Petition for Writ of Certiorari — Frank James, Petitioner v. Shevaun Harris, Secretary, Florida Department of Children and Families, et al.

APPENDIX

APPENDIX

Order Denying Reconsideration,

United States Court of Appeals for the Eleventh Circuit,

Frank James v. Sec’y, Dep’t of Children & Families, No. 22-12093

(11th Cir. Mar. 20, 2023) .......................................................................................... A-1

Order Denying Certificate of Appealability,

United States Court of Appeals for the Eleventh Circuit,

Frank James v. Sec’y, Dep’t of Children & Families, et al., No. 22-12093,

(11th Cir. Feb. 13, 2023) ........................................................................................... A-2

Order Denying Certificate of Appealability,

United States District Court for the Southern District of Florida,

Frank James v. Shevaun Harris¸ et al., No. 19-CIV-21836-Williams

(S.D. Fla. Oct. 13, 2022)............................................................................................. A-3

Order Adopting Report of Magistrate Judge

United States District Court for the Southern District of Florida,

Frank James v. Shevaun Harris¸ et al., No. 19-CIV-21836-Williams

(S.D. Fla. May 26, 2022) ............................................................................................ A-4

Report of Magistrate Judge,

Frank James v. Shevaun Harris¸ et al., No. 19-CIV-21836-Williams

(S.D. Fla. Aug. 22, 2019) ............................................................................................ A-5

A-1

USCA11 Case: 22-12093

Document: 18

Date Filed: 03/20/2023

Page: 1 of 1

A-2

USCA11 Case: 22-12093

Document: 14-1

Date Filed: 02/13/2023

Page: 1 of 2

USCA11 Case: 22-12093

Document: 14-1

Date Filed: 02/13/2023

Page: 2 of 2

USCA11 Case: 22-12093

Document: 14-2

Date Filed: 02/13/2023

Page: 1 of 2

UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

ELBERT PARR TUTTLE COURT OF APPEALS BUILDING

56 Forsyth Street, N.W.

Atlanta, Georgia 30303

David J. Smith

Clerk of Court

For rules and forms visit

www.ca11.uscourts.gov

February 13, 2023

Janice Louise Bergmann

Federal Public Defender's Office

1 E BROWARD BLVD STE 1100

FORT LAUDERDALE, FL 33301

Michael Caruso

Federal Public Defender's Office

150 W FLAGLER ST STE 1700

MIAMI, FL 33130

Sara Wilson Kane

Federal Public Defender's Office

150 W FLAGLER ST STE 1700

MIAMI, FL 33130

Appeal Number: 22-12093-J

Case Style: Frank James v. Secretary, Department of Children & Families, et al

District Court Docket No: 1:19-cv-21836-KMW

The enclosed copy of this Court's Order of Dismissal is issued as the mandate of this court. See

11th Cir. R. 41-4. Counsel and pro se parties are advised that pursuant to 11th Cir. R. 27-2, "a

motion to reconsider, vacate, or modify an order must be filed within 21 days of the entry of

such order. No additional time shall be allowed for mailing."

Any pending motions are now rendered moot in light of the attached order.

Clerk's Office Phone Numbers

General Information

New / Before Briefing Cases

Cases in Briefing / After Opinion

Cases Set for Oral Argument

Capital Cases

Attorney Admissions

CM/ECF Help Desk

404-335-6100

404-335-6135

404-335-6130

404-335-6141

404-335-6200

404-335-6122

404-335-6125

USCA11 Case: 22-12093

Document: 14-2

Date Filed: 02/13/2023

Page: 2 of 2

Enclosure(s)

DIS-4 Multi-purpose dismissal letter

A-3

Case 1:19-cv-21836-KMW Document 76 Entered on FLSD Docket 10/13/2022 Page 1 of 4

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No. 19-CIV-21836-WILLIAMS

FRANK JAMES,

Petitioner,

vs.

SHEVAUN HARRIS, et al.,

Respondents.

/

ORDER

THIS MATTER is before the Court sua sponte upon review of the record. On May

26, 2022, this Court entered the Order (DE 69) adopting and affirming the Report and

Recommendations issued by Magistrate Judge Lisette M. Reid (“Report”) (DE 18) and

dismissing Mr. Frank James’s (“Petitioner’s”) Petition for Writ of Habeas Corpus

pursuant to 28 U.S.C. § 2241 (“Petition”) (DE 1) without prejudice. The Court’s Order

dismissed the Petition without prejudice after concluding that the Younger v. Harris, 401

U.S. 37 (1971), abstention doctrine applied; therefore, the Court abstained from entering

a final judgment on the merits.

On June 24, 2022, Petitioner filed his Notice of Appeal (“Notice”) (DE 70) as to the

Court’s May 26, 2022 Order. On June 29, 2022, the Court of Appeals for the Eleventh

Circuit filed its Acknowledgement of the Notice (“Acknowledgement”) (DE 71). In the

Acknowledgment, the Clerk of Court stated that Eleventh Circuit is awaiting this Court’s

ruling on a certificate of appealability pursuant to Federal Rules of Appellate Procedure

11(a) and Eleventh Circuit Rule 22-1. (Id. at 1.) On July 22, 2022, Petitioner filed a

Page 1 of 4

Case 1:19-cv-21836-KMW Document 76 Entered on FLSD Docket 10/13/2022 Page 2 of 4

Response (“Response”) (DE 73) to the Acknowledgement, to which Respondents filed a

Notice in Response (“Notice in Response”) (DE 74) and Petitioner filed a Reply (“Reply”)

(DE 75). 1

Petitioner argues that the Court’s Order “is not a ‘final order,’ under § 2253(c)” and

therefore “no [certificate] is required for Mr. James to appeal the Court’s dismissal without

prejudice of his § 2241 petition on the basis of Younger abstention.” (DE 75 at 4; DE 73

at 2.) The Court agrees—the subject Order (DE 69) was not a final judgment on the merits

of Petitioner’s case, but rather an Order of Abstention pursuant to Younger v. Harris. A

certificate of appealability pursuant to 28 U.S.C. § 2253(c)(1)(A) is not required to appeal

the Order adopting the Report and dismissing the Petition without prejudice because §

2253(c)(1)(A) governs only final orders that dispose of a habeas corpus proceeding on

the merits. The “key inquiry” as to whether an order is “final” for purposes of § 2253(c) is

“whether it is an order ‘that dispose[s] of the merits of a habeas corpus proceeding.’”

