Hamm v. Davis et al

Filing 20

ORDER adopting Report and Recommendations of Magistrate Judge Bristow Marchant; and SUMMARILY DISMISSES THE COMPLAINT WITHOUT PREJUDICE and WITHOUT REQUIRING RESPONDENT TO FILE A RETURN. Certificate of appealability is denied. Signed by Honorable Richard M Gergel on 1/17/2017.(cwhi, )

IN THE UNITED STATES DISTRICT COURT

DISTRICT OF SOUTH CAROLINA

Michael E. Hamm, alk/a Michael Eugene Hamm )
)
)
)
Petitioner,
)
)
vs.
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South Carolina, State of; Rodney Davis, Attorney; )
)
Sexually Violent Predator Treatment Program;
Holly Scaturo; State of South Carolina Department )
)
of Mental Health; John McGill,
)
Respondents.
)

No. 9: 16-cv-02922-RMG

ORDER

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This matter comes before the Court on the Report and Recommendation ("R & R") of the
Magistrate Judge (Dkt. No. 11), recommending that Petitioner's Petition for habeas corpus be
dismissed, without prejudice and without requiring Respondent to file a return. Plaintiff has filed
objections to the R & R. (Dkt. No. 18.) For the reasons stated below, the Court ADOPTS the R
& R as the order of this Court.

I. Background
Petitioner, Michael E. Hamm, is confined at the South Carolina Department of Mental Health
(SCDMH) as part of the Sexually Violent Predator (SVP) Treatment Program pursuant to the South
Carolina SVP Act, S.C. Code Ann. §§ 44-48-10 through 44-48-170. Petitioner, proceeding pro se,
seeks relief under either 28 U.S.C. § 2241 or 28 U.S.C. § 2254, challenging his conviction and
sentence imposed in South Carolina case number I 999-GS-18-03 18 for the charge of lewd act upon a
minor.

Pro se petitions are held to a less stringent standard than those drafted by attorneys, and this
Court will liberally construe a petition filed by a pro se litigant to allow the development of a
potentially meritorious case. See Hughes v. Rowe, 449 U.S. 5, 9 (1980); Cruz v. Beto, 405 U.S. 319

(1972); Fine v. City ofNew York, 529 F.2d 70, 74 (2d Cir. 1975). 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 this Court can ignore a clear failure in the pleading to allege
facts which set forth a claim currently cognizable in a federal district court. See Weller v. Dep'( of

Soc. Serv., 901 F.2d 387 (4th Cir. 1990).

II. Facts
Petitioner was convicted in June 1999 of the charge of lewd act on a minor and sentenced to
three years imprisonment suspended upon five years' probation following his allegedly uncounseled
plea of nolo contendere. (Okt. No. 1 at 1.) Petitioner did not directly appeal this conviction I but
claims to have filed two applications for post-conviction relief (both of which were dismissed) and a
third which was denied on October 29,2015. (Okt. No. 11 at 3.) Petitioner's appeal of this third
denial was dismissed on August 11,2016, and remittitur was filed on September 1,2016. (Id.) When
Petitioner was arrested on new charges in 2002, his suspended sentence from his June 1999
conviction was revoked. Petitioner was sentenced in 2003 to three years imprisonment. 2 (Okt. No 1-1
at 39.)

I Petitioner previously attempted to challenge his civil commitment and his June 1999 criminal
conviction in Civil Action Number 9: 13-cv-771-RMG. That action was dismissed without
prejudice because Petitioner had not exhausted the state court procedures to challenge his civil
confinement or the 1999 criminal conviction. Hamm v. South Carolina, No.9: 13-cv-771-RMG,
2013 WL 3107571, at *3 (O.S.C. Jun. 18,2013).
2 Petitioner was given credit for 364 days and his 1999 sentence was to run concurrently with his
2003 sentence.

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III. Discussion
A. Relief under 28 U.S.c. § 2241 or 28 U.S.c. § 2254
A petitioner seeking to challenge his detention through a federal habeas action must be "in
custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a);

see also 28 U.S.C. § 2241(c)(3). To meet the "in custody" requirement, Petitioner must show that he
is "under the conviction or sentence under attack at the time his petition is filed." Maleng v. Cook,
490 U.S. 488, 490-491(1989); see Leonardv. Hammond, 804 F.2d 838, 842 (4th Cir. 1986) (petition
filed pursuant to 28 U.S.C. § 2254). A petitioner who "is no longer serving the sentences imposed
pursuant to his [earlier] convictions ... cannot bring a federal habeas petition directed solely at those
convictions." Lackwanna Cly. Dist. Attorneyv. Coss, 532 U.S. 394, 401 (2001); see also De Longv.

