                                                                                FILED
                                                                    United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                        Tenth Circuit

                             FOR THE TENTH CIRCUIT                        March 28, 2016
                         _________________________________
                                                                        Elisabeth A. Shumaker
                                                                            Clerk of Court
THE PEOPLE OF THE STATE OF
COLORADO,

      Plaintiff - Appellee,

v.                                                        No. 15-1294
                                                  (D.C. No. 1:15-y-00040-LTB)
ALFONSO CARRILLO,                                          (D. Colo.)

      Defendant - Appellant.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before LUCERO, MATHESON, and BACHARACH, Circuit Judges.
                 _________________________________

      Alfonso Carrillo appeals following the district court’s remand of his criminal

case to Colorado state court. Exercising jurisdiction under 28 U.S.C. § 1447(d), we

affirm.

                                          I

      Carrillo was charged in Colorado state court with forgery, offering a false

instrument, and theft. He filed a notice of removal, which he subsequently amended,


      *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
claiming that his prosecution was motivated by racial discrimination. The district

court summarily remanded the case to state court on June 24, 2015. Carrillo filed a

motion for reconsideration on July 31, 2015.1 The district court denied his motion on

August 3, 2015. Carillo then filed a notice of appeal of both orders, which he

certified was deposited in the prison mail system on August 14, 2015.

                                          II

      An order remanding a case to state court is generally not reviewable on appeal.

See 28 U.S.C. § 1447(d). However, the statute contains an exception for cases

“removed pursuant to section 1443 of this title,” which “shall be reviewable by

appeal.” Id. Because Carrillo expressly relied on § 1443 in his notice of removal, we

possess jurisdiction. See Colorado v. Lopez, 919 F.2d 131, 132 (10th Cir. 1990).

      It is not clear whether an appeal from a remand order in a case removed under

§ 1443 should be treated as civil or criminal. See Taos Cty. Magistrate Court v.

Currier, 625 F. App’x 358, 360 (10th Cir. 2015) (noting that although such cases are

criminal in nature, criminal defendants are required to adhere to Fed. R. Civ. P. 11 in

filing a notice of removal). But Carrillo’s notice of appeal was untimely with respect

to the remand order under either standard. See Fed. R. App. P. 4(a)(1)(a) (30-day

deadline in civil cases); Fed. R. App. P. 4(b)(1)(A) (14-day deadline in criminal




      1
       Although the motion is dated July 15, 2015, Carillo does not indicate when it
was placed in the prison mail system and thus does not benefit from the prison
mailbox rule. See Price v. Philpot, 420 F.3d 1158, 1165 (10th Cir. 2005).

                                           2
cases).2 However, Carrillo’s notice of appeal is timely as to the denial of his motion

for reconsideration under either rule. See Fed. R. App. P. 4(a)(1)(A); Fed. R. App. P.

4(b)(1)(A); see also Philpot, 420 F.3d at 1165 (prison mailbox rule for computing

filing date). Accordingly, we review only the district court’s order denying

reconsideration.

                                           III

      Under Johnson v. Mississippi, 421 U.S. 213 (1975), a defendant may remove a

criminal case to federal court under § 1443(1) if: (1) “the right allegedly denied the

removal petitioner arises under a federal law providing for specific civil rights stated

in terms of racial equality”; and (2) “the removal petitioner is denied or cannot

enforce the specified federal rights in the courts of the State.” Johnson, 421 U.S. at

219 (quotation omitted).3 Ordinarily, “vindication of the defendant’s federal rights is

left to the state courts” and thus removal is appropriate only if “it can be clearly

predicted by reason of the operation of a pervasive and explicit state or federal law

that those rights will inevitably be denied by the very act of bringing the defendant to

trial in the state court.” City of Greenwood v. Peacock, 384 U.S. 808, 828 (1966).



      2
         Carrillo’s motion for reconsideration was not filed in time to toll the
limitations period under either standard. See Fed. R. App. P. 4(a)(4)(A)(iv) (deadline
to appeal tolled by timely filing of a Fed. R. Civ. P. 59 motion); Fed. R. Civ. P. 59(b)
(motion to be filed within 28 days); Fed. R. App. P. 4(b)(3)(A) (tolling motions in a
criminal case must be filed within 14 days).
      3
       Carrillo cited several other statutes in his notice of removal, but argues only
§§ 1443(1) and 1446 on appeal. Section 1446 merely sets forth the procedural
requirements for removal.
                                            3
      Even construing his pro se filings liberally, Hall v. Bellmon, 935 F.2d 1106,

1110 (10th Cir. 1991), we agree with the district court that Carrillo failed to allege

facts suggesting that the Colorado state courts will not protect his federal rights.

Thus, the district court properly denied Carrillo’s motion for reconsideration of its

summary remand order.4

                                           IV

      AFFIRMED. We GRANT Carrillo’s motion to proceed in forma pauperis.




                                             Entered for the Court


                                             Carlos F. Lucero
                                             Circuit Judge




      4
         Because the allegations contained in the notice of removal were insufficient,
we reject Carrillo’s argument that the district court should have held an evidentiary
hearing. See Laughlin v. Kmart Corp., 50 F.3d 871, 873 (10th Cir. 1995)
(jurisdiction should be determined from allegations in notice of removal), abrogated
on other grounds by Dart Cherokee Basin Operating Co. v. Owens, 135 S. Ct. 574
(2014).
                                            4
