United States District Court, D. South Carolina, Rock Hill Division
Daniel R. McClain, Petitioner,
Warden, Turbeville Correctional Institution, Respondent.
OPINION AND ORDER
Margaret B. Seymour Senior United States District Judge.
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
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.
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.
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.
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.
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.
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. 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
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.
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.
Motion to Recuse
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 ...