Petition for Writ of Certiorari — Michael T. Braxton, Petitioner v. Warden, Anderson County Detention Center

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 22-7232

MICHAEL T. BRAXTON,

Petitioner - Appellant,

v.

WARDEN OF THE ANDERSON COUNTY DETENTION CENTER,

Respondent - Appellee.

Appeal from the United States District Court for the District of South Carolina, at

Anderson. Richard Mark Gergel, District Judge. (8:22-cv-02806-HMH)

Submitted: July 20, 2023

Decided: July 24, 2023

Before NIEMEYER and THACKER, Circuit Judges, and KEENAN, Senior Circuit Judge.

Dismissed by unpublished per curiam opinion.

Michael T. Braxton, Appellant Pro Se.

Unpublished opinions are not binding precedent in this circuit.

ft

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PER CURIAM:

Michael T. Braxton, a state prisoner, appeals the district court’s order accepting the

recommendation of the magistrate judge and denying relief on Braxton’s 28 U.S.C. § 2241

petition, which sought relief from his confinement pursuant to a state civil commitment

proceeding. The order is not appealable unless a circuit justice or judge issues a certificate

of appealability. 28 U.S.C. § 2253(c)(1)(A). A certificate of appealability will not issue

absent “a substantial showing of the denial of a constitutional right.”

28 U.S.C.

§ 2253(c)(2). When the district court denies relief on the merits, a prisoner satisfies this

standard by demonstrating that reasonable jurists could find the district court’s assessment

of the constitutional claims debatable or wrong. See Buck v. Davis, 580 U.S. 100, 115-17

(2017). When the district court denies relief on procedural grounds, the prisoner must

demonstrate both that the dispositive procedural ruling is debatable and that the petition

states a debatable claim of the denial of a constitutional right. Gonzalez v. Thaler, 565 U.S.

134, 140-41 (2012) (citing Slack v. McDaniel, 529 U.S. 473, 484 (2000)).

We have independently reviewed the record and conclude that Braxton has not made

the requisite showing. Specifically, the district court properly applied Younger v. Harris,

401 U.S. 37 (1971), which mandates abstention under certain circumstances.

While

Braxton asserts that he was prejudiced by a delay in his state commitment proceedings

rendering Younger inapplicable, we find that the delays were not unreasonable given the

COVID-19 pandemic and other circumstances. Moreover, following the district court’s

ruling, the state court committed Braxton following a jury trial, which further undercuts

any claim of prejudice and moots many of Braxton’s claims. Accordingly, we deny a

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certificate of appealability and dismiss the appeal. We dispense with oral argument

because the facts and legal contentions are adequately presented in the materials before this

court and argument would not aid the decisional process.

DISMISSED

3

FILED: November 16,2022

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 22-7232

(8:22-cv-02806-HMH)

MICHAEL T. BRAXTON

Petitioner - Appellant

v.

WARDEN OF THE ANDERSON COUNTY DETENTION CENTER

Respondent - Appellee

ORDER

The court grants leave to proceed in forma pauperis.

For the Court—By Direction

/s/Patricia S. Conner, Clerk

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I

FILED: My 24, 2023

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 22-7232

(8:22-cv-02806-HMH)

MICHAEL T. BRAXTON

Petitioner - Appellant

v.

WARDEN OF THE ANDERSON COUNTY DETENTION CENTER

Respondent - Appellee

JUDGMENT

In accordance with the decision of this court, a certificate of appealability is

denied and the appeal is dismissed.

This judgment shall take effect upon issuance of this court's mandate in

accordance with Fed. R. App. P. 41.

/s/ PATRICIA S. CONNOR. CLERK

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8:22-cv-02806-HMH

Date Filed 10/13/22

Entry Number 17

Page 1 of 6

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF SOUTH CAROLINA

ANDERSON/GREENWOOD DIVISION

Michael T. Braxton,

Petitioner,

vs.

)

)

)

)

)

)

C.A. No. 8:22-02806-HMH-JDA

OPINION & ORDER

Warden of the Anderson County Detention )

)

Center,

)

Respondent.

)

This matter is before the court for review of the Report and Recommendation of United

States Magistrate Judge Jacquelyn D. Austin, made in accordance with 28 U.S.C. § 636(b) and

Local Civil Rule 73.02 of the District of South Carolina.1 Petitioner Michael T. Braxton

(“Braxton”) is currently detained at the Anderson County Detention Center, where he is awaiting

a civil commitment trial under the South Carolina Sekually Violent Predator Act (“SVPA”).2

Braxton filed this action on August 18, 2022,3 seeking habeas corpus relief under 28 U.S.C.

