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Hamm v. State

United States District Court, D. South Carolina

January 17, 2017

Michael E. Hamm, a/k/a Michael Eugene Hamm Petitioner,
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.


          Richard Mark Gergel United States District Court Judge

         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, SC 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 1999-GS-18-0318 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 of New 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't 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. (Dkt. No. 1 at 1.) Petitioner did not directly appeal this conviction[1] 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. (Dkt. 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] (Dkt. No 1-1 at 39.)

         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 Leonard v. 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, " Lackwarma Cty. Dist. Attorney v. Coss, 532 U.S. 394, 401 (2001); see also De Long v. 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 (1st 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.

         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. ...

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