albert-hamburg-v-goshen-county-attorney-also-known-as-lowell-fitch ( 1993 )

5 F.3d 546
NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.

Albert HAMBURG, Plaintiff-Appellant,
v.
GOSHEN COUNTY ATTORNEY, also known as Lowell Fitch; Wyoming
Attorney General, also known as Joseph Meyer;
Wyoming Secretary of State, also known
as Kathy Karpan, Defendants-Appellees.

No. 93-8025.

United States Court of Appeals, Tenth Circuit.

Aug. 27, 1993.

Before MOORE, BRORBY and EBEL, Circuit Judges.

PER CURIAM

ORDER AND JUDGMENT1

1

After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed.R.App.P. 34(a); 10th Cir.R. 34.1.9. The case is therefore ordered submitted without oral argument.

2

Plaintiff Albert Hamburg appeals from an order denying his motion to remove a petition for writ of coram nobis from state to federal court. We notified the parties that we were considering summary dismissal of the appeal for lack of jurisdiction. Having reviewed plaintiff's response to the notice of jurisdictional defect, we conclude that we have jurisdiction of the appeal. We further conclude that the appeal should be summarily affirmed.

3

The district court in effect remanded the case to state court after plaintiff removed it pursuant to 28 U.S.C. 1443. An order remanding a removed case to state court ordinarily is not reviewable by appeal. 28 U.S.C. 1447(d). An exception to this rule exists for an order remanding a case which was removed pursuant to 1443, which is reviewable by appeal. Id. Because plaintiff expressly based his removal on 1443, this court has jurisdiction to review the remand order. See People v. Lopez, 919 F.2d 131, 132 (10th Cir.1990).

4

Section 1443 permits the defendant to certain state court actions to remove that action to federal court. Plaintiff was not the defendant to the state action that he wished to remove to federal court. Consequently, the district court correctly remanded the state court action.

5

The judgment of the United States District Court for the District of Wyoming is AFFIRMED.

1

This order and judgment has no precedential value and shall not be cited, or used by any court within the Tenth Circuit, except for purposes of establishing the doctrines of the law of the case, res judicata, or collateral estoppel. 10th Cir.R. 36.3