§ 2241, alleging, among other things, that he “remains in illegal detention” based “solely on a

probable cause determination.” (§ 2241 Pet. 7, ECF No. 1.) (internal quotations omitted). In

1 The recommendation has no presumptive weight, and the responsibility for making a

final determination remains with the United States District Court. See Mathews v. Weber, 423

U.S. 261, 270 (1976). The court is charged with making a de novo determination of those

portions of the Report and Recommendation to which specific objection is made. The court may

accept, reject, or modify, in whole or in part, the recommendation made by the magistrate judge

or recommit the matter with instructions. 28 U.S.C. § 636(b)(1).

2 S.C. Code Ann. §§ 44-48-10 to -170.

3 See Houston v. Lack, 487 U.S. 266 (1988).

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Page 2 of 6

her Report and Recommendation, Magistrate Judge Austin recommends dismissing Braxton’s

petition without requiring the Respondent to file a return because (1) Braxton s claims are not

properly before the court based on Younger4 abstention and (2) Braxton has failed to exhaust his

state court remedies. (R&R 5, ECF No. 12.)

Braxton timely filed objections to the Report and Recommendation on September 22,

2022.5 (Objs., ECF No. 14.) Objections to the Report and Recommendation must be specific.

Failure to file specific objections constitutes a waiver of a party’s right to further judicial review,

including appellate review, if the recommendation is accepted by the district judge. See United

States v. Schronce. 727 F.2d 91, 94 & n.4 (4th Cir. 1984). In the absence of specific objections

to the Report and Recommendation of the magistrate judge, this court is not required to give any

explanation for adopting the recommendation. See Camby v. Davis, 718 F.2d 198, 199 (4th Cir.

1983).

Upon review, the court finds that many of Braxton’s objections are non-specific,

unrelated to the dispositive portions of the magistrate judge’s Report and Recommendation,

or merely restate his claims. However, the court was able to glean two specific objections.

Braxton specifically objects (1) that his “failure to exhaust should be excused, due to the

*

inordinate delay that has occurred” in his SVPA case, and (2) that Younger does not apply

because the delay has caused him “irreparable injury.” (Objs. 1, 3, ECF No. 14.)

Younger instructs that federal courts should not interfere with “pending state court

proceedings except under special circumstances.” 401 U.S. at 41. To determine whether

4 401 U.S. 37(1971).

5 See Houston v. Lack, 487 U.S. 266 (1988).

2

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Page 3 of 6

Younger applies, the court follows a three-step analysis. See Air Evac EMS, Inc, v. McVey,

37 F.4th 89, 96 (4th Cir. 2022). The court first must determine whether the state court

proceeding falls within one of three narrow categories: (1) “ongoing state criminal

prosecutions,” (2) “certain civil enforcement proceedings” that are “akin to a criminal

prosecution in important respects,” or (3) “pending civil proceedings involving certain

orders ... uniquely in furtherance of the state courts’ ability to perform their judicial functions.

Sprint Commc’ns. Inc, v. Jacobs, 571 U.S. 69, 78-79, 82 (2013) (internal quotations and

citations omitted) (clarifying that Younger extends to three “exceptional categories” of cases

“but no further”). Next, the court considers the “additional factors” of whether (1) there is “an

on going state judicial proceeding”; (2) the proceeding “implicates important state interests ,

and (3) the petitioner has “an adequate opportunity to raise [federal] challenges” in the state

proceeding. Id. at 81 (emphasis in original and citation omitted); see Middlesex Cnty. Ethics

r.nmrn v Garden State Bar Ass’n, 457 U.S. 423, 432 (1982). Third, and finally, the court

considers whether any of Younger’s exceptions apply. Abstention is not appropriate if.

%

(1) there is a showing of bad faith or harassment by state officials responsible for the

prosecution; (2) the state law to be applied in the criminal proceeding is flagrantly

and patently violative of express constitutional prohibitions; or (3) other

extraordinary circumstances exist that present a threat of immediate and irreparable

injury.

Nivens v. Gilchrist, 444 F.3d 237, 241 (4th Cir. 2006) (quoting Kugler v. Helfant, 421 U.S. 117,

124 (1975)).

SVPA proceedings fit within the second Sprint category — that is, “civil enforcement

proceedings” that are “akin to a criminal prosecution in important respects.” Sprint, 571 U.S.

at 78, 79. Sprint characterized cases falling within the second category as those “initiated by the

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Page 4 of 6

State in its sovereign capacity” following a “preliminary investigation” and upon “filing of a

formal complaint or charges.” Id at 79-80 (internal quotations and citations omitted). These

hallmarks are present in an SVPA proceeding.

