ALD-061                                                       NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                      No. 10-3578
                                     ____________

                               STATE OF DELAWARE

                                            v.

                                   LEROY HEFLEY,
                                                 Appellant
                        __________________________________

                    On Appeal from the United States District Court
                              for the District of Delaware
                             (D.C. Civ. No. 10-cv-00360)
                      District Judge: Honorable Sue L. Robinson
                      __________________________________

                        Submitted for Possible Summary Action
                   Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                   December 9, 2010

           Before: SCIRICA, HARDIMAN and VANASKIE, Circuit Judges

                               (Filed: December 14, 2010)
                                      ____________

                              OPINION OF THE COURT
                                   ____________

PER CURIAM.

      Appellant Leroy Hefley filed a Notice of Removal pro se pursuant to 28 U.S.C. §

1446 in the United States District Court for the District of Delaware, seeking to remove

his state criminal case, Del. Crim. No. 0709007937, from the Kent County Superior
Court. According to the state court criminal docket Hefley attached to the removal

papers, he was charged with disorderly conduct, making terroristic threats, criminal

mischief and harassment, and convicted in November, 2007. Hefley appealed the

judgment of conviction, and it appears that he contended on appeal, at a minimum, that

his constitutional rights to counsel and to confront his accuser were violated. The

Delaware Superior Court affirmed on November 18, 2008, and the state supreme court

dismissed an appeal on May 27, 2009. Hefley filed a motion for post-conviction relief on

July 29, 2009, which was summarily dismissed. On January 15, 2010, the state supreme

court affirmed the judgment of the Superior Court.

       In his removal petition, which was filed on April 28, 2010, Hefley contended that

the state court is racist and biased. He asserted that he cannot get a fair trial and the state

supreme court “rubber stamps” the decisions of the Superior Court. In an order entered

on July 26, 2010, the District Court ordered the matter remanded to state court. Noting

that removal of state criminal matters is permitted under 28 U.S.C. § 1443(1), the court

concluded that Hefley’s allegation of racism might provide a basis for subject matter

jurisdiction. But Hefley also had to show that he cannot enforce his rights in state court,

and clearly he had not done so. Moreover, his removal petition was untimely filed, and

the District Court concluded that there was no good cause for his failure to timely remove

his case.

       Hefley appeals. Our Clerk advised him that his appeal was subject to summary

affirmance under Third Cir. LAR 27.4 and I.O.P. 10.6. He was invited to submit



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argument in writing, and he has done so. We have reviewed and considered that

submission.

       We will summarily affirm the order of the District Court because no substantial

question is presented by this appeal. Third Circuit LAR 27.4 and I.O.P. 10.6. We have

jurisdiction under 28 U.S.C. § 1447(d), which provides that: “An order remanding a case

to the State court from which it was removed is not reviewable on appeal or otherwise,

except that an order remanding a case to the State court from which it was removed

pursuant to section 1443 of this title shall be reviewable by appeal or otherwise.” Id.

(emphasis added). As explained by the District Court, Hefley removed his criminal

prosecution under section 1443.

       The District Court properly ordered the matter remanded to state court. Section

1443(1) provides: “Any of the following civil actions or criminal prosecutions,

commenced in a State court may be removed by the defendant to the district court of the

United States...: (1) Against 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....” 28 U.S.C. § 1443(1). An individual seeking removal of a state criminal

case to federal court must satisfy a two-part test: he must allege a denial of his rights on

account of race, and that he cannot enforce his federal rights in state court. See Johnson

v. Mississippi, 421 U.S. 213, 219-20 (1975). Moreover, “[a] notice of removal of a

criminal prosecution shall include all grounds for such removal. A failure to state

grounds which exist at the time of the filing of the notice shall constitute a waiver of such

grounds….” 28 U.S.C. § 1446(c)(2).

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       Hefley was able to exercise his right to appeal and to assert constitutional claims

in state court and there is nothing unusual about his criminal prosecution. “Except in the

unusual case … it [is] to be expected that the protection of federal constitutional or

statutory rights [can] be effected in the pending state proceedings, civil or criminal.”

Johnson, 421 U.S. at 219-20. Removal is not warranted when it is based “solely on

petitioners’ allegations that the statutes underlying the charges against them were

unconstitutional, that there was no basis in fact for those charges, or that their arrest and

prosecution otherwise denied them their constitutional rights.” Id. at 222. If Hefley

believes that “he is in custody in violation of the Constitution or laws or treaties of the

United States,” he may challenge his conviction by applying in federal court for a writ of

habeas corpus pursuant to 28 U.S.C. § 2254.

       Moreover, we agree with the District Court that the removal petition was not

timely filed. Section 1446(c)(1) provides that a “notice of removal of a criminal

prosecution shall be filed not later than thirty 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.” Hefley was tried and convicted in 2007, and he

has completed two rounds of appeals in state court. In the absence of any other evidence,

the delay of 2½ years weighs heavily against a finding of good cause. The District Court

did not abuse its discretion in concluding that Hefley did not show good cause for the

delay in removing his state criminal case to federal court.



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       For the foregoing reasons, we will summarily affirm the order of the District Court

remanding the matter to state court.




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