these statutes.
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denied access to counsel in state court; (7) that the Elmore County prosecution

lacked factual justification; (8) that the Board exerted undue influence on the

Elmore County state court; and (9) that the Elmore County prosecution was

retaliation for his acquittal on similar charges in Montgomery County.

On June 20, 2016, the district court sua sponte remanded Thomason’s case

to the Circuit Court of Elmore County. The district court’s order gave several

independent and alternative grounds for the remand. We outline two of them.

The district court determined that it lacked jurisdiction over the state’s

criminal action against Thomason because (1) the Alabama licensure requirement

in § 34-14A-14 of the Alabama Code is a facially neutral law of general

applicability, (2) Thomason failed to demonstrate that he is unable to enforce his

42 U.S.C. § 1981 equal civil contract rights in the Elmore County tribunal, and

thus, (3) Thomason’s criminal case did not comply with the requirements of 28

U.S.C. § 1443(1).

Alternatively, the district court noted that the state criminal action against

Thomason was due to be remanded to state court because Thomason’s June 6,

2016 notice of removal did not meet § 1455(b)’s requirements for a second notice

of removal. See 28 U.S.C. § 1455(b)(2) (“[A] second notice [of removal] may be

filed only on grounds not existing at the time of the original notice.”).

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On June 23, 2016, Thomason timely filed an appeal.3

II. DISCUSSION

On appeal, Thomason submits that the district court erred in remanding the

state’s criminal prosecution against him back to the Circuit Court of Elmore

County. 4 We disagree. As discussed below, the district court correctly determined

that Thomason failed to show that removal was appropriate under 28 U.S.C.

§ 1443(1).5

A. 28 U.S.C. § 1443(1)

The civil rights removal statute in § 1443 provides for the removal of state

court actions under narrow circumstances where equal civil rights are denied and

not recognized. Specifically, under § 1443(1),6 the defendant in a civil or criminal

3
On June 24, 2016, a day after filing a notice of appeal, Thomason filed another “Notice
of Removal” in the district court. The district court construed this filing as a motion for relief
from its June 20, 2016 order of remand. In a July 20, 2016 order, after noting that Thomason’s
June 24, 2016 filing could not serve as a third notice of removal, the district court determined
that Thomason was not entitled to relief from the order on remand.
Thomason did not amend his notice of appeal to include the district court’s July 20, 2016
order. Nor did Thomason file a second notice of appeal referencing this later order.
Accordingly, Thomason waived any appellate challenge to that post-remand order. See
Weatherly v. Ala. State Univ., 728 F.3d 1263, 1271 (11th Cir. 2013).
4
We review de novo whether the district court had subject matter jurisdiction after
removal. Castleberry v. Goldome Credit Corp., 408 F.3d 773, 780-81 (11th Cir. 2005).
5
To the extent that Thomason contends that his criminal case is removable under 28
U.S.C. § 1332, his argument is without merit. Section 1332 only allows for removal of civil
actions. 28 U.S.C. § 1332(a).
6
A different provision of the civil rights removal statute allows for removal of state court
actions brought against officers acting or refusing to act under color of any law providing for
equal civil rights. 28 U.S.C. § 1443(2). That provision is not implicated here.
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state court action may remove the case to federal district court where the defendant

“is denied or cannot enforce” in state court “a right under any law providing for . . .

equal civil rights.” 28 U.S.C. § 1443(1).

A defendant seeking removal under § 1443(1) must satisfy a two-part test.

Georgia v. Rachel, 384 U.S. 780, 788, 86 S. Ct. 1783, 1788 (1966). First, the

defendant must show that the removal is predicated upon a federal law “providing

for specific civil rights stated in terms of racial equality.” Id. at 792, 86 S. Ct. at

1790. Second, the removing defendant must establish that he has been denied or is

unable to enforce that civil right in the state court. Id. at 794, 86 S. Ct. at 1791.

As to Rachel’s first prong, 42 U.S.C. § 1981 qualifies as a law providing for

equal civil rights within the meaning of § 1443(1). See City of Greenwood v.

