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United States v. Edmiston

January 29, 2008

UNITED STATES OF AMERICA
v.
CONNIE RAY EDMISTON



The opinion of the court was delivered by: R. Allan Edgar United States District Judge

Judge Edgar

MEMORANDUM AND ORDER

On June 15, 2005, this Court entered the judgment of conviction against defendant Connie Ray Edmiston. [Doc. No. 76]. Edmiston took a direct appeal. On June 27, 2006, the Court of Appeals for the Sixth Circuit affirmed the judgment and dismissed the appeal. [Doc. No. 88]. The Sixth Circuit issued a final mandate and Edmiston did not file a petition for writ of certiorari to the United States Supreme Court. Edmiston has exhausted his direct appeal.

On June 25, 2007, federal prisoner Edmiston filed a pro se motion for post-conviction relief pursuant to 28 U.S.C. § 2255. [Doc. No. 89]. The § 2255 motion is pending before this Court and has been assigned Case Nos. 4:07-cv-39 / 4:04-cr-15.

On December 12, 2007, Edmiston filed several pro se documents in his criminal case which have been collectively docketed by the Clerk of Court as a notice of removal. [Doc. No. 100]. After reviewing these unusual documents, the Court concludes that they are a nullity, have no legal effect, and frivolous.

I. First Document: Notice of Removal

The first document is captioned "Notice Of Removal; Pursuant to Title 28 section 1441(d)." Edmiston contends that he is a "foreign state" for purposes of effecting removal of his criminal case pursuant to 28 U.S.C. § 1441(d). Edmiston states that he seeks to remove criminal Case No. 4:04-cr-15 "from the Title 28 section 460 Court - UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TENNESSEE, moving it into the Judicial - United States district court for the Eastern District of Tennessee - a Title 28 section 610 court, ie an Article III court." In an accompanying affidavit, Edmiston asserts that he is a "foreign state" pursuant to 28 U.S.C. §§ 1602 - 1611. As explained infra in Section II of this memorandum opinion and order, what Edmiston hopes to accomplish by this purported "removal" is to have his criminal case treated as an arbitration proceeding and obtain judicial review under 5 U.S.C. § 581(a).

The notice of removal is pure nonsense and nullity having no legal effect. The first sentence of 28 U.S.C. § 1441(d) provides that any civil action brought in a State court against a "foreign state," as that term is defined in 28 U.S.C. § 1603(a), may be removed by the foreign state to the United States District Court for the district and division embracing the place where such action is pending.

28 U.S.C. § 1441(d) clearly has no application whatsoever to Edmiston's criminal case. Section 1441(d) does not apply to federal criminal cases. Federal criminal cases cannot be removed under § 1441(d). Only civil actions initially brought against a foreign state in State court may be removed from State court to the appropriate federal district court by the defendant foreign state. The instant case involving Edmiston is a criminal case, not a civil case, which originated in this United States District Court. Edmiston's federal criminal case has never been in State court, consequently, it cannot possibly be removed from a State court to this federal district court pursuant to 28 U.S.C. § 1441(d).

Moreover, 28 U.S.C. § 1441(d) is not applicable because Edmiston is an individual citizen of the United States. For purposes of the removal statute, 28 U.S.C. § 1441(d), Edmiston is not a "foreign state" as that term is defined in 28 U.S.C. § 1603(a). The references by Edmiston to 28 U.S.C. §§ 460 and 610 are a mystery, and Edmiston does not bother to explain how or why §§ 460 and 610 are supposed to have any impact on or application to his defective notice of removal in the instant criminal case.

In sum, the attempt by Edmiston to purportedly effect a "removal" of his criminal case pursuant to 28 U.S.C. § 1441(d) is frivolous and it is DENIED. A removal of criminal Case No. 4:04-cr-15 has not been properly or lawfully effected by Edmiston under 28 U.S.C. § 1441(d).

II. Second Document: Notice of Judicial Review

The second document submitted by Edmiston is captioned "Notice of Judicial Review." The thrust of this document is that Edmiston purports to bring an "independent action for judicial review" of criminal Case No. 4:04-cr-15 pursuant to 5 U.S.C. § 581 on the frivolous theory that the criminal case is an arbitration proceeding and the judgment of conviction is an arbitration award.

5 U.S.C. § 581(a) provides that "any person adversely affected or aggrieved by an award made in an arbitration proceeding conducted under this subchapter may bring an action for [judicial] review of such award only pursuant to the provisions of" 9 U.S.C. §§ 9 - 13. Edmiston seeks to "remove" his criminal case under 28 U.S.C. § 1441(d) by falsely declaring himself to be a "foreign state" for the purpose of arguing that: (1) his criminal case is an arbitration proceeding and the criminal judgment of conviction is an arbitration award within the meaning and purview of 5 U.S.C. § 581(a); and (2) he is entitled to ...


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