Opinion
NO. 3-03-CV-0900-D
May 22, 2003
FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Petitioner Billy Wayne Williams, appearing pro se, has filed a combined application for writ of mandamus, prohibition, coram nobis, and removal of a pending state criminal proceeding. For the reasons stated herein, this case should be summarily dismissed for lack of subject matter jurisdiction.
I.
Petitioner was indicted by a Dallas County grand jury for aggravated assault with a deadly weapon and is currently awaiting trial on that charge. He now claims that respondents have placed him in "continuing jeopardy in retaliation for [his] exercise of Constitutional rights in filing Pretrial Writ of Habeas Corpus directly attacking the original multiplicitous indictment." (Pet. App. at 1). By this action, petitioner seeks: (1) removal of the state criminal case; and (2) a writ of prohibition, mandamus, or coram nobis that enjoins his prosecution and prevents the trial judge and district attorney from increasing the amount of his bond. The court will address these alternative forms of relief in turn.
The indictment charges that petitioner:
unlawfully then and there intentionally, knowingly and recklessly cause[d] bodily injury to LUCINDA RATTRAY, hereinafter called complainant, by striking and choking complainant with defendant's hand, and said defendant did use and exhibit a deadly weapon to-wit: a defendant's hand, during the commission of the assault,
and further, said defendant did then and there intentionally, knowingly and recklessly cause serious bodily injury to LUCINDA RATTRAY, hereinafter called complainant, by striking and choking complainant with defendant's hand, a deadly weapon.
(Pet. App., Exh. A). Petitioner claims that the allegations of bodily injury and serious bodily injury to the same victim are "multiplicitous and constitute double jeopardy.
II.
The federal removal statute authorizes the removal of a state civil action or criminal prosecution 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. A party removing a case under this statute must satisfy the two-part test established in Georgia v. Rachel, 384 U.S. 780, 86 S.Ct. 1783, 16 L.Ed.2d 925 (1966). First, the court must determine that the right allegedly denied the petitioner arises under a federal law "providing for specific civil rights stated in terms of racial equality." Id., 86 S.Ct. at 1790; Williams v. Mississippi, 608 F.2d 1021, 1022 (5th Cir. 1979), cert. denied, 101 S.Ct. 49 (1980). Second, the petitioner must show that he cannot enforce the specified federal right in state court. Rachel, 86 S.Ct. at 1791-94; Williams, 608 F.2d at 1022.
The principles of federalism and comity mandate the strict construction of the removal statute to minimize encroachment by the federal courts upon the sovereignty of state courts. See City of Greenwood v. Peacock, 384 U.S. 808, 827-28, 86 S.Ct. 1800, 1812-13, 16 L.Ed.2d 944 (1966). Federal courts have scrupulously honored the unambiguous language of Rachel and Peacock in restricting the scope of the removal statute to violations of explicit federal statutory and constitutional laws which guarantee racial equality for all citizens. Johnson v. Mississippi, 421 U.S. 213, 227-28, 95 S.Ct. 1591, 1599-1600, 44 L.Ed.2d 121 (1975). A pending civil action or criminal prosecution that does not violate a specific federal law protecting against racial discrimination is not subject to removal. Id., 95 S.Ct. at 1599-1600.
Petitioner has not satisfied the strict requirements of section 1443 because he does not allege the violation of a specific federal law protecting against racial discrimination. Although petitioner alleges numerous violations of his civil rights, none appear to be based on his race. Instead, petitioner claims that he is being retaliated against for "filing [a] Pretrial Writ of Habeas Corpus directly attacking the original multiplicitous indictment." (Pet. App. at 1). Consequently, federal removal jurisdiction is not proper. See Texas v. Gulf Water Benefaction Co., 679 F.2d 85, 86 (5th Cir. 1982) (conclusory allegations of civil rights violations insufficient to support removal of on-going state criminal prosecution.)
Petitioner cites various federal statutes in support of his notice of removal, including 28 U.S.C. § 1443, 1446 1651. ( See Pet. App. at 1). However, none of these statutes involve race discrimination.
III.
Nor is petitioner entitled to relief by way of prohibition, mandamus, or coram nobis. A writ of prohibition is traditionally "used by appellate courts to exert their revisory powers over inferior courts, but is not an appropriate remedy to control the jurisdiction of other, nonsubordinate courts." Siler v. Story, 587 F. Supp. 986, 987 (N.D. Tex. 1984), citing Swift Transportation, Inc. v. John, 546 F. Supp. 1185, 1194 (D. Ariz. 1982), vac. as moot, 574 F. Supp. 710 (D. Ariz. 1983); see also Miller v. Connally, 354 F.2d 206, 208 (5th Cir. 1965). A Texas state court is not "inferior" to a federal district court. As a result, this court lacks jurisdiction to issue a writ of prohibition.
Similarly, a federal court cannot direct a state court or judicial officer to perform an official act where mandamus is the only relief sought. See Moye v. Clerk, DeKalb County Superior Court, 474 F.2d 1275, 1276 (5th Cir. 1973), citing Lamar v. 118th Judicial District Court, 440 F.2d 383 (5th Cir. 1971). See also In re Campbell, 264 F.3d 730, 731 (7th Cir. 2001) (federal court cannot control or interfere with state court litigation by way of mandamus); White v. Ward, 145 F.3d 1139, 1139 (10th Cir. 1998) (same); Demos v. United States District Court, 925 F.2d 1160, 1161 (9th Cir.), cert. denied, 111 S.Ct. 1082 (1991) (federal court lacks jurisdiction to compel state court to act). The court therefore lacks jurisdiction to issue a writ of mandamus.
Finally, the extraordinary remedy of coram nobis is appropriate only when the petitioner is no longer in custody but "can demonstrate that he is suffering from civil disabilities as a consequence of the criminal convictions and that the challenged error is of sufficient magnitude to justify extraordinary relief." United States v. Castro, 26 F.3d 557, 559 (5th Cir. 1994), quoting United States v. Marcello, 876 F.2d 1147, 1154 (5th Cir. 1989). Coram nobis "should issue to correct only errors which result in a complete miscarriage of justice." Castro, 26 F.3d at 559, quoting United States v. Morgan, 346 U.S. 502, 512, 74 S.Ct. 247, 253, 98 L.Ed. 248 (1954). See also United States v. Smith, 331 U.S. 469, 476 n. 4, 67 S.Ct. 1330, 1334 n. 4, 91 L.Ed. 1610 (1947) ("It is difficult to conceive of a situation in a federal criminal case today where a [writ of coram nobis] would be necessary or appropriate.").
Here, petitioner has not yet been convicted of aggravated assault. For that reason alone, relief by way of coram nobis is unavailable. Moreover, even if petitioner had been convicted, "[a] federal court which did not impose the sentence has no jurisdiction to issue a writ of error coram nobis regardless of whether it is called coram nobis, habeas corpus or some other type of relief." Sinclair v. State of Louisiana, 679 F.2d 513, 515 (5th Cir. 1982). See also Swaissi v. State, 2001 WL 1148257 at *1 (N.D. Tex. Sept. 18, 2001).
RECOMMENDATION
Petitioner's application for writ of mandamus, prohibition, coram nobis, and removal of a pending state criminal proceeding should be summarily dismissed for lack of subject matter jurisdiction.