Peacock, 384 U.S. 808, 825, 86 S. Ct. 1800, 1811 (1966) (“[W]e may proceed here

on the premise that at least the two federal statutes specifically referred to in the

removal petition, 42 U.S.C. [§] 1971 and 42 U.S.C. [§] 1981, do qualify under the

statutory definition [in § 1443(1)].”); Alabama v. Conley, 245 F.3d 1292, 1296

(11th Cir. 2001).

We focus on Rachel’s second prong: whether Thomason has shown that he

was denied or is unable to enforce his § 1981 equal contract rights in his state

criminal prosecution. To satisfy this second prong, the defendant seeking removal

must show that there is a basis from which the federal court can make a “firm

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prediction” that the defendant will be denied or cannot enforce his civil rights in

state court. Rachel, 384 U.S. at 804, 86 S. Ct. at 1796.

Ordinarily, removal under 28 U.S.C. § 1443 is appropriate only where the

denial of the defendant’s equal civil rights is “manifest in a formal expression of

state law.” Conley, 245 F.3d at 1296 (quoting Rachel, 384 U.S. at 803, 86 S. Ct. at

1796). Put another way, in the paradigmatic case, removal is proper where a

facially discriminatory state law authorizes the denial of the defendant’s civil

rights. In such circumstances, the federal removal court readily can predict that

state courts applying the state law will disregard the defendant’s civil rights. See

Rachel, 384 U.S. at 804, 86 S. Ct. at 1796 (discussing the Strauder-Rives doctrine,

which emerged from the Supreme Court’s interpretation of § 1443(1)’s statutory

progenitor).

In Rachel, the Supreme Court did recognize that, even where the state law at

issue is facially neutral, § 1443(1) removal may occur if the defendant has shown

that “the very act of bringing the state court proceedings will constitute a denial of

the [equal civil] rights conferred by the federal statute.” See Conley, 245 F.3d at

1296.

The defendants in Rachel faced state-court prosecution for criminal trespass

in Georgia after refusing to leave restaurants that would not serve black diners.

See 384 U.S. at 782-83, 86 S. Ct. at 1785. In Hamm v. City of Rock Hill,

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however, the Supreme Court had already held that the federal Civil Rights Act of

1964 prohibits state criminal trespass prosecutions based on the defendant’s choice

to remain in a place of public accommodation after the owner or operator asked the

defendant to leave because of his race. 379 U.S. 306, 311, 85 S. Ct. 384, 389

(1964). Thus, although the Georgia criminal trespass statute was facially neutral,

the state of Georgia’s very act of bringing the criminal trespass actions resulted in

denial of the defendants’ equal civil rights. Rachel, 384 U.S. at 804, 86 S. Ct. at

1796-97. In light of Hamm, the federal removal court in Rachel could predict

readily that the state’s criminal trespass prosecutions were denying the defendants

their equal civil rights. Id. at 805, 86 S. Ct. at 1797.

B. Analysis of Thomason’s Attempted Removal

Thomason’s is not a case involving a facially discriminatory state law.

Rather, § 34-14A-14 of the Alabama Code—under which Thomason was

prosecuted—is facially neutral. See Ala. Code § 34-14A-14 (“Any person who

undertakes . . . the business of residential home building without holding a current

and valid residential home builders license . . . shall be deemed guilty of a Class A

misdemeanor.”). Accordingly, Thomason’s prosecution thereunder can be

removed under § 1443(1) only if he can show that the mere pendency of a § 34-

14A-14 criminal action against him will result in the denial of his civil rights. See

Conley, 245 F.3d at 1296.

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Thomason fails to make such a showing here. Put simply, there is no

indication in the record, in Thomason’s brief, or in the applicable law that the mere

initiation of a § 34-14A-14 criminal prosecution against Thomason denies his

§ 1981 rights. Unlike in Rachel, here there is no statute or rule of decision

suggesting that the state’s bringing a criminal action for home building without a

license, without more, prevents Thomason from exercising or defending his equal

civil right to make and enforce contracts. See Rachel, 384 U.S. at 804-05, 86 S.

