§1455 — Title 28 Judiciary and Judicial Procedure | U.S. Code

Summary

A defendant who wants a criminal case moved from a state court to a federal court must file a notice in the correct federal district court. The notice must be signed as required by Rule 11, say in plain short terms why removal is asked for, and include copies of the papers the defendant got in the state case. The notice must be filed within 30 days after the state arraignment or any time before trial, whichever comes first, unless the federal court allows more time for good reason. The notice must list every reason for removal that exists when it is filed; any reason not listed is waived unless the court allows otherwise. The federal court will look at the notice quickly. If it is clearly not removable, the court will send the case back. If not, the court will hold a prompt hearing with evidence and then decide. If the defendant is in state custody, the federal court will issue a writ so the marshal can take custody and notify the state court.

Title 28, §1455

Judiciary and Judicial Procedure — Source: USLM XML via OLRC

(a)A defendant or defendants desiring to remove any criminal prosecution from a State court shall file in the district court of the United States for the district and division within which such prosecution is pending a notice of removal signed pursuant to Rule 11 of the Federal Rules of Civil Procedure and containing a short and plain statement of the grounds for removal, together with a copy of all process, pleadings, and orders served upon such defendant or defendants in such action.

(b)(1)A notice of removal of a criminal prosecution shall be filed not later than 30 days after the arraignment in the State court, or at any time before trial, whichever is earlier, except that for good cause shown the United States district court may enter an order granting the defendant or defendants leave to file the notice at a later time.

(2)A notice of removal of a criminal prosecution shall include all grounds for such removal. A failure to state grounds that exist at the time of the filing of the notice shall constitute a waiver of such grounds, and a second notice may be filed only on grounds not existing at the time of the original notice. For good cause shown, the United States district court may grant relief from the limitations of this paragraph.

(3)The 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.

(4)The United States district court in which such notice is filed shall examine the notice promptly. 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.

(5)If the United States district court does not order the summary remand of such prosecution, it shall order an evidentiary hearing to be held promptly and, after such hearing, shall make such disposition of the prosecution as justice shall require. If the United States district court determines that removal shall be permitted, it shall so notify the State court in which prosecution is pending, which shall proceed no further.

(c)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 the marshal’s custody and deliver a copy of the writ to the clerk of such State court.

Notes & Related Subsidiaries

Editorial Notes

References in Text

The Federal Rules of Civil Procedure, referred to in subsec. (a), are set out in the Appendix to this title.

Statutory Notes and Related Subsidiaries

Effective Date

Section effective upon the expiration of the 30-day period beginning on Dec. 7, 2011, and applicable to any action or prosecution commenced on or after such

Effective Date

, with provisions for treatment of cases removed to Federal court, see section 105 of Pub. L. 112–63, set out as an

Effective Date

of 2011 Amendment note under section 1332 of this title.

§1455 Procedure for Removal of Criminal Prosecutions

Summary

Title 28, §1455

Notes & Related Subsidiaries

Editorial Notes

References in Text

Statutory Notes and Related Subsidiaries

Effective Date

Effective Date

Effective Date

Citations & Metadata