   BLD-272
                                                                  NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 15-1096
                                       ___________

                                STATE OF NEW JERSEY

                                             v.

                                   BRUCE ARISTEO,
                                                 Appellant
                       ____________________________________

                     On Appeal from the United States District Court
                              for the District of New Jersey
                             (D.N.J. Civ. No. 1-14-cv-07911)
                       District Judge: Honorable Renée M. Bumb
                      ____________________________________

           Submitted for Possible Dismissal Due to a Jurisdictional Defect or
     Possible Summary Action Pursuant to Third Circuit L.A.R. 27.4 and I.O.P. 10.6
                                     July 16, 2015

                 Before: AMBRO, JORDAN and KRAUSE, Circuit Judges

                              (Opinion filed: July 20, 2015)
                                       _________

                                        OPINION*
                                         _________

PER CURIAM



    *
      This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does
not constitute binding precedent.
        Bruce Aristeo, proceeding pro se, appeals from an order of the District Court

remanding his case to a New Jersey state court. We will summarily affirm.

        Aristeo filed a notice in the District Court seeking to remove, pursuant to 28

U.S.C. §§ 1331 and 1443, a criminal action pending against him in the Superior Court of

New Jersey, Camden County. He also sought other relief, including a stay of the criminal

proceedings and dismissal of the indictment. The District Court remanded the matter to

state court, concluding that Aristeo had made no allegations that would permit removal

under the statutes pertaining to removal of criminal prosecutions, i.e., 28 U.S.C. §§ 1442,

1442a, and 1443. This appeal followed.

        Cases removed pursuant to § 1442 or § 1443 are excepted from the general rule

that “[a]n order remanding a case to the State court from which it was removed is not

reviewable on appeal.” 28 U.S.C. § 1447(d). We thus have jurisdiction to determine

whether remand was proper to the extent removal was sought under § 1443, which is the

only issue presented by this appeal.1 See Davis v. Glanton, 107 F.3d 1044, 1047 (3d Cir.

1997). We exercise plenary review over the underlying basis for remand to the extent it

involves a legal question. See Lazorko v. Pa. Hosp., 237 F.3d 242, 247 (3d Cir. 2000).

        At issue is the first subsection of § 1443, which authorizes removal of a state law


    1
      Aristeo did not purport to remove this action under § 1442, and he has not
challenged the District Court’s conclusion that § 1442 is not applicable in his case (as it
plainly is not). Insofar as he argues that 28 U.S.C. § 2283 supports removal, we note that
the District Court did not address that issue in its remand order, most likely because
§ 2283 does not concern removal, but rather stays of state court proceedings.
                                              2
action “[a]gainst 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.” 28 U.S.C. § 1443(1).2 For this provision

to apply, “a state court defendant must demonstrate both (1) that he is being deprived of

rights guaranteed by a federal law ‘providing for . . . equal civil rights’; and (2) that he is

‘denied or cannot enforce that right in the courts’ of the state.” Davis, 107 F.3d at 1047

(quoting Georgia v. Rachel, 384 U.S. 780, 788 (1966)). Under the first prong of the test,

the civil rights at issue must involve matters of racial equality. Id. Under the second

prong, removal is proper only where a defendant’s federal civil rights “‘will inevitably be

denied by the very act of bringing the defendant to trial in the state court.’” Id. at 1049

(quoting Greenwood, 384 U.S. at 828).

        As the District Court properly determined, Aristeo has shown no basis for removal

under § 1443. He did not allege that his civil rights were being denied on the basis of

race, but rather that his prosecution for stalking via website postings violated his First

Amendment right to freedom of speech. Aristeo’s ancillary allegations that the state

statute is void for vagueness and that his property was seized without a warrant similarly

do not implicate a deprivation of civil rights based on race. On appeal, Aristeo concedes

“the lack of racial discrimination facts in this case.” Instead, he argues that the plain


    2
      Aristeo has not alleged in the District Court, or argued on appeal, anything that
might permit removal under the second subsection of § 1443, which generally concerns
the execution of certain duties by federal officers. See 28 U.S.C. § 1443(2); Greenwood
                                               3
language of § 1443 makes it applicable regardless of race and that the United States

Supreme Court incorrectly interpreted the statute to require a race-based deprivation of

civil rights in Georgia v. Rachel. This argument, which asks us to ignore almost 50-year-

old Supreme Court precedent, is simply frivolous.

       Accordingly, we will summarily affirm the District Court’s order. See 3d Cir.

L.A.R. 27.4; I.O.P. 10.6. In light of this disposition, we deny Aristeo’s request for an “en

banc determination.”




v. Peacock, 384 U.S. 808, 824 (1966).
                                             4