Ct. at 1796-97.

The district court correctly determined that it could not, under these

circumstances, make a “clear prediction” that Thomason would be unable to

enforce his federal civil rights in the course of the state court prosecution. See id.

at 805, 86 S. Ct. at 1797. Thus, under Rachel, Thomason failed to show that his

action is removable pursuant to 28 U.S.C. § 1443(1).

We reject Thomason’s contentions that his case is removable under

§ 1443(1) because of his allegations that (1) the Board exerts undue influence over

the state court, (2) the state court is corrupt, (3) his prosecution was brought for the

purpose of harassment and intimidation, (4) he is immune from prosecution under

a grandfathering exception to the state licensure requirement, (5) he cannot be

convicted under the state licensure law because he operated as a sub-contractor for

the homeowner acting as home builder, (6) his arrest lacked probable cause, and

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(7) the Board discriminates against black contractors in the issuance of residential

building licenses. Such allegations are insufficient to support removal under

§ 1443(1). City of Greenwood, 384 U.S. at 827, 86 S. Ct. at 1812 (“It is not

enough to support removal under [§] 1443(1) to allege or show that the defendant’s

federal equal civil rights have been illegally and corruptly denied by state

administrative officials in advance of trial, that the charges against the defendant

are false, or that the defendant is unable to obtain a fair trial in a particular state

court.”).

Nor is Thomason entitled to § 1443(1) removal based on the dismissal of a

similar action against him in Montgomery County, Alabama. We need not, and do

not, decide how principles of res judicata apply in this scenario. This is because

such preclusion principles do not constitute rules of federal law stated in terms of

racial equality as required for removal under 28 U.S.C. § 1443(1). See Rachel, 384

U.S. at 792, 86 S. Ct. at 1790. Rather, they are broad principles stated in terms of

general application and apply to all persons regardless of race. See id. The

allegation that Thomason’s Elmore County prosecution might be barred by the

dismissal of his Montgomery County prosecution does not establish that

Thomason’s Elmore County prosecution would result in the denial any racially-

stated equal civil right as required by § 1443(1).

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For the same reason, we are unpersuaded by Thomason’s argument that he is

entitled to removal because of his claim that § 34-14A-14 of the Alabama Code is

unconstitutional under the Contract Clause. See U.S. Const. art. I, § 10, cl. 1. The

Contract Clause, like any other broad constitutional principle, does not give rise to

any right stated in terms of racial equality as required by § 1443(1). See Rachel,

384 U.S. at 792, 86 S. Ct. at 1790 (rejecting the defendants’ contentions that their

cases were removable under § 1443(1) because the state prosecution denied them

their rights under the First Amendment and the Due Process Clause of the

Fourteenth Amendment). Thomason is free to raise such a claim before the state

court presiding over his criminal action. At any rate, because Thomason failed to

raise this Contract Clause argument before the district court, we need not address it

on appeal. See Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1332 (11th

Cir. 2004).

C. Requirements for Second Notice of Removal

Alternatively, we note that Thomason did not challenge on appeal the

district court’s determination that the state’s criminal case against him was due to

be remanded for failure to comply with the procedural requirements for second

notices of removal set forth in 28 U.S.C. § 1455. On appeal, Thomason only

argues that the district court erred in determining that it lacked federal removal

jurisdiction under § 1443(1). We thus affirm the district court’s order of remand to

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the extent that it determined that Thomason failed to comply with § 1455(b)(2)’s

requirements regarding second notices of removal in criminal cases. See Sapuppo

v. Allstate Floridian Ins. Co., 739 F.3d 678, 680 (11th Cir. 2014) (“To obtain

reversal of a district court judgment that is based on multiple, independent

grounds, an appellant must convince us that every stated ground for the judgment

against him is incorrect.”).

III. CONCLUSION

Accordingly, we affirm the district court’s order remanding the state’s

criminal prosecution against Thomason to the Circuit Court of Elmore County,

Alabama.

AFFIRMED.

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