Hennessey, 912 F .2d 1144, 1146 (9th Cir. 1990) (a person who files a habeas petition after he has
fully served his sentence is not "in custody" for purposes of a federal court's subject matter
jurisdiction, and a habeas petition filed by such a person is properly denied); Lefkowitz v. Fair, 816
F.2d 17, 20 (1 st Cir. 1987) (habeas petition filed after an individual's unconditional release from
prison properly denied by the district court).
Petitioner has provided no facts in his pleadings to demonstrate that he presently is "in
custody" on his June 1999 sentence 3 or is currently serving any sentence at all. While Petitioner may
be seeking habeas relief as to his civil commitment (pursuant to the SVP Act), he has not alleged that
he received a later enhanced criminal sentence based on his 1999 conviction. 4 Because Petitioner has
not met the "in custody" requirement of §§ 2254 or 2241, this action must be dismissed for lack of
subject matter jurisdiction.
3 Even if Petitioner's 1999 custody sentence was not imposed until 2003 when he was sentenced
for his new convictions, that sentence would have long since expired. (Dkt No.l-1 at 39.)
4 The Supreme Court has found that "when an otherwise qualified § 2254 petitioner can
demonstrate that his current sentence was enhanced on the basis of a prior conviction that was
obtained where there was a failure to appoint counsel in violation of the Sixth Amendment, the
current sentence cannot stand and habeas relief is appropriate." Lackawanna, 532 U.S. at 404.

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B. Relief under the Sexually Violent Predator (SVP) Act
To the extent Petitioner attempts to challenge his detention at the SCDMH pursuant to the
SVP Act, this Court has considered Petitioner's eligibility for relief if he is voluntarily
committed or, in the alternative, involuntarily committed.
1. Voluntary Commitment

In a previous petition filed in this CourtS Petitioner stated that he voluntarily committed
himself to the SVP Treatment Program "to save" his right to a jury trial. See Hamm v. State of
South Carolina, No. 9: 13-771-RMG, 2013 WL 3107571, at ** 1 and 3 (D.S.C. Jun. 18,2013). In
his objections to the current Petition, Petitioner provided the order of voluntary commitment and
the transcript from the voluntary commitment hearing at which he agreed to be voluntarily
committed while represented by counsel. (Dkt 18-1 at 14-26.) As a voluntarily committed patient
of the SVP Treatment Program, Petitioner is not "in custody" so is not eligible for federal habeas
relief. See Hamm v. Magill, No. 11-3098,2012 WL 393632, at * 1 (D.S.C. Feb. 6,2012).
2. Involuntary Commitment

Following the Magistrate Judge, this Court also considered the merits of this petition in
the event Petitioner argues that he is involuntarily committed in an abundance of caution. In his
current Petition, Petitioner responded to the question as to whether he was under sentence from
any other court that he had not challenged in the affirmative, indicating that "Yes" he was under
sentence from the "The Sexually Violent Predator Treatment Program." (Dkt. No. 1-1 at 29.) To
the extent that Petitioner is being held involuntarily under the SVP Act, his commitment satisfies
the "in custody" requirement for purposes of seeking habeas relief. See Duncan v. Walker, 533
S Petitioner has filed at least twenty (20) previous court actions pursuing various claims for relief.
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U.S. 167, 176 (2001). Nonetheless, Petitioner may only pursue a writ of habeas under 28 U.S.C.

§§ 2241 or 2254 after he has exhausted his state court remedies. See O'Sullivan v. Boerckel, 526
U.S. 838,842 (1999) ("Before a federal court may grant habeas relief to a state prisoner, the
prisoner must exhaust his remedies in state court.") As detailed in the R & R, Petitioner has not
alleged or shown that he has exhausted his state court remedies to challenge his confinement
under the SVP Act, so he is not eligible to pursue a remedy in this Federal Court. (Dkt. No. 11 at
6-7.) Accordingly, even if Petitioner has alleged that he is involuntarily committed at this time,
this Court lacks jurisdiction to entertain his Petition.

3. Ongoing SVP Proceedings
To the extent Petitioner has asked this Court to review claims concerning ongoing SVP
proceedings, this Court will not do so based on the abstention doctrine established in Younger v.

