Opinion

In Re: Burnside

Court
District Court, M.D. Pennsylvania
Filed
Jan 15, 2025
Cited by
0 cases
Authority
More cited than 33.7%

The opinion

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

: Civil No. 1:24-CV-01960

:

IN RE: :

:

BRIAN ARMOND BURNSIDE :

:

:

:

: Judge Jennifer P. Wilson

MEMORANDUM

On October 24, 2024, Brian Armond Burnside (“Defendant”) filed a notice

of removal as to a criminal action filed against him in the York County Court of

Common Pleas. (Doc. 1.)1 Defendant also filed multiple notices or affidavits of

indigence and a certified prisoner trust fund account statement. (Docs. 2, 6, 12.)

The court will construe Defendant’s affidavit of indigence as a motion to proceed

in forma pauperis, grant the motion to proceed in forma pauperis, and remand the

case back to the York County Court of Common Pleas because this court lacks

jurisdiction.

BACKGROUND AND PROCEDURAL HISTORY

In the notice of removal, Defendant purports to remove criminal cases (Case

Numbers CR-0004753, CR-0000115, MD-002031, and MD-000038) pending

1 The notice of removal was received and docketed by the court on November 5, 2024.

against him in state court. (Doc. 1, p. 1.)2 With the notice of removal, Defendant

also filed a notice by his spouse, Nicole Reneé Burnside (“Mrs. Burside”). (Doc.

9.) Attached to the notice of removal is an information sheet from the York

County Clerk of Courts in the case Commonwealth v. Burnside, No. CP-67-CR-

0004753-2024. (Doc. 1-1.) According to this information sheet, there is a pending

criminal case against Defendant for twelve separate counts including fleeing or

attempting to elude officer, firearms not to be carried without a license, possession

of a prohibited firearm, recklessly endangering another person, marijuana in a

small amount for personal use, use/possession of drug paraphernalia, disorderly

conduct, and receiving stolen property. (Doc. 1-1); Commonwealth v. Burnside,

No. CP-67-CR-0004753-2024 (C.P. York Cnty.).

Additionally, Defendant filed multiple notices that he also goes by the name

El Unus Per Some Bey direct ex relation to Brian Armond Burnside. (Docs. 5, 7,

8.) Defendant’s spouse also has pending criminal charges including with the same

charges as Defendant. Commonwealth v. Burnside, No. CP-67-CR-0004749-2024

(C.P. York Cnty.).

Defendant filed a pro se notice of removal in his criminal action on October

25, 2024. Burnside, No. CP-67-CR-0004753-2024 (C.P. York Cnty.). There has

been no such filing in Defendant spouse’s criminal action. Additionally,

2 For ease of reference, the court uses the page numbers from the CM/ECF header.

Defendant’s spouse was not included on the notice of removal filed in the above

captioned action. (Doc. 1.) Therefore, despite Mrs. Burnside’s affidavit stating

“[t]his Notice of Removal . . . is to go along with My Husband’s Notice of

Removal 1:24-cv-1960 as Our STATE COURT cases are consolidated and we are

in fact codefendants in the fraudulent unconstitutional matter,” Doc. 9, the court

views the above captioned matter as solely a notice of removal in Defendant’s state

criminal action.

The court received the certified prisoner trust fund account statement as

required by 28 U.S.C. § 1915 on December 23, 2024. (Doc. 12.) The court will

now grant Defendant’s request to proceed in forma pauperis. However,

Defendant’s removed criminal case will be remanded to the York County Court of

Common Pleas because this court lacks subject matter jurisdiction.

DISCUSSION

Federal courts are courts of limited jurisdiction, and are constrained to

exercise only the authority conferred by Article III of the Constitution and

affirmatively granted by federal statute. Moreover, federal law severely limits the

circumstances under which a litigant may remove a case from state court to federal

court. See 28 U.S.C. §§ 1441–1455.

Here, Defendant has not stated a valid basis for removal. When a defendant

in a state criminal case files a notice of removal in a United States District Court,

that court “shall examine the notice promptly.” 28 U.S.C. § 1455(b)(4). “If it

clearly appears on the face of the notice and any exhibits annexed thereto that

removal should not be permitted, the court shall make an order for summary

remand.” Id.

In the context of criminal prosecutions, this court lacks subject matter

jurisdiction, except in certain narrow circumstances pursuant to 28 U.S.C. §§ 1442

(federal officers or agencies sued or prosecuted), 1442a (members of armed forces

sued or prosecuted), or 1443 (civil rights cases). Defendant’s removal fails to

qualify under any of these provisions, as discussed further below.

To qualify for removal pursuant to Section 1442, a removing party must

establish that he is an officer of the United States or a person acting under an

officer of the United States. 28 U.S.C. § 1442; see Pennsylvania v. Holloway, No.

24-2209, 2024 WL 5103009 (3d Cir. Dec. 13, 2024). Defendant references this

statute by phrasing in his notice of removal: “I am Brian Armand Burnside

misidentified as a defendant, Person or Actor being either a federal, state, or

municipal agent or employee within the State of Pennsylvania . . . .” (Doc. 1, p. 1.)

Despite this obscure reference to Section 1442, Defendant makes no assertion that

he is an officer of the United States or a person acting under an officer of the

United States. Therefore, the court lacks jurisdiction under Section 1442.

