                                                       [DO NOT PUBLISH]


           IN THE UNITED STATES COURT OF APPEALS

                  FOR THE ELEVENTH CIRCUIT
                    ________________________                  FILED
                                                     U.S. COURT OF APPEALS
                            No. 09-10774               ELEVENTH CIRCUIT
                                                        FEBRUARY 16, 2010
                        Non-Argument Calendar
                                                            JOHN LEY
                      ________________________
                                                             CLERK

             D. C. Docket No. 08-00292-CV-FTM-99-SPC

JOSEPH W. FINFROCK,



                                                        Petitioner-Appellant,

                                versus

CHARLIE CRIST,
ROBERT A. BUTTERWORTH,
TIMOTHY BUDZ,
BILL MCCOLLUM,
Attorney General,


                                                     Respondents-Appellees.


                      ________________________

              Appeal from the United States District Court
                  for the Middle District of Florida
                   _________________________

                          (February 16, 2010)
Before MARCUS, WILSON and ANDERSON, Circuit Judges.

PER CURIAM:

        Joseph W. Finfrock, through counsel, appeals the dismissal of his pro se 28

U.S.C. § 2241 petition for a writ of habeas corpus aimed at his ongoing Florida

civil commitment proceedings.1 We granted a certificate of appealability (COA)

on the sole issue of whether the district court erred by abstaining, pursuant to

Younger v. Harris, 401 U.S. 37, 91 S. Ct. 746 (1971), from reaching the merits of

Finfrock’s § 2241 petition. Finfrock argues that the district court misapplied

Younger by dismissing his petition without first obtaining a response from the state

and reviewing the underlying state court records. Appellees now join in Finfrock’s

request for a remand to the district court, so that they can file a response in support

of their contention that no Younger exception allows Frinfrock’s § 2241 petition.

We have jurisdiction over Finfrock’s timely appeal pursuant to 28 U.S.C. §§ 1291,

2253.

        We review de novo the availability of habeas relief under 28 U.S.C. § 2241.

Dohrmann v. United States, 442 F.3d 1279, 1280 (11th Cir. 2006) (citation

omitted). We review a district court’s decision to abstain from enjoining pending



        1
         Finfrock filed his petition under 28 U.S.C. § 2254. The magistrate judge however
characterized it as a 28 U.S.C. § 2241 petition, citing Medberry v. Crosby, 351 F.3d 1049, 1060
(11th Cir. 2003). (D.11:2 n.2.)

                                               2
state court proceedings on Younger grounds for an abuse of discretion. Wexler v.

Lepore, 385 F.3d 1336, 1338 (11th Cir. 2004) (per curiam). This Court has

remanded where an inadequate factual record accompanied a district court’s

decision of a habeas motion. See, e.g., Ferguson v. Culliver, 527 F.3d 1144, 1149

(11th Cir. 2008) (per curiam) (noting absence of trial record supporting district

court decision of § 2254 petition on waiver-of-counsel claim); Wyzykowski v. Dep’t

of Corr., 226 F.3d 1213, 1219 (11th Cir. 2000) (addressing the state’s failure to file

a record of the state court change-of-plea proceedings, to answer a § 2254 claim of

actual innocence). In the light of these cases, a record that is less than fully

developed, and the parties’ joint request for a remand, we vacate the district court’s

dismissal of Finfrock’s § 2241 petition and remand for a determination on the

briefs and the record whether Younger abstention applies.

      VACATED AND REMANDED.




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