Jackson v. United States, 875 F.3d 1089, 1090 (11th Cir. 2017) (quoting Harbison v. Bell,

556 U.S. 180, 183 (2009)).

Nevertheless, the Eleventh Circuit has granted a certificate of appealability in

cases involving similar procedural postures and facts. Finfrock v. Crist, 367 F. App’x 3, 3

(11th Cir. 2010) (involving a habeas petition regarding the appellant’s “ongoing Florida

civil commitment proceedings”); Finfrock v. McCollum, No. 09-10774 (11th Cir. May 21,

1 Upon review of the record in this case and the record on appeal, the Court notes that

no motion for a certificate of appealability has been filed in either. Compare Finfrock v.

Sheldon, No. 08-cv-00292-CEH-SPC, DE 19 (M.D. Fla. Dec. 3, 2008), with Finfrock v.

McCollum, No. 09-10774 (11th Cir. Dec. 3, 2008) (providing examples of where a motion

for a certificate of appealability was filed at the district court level, and where the appellate

court construed a notice of appeal as a motion for certificate of appealability).

Page 2 of 4

Case 1:19-cv-21836-KMW Document 76 Entered on FLSD Docket 10/13/2022 Page 3 of 4

2009) (“Appellant's motion for certificate of appealability, as construed from the Notice of

Appeal, is GRANTED.”); Johnson v. Florida, 32 F.4th 1092, 1095 (11th Cir. 2022) (“We

granted a certificate of appealability to answer one question: whether the delay in [the

appellant’s] state criminal proceedings, due to COVID-19, is a circumstance warranting

federal habeas relief”) (internal punctuation omitted). To obtain a certificate of

appealability when one is required, a habeas petitioner must show “that jurists of reason

would find it debatable whether the petition states a valid claim of the denial of a

constitutional right and that jurists of reason would find it debatable whether the district

court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).

Nonetheless, the Court will consider whether a certificate of appealability shall

issue. A movant seeking to appeal a district court’s final order denying his § 2241 petition

has no absolute entitlement to appeal but must obtain a certificate of appealability. See

28 U.S.C. §2253 (c)(1)(a); Harbison, 556 U.S. at 183. For the reasons previously stated

by the Court in its Order (DE 69) and by Judge Reid in the Report, and upon consideration

of the record, the Court concludes that “jurists of reason” would neither find that Petitioner

stated a valid claim for the denial of a constitutional right nor that the Court erred in

abstaining from adjudicating the merits pursuant to Younger. 2

Thus, after review of the record as a whole and applicable law, it is ORDERED

AND ADJUDGED that, based on this record, no certificate of appealability should be or

shall be issued.

2 Petitioner argues that the Court erred in applying Younger because it did not explicitly

conclude that granting Petitioner’s requested relief would cause an “undue interference”

with the underlying state proceedings. (DE 75 at 8.) However, Petitioner misconstrues the

applicability of Wexler v. Lepore, 385 F.3d 1336 (11th Cir. 2004) (involving a challenge to

Page 3 of 4

Case 1:19-cv-21836-KMW Document 76 Entered on FLSD Docket 10/13/2022 Page 4 of 4

DONE AND ORDERED in Chambers in Miami, Florida, this 12th day of October,

2022.

the method of recounting electoral votes), and Davis v. Gregory, 2021 WL 2944462, at

*3–*4 (11th Cir. July 14, 2021) (involving a challenge on an “incomplete record” to

continued detention after a defendant had posted bond, which was then inexplicably

“discharged, cancelled, and reinstated to the same amount . . . already posted.”). Both

cases are distinguishable from this matter—where the Court had the benefit of a fully

developed record complete with supplemental briefing—because the state proceedings

in those cases involved “certain orders that are uniquely in furtherance of the state courts'

ability to perform their judicial functions.” Wexler, 235 F.3d at 1339–40 (citing New

Orleans Pub. Serv., Inc. v. Council of City of New Orleans, 491 U.S. 350, 359 (1989));

Davis, 2021 WL 2944462, at *1 (“For the first factor, Younger abstention is not triggered

unless the federal relief would create an undue interference with state proceedings and

the state proceedings at issue involve orders that uniquely further the state courts’

ability to perform their judicial functions.”) (emphasis added).

Here, the Court concluded that “[t]he pending State Proceeding at the heart of this matter

is neither a state criminal prosecution nor a civil proceeding involving ‘certain orders’

uniquely in furtherance of a Florida court’s ability to perform a state judicial function, the

first and third factors defining Younger’s civil scope,” but rather a “civil enforcement

proceeding.” Petitioner here is being detained pursuant to the Involuntary Civil

Commitment of Sexually Violent Predators Act (“Jimmy Ryce Act”). See Fla. Stat. §§

394.910–394.932; (DE 59 at 4). Finally, as held by the Court, “Younger abstention

doctrine compels the Court to abstain from interfering in this matter.” (DE 69 at 11.) The

relief requested by Petitioner is the termination of the State Proceeding and a holding that

“[t]he State is barred from prosecuting the Petition for Involuntary Civil Commitment . . .

.” (DE 1 at 7.) Such relief would result in Petitioner’s release from involuntary detention

pursuant the Jimmy Ryce Act and the termination of that proceeding, in effect “disrupt[ing]

the normal course of action in the state proceeding . . . .” Davis, 2021 WL 2944462, at *1.

