United States District Court, D. South Carolina
Daniel R. McClain, Petitioner,
Warden, Turbeville Correctional Institution, Respondent.
GOSSETT UNITED STATES MAGISTRATE JUDGE
petitioner, Daniel McClain, a self-represented state
prisoner, filed a petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254. This matter is before the
court pursuant to 28 U.S.C. § 636(b) and Local Civil
Rule 73.02(B)(2) (D.S.C.) on McClain's motion to recuse
the assigned magistrate judge. (ECF No. 9.) Finding no basis
for recusal, the court denies McClain's motion.
of federal judges is generally governed by 28 U.S.C. §
Subsection (a) of § 455 provides that “[a]ny
justice, judge, or magistrate judge of the United States
shall disqualify himself in any proceeding in which his
impartiality might reasonably be questioned.” In the
Fourth Circuit, this standard is analyzed objectively by
considering whether a person with knowledge of the relevant
facts and circumstances might reasonably question the
judge's impartiality. United States v. Cherry,
330 F.3d 658, 665 (4th Cir. 2003). For purposes of this
statute, the hypothetical “reasonable person” is
not a judge, since judges, who are trained to regard matters
impartially and are keenly aware of that obligation,
“may regard asserted conflicts to be more innocuous
than an outsider would.” United States v.
DeTemple, 162 F.3d 279, 287 (4th Cir. 1998). The
“reasonable person” is a “well informed,
thoughtful observer, ” but not one who is
“hypersensitive or unduly suspicious.” In re
Mason, 916 F.2d 384, 386 (7th Cir. 1990).
455(a) does not require recusal “simply because of
unsupported, irrational or highly tenuous speculation,
” or because a judge “possesses some tangential
relationship to the proceedings.” Cherry, 330
F.3d at 665 (internal quotation omitted). The Fourth Circuit
recognizes that overly cautious recusal would improperly
allow litigants to exercise a “negative veto”
over the assignment of judges simply by hinting at
impropriety. DeTemple, 162 F.3d at 287. Recusal
decisions under § 455(a) are “fact-driven and may
turn on subtleties in the particular case.” United
States v. Holland, 519 F.3d 909, 913 (9th Cir. 2008).
(b) of § 455 further provides a list of specific
instances where a federal judge's recusal is mandated,
regardless of the perception of a reasonable observer.
Liteky v. United States, 510 U.S. 540, 567 (1994)
(Kennedy, J., concurring). Pertinent here, § 455(b)(1)
disqualifies a judge “[w]here he has a personal bias or
prejudice concerning a party.” 28 U.S.C. §
455(b)(1). Bias or prejudice must be proven by compelling
evidence. Brokaw v. Mercer Cty., 235 F.3d 1000, 1025
(7th Cir. 2000). Moreover, the United States Supreme Court
has made clear that to warrant disqualification, “[t]he
alleged bias or prejudice . . . must stem from an
extrajudicial source . . . other than what the judge learned
from his participation in the case.” United States
v. Grinnell Corp., 384 U.S. 563, 583 (1966). In applying
the extrajudicial source doctrine, the Supreme Court has held
judicial rulings alone almost never constitute a valid basis
for a bias or partiality motion. In and of themselves
(i.e., apart from surrounding comments or
accompanying opinion), they cannot possibly show reliance
upon an extrajudicial source; and can only in the rarest
circumstances evidence the degree of favoritism or antagonism
required . . . when no extrajudicial source is involved.
Liteky, 510 U.S. at 555 (citation omitted).
McClain argues that he has “no faith” in the
assigned magistrate judge based on her rulings in his prior
case. McClain also alludes to an unspecified “conflict
of interest” and argues that the assigned magistrate
judge has failed to provide him with “immediate relief
with regard to his current medical situation. Additionally,
McClain argues that venue should be changed so that he can
have different judges assigned to his case. Importantly,
McClain points to no extrajudicial source of bias or
prejudice. Moreover, as stated above, mere disagreement with
judicial rulings and unsupported allegations of bias are
insufficient to warrant recusal. Accordingly, it is
that McClain's motion to recuse is denied.
 Notably, § 455 largely tracks the
language of Canon 3(C) of the Code of Conduct for United
States Judges, which also governs recusal ...