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McAllister v. Warden, Cherokee County Detention Center

United States District Court, D. South Carolina

August 2, 2018

Russell E. McAllister, III, Petitioner,
v.
Warden, Cherokee County Detention Center, Respondent.

          REPORT AND RECOMMENDATION

          Jacquelyn D. Austin United States Magistrate Judge

         Russell 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.

         BACKGROUND

         Petitioner 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, https://publicindex.sccourts.org/Cherokee/PublicIndex/PISearch.aspx (search case # 2018A1110200035) (last visited Aug. 1, 2018).[1]

         Petitioner 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.]

         STANDARD OF REVIEW

         Pursuant 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. § 1915(e)(2)(B).

         Additionally, 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).

         As a 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).

         DISCUSSION

         Ordinarily, 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).

         While “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 appeal).

         In this 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. See https://cherokee-so-sc.zuercherportal.com/#/inmates (search “McAllister”) (last visited Aug. 1, 2018).

         Accordingly, Petitioner should have an adequate opportunity to raise his federal claims in the state proceedings.[2] 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, ...


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