Consequently, such interference would be “undue.”

Page 4 of 4

A-4

Case 1:19-cv-21836-KMW Document 69 Entered on FLSD Docket 05/26/2022 Page 1 of 14

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 19-CIV-21836-WILLIAMS

FRANK JAMES,

Plaintiff,

v.

SHEVAUN HARRIS, 1 et al.,

Respondents.

__________________________________/

ORDER

THIS MATTER is before the Court on Magistrate Judge Lisette M. Reid’s Report

and Recommendation (“Report”) (DE 18) on the Petition filed by Plaintiff Frank James 2

(DE 1). Mr. James filed Objections (DE 19) and Supplemental Objections (DE 27) to the

Report. Following Mr. James’ Supplemental Objections, the Court ordered Respondents

to respond to Mr. James’ initial Petition (DE 1) and required additional briefing on the

Petition and the Report. Respondents filed their Response (DE 29), to which Mr. James

filed a Reply (DE 35). Mr. James also filed a Supplemental Brief (DE 59), to which

Respondents filed a Response (DE 61).

Although the Court AFFIRMS AND ADOPTS Judge Reid’s Report and

DISMISSES WITHOUT PREJUDICE Mr. James’ Petition, given the duration and posture

The Court directs the Clerk to restyle this matter pursuant to Federal Rule Civil

Procedure 25(d), because Shevaun Harris is the current Secretary of the Department

of Children and Families. (See DE 61 at 1 n.1.)

1

2 Mr. James at times uses the alias of Mr. Frank Nunez. (DE 59 at 1.) Because the

Petition was filed by Petitioner using the name Mr. Frank James, the Court refers at

times to Petitioner as Mr. James.

Page 1 of 14

Case 1:19-cv-21836-KMW Document 69 Entered on FLSD Docket 05/26/2022 Page 2 of 14

of this case, the Court writes separately to address the line of cases following Sprint

Communications, Inc. v. Jacobs, 571 U.S. 69, 79 (2013), which find that civil commitment

proceedings as of the type at issue here, fall within the Younger v. Harris, 401 U.S. 37

(1971), abstention doctrine. The Court also writes separately to highlight the extended

delay Mr. James has confronted while awaiting trial pursuant to the underlying state civil

commitment proceeding. 3

I. BACKGROUND

Mr. James has been detained since 1989, 4 even though he completed the prison

sentence related to his 1989 convictions on January 1, 2015. (DE 29 at 2.) For the last

seven (7) years, Mr. James has been detained in the Florida Civil Commitment Center

(“FCCC”) awaiting a civil commitment trial, often without a trial date. On May 1, 2019,

more than four (4) years into his pre-trial detention, Mr. James filed the instant habeas

corpus Petition (the “Petition”) pro se. (DE 1.) Mr. James seeks relief in this matter

pursuant to 28 U.S.C. § 2241 on the basis that “[t]he State is barred from prosecuting the

Petition for Involuntary Civil Commitment” based on Florida statutory and constitutional

law, and the U.S. Constitution. (Id. at 7.) (“The State is barred from prosecuting the

Petition for Involuntary Civil Commitment by Florida Statutes 95.11(1), (6) & (9); Florida

3 The underlying state proceeding is styled as In re the Civil Commitment of Frank James

a/k/a Frank Nunez, No. 14-18880 CA 05 (Fla. 11th Cir. Ct. July 18, 2014) (the “State

Proceeding”).

4 Mr. James was arrested on September 15, 1988, and ultimately pled guilty to one count

of armed kidnapping and four (4) counts of armed sexual battery in Miami-Dade County

Criminal Case No. F88-29515, and two (2) counts of armed sexual battery and one (1)

count of aggravated battery in Miami-Dade County Criminal Case No. F88-229514B. In

re James, No. 14-18880 CA 05, Pet. to Declare Resp. Sexually Violent Predator at 2–3

(July 18, 2014) (the “Commitment Petition”).

Page 2 of 14

Case 1:19-cv-21836-KMW Document 69 Entered on FLSD Docket 05/26/2022 Page 3 of 14

Constitution Article 1 §§ 2, 9, & 10, as well as the Federal Constitution.”). Mr. James

identifies the statute of limitations on civil actions as the basis for his requested relief and

argues that the civil commitment petition against him was filed outside the twenty (20)year limitations period. 5 (Id.); see Fla. Stat. § 95.11(1).

This matter began formally with the underlying State Proceeding. On July 18, 2014,

the Miami-Dade County State Attorney filed a petition (the “State Petition”) in Miami-Dade

Circuit Court to have Mr. James declared a sexually violent predator, and to commit him

involuntarily pursuant to the Involuntary Civil Commitment of Sexually Violent Predators

Act 6 (“Jimmy Ryce Act”). See Fla. Stat. §§ 394.910–394.932; (DE 59 at 4.) On that same

date, the circuit court found probable cause, without a hearing, and signed a warrant for

Mr. James’ mandatory detention. (DE 59 at 4–5.) Once a finding of probable cause is

made, as was done here, a trial must be conducted to determine if the person is a sexually

violent predator under the Jimmy Ryce Act. In re Fla. R. Civ. P. For Involuntary

Commitment of Sexually Violent Predators, 13 So. 3d 1025, 1031 (Fla. 2009); see also

Tedesco v. State, 62 So. 3d 1252, 1255 (Fla. 4th Dist. Ct. App. 2011). Continuances of

civil commitment trials pursuant to the Jimmy Ryce Act are “allowed only on good cause

5 A state court has already rejected Mr. James’ statute of limitations argument. See James

v. Carroll, No. 2017-CA-597 (Fla. 12th Cir. Ct. Jan. 25, 2018) (holding “Petitioner’s statute

of limitations argument is … meritless”) (also filed at DE 1-2).

