United States District Court, D. South Carolina
Russell E. McAllister, III, Petitioner,
Warden, Cherokee County Detention Center, Respondent.
REPORT AND RECOMMENDATION
Jacquelyn D. Austin United States Magistrate Judge
E. McAllister, III (“Petitioner”), proceeding pro
se, brings this action seeking a writ of habeas corpus
pursuant to 28 U.S.C. § 2241. Petitioner is a pretrial
detainee at the Cherokee County Detention Center, and he
files this action in forma pauperis under 28 U.S.C. §
1915. This case is subject to summary dismissal.
is presently detained at the Cherokee County Detention
Center, and he appears to have an attorney appointed to
represent him in the pending state criminal matter. The Court
takes judicial notice that Petitioner has been charged with
distribution of methamphetamine and that bond was set at $25,
000 on February 4, 2018. See State of South Carolina v.
Russell Edgar McAllister, No. 2018A1110200035,
(search case # 2018A1110200035) (last visited Aug. 1,
has filed a petition for writ of habeas corpus in this Court,
seeking to “redress the deprivation of rights secured
by the Constitution” and to “have his charges
dismissed on grounds of improper search & seizure, a
faulty warrant and over 150 days of incarceration without
a[n] indictment.” [Doc. 1 at 1.] Petitioner asserts his
confinement is illegal because there is no probable cause to
support the arrest warrant. [Id. at 2.] Among other
things, Petitioner alleges he “has been incarcerated
over 150 days on these bogus charges without being indicted.
Never indicted or given preliminary hearing.”
[Id. at 4.] For his relief, Petitioner seeks an
order releasing him from custody. [Id. at 5.]
to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local
Civil Rule 73.02(B)(2)(c), D.S.C., the undersigned is
authorized to review such petitions for relief and submit
findings and recommendations to the District Court.
Petitioner filed this action pursuant to 28 U.S.C. §
1915, the in forma pauperis statute. This statute authorizes
the District Court to dismiss a case if it is satisfied that
the action “fails to state a claim on which relief may
be granted, ” is “frivolous or malicious, ”
or “seeks monetary relief against a defendant who is
immune from such relief.” 28 U.S.C. §
this Court is charged with screening Petitioner's lawsuit
to determine if “it plainly appears from the petition
and any attached exhibits that the petitioner is not entitled
to relief in the district court.” Rule 4, Rules
Governing Section 2254 Cases in the U.S. District Courts
(2012); see also Rule 1(b) Rules Governing Section
2254 Cases in the U.S. District Courts (2012) (a district
court may apply these rules to a habeas corpus petition not
filed pursuant to § 2254).
pro se litigant, Petitioner's pleadings are accorded
liberal construction and held to a less stringent standard
than formal pleadings drafted by attorneys. See Erickson
v. Pardus, 551 U.S. 89, 93-94 (2007) (per curiam).
However, even under this less stringent standard, the
Petition in this case is subject to summary dismissal. The
requirement of liberal construction does not mean that the
Court can ignore a clear failure in the pleading to allege
facts which set forth a claim cognizable in a federal
district court. See Weller v. Dep't of Soc.
Servs., 901 F.2d 387 (4th Cir. 1990).
federal habeas corpus relief for a state prisoner is
available post-conviction. However, pretrial petitions for
habeas corpus are properly brought under 28 U.S.C. §
2241, “‘which applies to persons in custody
regardless of whether final judgment has been rendered and
regardless of the present status of the case pending against
him.'” United States v. Tootle, 65 F.3d
381, 383 (4th Cir. 1995) (quoting Dickerson v.