4-

Upon notice from a state agency that a person convicted of a sexually violent offense is

scheduled to be released, a multidisciplinary team appointed by the Department of Corrections

conducts an “investigation” into the individual’s criminal and medical history. S.C. Code Ann.

§§ 44.48-40, 44-48-50. If the team believes that the person meets the statutory definition of a

sexually violent predator, the team forwards its findings to a prosecutor’s review committee

appointed by the Attorney General. Id. §§ 44-48-50, 44-48-60. If the review committee, in turn,

finds probable cause that the person is a sexually violent predator, the Attorney General

9

“formally” “initiates” the proceeding by petitioning the court in the jurisdiction where the person

committed the underlying offense for a probable cause hearing. Id § 44-48-70. At the hearing,

the individual is entitled to be represented by an attorney, to present evidence, and to cross

examine witnesses. Id. § 44-48-80(C). If the court finds probable cause, the person is taken into

custody until a final determination is made. Id. § 44-48-80(A).

Finally, and critically, if the person is found to be a sexually violent predator beyond a

reasonable doubt at trial, either by the court or a unanimous jury - if the person elects to be tried

by a jury - he or she is involuntarily committed to a state facility. Id §§ 44-48-90(B), 44-48100(A). Based on the foregoing, SVPA proceedings fall within the second category of cases to

which Younger applies. South Carolina’s SVPA proceedings are “brought by the State in its

sovereign capacity” following an “investigation” and the filing of a “formal” petition and

possess many similarities to traditional criminal proceedings. Sprint, 571 U.S. at 79-80

(citations omitted).

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8:22-cv-02S06-HMH

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Entry Number 17

Page 5 of 6

Next, all three Middlesex factors are present. First, Braxton’s SVPA case is still ongoing

in state court because no final judgment has been entered.6 Second, South Carolina has a

substantial interest in addressing “the special needs of sexually violent predators and the risks

that they present to society.” See S.C. Code Ann. § 44-48-20 (describing legislative findings).

Third, Braxton has an adequate forum to raise his constitutional challenges.

%

Lastly, none of the Younger exceptions apply. There is no evidence that the proceeding

was instituted in bad faith or to harass Braxton, and the South Carolina Supreme Court has

upheld the SVPA against due process and equal protection challenges. See In re Treatment &

Care of Luckabaugh. 568 S.E.2d 338, 346-52 (S.C. 2002). Moreover, the two-plus year delay in

bringing Braxton’s SVPA case to trial does not constitute an extraordinary circumstance that

presents a threat of immediate and irreparable injury sufficient to justify federal intervention,

especially when Braxton is partly responsible for the delay.7 See Page v. King, 932 F.3d 898,

902 (9th Cir. 2019) (holding that a thirteen-year delay in bringing the petitioner’s SVPA case to

trial was not an extraordinary circumstance under Younger); Barrett v. Scott, No. 16-CV-3073,

2016 WL 3661103, at *2-3 (N.D. HI. July 5, 2016) (unpublished) (nine-year delay in SVPA case

not an exceptional circumstance); James v. Harris, No.l9-CIV-21836, 2022 WL 1686494, at *1,

5 (S.D. Fla. May 26, 2022) (unpublished) (abstaining under Younger despite seven-year delay in

SVPA proceeding).

6 See Anderson County Tenth Judicial Circuit Public Index,

https://publicindex.sccourts.org/Anderson/PublicIndex/PISearch.aspx (search by case number

“2020CP0401330”) (last visited Oct. 13, 2022). The court may take judicial notice of the

records and docket entries in Braxton’s SVPA action. See Philips v. Pitt Cnty. Mem’l Hosp.,

572 F.3d 176, 180 (4th Cir. 2009); United States v. Garcia, 855 F.3d 615, 621 (4th Cir. 2017).

$

7 The court notes that Braxton’s counsel has twice requested a continuance and has

agreed to a continuance sought by the State.

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Accordingly, based on the above, the court finds that Braxton’s objection is without

merit and abstention is warranted under Younger.

It is therefore

ORDERED that Braxton’s petition is dismissed without requiring the Respondent to file

a return. It is further

ORDERED that a certificate of appealability is denied because Braxton has failed to

make “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).9

IT IS SO ORDERED.

s/Henry M. Herlong, Jr.

Senior United States District Judge

Greenville, South Carolina

October 13, 2022

NOTICE OF RIGHT TO APPEAL

Petitioner is hereby notified that he has the right to appeal this order within thirty (30)

days from the date hereof, pursuant to Rules 3 and 4 of the Federal Rules of Appellate

Procedure.