6 The Jimmy Ryce Act authorizes the involuntary civil commitment of persons who meet

the definition of a “sexually violent predator,” i.e., "any person who “(a) Has been

convicted of a sexually violent offense; and (b) Suffers from a mental abnormality or

personality disorder that makes the person likely to engage in acts of sexual violence if

not confined in a secure facility for long-term control, care, and treatment.” Fla. Stat. §

394.912.

Page 3 of 14

Case 1:19-cv-21836-KMW Document 69 Entered on FLSD Docket 05/26/2022 Page 4 of 14

shown. A future trial date shall be set if a further continuation is allowed.”7 In re Fla. R.

Civ. P., 13 So. 3d at 1031. Over the next several years, as the State Proceeding

progressed, Mr. James alternatively represented himself pro se or was represented by

counsel. (DE 59 at 7–10.) But, at no time over the three-year period following the July

2014 probable cause determination was a civil commitment trial held. Finally, the circuit

court set a trial date in the State Proceeding for October 16, 2017. (Id. at 14.)

However, on August 4, 2017, Mr. James filed a pro se motion to halt the trial and

appoint conflict-free counsel. (Id.) Mr. James asserted that the Public Defender’s Office—

which was representing him at the time—had a conflict of interest because it had

previously represented his co-defendants in the underlying criminal case. (Id. at 14–15.)

The circuit court granted in part and denied in part Mr. James’ motion, discharging the

Public Defender’s Office but denying the request to halt the trial. (Id. at 15.) On September

1, 2017, Ms. Debra Cohen, Mr. James’ current counsel in the State Proceeding, was

appointed. (Id.) Although Respondents asserted that they were ready for trial, they agreed

to allow time for Ms. Cohen to become familiar with the case. (See id. at 15–16.) Ten (10)

months later, at a hearing on June 15, 2018, Respondents “expressed concern that the

case was supposed to go to trial in 2017, when the state had been ready for trial.” (Id. at

19.) Nevertheless, the parties agreed to continuances throughout 2018, 2019, and 2020.

7 “The trial may be continued once upon the request of either party for not more than

120 days upon a showing of good cause, or by the court on its own motion in the

interests of justice, when the person will not be substantially prejudiced. No additional

continuances may be granted unless the court finds that a manifest injustice would

otherwise occur.” Fla. Stat. § 394.916(2) (emphasis added). Despite the mandated

timeframe, Mr. James is still waiting for a trial after seven (7) years of detention following

the completion of his prison sentence and no such findings have been made. However,

the Court acknowledges that a significant part of the delay in the State Proceeding is

attributable to Mr. James.

Page 4 of 14

Case 1:19-cv-21836-KMW Document 69 Entered on FLSD Docket 05/26/2022 Page 5 of 14

On November 1, 2021, Mr. James filed a motion in the State Proceeding to continue the

trial. In re James, No. 14-18880 CA 05, Mot. Cont., DE 29 (Nov. 2, 2021) (the “Motion to

Continue”). In the motion, Mr. James states he “is not ready for trial. His proposed expert

has not been appointed.” Id. Respondents filed additional state court transcripts on April

15, 2022, which reveal that trial was recently scheduled to begin on February 24, 2022. 8

(DE 67 at 21.)

8 The transcripts, which relate to hearings in the State Proceeding held on November 3,

2021, December 16, 2021, and February 2, 2022, (DE 67 at 5, 12, 17), indicate that both

the State and Mr. James’ counsel requested continuances of the trial:

Ms. Cohen: But I also filed a motion to continue, Judge . . .

The Court: Okay. Ms. Aponte—Frank Aponte, excuse me—on the motion to

continue, any objection there?

Ms. Frank Aponte: No, Judge. At this point I don’t think I have a basis to object

since I, in good faith, need to take the father’s depo. . . .

...

Ms. Frank Aponte: I know it’s unrealistic right now to set it for trial. I could do a trial.

I’m ready . . . . But I’ve gotta do due diligence pending discovery from the defense

anyway.

...

Ms. Frank Aponte: Judge, is there any way we could do 2/24 instead of the 23rd?

(See id. at 7–8, 15, 21.) The Court notes that the transcripts do not evidence a finding of

“good cause” or that the continuances were necessary to avoid “manifest injustice” as

required by state statute. Fla. Stat. § 394.916(2). To illustrate, there is no explanation as

to why the deposition of Mr. James’ father had not been taken in the preceding seven

years.

Page 5 of 14

Case 1:19-cv-21836-KMW Document 69 Entered on FLSD Docket 05/26/2022 Page 6 of 14

II. LEGAL STANDARD

A party may serve written objections to a report and recommendation. The

objections must “specifically identify the portions of the proposed findings,

recommendations or report to which objection is made, the specific basis for such

objections, and supporting legal authority.” S.D. Fla. L. Mag. R. 4(b). “A District Judge

shall make a de novo determination of those portions of the report or specified proposed

findings or recommendations to which objection is made and may accept, reject, or

modify, in whole or in part, the findings or recommendations made by the Magistrate

Judge.” Id.; see also 28 U.S.C. § 636(b)(1).

III. DISCUSSION

The Report recommends dismissal of this matter based on the Younger abstention

doctrine because of Mr. James’ pending civil commitment trial. (DE 18) (citing Younger v.

Harris, 401 U.S. 37 (1971)). The Court affirms the Report, but writes separately to address

the line of cases following Sprint Communications, Inc. v. Jacobs, 571 U.S. 69 (2013).

The Court also analyzes this matter under the Barker v. Wingo, 407 U.S. 514 (1972),

speedy trial factors, which, although inapplicable to civil matters such as the instant

proceeding, are nevertheless analogous.

A. Younger Abstention Doctrine

In Younger v. Harris, the Supreme Court “recognized a limited exception to a

federal court's ‘virtually unflagging obligation’ to exercise its jurisdiction when

‘extraordinary circumstances’ counsel abstention in favor of pending state proceedings.”