Removal under Section 1442a requires a removing party to show, among

other things, that he is a member of the armed forces of the United States. 28

U.S.C. § 1442a; See Pennsylvania v. Smith, No. 24-1499, 2024 WL 3594362 (3d

Cir. July 31, 2024). Defendant has not alleged that he is in the military. Thus, he

has not alleged any facts supporting removal under Section 1442a.

Nor is this action removable under Section 1443. There are two ways an

action is removable under Section 1443:

(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.

The Supreme Court specifically held that to establish jurisdiction under

Section 1443(1), a defendant must satisfy the following two-pronged test:

First, it must appear that the right allegedly denied the removal

petitioner arises under a federal law ‘providing for specific civil rights

stated in terms of racial equality.’ Georgia v. Rachel, supra, 384 U.S.,

at 792, 86 S.Ct. at 1790. Claims that prosecution and conviction will

violate rights under constitutional or statutory provisions of general

applicability or under statutes not protecting against racial

discrimination, will not suffice. That a removal petitioner will be

denied due process of law because the criminal law under which he is

being prosecuted is allegedly vague or that the prosecution is assertedly

a sham, corrupt, or without evidentiary basis does not, standing alone,

satisfy the requirements of § 1443(1). City of Greenwood v. Peacock,

supra, 384 U.S., at 825, 86 S.Ct., at 1811.

Second, it must appear, in accordance with the provisions of § 1443(1),

that the removal petitioner is ‘denied or cannot enforce’ the specified

federal rights ‘in the courts of (the) State.’ This provision normally

requires that the ‘denial be manifest in a formal expression of state law,’

Georgia v. Rachel, supra, 384 U.S., at 803, 86 S.Ct., at 1796, such as a

state legislative or constitutional provision, “rather than a denial first

made manifest in the trial of the case.” Id., at 799, 86 S.Ct., at 1794.

Johnson v. Mississippi, 421 U.S. 213, 219 (1975).

Defendant has not alleged that he has been denied his civil rights in terms of

racial equality. Instead, he is alleging that his Second Amendment rights were

violated because the underlying state law amounts to an unconstitutional restriction

on his right to bear arms. (Doc. 1, p. 3.) He also alleges that his Sixth Amendment

right to a speedy trial has been violated. (Id.) He further alleges that his Eighth

Amendment right has been violated due to his allegedly excessive bail amount.

(Id., p. 4.) However, Section 1443(1) does not serve to remedy “the violation of . .

. constitutional rights phrased in terms of general rights applicable to all citizens.”

Pennsylvania v. Brown–Bey, 637 F. App'x 686, 688 (3d Cir. 2016). Therefore, he

has not established jurisdiction under Section 1443(1).

Next, the Supreme Court has stated that removal under 28 U.S.C. § 1443(2)

“is available only to state officers.” City of Greenwood, Miss. v. Peacock, 384

U.S. 808, 824 n.22 (1966). As set forth above, Defendant has not alleged that he is

a state officer.

Furthermore, to the extent Defendant may instead be attempting to remove

his criminal cases pursuant to 28 U.S.C. § 1441 based on federal question or

diversity jurisdiction pursuant to 28 U.S.C. §§ 1331 or 1332, he cannot do so, as

Section 1441 only applies to the removal of civil cases. 28 U.S.C. § 1441(a)

(“Except as otherwise expressly provided by Act of Congress, any civil action

brought in a State court of which the district courts of the United States have

original jurisdiction, may be removed by the defendant or the defendants, to the

district court of the United States for the district and division embracing the place

where such action is pending.”). Additionally, the federal question statute applies

to civil (not criminal) cases. 28 U.S.C. § 1331 (“The district courts shall have

original jurisdiction of all civil actions arising under the Constitution, laws, or

treaties of the United States.”).

Defendant does not appear to be asserting diversity jurisdiction and even if

he does, the diversity statute does not apply to criminal actions. See 28 U.S.C. §

1332 (“The district court shall have original jurisdiction of all civil actions where

the matter in controversy exceeds the sum or value of $75,000, exclusive of

interest and cost, and is between—(1) citizens of different States; [or] (2) citizens

of a State and citizens or subjects of a foreign state. . . .”). Again, the cases

Defendant is attempting to remove are criminal, not civil, actions.

Even if this court were to consider this notice of removal as a lawsuit under

42 U.S.C. § 1983, the notice, construed as a complaint, would be subject to

summary dismissal. Defendant is requesting relief of removal of his criminal case

which, as discussed above, he may not do. (Doc. 1, p. 5.) He is also requesting

that this court intervene in his pending criminal cases, which this court cannot do.

Federal courts, absent extraordinary circumstances, are not authorized to interfere

with a State’s pending criminal proceedings. See Younger v. Harris, 401 U.S. 37,

44 (1971). Specifically, the Younger Court noted that courts of equity should not

act unless the moving party has no adequate remedy at law and will suffer

irreparable injury if denied equitable relief. Id. at 43–44.

CONCLUSION

Because Defendant has not established that this court has jurisdiction over

these matters, the removed criminal case will be remanded back to the York

County Court of Common Pleas. See 28 U.S.C. § 1455(b)(4). The Clerk of Court

will be directed to close the case. An appropriate order follows.

s/Jennifer P. Wilson

JENNIFER P. WILSON

United States District Judge

Middle District of Pennsylvania

Date: January 15, 2025

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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