8 Having found that Younger abstention applies, the court need not address Braxton’s

objection regarding his exhaustion of state remedies.

9 District courts must issue certificates of appealability when entering “a final order

adverse to the applicant.” Rule 11(a), Rules Governing § 2254 Cases. These rules may be

applied to other types of habeas corpus petitions. Rule 1(b), Rules Governing § 2254 Cases.

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8:22-cv-02806-HMH

Date Filed 09/09/22

Entry Number 12

Page 1 of 13

UNITED STATES DISTRICT COURT

DISTRICT OF SOUTH CAROLINA

ANDERSON/GREENWOOD DIVISION

) C/A No. 8:22-cv-02806-HMH-JDA

Michael T. Braxton

Petitioner,

v.

)

)

)

)

) REPORT AND RECOMMENDATION

Warden of the Anderson County Detention )

Center,

)

Respondent.

)

)

)

Michael T. Braxton (“Petitioner”), proceeding pro se, brings this habeas action

pursuant to 28 U.S.C. § 2241.1 [Doc. 1.] Petitioner is a detainee at the Anderson County

Detention Center (the “Detention Center”). [Id. at 1.] Pursuant to the provisions of 28

U.S.C. § 636(b)(1)(B), and Local Civil Rule 73.02(B)(2)(d), D.S.C., the undersigned

Magistrate Judge is authorized to review such petitions for relief and submit findings and

recommendations to the District Court. For the reasons below, the undersigned concludes

that the District Court should dismiss the Petition without issuance and service of process.

BACKGROUND

Petitioner filed this action seeking habeas relief related to his present incarceration

at the Detention Center. Petitioner has filed a Petition on the standard court form; he has

attached 61 pages of supporting documents to his Petition; and he has filed a

memorandum in support of his Petition. [Docs. 1; 1-1; 1-2.] The Court has carefully

1

The Court notes that, in an unpublished case, the Fourth Circuit stated a petition filed by

a person “civilly committed under the South Carolina Sexually Violent Predator Act” was

properly construed as a petition under § 2241 rather than under 28 U.S.C. § 2254. See,

e.g., Gasterv. S.C. Dep’tofCorr., 67 F. App'x 821 (4th Cir. 2003). Regardless of whether

this action is analyzed under § 2241 or § 2254, the Petition is subject to summary dismissal

for the reasons below.

8:22-cv-02806-HMH

Date Filed 09/09/22

Entry Number 12

Page 2 of 13

reviewed each of Petitioner’s submissions as well as his previously filed or currently

pending cases in this Court, the South Carolina state courts, and the state and federal

courts of Tennessee.2

Petitioner makes the following allegations. Petitioner contends he is being detained

at the Detention Center pursuant to a civil commitment petition filed by the State of South

Carolina under the Sexually Violent Predator Act (“SVP”) in the Anderson County Court of

Common Pleas at case number 2020-cp-04-01330. [Id. at 1-3.] Petitioner contends that

the SVP proceedings remain pending against him, resulting in his continued detention even

though his sentence has expired and the statutory time to pursue SVP proceedings has

lapsed, all in violation of his rights. [Id. at 1-3.]

Petitioner contends that his current pretrial detention is unconstitutional, and he

notes that he has sought to challenge his detention in the state courts at case numbers

2020-cp-04-1330, filed in the Anderson County Court of Common Pleas, and case number

2022-000-651, filed in the Supreme Court of South Carolina. [Id. at 2-4.] Petitioner

contends that both of these cases remain pending at this time. [Id.]

importantly, the undersigned takes judicial notice of the pending action against Petitioner

in the Anderson County Court of Common Pleas at case number 2020-cp-04-01330, see

Anderson County Tenth Judicial Circuit Public Index, available at https://publicindex.

sccourts.org/Anderson/Publiclndex/PISearch.aspx (search by case number

“2020cp0401330”) (last visited Sept. 7, 2022), as well as Petitioner’s many prior actions

filed in this Court, his actions previously filed or currently pending in the South Carolina

state courts, and his actions filed in the state and federal courts in Tennessee. See Philips

v. Pitt Cnty. Mem. Hosp., 572 F.3d 176,180 (4th Cli*. 2009) (explaining that courts “may

properly take judicial notice of matters of public record”); Colonial Penn Ins. Co. v. Coil, 887

F.2d 1236, 1239 (4th Cir. 1989) (“We note that ‘the most frequent use of judicial notice is

in noticing the content of court records.’”).