Seminole Tribe of Fla. v. Stranburg, 799 F.3d 1324, 1344 n.15 (11th Cir. 2015) (citing

Younger, 401 U.S. at 41); For Your Eyes Alone, Inc. v. City of Columbus, Ga., 281 F.3d

Page 6 of 14

Case 1:19-cv-21836-KMW Document 69 Entered on FLSD Docket 05/26/2022 Page 7 of 14

1209, 1216 (11th Cir. 2002). From that “limited exception” flows the Younger abstention

doctrine, which directs federal courts to abstain from enjoining ongoing state court

criminal proceedings. Younger, 401 U.S. at 41 (emphasizing “the national policy

forbidding federal courts to stay or enjoin pending state court proceedings except under

special circumstances”). Although the abstention doctrine has been expanded to

encompasses state civil enforcement proceedings, “abstention remains the exception,

not the rule.” New Orleans Pub. Serv., Inc. v. Council of City of New Orleans, 491 U.S.

350, 359 (1989) (internal quotations omitted). The Court finds that the underlying State

Proceeding represents exceptional circumstance warranting the exercise of abstention.

The Report reached its recommendation that the Court should abstain under

Younger based on an analysis of the Middlesex County Ethics Commission v. Garden

State Bar Association, 457 U.S. 423 (1982), factors. (DE 18 at 2.) The Middlesex factors

provide for abstention under Younger in civil cases where: (1) there is a pending state

judicial proceeding; (2) the proceeding implicates important state interests; and (3) the

parties have an adequate opportunity to raise any constitutional claims in the state

proceeding. Middlesex, 457 U.S. at 432. Mr. James argued in his Supplemental

Objections that the Report did not address Sprint Communications, which clarified that

the Middlesex criteria are additional factors to be considered only once a court determines

that the ongoing state proceeding is quasi-criminal in nature. (DE 27 at 5.) Mr. James’

argument is incorrect, although the Court writes separately to address the line of cases

following Younger and Sprint Communications.

In Sprint Communications, the Supreme Court noted that, “[d]ivorced from their

quasi-criminal context, the three Middlesex conditions would extend Younger to virtually

Page 7 of 14

Case 1:19-cv-21836-KMW Document 69 Entered on FLSD Docket 05/26/2022 Page 8 of 14

all parallel state and federal proceedings.” Sprint Communications, 571 U.S. at 81

(emphasis added). Thus, Sprint Communications does not require a finding that a civil

proceeding is “quasi-criminal” in nature, only that it is quasi-criminal in context, and

clarifies what would constitute qualifying civil proceedings: (1) ongoing state criminal

prosecutions, (2) certain civil enforcement proceedings, and (3) civil proceedings

involving certain orders which are uniquely in furtherance of a state court’s ability to

perform its judicial function. Id. at 78 (stating that these three categories “define Younger’s

scope”). The pending State Proceeding at the heart of this matter is neither a state

criminal prosecution nor a civil proceeding involving “certain orders” uniquely in

furtherance of a Florida court’s ability to perform a state judicial function, the first and third

factors defining Younger’s civil scope. For the reasons discussed below, Younger

abstention applies here under the second circumstance, a “civil enforcement proceeding.”

See id. In Sprint Communications, the Supreme Court explained that the abstention

doctrine can be extended to civil enforcement proceedings which are “akin to a criminal

prosecution” in “important respects.” Id. at 79. The Supreme Court also provided factors

for a court to weigh when determining whether the Younger abstention doctrine should

apply in such proceedings. Id. at 79–80.

Pursuant to Sprint Communications, civil proceedings are “akin” to criminal

prosecutions when such proceedings are initiated to sanction; involve a state actor as a

party; or commonly involve investigations, “often culminating in the filing of a formal

complaint or charges.” Id. (noting Younger abstention is appropriate where “noncriminal

proceedings bear a close relationship to proceedings criminal in nature”) (citing

Middlesex, 457 U.S. at 432). Under these factors, the Court finds that the State

Page 8 of 14

Case 1:19-cv-21836-KMW Document 69 Entered on FLSD Docket 05/26/2022 Page 9 of 14

Proceeding is one “akin” to a criminal prosecution. On balance, the State Proceeding is

intended to result in the involuntary commitment of Petitioner; involves a state actor as a

party; and requires evaluation of the Petitioner prior to commitment, an “investigation” into

Petitioner’s mental state. See id.; see Commitment Petition, supra at 2 n.4 (describing the

psychological evaluation, or investigation, required to commit Petitioner). Further, the

statutory scheme describes a civil commitment trial as an “adversarial proceeding” and

states that persons subject to the Jimmy Ryce Act are “entitled to the assistance of

counsel” and appointment of counsel by the court in cases of indigency. Fla. Stat. §

394.916(3).

Because the Court finds that the State Proceeding qualifies for Younger abstention

under Sprint Communications, the Middlesex factors apply. Middlesex requires

abstention when there is a pending state judicial proceeding, the proceeding implicates

important state interests, and the parties have an adequate opportunity to raise

constitutional claims in the state proceeding. Middlesex, 457 U.S. at 432. As noted in the

Report, the first two Middlesex factors apply. (DE 18 at 3–4.) Moreover, Petitioner has

raised his constitutional objections and will have the opportunity to again raise his

constitutional claims in state court following a civil commitment trial. (Id.; DE 1-2.)

But even if the three Middlesex factors are satisfied, abstention is still not

warranted if one of the following exceptions applies: “(1) there is evidence of state

proceedings motivated by bad faith, (2) the state law being challenged is patently

unconstitutional, or (3) there is no adequate alternative state forum where the

constitutional issues can be raised.” For Your Eyes Alone, 281 F.3d at 1214 n.11.

