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Green v. Callahan

filed*fn*: February 1, 1993.

FREDERICK R. GREEN, PETITIONER-APPELLANT,
v.
WILLIAM C. CALLAHAN, RESPONDENT-APPELLEE.



Appeal from the United States District Court for the Western District of Washington. D.C. No. CV-90-5522-JET. Jack E. Tanner, District Judge, Presiding

Before: Reinhardt, Hall, and Leavy, Circuit Judges.

MEMORANDUM

Frederick R. Green, a Washington state prisoner, appeals pro se the district court's denial of his Fed. R. Civ. P. 60 motion for reconsideration. We have jurisdiction under 28 U.S.C. § 1291 and review the denial for an abuse of discretion, Transgo, Inc. v. Ajac Transmission Parts Corp., 911 F.2d 363, 365 (9th Cir. 1990). We affirm.

Green contends that the district court erred in denying his Rule 60 motion which challenged the district court's failure to consider his 28 U.S.C. § 1443 "motion to remove" his state habeas petition to the federal district court, due to the state court's failure to grant him a hearing. A defendant, in either a civil or criminal case, can remove a pending state case to a federal court where the federal court has jurisdiction over the subject of the litigation. See 28 U.S.C. § 1443(1). A state court's refusal to grant a hearing in a state post-conviction proceeding is not a cognizable claim in a federal habeas corpus proceeding. See Coleman v. Thompson, 111 S. Ct. 2546, 2566-67 (1991) (the Constitution does not require the states to provide any form of post-conviction relief); Engle v. Isaac, 456 U.S. 107, 119 (1982) (violations of state law only are not cognizable on habeas).

Green filed a personal restraint petition in the Washington Court of Appeals, which was denied on the merits. Green sought discretionary review of the judgment in the Washington Supreme Court, which was denied. Thereafter, Green filed a federal habeas corpus petition in the district court. Instead of raising the claims that he raised in his state petition, however, Green only claimed that the Washington Court of Appeals denied him his rights to due process and equal protection by failing to conduct a hearing on his state petition. The district court dismissed Green's habeas petition for failure to exhaust state remedies with respect to these claims. See Rose v. Lundy, 455 U.S. 509, 515 (1982).

After the district court dismissed his habeas petition, Green filed the 28 U.S.C. § 1443 motion. The district court never addressed the motion. Green then filed the Rule 60 motion, which the district court denied.

Although the district court should have addressed the "motion to remove", it is clear that the motion was improperly filed. Green's habeas petition was not pending when he filed the motion to remove, nor was the action he was seeking to remove filed against him. See 28 U.S.C. § 1443. If Green wishes to have a federal court review the claims he raised in his state petition, he may do so by raising those claims in a federal habeas corpus petition pursuant to 28 U.S.C. § 2254. Moreover, he can request a hearing on those claims in the district court under 28 U.S.C. § 2254(d). However, he cannot simply raise the claim that he was denied a hearing during his state post-conviction proceeding. See Coleman, 111 S. Ct. at 2566-67; Engle, 456 U.S. at 119. In addition, his motion filed pursuant to 28 U.S.C. § 1443 was improper for the reasons stated above. Therefore, the district court properly denied Green's Rule 60 motion.*fn1

AFFIRMED.

Disposition

AFFIRME ...


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