§1455 Procedure for Removal of Criminal Prosecutions

Summary

A defendant can move a criminal case from a state court into the right federal district court by filing a notice of removal in that federal court. The notice must be signed as federal rules require, give a short plain reason for removal, and include copies of all papers and orders the defendant got from the state case. The notice must be filed within 30 days after the state arraignment or before trial, whichever comes first, though the federal court can allow a later filing for good cause. The notice must list every ground for removal that exists when it is filed; leaving out a ground then usually means the defendant gives it up, and a new notice can only raise grounds that came up later unless the court excuses the failure for good cause. Filing the notice does not stop the state court from going on, but the state cannot enter a conviction unless the case is first sent back. The federal court will review the notice quickly. If it is obvious removal is wrong, the court will order the case sent back. If not, the court will hold a prompt hearing and then decide what to do. If the defendant is in state custody, the federal court must issue a writ of habeas corpus, the U.S. marshal will take custody, and a copy of the writ goes to the state court clerk.