Additionally, “a judicial exception . . . has been made where a person about to be

Page 9 of 14

Case 1:19-cv-21836-KMW Document 69 Entered on FLSD Docket 05/26/2022 Page 10 of 14

prosecuted in a state court can show that he will, if the proceeding in the state court is

not enjoined, suffer irreparable damages.” Younger, 401 U.S. at 43. None of the three

exceptions articulated in For Your Eyes Alone exist here. There is no evidence the

proceedings are motivated by bad faith; the Supreme Court has held that similar civil

commitment proceedings are constitutional under Kansas v. Hendricks, 521 U.S. 346,

369 (1997); 9 the Florida Supreme Court has held the Jimmy Ryce Act is constitutional in

Westerheide v. State, 831 So. 2d 93 (Fla. 2002); and Petitioner has already raised

constitutional claims in state court, and will have an opportunity to raise constitutional

objections again after the conclusion of the civil commitment trial, if necessary. (See DE

1-2.)

Following Sprint Communications, other federal courts have applied Younger

abstention in similar cases involving habeas petitions in civil commitment proceedings

under state legislation regarding sexually violent predators. See Sykes v. Brown, 2016

WL 8731354, at *2 (E.D. Cal. Jan. 22, 2016) (noting a case involving a sexually violent

civil-commitment proceeding “is a state civil proceeding akin to a criminal prosecution” to

The Supreme Court determined that similar civil commitment proceedings are not

unconstitutional for the purposes of the Sixth Amendment double jeopardy and Article I,

Section 10, Clause 1 ex post facto clauses because they are “civil in nature.” Kansas,

521 U.S. at 369. That distinction does not serve to bar abstention under Younger. Rather,

the Supreme Court’s holding in Kansas is consistent with the Younger progeny under

Sprint Communications which apply the abstention doctrine to civil commitment

proceedings.

9

Importantly, Middlesex and Sprint Communications apply the Younger abstention

doctrine in civil proceedings which are akin to a criminal proceeding in certain regards but

are not criminal in nature. That rationale is consistent with the holding in Kansas v.

Hendricks that a civil commitment proceeding pursuant to Kansas’ Sexually Violent

Predator Act was civil in nature and did not violate the Sixth Amendment. Kansas, 521

U.S. at 361–362.

Page 10 of 14

Case 1:19-cv-21836-KMW Document 69 Entered on FLSD Docket 05/26/2022 Page 11 of 14

which Younger abstention applies); Hunter v. King, 2016 WL 3019119, at *4 (E.D. Cal.

May 26, 2016) (holding that it is appropriate to abstain “from considering Petitioner’s

challenges to the pending [civil commitment Sexually Violent Predator Act] proceedings

and to dismiss the habeas petition … without prejudice); Babinski v. Voss, 323 F. App’x

617, 619 (9th Cir. Apr. 24, 2009) (affirming the dismissal of a habeas petition under the

Younger abstention doctrine where the petitioner was facing a civil commitment trial

pursuant to California’s Sexually Violent Predator Act); Jones v. Cuomo, 2017 WL

4639714, at *2 (W.D.N.Y. Oct. 17, 2017) (holding a state civil-commitment proceeding

“likely fall[s] within one or both of [the Sprint Communications] categories”); see also

Justice v. Woodlock, 2015 WL 145643, at *2 (N.D.N.Y. Jan. 12, 2015) (holding civil

recommitment proceedings “are more akin to a criminal prosecution than are most civil

cases”); see also Kane v. Bailey, 2017 WL 7037684, at *2 (D. Vt. Oct. 10, 2017) (holding

Younger applies to an involuntary hospitalization and medication order on appeal to a

state supreme court).

Based on the foregoing, the Younger abstention doctrine compels the Court to

abstain from interfering in this matter. There is an ongoing state civil commitment

proceeding which is “akin to a criminal prosecution” under Sprint Communications, and

therefore it is appropriate for the Court to abstain from enjoining the underlying State

Proceeding. See Sprint Communications, 571 U.S. at 79–80. Accordingly, the Report (DE

18) is affirmed and adopted, and Mr. James’ Petition (DE 1) is dismissed without

prejudice.

Page 11 of 14

Case 1:19-cv-21836-KMW Document 69 Entered on FLSD Docket 05/26/2022 Page 12 of 14

B. Barker Speedy Trial Factors

Consistent with the Supreme Court’s holding in Kansas v. Hendricks, 521 U.S. 346

(1997), that civil commitment proceedings do not violate the Sixth Amendment double

jeopardy clause, the Supreme Court has not extended the Sixth Amendment due process

right to a speedy trial to civil commitment proceedings. See Hunter, 2016 WL 3019119 at

*6. Nevertheless, the Court briefly considers Mr. James’ civil commitment proceeding

under the Barker v. Wingo, 407 U.S. 514, 530 (1972), speedy trial factors with regard to

whether Mr. James has been afforded constitutional due process. The delay of seven (7)

years in holding Mr. James’ civil commitment trial is troubling, especially because the

state record is devoid of the required statutory findings of “good cause” for delay to avoid

“manifest injustice.” Fla. Stat. § 394.916(2). On this record, the Court ultimately concludes

that Mr. James contributed to the delay in trial and no due process concern is implicated.

But a different record or a record demonstrating a pattern of state delay might warrant a

different outcome. See Barker, 407 U.S. at 530.

In Barker, the Supreme Court established a four-factor test to determine whether a

criminal defendant has been deprived of his or her right to a speedy trial under the Sixth

Amendment. Id. The four factors are: (1) length of the delay, (2) reason for the delay, (3)

the defendant’s assertion of his right, and (4) prejudice to the defendant. Id. Here, the

length of the delay, although significant, is in large part due to Mr. James’ own actions,

including moving to discharge counsel, moving for extensions of time, and moving to

continue trial. (DE 59 at 15, 19); Motion to Continue, supra at 5. As recently as November

1, 2021, Mr. James moved to continue the State Proceeding. Motion to Continue, supra

at 5. Earlier delay in the State Proceeding is also attributable to Mr. James: a trial was

Page 12 of 14

Case 1:19-cv-21836-KMW Document 69 Entered on FLSD Docket 05/26/2022 Page 13 of 14

initially set in the State Proceeding for October 16, 2017, but on August 4, 2017, Mr.

