STATES COURT OF APPEALS
TERRY FLOYD WALLING,
Plaintiff - Appellant,
STATE OF KANSAS,
Defendant - Appellee.
(D.C. No. 98-3054-GTV)
ORDER AND JUDGMENT
name="9">KELLY, and HENRY,
Mr. Walling, an inmate appearing pro se and in forma pauperis, appeals
from the district court's dismissal of his notice of removal. It appears from the
record that after being denied state post-conviction relief and filing a notice of
appeal, Mr. Walling sought to remove his state action to federal court. The
district court dismissed the notice/action on the grounds that Mr. Walling was not
a defendant that could remove under 28 U.S.C. § 1441(a), see
Shamrock Oil &
Gas Corp. v. Sheets, 313 U.S. 100, 104-07 (1941); Conner v. Salzinger, 457 F.2d
1241, 1243 (3d Cir. 1972), nor could he remove under 28 U.S.C. § 1446(c).
Merely because Mr. Walling was once a defendant in the state criminal action
does not make him one for purposes of state post-conviction relief and removal.
See Okot v. Callahan, 788 F.2d 631, 633 (9th Cir. 1986); Attorney General
Mertz v. Yeager, 464 F.2d 553, 554 (3d Cir. 1972).
We GRANT Mr. Walling's motion to supplement the record on appeal filed
February 8, 1999. This case is legally frivolous under 28 U.S.C. § 1915(e)(2)(B)(ii), and the appeal is hereby
Entered for the Court
Paul J. Kelly, Jr.
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*. This order and judgment is not binding
precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
**. After examining the briefs and the
appellate record, this three-judge panel
has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
This document cites
- US Code - Title 28: Judiciary and Judicial Procedure - 28 USC 1915 - Sec. 1915. Proceedings in forma pauperis
- US Code - Title 28: Judiciary and Judicial Procedure - 28 USC 1446 - Sec. 1446. Procedure for removal
- US Code - Title 28: Judiciary and Judicial Procedure - 28 USC 1441 - Sec. 1441. Actions removable generally
- U.S. Supreme Court - Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100 (1941)
- U.S. Court of Appeals for the Third Circuit - 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., 464 F.2d 553 (3rd Cir. 1972)
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