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Entry Number 12

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Petitioner asserts four grounds for relief in the present Petition, which are provided

substantially verbatim below:

GROUND ONE:

An

unlawful “tolling” effect was

implemented by the Sate of South

Carolina, after the termination of the

Petitioner’s supervised release.

Supporting facts: The “expiration” of the Petitioner’s

sentence, prior to the illegal extradition

back to South Carolina, without a timely

probable cause or revocation hearing.

The service of (5) years and (2) months

on a void sentence. Then subsequently

being detained for (535) days under a

rouge probable cause determination.

GROUND TWO:

Failure of the South Carolina Department

of Corrections to implement a thorough

process, before submitting the Petitioner

into a rouge procedure.

Supporting facts: The erroneous and “incomplete” data

used in their determination. Failure to

recognize relevant federal and state

mandatory statute.

GROUND THREE: The lack of consideration given to (3)

three continuances all filed “outside” the

requisite time period; they were granted

outside this period as well.

Supporting facts: The Petitioner remains in “illegal"

detention! Held solely on a “probable

cause” determination. (1st) continuance

granted after (71) days, within a (60) day

mandatory process, (2nd) continuance

granted (207) days, within a (90) day

mandatory process, (3rd) continuance

granted (311) days, within a (90) day

mandatory process.

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GROUND FOUR:

Entry Number 12

Page 4 of 13

The ineffectiveness of the Petitioner's

former counsel, that has him “illegally”

confined.

Supporting facts: The exhibits and recorded actions

submitted in support of the Petitioner’s

claim.

The awareness exhibited by

Petitioner’s former counsel, pertaining to

the validity of the pre-trial motions.

[Id. at 7-8.] Based on these grounds, Petitioner seeks immediate release from custody.

[Id. at 8.] Additionally, in his memorandum, Petitioner acknowledges that he has failed to

exhaust his state court remedies. [Doc. 1-2 at 1.] However, Petitioner contends that his

failure to exhaust should be excused as he is unlawfully detained. [Id. at 1-3.]

STANDARD OF REVIEW

Under established local procedure in this judicial district, a careful review has been

made of the pro se pleadings pursuant to the procedural provisions of the Anti-Terrorism

and Effective Death Penalty Act of 1996. The review has been conducted in light of the

following precedents: Denton v. Hernandez, 504 U.S. 25 (1992); Neitzke v. Williams, 490

U.S. 319, 324-25 (1989); Haines v. Kerner, 404 U.S. 519 (1972); Nasim v. Warden, Md.

House of Corn, 64 F.3d 951 (4th Cir. 1995); Todd v. Baskerville, 712 F.2d 70 (4th Cir.

1983); Loe v. Armistead, 582 F.2d 1291 (4th Cir. 1978); and Gordon v. Leeke, 574 F.2d

1147, 1151 (4th Cir. 1978).

Because Petitioner is a pro se litigant, his pleadings are accorded liberal

construction. Erickson v. Pardus, 551 U.S. 89, 94 (2007); Cruz v. Beto, 405 U.S. 319

(1972),

Even under this less stringent standard, however, the Petition is subject to

summary dismissal. The requirement of liberal construction does not mean that the Court

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Entry Number 12

Page 5 of 13

can ignore a clear failure in the pleading to allege facts which set forth a claim cognizable

in a federal district court. See Weller v. Dep’tofSoc. Servs., 901 F.2d 387 (4th Cir. 1990).

Further, this Court is charged with screening Petitioner’s lawsuit to determine if “it

plainly appears from the petition and any attached exhibits that the petitioner is not entitled

to relief in the district court.” Rule 4 of Rules Governing Section 2254 Cases in the United

States District Courts; see also Rule 1 (b), Rules Governing § 2254 Cases (allowing district

courts to apply the rules to other § 2241 petitions).

DISCUSSION

As noted, Petitioner seeks release from incarceration at the Detention Center,

claiming his constitutional rights have been denied. Nevertheless, this action should be

dismissed because Petitioner’s claims are not properly before this Court based on the

Younger abstention doctrine and because Petitioner has failed to exhaust his state court

remedies.