James filed a pro se motion to halt the trial and appoint conflict-free counsel. (DE 59 at

14.) The Court does not fault Mr. James for seeking additional time to file responses or

to find counsel he is satisfied with. However, such actions contribute to the delay in

bringing the State Proceeding to a close and any prejudice suffered by Mr. James is in

some part attributable to Mr. James himself. The Court also notes that the delay

experienced by Mr. James is some months longer than the five (5)-plus-year delay in trial

experienced by the plaintiff in Barker. Barker, 407 U.S. at 533. Nonetheless, although the

Barker factors have not been extended to apply to civil commitment proceedings, even if

they were, it is unlikely that Mr. James has been deprived of a right to a speedy trial in

the State Proceeding. However, the Court is concerned that Respondents appear to

sanction continuances of Mr. James’ civil commitment trial in the absence of a clear

finding of good cause for the delay, as required by Florida Statutes Section 394.916(2).

Fla. Stat. § 394.916(2).

IV. CONCLUSION

Today, Mr. James remains in pre-trial limbo. 10 Although the Court affirms the

result of Judge Reid’s Report and dismisses Mr. James’ Petition, the Court is concerned

about the ongoing delay in holding Mr. James’ civil commitment trial pursuant to Florida

law. See Fla. Stat. § 394.916(1)–(2). The Court acknowledges that the record indicates

10 On April 14, 2022, Mr. James filed a Letter to the Court. (DE 65.) In the Letter, Mr.

James threatened to hunger strike, commencing on May 1, 2022, because he was

housed with adjudicated detainees and not “pre-trial detainees only, or in a one-man cell

. . . .” (Id. at 5.) Mr. James has filed a petition for writ of mandamus in the DeSoto County

Circuit Court on this issue. (Id. at 2); James v. Harris, No. 22-CA-91 (Fla. 12th Cir. Ct.

Feb. 25, 2022); (DE 65, Ex. A).

Page 13 of 14

Case 1:19-cv-21836-KMW Document 69 Entered on FLSD Docket 05/26/2022 Page 14 of 14

Respondents have at some points asked for trial to proceed while Mr. James has also

moved for continuances. (DE 59 at 15); Motion to Continue, supra at 5. But it cannot

become the norm that detainees pursuant to the Jimmy Ryce Act are held for the better

part of a decade without a determination by “[t]he court or jury … by clear and convincing

evidence whether [a] person is a sexually violent predator.” Fla. Stat. § 394.917(1). The

Court abstains from determining the merits of Mr. James’ Petition pursuant to Younger v.

Harris, but cautions that future evidence of a pattern of such delay in setting civil

commitment trial dates, let alone holding such trials, may indicate that abstention is no

longer appropriate. See Younger, 401 U.S. at 41.

Nevertheless, upon a careful review of the Report, the Petition, and the record, it

is ORDERED AND ADJUDGED that:

1. Judge Reid’s Report (DE 18) is AFFIRMED AND ADOPTED.

2. Mr. James’ Petition (DE 1) is DISMISSED WITHOUT PREJUDICE.

3. The Clerk is directed to restyle this case as Frank James v. Shevaun Harris,

No. 19-cv-21836-KMW (S.D. Fla. 2022).

4. The Clerk is ordered to CLOSE the case.

DONE AND ORDERED in Chambers in Miami, Florida, this 26th day of May,

2022.

Page 14 of 14

A-5

Case 1:19-cv-21836-KMW Document 18 Entered on FLSD Docket 08/22/2019 Page 1 of 6

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO: 19-CV-21836-WILLIAMS

MAGISTRATE JUDGE REID

FRANK JAMES,

Petitioner,

v.

REBECCA KAPUSTA,

SEC’Y, DEP’T. OF CHILDREN &

FAMILY SERV.,

et al.

Respondents.

______________________________/

REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE

I.

Introduction

This matter is before the Court on Frank James’ (“Petitioner”) pro se petition

for writ of habeas corpus pursuant to 28 U.S.C. § 2241 (ECF 1). Petitioner

challenges the legality of his involuntary civil commitment as a sexually violent

predator at the Civil Commitment Center in Arcadia, Florida. (Id.). Petitioner

claims that the State is barred by the statute of limitations or, alternatively, by the

doctrine of laches from determining his involuntary civil commitment petition under

Florida’s Jimmy Ryce Act (“JRA”). (Id.).

Case 1:19-cv-21836-KMW Document 18 Entered on FLSD Docket 08/22/2019 Page 2 of 6

This Cause was transferred to this Court by the United States District Court

Middle District of Florida, in its discretion, (ECF 5) and has been referred to the

Undersigned for consideration and report pursuant to 28 U.S.C. § 636; S.D. Fla.

Local Rule 1(f) governing Magistrate Judges; S.D. Fla. Admin. Order 2019-2; and

the Rules Governing Section 2241 Cases in the United States District Courts.

Dismissal of this petition is warranted because Petitioner’s civil commitment

trial proceeding remains pending.

II.

Discussion – Younger Abstention Doctrine

It is well settled that federal courts may not enjoin state court proceedings.

Younger v. Harris, 401 U.S. 37, 41 (1971). Younger concerned state criminal

proceedings; however, its principles are “fully applicable to noncriminal judicial

proceedings when important state interests are involved.” 31 Foster Children v.

Bush, 329 F.3d 1255, 1274 (11th Cir. 2003) quoting Middlesex County Ethics

Comm. v. Garden State Bar Ass'n, 457 U.S. 423, 432 (1982).