Louisiana, 816 F.2d 220, 224 (5th Cir. 1987)). Generally
though, “‘an attempt to dismiss an indictment or
otherwise prevent a prosecution'” is not attainable
through federal habeas corpus relief, Dickerson, 816
F.2d at 226 (quoting Brown v. Estelle, 530 F.2d 1280
(5th Cir. 1976)), and a federal writ of habeas corpus under
§ 2241 can only be sought after the petitioner
has exhausted his state remedies. See Braden v. 30th
Judicial Circuit Court, 410 U.S. 484, 490-91 (1973)
(exhaustion required under 28 U.S.C. § 2241); Moore
v. DeYoung, 515 F.2d 437, 442-43 (3rd Cir. 1975)
(exhaustion required under 28 U.S.C. § 2241). Thus,
“pretrial habeas relief is available under § 2241
if the petitioner is in custody, has exhausted his state
court remedies, and ‘special circumstances' justify
the provision of federal review.” Allen v.
Robinson, 986 F.2d 1412 (4th Cir. 1993) (citing
Dickerson, 816 F.2d at 224-26; Braden, 410
U.S. at 489-90).
“special circumstances” lacks any precise,
technical meaning, courts have essentially looked to whether
procedures exist which would protect a petitioner's
constitutional rights without pre-trial intervention.
Moore v. DeYoung, 515 F.2d 437, 449 (3d Cir. 1975);
Brazell v. Boyd, 991 F.2d 787 (4th Cir. 1993). Thus,
where a threat to a petitioner's rights may be remedied
by an assertion of an appropriate defense in state court, no
special circumstances are shown. Moore, 515 F.2d at
449; see also Drayton v. Hayes, 589 F.2d 117, 121
(2d Cir. 1979) (double jeopardy claim entitled to pretrial
habeas intervention because “the very constitutional
right claimed . . . would be violated” if petitioner
were forced to go to trial). Further, where the right may be
adequately preserved by orderly post-trial relief, special
circumstances are likewise nonexistent. Moore, 515
F.2d at 449 (explaining the federal court should abstain from
considering a speedy trial claim at the pretrial stage
because the claim could be raised at trial and on direct
case, Petitioner has failed to show that he has exhausted his
state court remedies or that “special
circumstances” justify review by this Court. Petitioner
asserts that his rights under the United States Constitution
have been violated because the arrest warrant was not
supported by probable cause. However, because Petitioner may
raise these claims in the state courts during trial and
post-trial proceedings, pretrial intervention by this Court
is inappropriate. See Brazell, 991 F.2d 787
(explaining, “where a threat to the petitioner's
rights may be remedied by an assertion of an appropriate
defense in state court no special circumstance is
shown” (citing Moore, 515 F.2d at 449));
Wirtz v. Dir. of Oconee Cty. Det. Ctr., No.
4:13-cv-387-RMG, 2013 WL 1901148, at *2 (D.S.C. May 7, 2013).
Likewise, Petitioner's claim that he is being unlawfully
incarcerated without being indicted is simply without merit.
The state court criminal records show Petitioner has been
indicted, and any challenge to the indictment can be raised
in the state court proceedings. The Petition is devoid of any
allegations regarding when Petitioner was arrested or with
what crimes he has been charged. However, a review of the
Public Index of the Seventh Judicial Circuit shows that
Petitioner was arrested on February 4, 2018, and charged with
drugs/ distribution of methamphetamine, 2nd degree at case
number 2018A1110200035 in the Cherokee County Court of
General Sessions. See https://publicindex.
sccourts.org/Cherokee/PublicIndex/PISearch.aspx (search case
# 2018A1110200035) (last visited Aug. 1, 2018). Further,
Indictment No. 2018GS1100370 was filed on March 19, 2018, in
Petitioner's state criminal case. Id. Petitioner
appears to be represented by counsel in his state criminal
case. Id. (listing Defendant's attorney as Don
Thompson). A review of the Cherokee County Detention Center
inmate search shows that Petitioner is being held there on
the drug charges at arrest warrant 2018A1110200035.
“McAllister”) (last visited Aug. 1, 2018).
Petitioner should have an adequate opportunity to raise his
federal claims in the state proceedings. Petitioner has
not exhausted his state remedies and does not allege any
special circumstances to show that pretrial intervention
would be appropriate in this case. Petitioner is, therefore,