People v. Wynn

• Decision Date: 01 March 1977
• Docket Number: Docket No. 24634
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Ronald WYNN, Defendant-Appellant. 73 Mich.App. 713, 253 N.W.2d 123
• Court: Court of Appeal of Michigan — District of US

Page 123

253 N.W.2d 123

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Ronald WYNN, Defendant-Appellant.

Docket No. 24634.

73 Mich.App. 713, 253 N.W.2d 123

Court of Appeals of Michigan.

March 1, 1977.

Released for Publication April 27, 1977.

[73 MICHAPP 713] Lester O. Pollak, Jackson, for defendant-appellant.

[73 MICHAPP 714] Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., James Justin, Pros. Atty., for plaintiff-appellee.

Before DANHOF, C. J., and BASHARA and MAHER, JJ.

BASHARA, Judge.

Defendant was convicted of prison escape, M.C.L.A. § 750.193; M.S.A. § 28.390, and appeals.

One issue raised by the defendant is a matter of first impression in Michigan and will be dispositive of this action. On January 8, 1974, the defendant filed a petition in the United States District Court for the Eastern District of Michigan seeking removal under the authority of 28 U.S.C.A. § 1443. He subsequently gave notice of the filing of that petition to the Jackson County Circuit Court. During the pendency of the District Court's decision on the petition, the state court took no action in regard to the defendant's case. On January 31, 1974, the District Court found the defendant's petition to be frivolous and dismissed the removal action.

After a number of unrelated delays, the defendant's trial in the circuit court was scheduled to begin on May 28, 1975. On May 20th, the defendant again filed a petition in the United States District Court seeking removal of the criminal action. Notice of the filing of this petition was given to the state court two days later.

On May 28, 1975, defendant's trial in the state circuit court commenced. The defendant initially raised a challenge to the jurisdiction of the court on the grounds that the removal petition was pending in the federal district court. The trial judge indicated that the defendant could raise the issue on appeal and proceeded with the trial.

[73 MICHAPP 715] The defendant continued to object to the jurisdiction of the court and refused to participate in the proceedings. No arguments were made on behalf of the defendant and no defense witnesses were presented.

Defendant based his removal petition of May 20, 1975, on a claim that Jackson County has systematically excluded blacks from serving on jury panels, thereby depriving him of a trial before an impartial jury. This claim was argued to require removal of the criminal action to Federal court under the provisions of 28 U.S.C.A. § 1443. The merits of the defendant's claim is a question for the Federal courts. The sole issue before this Court is the effect on the state court of the filing of a petition seeking such removal.

The procedures for removal are governed by 28 U.S.C.A. § 1446:

" § 1446. Procedure for removal

"(a) A defendant or defendants desiring to remove any civil action or criminal prosecution from a State court shall file in the district court of the United States for the district and division within which such action is pending a verified petition containing a short and plain statement of the facts which entitle him or them to removal together with a copy of all process pleadings and orders served upon him or them in such action.

"(b) The petition for removal of a civil action or proceeding shall be filed within thirty days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based, or within thirty days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter.

"If the case stated by the initial pleading is not removable, a petition for removal may be filed within thirty days after receipt by the defendant, through [73 MICHAPP 716] service or otherwise, a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable.

"(c) The petition for removal of a criminal prosecution may be filed at any time before trial.

"(d) Each petition for removal of a civil action or proceeding, except a petition in behalf of the United States, shall be accompanied by a bond with good and sufficient surety conditioned that the defendant or defendants will pay all costs and disbursements incurred by reason of the removal proceedings should it be determined that the case was not removable or was improperly removed.

"(e) Promptly after the filing of such petition and bond the defendant or defendants shall give written notice thereof to all adverse parties and shall file a copy of the petition with the clerk of such State court, which shall effect the removal and the State court shall proceed no further unless and until the case is remanded.

"(f) If the defendant or defendants are in actual custody on process issued by the State court, the district court shall issue its writ of habeas corpus, and the marshal shall thereupon take such defendant or defendants into his custody and deliver a copy of the writ to the clerk of such State court." (Emphasis supplied.)

§ 1446 became part of Federal law in the 1948 revision to the Federal judicial code. Prior to 1948 removal procedure was governed by 28 U.S.C.A. § 74. The United States Supreme Court had held that under the provisions of § 74, which called for filing of a removal petition in the state court, the state proceedings could continue until some further judicial action was taken to effectuate removal. Virginia v. Rives, 100 U.S. 313, 25 L.Ed. 667 (1880), Metropolitan Casualty Insurance Co. v. Stevens, 312 U.S. 563, 61 S.Ct. 715, 85 L.Ed. 1044 (1941). The introduction of § 1446, which requires the filing of the petition directly with the Federal [73 MICHAPP 717] court, raised the question of whether state court proceedings should cease subsequent to the filing of a removal petition.

Although Michigan has not ruled on this issue, Federal and state courts have consistently held that the explicit language of § 1446(e), which requires that the state court "shall proceed no further" until and unless the matter is remanded, operates to render void any state proceedings subsequent to the filing of the petition. Typical of these decisions is the extensive analysis of the Fourth Circuit in South Carolina v. Moore, 447 F.2d 1067 (C.A. 4, 1971). Discussing the effect of § 1446, the Moore court held:

"It is clear, however, that § 1446, in providing for the filing of the petition in the district court while promptly thereafter filing a copy in the state court and giving notice to adverse parties was designed to make the removal effective by the...