464 F2d 553 Attorney General Mertz v. Yeager

464 F.2d 553

ATTORNEY GENERAL, United States of America ex rel. John
Louis MERTZ #45035, Appellant,
v.
Howard YEAGER, Principal Keeper in Charge of the New Jersey
State Prisson, Trenton, New Jersey, et al.

No. 72-1076.

United States Court of Appeals,

Third Circuit.

Submitted June 23, 1972 Under Third Circuit Rule 12(6).
Decided July 5, 1972.

Stanley A. Bass, New York City, for appellant.

Richard A. Fiore, Asst. Prosecutor, Hackensack, N. J., Geoffrey Gaulkin, Prosecutor of Hudson County by John J. Hughes, Asst. Prosecutor, Jersey City, N. J., for respondent.

Before ALDISERT, JAMES ROSEN, and HUNTER, Circuit Judges.

OPINION OF THE COURT

PER CURIAM:

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1

Subsequent to two appeals to this court, United States ex rel. Mertz v. State of New Jersey, 423 F.2d 537 (1970), and 425 F.2d 819 (1970), appellant instituted a series of post-conviction relief proceedings in the New Jersey state courts. After the Appellate Division of the New Jersey Superior Court denied relief on appeal, he filed another petition for state habeas corpus relief in the New Jersey Superior Court on May 24, 1971. Prior to any adjudication thereof, he filed, on June 17, 1971, a Petition for Certification to the New Jersey Supreme Court. While both the state Superior Court and Supreme Court proceedings were pending, he filed a petition for removal to the United States District Court contending that he "cannot enjoy enforcement of his rights in the Courts of the State of New Jersey." The district court denied the petition for removal. Appellant appeals from that denial. By brief, his counsel admits "respondent is technically correct in asserting that there is no legal basis here for federal removal under 28 U.S.C. Sec. 1443 (1)." We agree.1

2

The order of the district court will be affirmed.

1

Nor is removal authorized under 28 U.S.C. Sec. 1446 except by any defendant prior to trial