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McClain v. Warden, Turbeville Correctional Institution

United States District Court, D. South Carolina, Rock Hill Division

August 5, 2019

Daniel R. McClain, Petitioner,
v.
Warden, Turbeville Correctional Institution, Respondent.

          OPINION AND ORDER

          Margaret B. Seymour Senior United States District Judge.

         Petitioner Daniel R. McClain is a prisoner in custody of the South Carolina Department of Corrections who currently is housed at Turbeville Correctional Institution. On November 14, 2018, Petitioner filed a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. ECF No. 1. In accordance with 28 U.S.C. § 636(b) and Local Rule 73.02, D.S.C., this matter was referred to United States Magistrate Judge Paige J. Gossett for pretrial handling. This matter is now before the court for review of the Magistrate Judge's Report and Recommendation and several related orders.

         BACKGROUND

         In August 1999, Petitioner was indicted in Richland County for two counts of assault and battery with intent to kill and, in April 2000, for possession of a firearm during the commission of a violent crime. ECF No. 14-1. A jury convicted Petitioner of assault and battery with intent to kill (“ABWIK”), assault and battery of a high and aggravated nature (“ABHAN”), and possession of a firearm during the commission of a violent crime. ECF No. 14-2 at 315. The circuit court sentenced Petitioner to a prison term of twenty years for ABWIK, a concurrent prison term of ten years for ABHAN, and a consecutive prison term of five years for the weapons charge. ECF No. 14-2 at 331-32.

         Petitioner timely appealed and was represented by an attorney from the South Carolina Office of Appellate Defense, who filed an Anders brief on Petitioner's behalf. ECF No. 14-3. Petitioner filed a pro se response to the Anders brief. ECF No. 14-4. On February 14, 2002, the South Carolina Court of Appeals dismissed Petitioner's appeal. State v. McClain, Op. No. 2002-UP-113 (S.C. Ct. App. Feb. 14, 2002); ECF No. 14-6. The remittitur was issued on March 19, 2002.

         On May 8, 2002, Petitioner filed a “Petition for Original Jurisdiction” with the South Carolina Supreme Court. ECF No. 14-8. On June 12, 2002, the Supreme Court dismissed Petitioner's filing pursuant to Key v. Currie, 406 S.E.2d 356 (S.C. 1991). ECF No. 14-9. Petitioner filed a motion for reconsideration, which the South Carolina Supreme Court denied by order dated June 27, 2002. ECF No. 14-10.[1]

         Petitioner filed a pro se application for post-conviction relief (“PCR”) on February 18, 2003. McClain v. State of South Carolina, 2003-CP-40-0884; ECF No. 14-12. On June 2, 2005, the PCR court held a hearing at which Petitioner was represented by counsel. On September 22, 2005, the court issued a written order dismissing the PCR application with prejudice for failure to prosecute and noting that during the hearing, Petitioner had acted “loud, belligerent, and completely uncooperative” and had “continued to loudly berate all around him, claiming he was in too much pain from an injury to his toe to do anything until he was seen by a doctor.” ECF No. 14-13 at 1.

         Petitioner filed the pending petition for writ of habeas corpus (“Petition”) on November 8, 2018, more than thirteen years after his PCR application was denied. In the Petition, he raises the following issues: lack of jurisdiction in General Sessions Court; violations of due process and equal protection; ineffective assistance of counsel; and allegations that officers of the court engaged in prejudicial fraud, conspiracy, and slander. ECF No. 1. Approximately one month after he filed the Petition, Petitioner filed a motion for recusal directed at Magistrate Judge Gossett and the undersigned. ECF No. 9. Respondent filed a response in opposition, ECF No. 11, to which Petitioner filed a reply, ECF No. 13.

         On January 18, 2019, Respondent filed a motion for summary judgment and a return and memorandum in support thereof. ECF Nos. 14, 15. The court issued an order pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975) (“Roseboro”) directing Petitioner to file a response within 31 days and warning that failure to do so could result in dismissal of the Petition.[2] ECF No. 16. Petitioner thereafter filed a “motion for court injunction, ” ECF No. 18, to which Respondent filed a response in opposition, ECF No. 20. Petitioner immediately filed a “motion for court injunction, re-asserted, ” ECF No. 21, which the court refers to as the second motion for injunction, to which Respondent filed a response in opposition, ECF No. 31. Meanwhile, the court's Roseboro order was returned as undeliverable. ECF No. 19. The court reissued the Roseboro order, ECF No. 22; however, the order was again returned as undeliverable, ECF No. 26. On March 25, 2019, Petitioner submitted a notice of change of address, ECF No. 35, prompting the court to reissue the Roseboro order and other orders that had been returned as undeliverable, ECF No. 38.

         On April 17, 2019, Petitioner filed objections to the Roseboro order, ECF No. 43, and a motion for “emergency injunctive relief, ” ECF No. 42, which the court refers to as the third motion for injunction. On April 24, 2019, Petitioner filed a response to the motion for summary judgment, ECF No. 44, and an “‘emergency' affidavit by motion for special master and investigation of SCDC, ” ECF No. 45. Respondent filed a response to Petitioner's objections to the Roseboro order and a reply in support of its motion for summary judgment. ECF No. 46. Respondent thereafter filed a response in opposition to the third motion for injunction, ECF No. 47, and a response in opposition to the motion for appointment of special master, ECF No. 49. On May 31, 2019, Petitioner filed a reply in support of his third motion for injunction, ECF No. 53, a reply in support of his motion for appointment of special master, ECF No. 54, and a reply in support of his objections to the Roseboro order, ECF No. 55.

         On June 19, 2019, the Magistrate Judge denied Petitioner's motion for recusal as it pertained to her. ECF No. 56. The same day, she issued a Report and Recommendation recommending that the court grant the motion for summary judgment and deny Petitioner's motions for injunctive relief and for appointment of a special master. ECF No. 57. On July 1, 2019, Petitioner filed an objection to the order denying the motion for recusal, ECF No. 59, and an objection to the Report and Recommendation, ECF No. 60.

         DISCUSSION

         I. Motion to Recuse

          The court first addresses Petitioner's motion that the undersigned recuse herself from this matter. Petitioner exclaims he “has no faith in this court, ” and that he “explicitly” requested in the cover letter to his Petition, “do not forward this filing to [Magistrate Judge] Gossett and/or [undersigned] . . . as they are already in contempt of court, which would lead to more conflict of interests as injustice.” ECF No. 9 at 1. Petitioner refers specifically to a previous case over which the undersigned presided as District Judge and Judge Gossett presided as Magistrate Judge, McClain v. Fate, 0:15-cv-4516-MBS-PJG (D.S.C. Sept. 19, 2018). Petitioner asserts that in the previous case, “[t]here were numerous contentions of fraud raised in which both judges in question answered matters not within their authority which specifically challenged their competence, ethics, and legality of procedures they both repeatedly undermined repeatedly [sic].” ECF No. 9 at 1. He further asserts that the “failure of both judges to provide immediate relief in ...


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