Mackey v. Price et al
ORDER Adopting Report and Recommendation, and Granting Motion to Dismiss (Docket Numbers 9 , 14 ). The petition is dismissed for failure to exhaust. Signed by Chief Judge Larry Alan Burns on 1/4/2021. (All non-registered users served via U.S. Mail Service) (jdt) Modified on 1/6/2021 to add ECF numbers. NEF regenerated (jdt).
Case 3:20-cv-00962-LAB-DEB Document 16 Filed 01/05/21 PageID.204 Page 1 of 2
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
DAVID ERNESTO MACKEY,
Case No.: 20cv0962-LAB (DEB)
ORDER ADOPTING REPORT AND
GRANTING MOTION TO DISMISS
BRANDON PRICE, et al.,
[DOCKET NUMBERS 9, 14.]
David Ernesto Mackey, who is in the custody of the State of California Department
of State Hospitals, filed a petition for writ of habeas corpus under 28 U.S.C. 2254. Mackey
was convicted in 1994 of forcible rape, and served his sentence. As a condition of parole,
he was hospitalized as a mentally disordered offender. Before the termination of his parole
in 2012, following a court trial, he was found to be suffering from a severe mental disorder
and represented a substantial danger of physical harm to others, and was recommitted to
Atascadero State Hospital. In 2013, Mackey pursued state habeas petitions in lower courts
challenging the November 26, 2012 civil commitment order. In late 2019 and early 2020,
Mackey filed petitions in San Diego County Superior Court requesting compassionate
release, which were denied first for lack of venue and second because he had not provided
the required documentation.
Case 3:20-cv-00962-LAB-DEB Document 16 Filed 01/05/21 PageID.205 Page 2 of 2
Respondent filed a motion to dismiss the petition as unexhausted. (Docket no. 9.)
The petition and any dispositive motions were referred to Magistrate Judge Daniel Butcher
for report and recommendation. On December 4, Judge Butcher issued his report and
recommendation (the “R&R”), recommending that the motion to dismiss be granted
because all claims in the petition were unexhausted. Mackey filed two pages of objections,
making clear he has not yet submitted his claims to the California Supreme Court. He
acknowledges the R&R’s finding that the records show he presented his claims only to the
lower California courts, and says he “will present to the California Supreme Court . . . a
petition for writ of habeas corpus . . . . in the highest state court.” (Docket no. 15
(Objections) at 1–2.) Mackey believes his collateral attack on his previous criminal
conviction amounts to exhaustion. (Docket no. 10 (Opp’n to Mot. to Dismiss), at 1–2.)
But he has already served his sentence for that conviction, and his conviction and sentence
are not the subject of his petition. Rather, he is challenging his civil commitment and
requesting compassionate release. For reasons the R&R correctly sets forth, the claims in
his petition are unexhausted, and dismissal is required.
Furthermore, Mackey’s challenge to the November 26, 2012 civil commitment order
The Court ADOPTS the R&R and GRANTS the motion to dismiss. The petition is
DISMISSED for failure to exhaust.
IT IS SO ORDERED.
Dated: January 4, 2021
Hon. Larry Alan Burns
Chief United States District Judge
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