Petitioner’s Criminal History and Prior Cases

Before addressing the issues noted above, the undersigned provides a brief

overview of Petitioner’s criminal history and his prior cases filed in this Court and the state

courts. Petitioner’s criminal history was summarized by the South Carolina Court of

Appeals as follows:

On November 17, 1983, [Plaintiff] was sentenced to thirty

years’ incarceration after pleading guilty to first degree criminal

sexual conduct (CSC). [Plaintiff] served ten years and four

months of his sentence, and on March 31, 1994, he was

conditionally released to the state of Tennessee on parole, On

April 16, 1996, while on parole in Tennessee, [Plaintiff] was

arrested for two counts of aggravated rape. On May 28,1996,

while he was in custody for those arrests, South Carolina

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Page 6 of 13

issued a parole violation warrant, and a parole violation hold

was placed on [Plaintiff]. [Plaintiff] was held in pretrial

detention until he was sentenced to twenty-three years’

imprisonment in the custody of the Tennessee Department of •

Corrections (TDOC), and he was transferred to TDOC on June

1, 1998. On June 8, 1998, South Carolina issued a second

parole violation warrant on [Plaintiff]. [Plaintiff] completed his

sentence in Tennessee on November 2,2015. Thus, from the

time of his arrest in 1996 until he finished serving his sentence

in 2015, [Plaintiff] served approximately nineteen years and

five months in Tennessee. Following his release, beginning

November 8, 2015, [Plaintiff] was incarcerated in Anderson

County, South Carolina. Following an appearance before the

Full Board of the South Carolina Board of Pardons and Parole

on January 20, 2016, [Plaintiff] was transferred back into the

custody of SCDC with a release date of June 22, 2022.

[Plaintiff] timely filed a Step 1 grievance with SCDC, claiming

SCDC failed to give him credit towards his remaining CSC

sentence for the time he spent on successful parole

supervision and for the time he spent incarcerated in

Tennessee.

[Plaintiff’s] Step 1 grievance was denied.

[Plaintiff] then filed a Step 2 grievance with SCDC, restating

the allegations set forth in his Step 1 grievance and also

arguing he should be credited for time served “incarcerated in

Tennessee . . . (which includes the time served during the

extradition process).” His Step 2 grievance was subsequently

denied.

[Plaintiff] then appealed SCDC’s denial of his grievances to the

[Administrative Law Court (“ALC”) ]. He argued SCDC erred

in refusing to give him credit (1) for the time he spent on

parole, (2) for the time he spent in pretrial detention and

incarcerated for unrelated charges in Tennessee while there

were parole violation warrants from South Carolina in place,

and (3) for the time he served for the period he was held in

Anderson County before returning to the custody of SCDC. By

order dated August 24, 2017, the ALC affirmed SCDC's final

decision regarding the calculation of [Plaintiff’s] sentence.

Braxton v. SCDC, 846 S.E.2d 383, 385 (S.C. Ct. App. 2020) (footnotes omitted). Petitioner

has filed various appeals, post-conviction relief actions in the state court, and habeas ,

actions and civil rights actions under 28 U.S.C. § 1983 in this Court, all challenging his

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8:22-cv-02806-HMH

Date Filed 09/09/22

conviction, sentence, and/or parole.

Entry Number 12

Page 7 of 13

In Braxton v. Warden of Kershaw Correctional

Institution, No. 8:20-cv-03168-HMH-JDA (D.S.C. Sept. 3,2020), the undersigned explained

as follows:

Addressing [Plaintiffs] claims, the South Carolina Court of

Appeals held that "the ALC erred in affirming SCDC's refusal

to grant him credit for time served while he was successfully on

parole prior to his Tennessee arrest” and therefore remanded

that “issue to the ALC to recalculate [Plaintiff's] sentences such

that he receives credit for the time he served while on parole."

Id. at 386. Regarding [Plaintiffs] arguments that the ALC erred

in refusing to give him credit for time served before and after

he was sentenced on charges in Tennessee and in refusing to

give him credit for the time he was held in Anderson County,

the South Carolina Court of Appeals affirmed. Id. at 387-88.

On remand, Administrative Law Judge H. W. Funderburk, Jr.

determined that the time [Plaintiff] was on parole prior to his

Tennessee arrest was two years and 16 days and therefore

ordered that [Plaintiff] be credited with that amount toward his

sentence. [Doc. 15-2 at 10-11.] In response to that order,

SCDC wrote a letter to Judge Funderburk dated September 1,

2020, notifying him that [Plaintiff] “ha[d] already been given

credit for the time he successfully served on parole prior to his

Tennessee arrest,” although SCDC acknowledged that its prior

court filings had “caused confusion" regarding this issue. [Doc.

18-2 at 1.] In the letter, SCDC explained in detail how

[Plaintiffs] release date had been calculated and informed

Judge Funderburk that “once [he had] had an opportunity to

review th[e] letter, SCDC w[ould] adjust [Plaintiffs] credits

according to any further instruction.” [Id. at 1-2.]