Harris, 401 U.S. 37 (1971). "Younger abstention is a doctrine requiring federal courts to refrain
from interfering with ongoing state judicial proceedings that implicate important state interests."

Life Partners, Inc. v. Morrison, 484 F.3d 284,300 (4th Cir. 2007); see Bellotti v. Baird, 428 U.S.
132, 143 n.lO (1976) ("[I]t would appear that abstention may be raised by the court [s]ua
sponte. "). The Younger abstention doctrine applies lIto noncriminal judicial proceedings when
important state interests are involved." Harper v. Pub. Servo Comm'n ofW Va., 396 F.3d 348,
351 (4th Cir. 2005) (citing Middlesex County Ethics Comm'n v. Garden State Bar Ass'n, 457
U.S. 423,432 (1982). Petitioner has not alleged the "most narrow and extraordinary of
circumstances" that could justify federal intrusion into what may well be ongoing state judicial
proceedings. Gilliam

V.

Foster, 75 F.3d 881, 903 (4th Cir. 1996) (citing Younger v. Harris, 401

U.S. at 43-44,54); see Martin Marietta Corp.

V.

Md Comm'n on Human Relations, 38 F.3d 1392,

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1396 (4th Cir. 1994) (setting forth the relevant test for detennining whether prudential
considerations counsel against the exercise of federal habeas power).

C. Ineffective Assistance of Counsel
Petitioner has named Rodney Davis, the attorney who appears to have represented
Petitioner in his appeal of his state court APCR, as a Respondent in this matter. Construing this
petition liberally, and taking into account Petitioner's arguments in his Objections to the R & R,
Petitioner has attempted to assert an ineffective assistance of counsel claim against Mr. Davis
under 42 U.S.C. § 1983. The relief Petitioner seeks is not available under habeas corpus review
because it does not relate to Petitioner's length of incarceration or possibility of release. See

Preiser v. Rodriguez, 411 U.S. 475, 484 (1973) ("[T]he essence of habeas corpus is an attack by
a person in custody upon the legality of that custody, and ... the traditional function of the writ is
to secure release from illegal custody. H)
To state a cause of action under § 1983, a plaintiff must allege that: (1) "some person has
deprived him of a federal right, H and (2) "the person who has deprived him of that right acted
under color of state or [federal] law." Gomez v. Toledo, 446 U.S. 635, 640 (1980); see also 42
U.S.c. § 1983; Monroe v. Pape, 365 U.S. 167 (1961). An attorney (whether retained, court­
appointed, or a public defender) does not act under color of state law, so Mr. Davis is not a
proper Defendant/Respondent in this case. See Polk Cty. v. Dodson, 454 U.S. 312,317-324 nn.
8-16 (1981 ) (H A lawyer representing a client is not, by virtue of being an officer of the court, a
state actor 'under color of state law' within the meaning of § 1983."]; Hall v. Quillen, 631 F.2d
1154,1155-1156 & nn. 2-3 (4th Cir. 1980) (court-appointed attorney); Deas v. Potts, 547 F.2d
800 (4th Cir. 1976) (private attorney).

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For the above reasons, the Court ADOPTS the Report and Recommendation (Dkt. No.
11) as the Order of the Court, and SUMMARILY DISMISSES THE COMPLAINT
WITHOUT PREJUDICE and WITHOUT REQUIRING RESPONDENT TO FILE A
RETURN.
AND IT IS SO ORDERED.

D. Certificate of Appealability

The governing law provides that:
(c)(2) A certificate of appealability may issue ... only if the applicant has made a
substantial showing of the denial of a constitutional right.
(c)(3) The certificate of appealability . . . shall indicate which specific issue or
issues satisfy the showing required by paragraph (2).
28 U.S.C. § 2253(c). A prisoner satisfies the standard by demonstrating that reasonable jurists
would find this court's assessment of his constitutional claims debatable or wrong and that any
dispositive procedural ruling by the district court is likewise debatable. See Miller-El v. Cockrell,
537 U.S. 322, 336 (2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000); Rose v. Lee, 252 F.3d
676, 683 (4th Cir. 2001). In this case, the legal standard for the issuance of a certificate of
appealability has not been met. Therefore, a certificate of appealability is DENIED.

Richard Mark Gergel
United States District Court Judge
January i7, 2017
Charleston, South Carolina

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