Accordingly, federal courts ordinarily must refrain from deciding the merits

of a case when (1) there is a pending state judicial proceeding; (2) the proceeding

implicates important state interests; and (3) the parties have an adequate opportunity

to raise any constitutional claims in the state proceeding. See Middlesex, supra.

With respect to the first Middlesex factor, the relevant inquiry is “whether the federal

proceeding will interfere with an ongoing state court proceeding. If there is no

2

Case 1:19-cv-21836-KMW Document 18 Entered on FLSD Docket 08/22/2019 Page 3 of 6

interference, then abstention is not required.” 31 Foster Children, 392 F.3d at 1276;

Newsome v. Broward Cty. Pub. Defs., 304 F. App’x 814, 816 (11th Cir. 2008) (per

curiam).

As to the instant proceeding, Petitioner is a convicted sex offender 1 who is

currently being detained 2 under Florida’s JRA, Fla. Stat. §§ 394.910-932, which

establishes “a commitment procedure for the long-term care and treatment of

sexually violent predators.” Id. § 394.910. Petitioner’s trial date is currently

scheduled for September 20, 2019.3 During the pendency of his civil commitment

proceedings, Petitioner filed the instant § 2241 petition on April 29, 2019.

1

In 1989, Petitioner was found guilty of various sexual assault crimes, including sexual

battery with a weapon and kidnapping, in Miami-Dade County Case Nos. F-8-829514 and F-8829515 and was sentenced to 30 years in prison plus a ten-year probation term. A brief procedural

history was explained by the Middle District in its order transferring this case (ECF No. 5);

therefore, the undersigned does not repeat those findings in this Report.

The online trial dockets of the underlying state criminal proceedings are found at the

following web address: https://www2.miami-dadeclerk.com. Copies of the state court criminal

and appellate dockets can be found online. See Fed. R. Evid. 201; see also, United States v. Glover,

179 F.3d 1300, 1302 n.5 (11th Cir. 1999) (finding the district court may take judicial notice of the

records of inferior courts). The court also takes judicial notice of its own records in habeas

proceedings, McBride v. Sharpe, 25 F.3d 962, 969 (11th Cir. 1994), Allen v. Newsome, 795 F.2d

934, 938 (11th Cir. 1986), together with the state records, which can be found online.

2

On July 18, 2014, the state filed a petition to declare Petitioner as a sexually violent

predator; and the trial court issued an order determining probable cause for the same. Review of

the Florida’s online Corrections Offender Network reveals that on January 1, 2015, Petitioner was

released from custody on the underlying criminal conviction.

3

The undersigned reviewed the online state docket on August 21, 2019, which states the

trial date was reset to September 20, 2019. This is the third time the state court has rescheduled

the trial date.

3

Case 1:19-cv-21836-KMW Document 18 Entered on FLSD Docket 08/22/2019 Page 4 of 6

Petitioner’s case also implicates an important state interest, “namely, Florida's

need to ensure that violent sex offenders do not harm its citizens after the expiration

of their incarcerative sentences.” Newsome, 304 F. App’x at 816. Finally, Petitioner

does not demonstrate that he unable to vindicate his constitutional rights, nor that he

has been procedurally prevented from raising his federal claims in the state courts.

In fact, Petitioner raised an identical claim in state court in a state habeas petition (ex

post facto and statute of limitations) which the state court denied as meritless. (ECF

No. 1-2:2-3). Petitioner availed himself of a meaningful opportunity to present his

constitutional claims in state court. See Pompey v. Broward County, 95 F.3d 1543,

1551 (11th Cir. 1996). The fact that Petitioner’s claims were unsuccessful on the

merits is immaterial. (Id. at 1551 noting that “for abstention purposes, whether a

claim would likely be successful on the merits in the state court is not what matters

. . . [but rather] whether the plaintiff is procedurally prevented from raising his

constitutional claims in the state courts”).

Petitioner has not yet been declared a sexually violent predator in need of

commitment under the JRA because his trial has not yet been conducted. If found

by the jury to meet the requirements for civil commitment, a final judgment of

commitment would be entered. Then, Petitioner would have the right to appeal the

decision and exhaust his constitutional claims in the state courts. Alternatively, it is

4

Case 1:19-cv-21836-KMW Document 18 Entered on FLSD Docket 08/22/2019 Page 5 of 6

possible that Petitioner’s trial may conclude in his favor and result in his release,

upon which the petition would become moot.

III.

Recommendations

Based on the foregoing, it is recommended that the petition for writ of habeas

corpus (ECF 1) filed pursuant to 28 U.S.C. § 2241 be DISMISSED WITHOUT

PREJUDICE to Petitioner’s right to file a future petition if circumstances change.

Objections to this report may be filed with the District Court Judge within

fourteen days of receipt of a copy of the report. Failure to file timely objections shall

bar plaintiff from a de novo determination by the district judge of an issue covered

in this report and shall bar the parties from attacking on appeal factual findings

accepted or adopted by the district court judge except upon grounds of plain error or

manifest injustice. See 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140, 149

(1985); RTC v. Hallmark Builders, Inc., 996 F.2d 1144, 1149 (11th Cir. 1993).

Dated this 22nd day of August, 2019.

___________________________________

UNITED STATES MAGISTRATE JUDGE

cc:

Frank James

991534

Florida Civil Commitment Center (FCCC)

13619 SE Highway 70

Arcadia, FL 34266

PRO SE

5

Case 1:19-cv-21836-KMW Document 18 Entered on FLSD Docket 08/22/2019 Page 6 of 6

Daniel Reeves Burke

Florida Department of Corrections

Office of the General Counsel

501 South Calhoun Street

Tallahassee, FL 32329

850-717-3613

Fax: 850-922-4355

Email: dburke1965@gmail.com

6