Judge Funderburk responded to the letter in his own letter

dated September 9, 2020. [Id. at 3.] In it, he noted that he

understood from the letter and attached printouts that SCDC

“had this information before the case came to [the ALC] or to

the Court of Appeals.” [Id. at 3.] He s[t]ated that he could

“only follow the directions given [to him] by the Court of

Appeals," and thus, he suggested that SCDC “forward [its]

explanation to the Court of Appeals and ask for its guidance.”

[Id.] SCDC subsequently sent [Plaintiff] a letter dated

September 28, 2020, stating its position that “SCDC [wa]s in

compliance with” Judge Funderburk’s order on remand

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because [Plaintiff’s] March 25,2021, release date already gave

[Plaintiff] credit for the two years and 16 days in question, as

well as additional days. [Doc. 15-2 at 1.] On that basis, SCDC

noted that it “considered] the matter closed,” that “no further

action will be taken,” and that [Plaintiff] had “already been

given more parole time than” Judge Funderburk had ordered

in his decision on remand. [Id.]

Braxton, 2021 WL 260482, at *1-2 (D.S.C. Jan. 4, 2021) (some alterations in original)

(footnote omitted), Report and Recommendation adopted by 2021 WL 252582 (D.S.C.

Jan. 26,2021), appeal dismissed, No. 21-6264,2021 WL 4902109 (4th Cir. Oct. 21,2021).

At this time, Petitioner’s underlying sentences described above have expired.

However, he remains incarcerated at the Detention Center, pending the outcome of the

SVP action in the Anderson County Court of Common Pleas. Petitioner’s challenge to that

detention, which is the basis for this action, is without merit for the reasons below.

Younger Abstention Doctrine

In Younger v. Harris, 401 U.S. 37 (1971), the Supreme Court held that a federal

&

court should not equitably interfere with state criminal proceedings “except in the most

narrow and extraordinary of circumstances.” Gilliam v. Foster, 75 F.3d 881, 903 (4th Cir.

1996) (en banc) (internal quotation marks omitted). The Younger Court noted that courts

of equity should not act unless the moving party has no adequate remedy at law and will

suffer irreparable injury if denied equitable relief. Younger, 401 U.S. at 43-44; see also

Sprint Commc'ns, Inc. v. Jacobs, 571 U.S. 69,72-73 (2013) (explaining the circumstances

when Younger abstention is appropriate). The Fourth Circuit has held that the Younger

abstention doctrine applies “to nonetiminal judicial proceedings when important state

interests are involved,” Harper v. Public Serv. Comm’n of W. Va., 396 F.3d 348, 351 (4th

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Cir. 2005) (internal quotation marks omitted), and courts in this district have held that

Younger applies to South Carolina state-court SVP proceedings, see Tyler v. Bogle, No.

c

9:18-cv-1513-MGL-BM, 2018 WL 4017687, at *2 (D.S.C. Aug. 7, 2018) (collecting cases)

Report and Recommendation adopted by 2018 WL 4005792 (D.S.C. Aug. 22, 2018).

From Younger and its progeny, the Court of Appeals for the Fourth Circuit has culled

the following test to determine when abstention is appropriate: “[1] there are ongoing state

judicial proceedings; [2] the proceedings implicate important state interests; and [3] there

is an adequate opportunity to raise federal claims in the state proceedings.” Martin

Marietta Corp. v. Md. Comm’n on Hum. Reis., 38 F.3d 1392, 1396 (4th Cir. 1994) (citing

Middlesex Cnty. Ethics Comm’n v. Garden State BarAss’n, 457 U.S. 423, 432 (1982)).

Here, Petitioner is involved in ongoing state court proceedings, and he asks this Court to

award relief for alleged constitutional violations and to require his immediate release; thus,

the first element is satisfied. See Lott v. Sheek, No. 8:19-cv-00954-DCC-JDA, 2019 WL

3308415, at *8 (D.S.C. Apr. 4, 2019) (noting the first prong of the abstention test was

satisfied where the petitioner was involved in ongoing state civil commitment proceedings

under the SVP Act), Report and Recommendation adopted by 2019 WL 2511253 (D.S.C.

June 18, 2019). The second element is satisfied as the South Carolina Court of Appeals

has held that protecting its citizens from sexual predators is an important state interest.

See State v. Reid, 679 S.E.2d 194, 201 n.6 (S.C. Ct. App. 2009). The third element is also

satisfied, as Petitioner can raise his constitutional claims in the state court. See Lott, 2019

WL 3308415, at *8.

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In sum, a ruling in Petitioner’s favor in this case would call into question the validity

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of the state court proceedings against him and would significantly interfere with those

ongoing state proceedings. See Younger, 401 U.S. at 43-45; Cinema Blue of Charlotte,

Inc. v. Gilchrist, 887 F.2d 49, 52 (4th Cir. 1989) (“[FJederal courts should abstain from the

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decision of constitutional challenges to state action, however meritorious the complaint

may be, ‘whenever [the] federal claims have been or could be presented in ongoing state

judicial proceedings that concern important state interests.’”) (citation omitted); Washington

v. Tilton, No. 2:10-cv-997-HFF-RSC, 2010 WL 2084383, at *1 (D.S.C. May 19, 2010).

Thus, this Court should dismiss this case on abstention grounds pursuant to Younger. See

Nivens v. Gilchrist, 444 F.3d 237, 247 (4th Cir. 2006) (explaining that “when a district court

abstains from a case based on Younger, it should typically dismiss the case with prejudice;

not on the merits”); Hamm v. South Carolina, No. 9:16-cv-2922-RMG-BM, 2016 WL

11214095, at *3 (D.S.C. Nov. 17, 2016) (dismissing § 2241 habeas petition as barred by

Younger where the petitioner asserted a claim related to ongoing SVP proceedings)

1 ?

Report and Recommendation adopted by 2017 WL 176294 (D.S.C. Jan. 17, 2017).

Exhaustion of State Court Remedies

Additionally, this action should be dismissed as Petitioner has failed to exhaust his

state court remedies. “Any person seeking federal habeas corpus relief must first exhaust

any state court remedies that are available to them." Smith v. Blanton, No. 8:09-cv-01506HFF-BHH, 2009 WL 1922301, at *2 (D.S.C. June 30, 2009); see also LaSure v. South

Carolina, No. 9:18-cv-2399-RBH-BM, 2019 WL 2146992, at *2 (D.S.C. Feb. 15, 2019) (“a

writ of habeas under 28 U.S.C. §§ 2241 or 2254 can be sought only after a petitioner has

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exhausted his state court remedies") (footnote omitted), Report and Recommendation

adopted by 2019 WL 1614841 (D.S.C. Apr. 16, 2019). Specifically, the State of South

Carolina provides the following state court remedies for challenging an SVP action:

The South Carolina SVP Act (S.C. Code Ann. §§ 44-48-10

through 44-48-170) provides for certain steps such as a

“probable cause” determination by a state civil judge and an

evaluation by professional specialists, § 44-48-80, and the

opportunity for the civilly committed person, through appointed

counsel, to challenge “at trial” any unfavorable results of the

evaluation before a state civil judge.

S.C.Code Ann.

§ 44-48-90. Additionally, if the civilly committed individual

does not prevail at the civil trial level, the state of South

Carolina also provides appellate judicial review of findings

made by the civil trial judge under the Act. See Care &

Treatment of Beaver[ v.] State, 372 S.C. 272, 642 S.E.2d 578

(S.C. 2007); White v. State, 375 S.C. 1, 649 S.E.2d 172 (S.C.

Ct. App. 2007).

•

Blanton, 2009 WL 1922301, at *2.

Here, because “Petitioner has not proceeded through the statutory mechanism of

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South Carolina’s SVP Act, he has not exhausted his state court remedies.” Hamm v.

Magill, No. 9:11-cv-3098-RMG-BM, 2011 WL 7164424, at *3 (D.S.C. Dec. 2,2011), Report

and Recommendation adopted by 2012 WL 393632 (D.S.C. Feb. 6,2012); see also Jordan

v. McMaster, No. 8:09-cv-0051-CMC-BHH, 2010 WL 419928, at *3 (D.S.C. Jan. 29, 2010)

(“Therefore, as Petitioner cannot establish cause and prejudice for his failure to exhaust

his state court remedies, consideration of the merits of this petition is foreclosed.”).

CONCLUSION AND RECOMMENDATION

Accordingly, for the reasons stated above, it is recommended that the Petition filed

in this action be DISMISSED without requiring the Respondent to file a return.

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IT IS SO RECOMMENDED.

s/Jacquelyn D. Austin

United States Magistrate Judge

September 9, 2022

Greenville, South Carolina

Petitioner’s attention is directed to the important notice on the next page.

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»

FILED: December 1,2023

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 22-7232

(8:22-cv-02806-HMH)

MICHAEL T. BRAXTON

Petitioner - Appellant

v.

WARDEN OF THE ANDERSON COUNTY DETENTION CENTER

L.s

Respondent - Appellee

ORDER

The petition for rehearing en banc was circulated to the full court. No judge

requested a poll under Fed. R. App. P. 35. The court denies the petition for

rehearing en banc.

For the Court

/s/ Nwamaka Anowi. Clerk

kfOK- C /

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