Mackey v. Price et al

Filing 16

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).

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Case 3:20-cv-00962-LAB-DEB Document 16 Filed 01/05/21 PageID.204 Page 1 of 2 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DAVID ERNESTO MACKEY, Case No.: 20cv0962-LAB (DEB) Petitioner, 12 13 14 ORDER ADOPTING REPORT AND RECOMMENDATION, AND GRANTING MOTION TO DISMISS v. BRANDON PRICE, et al., Respondents. 15 [DOCKET NUMBERS 9, 14.] 16 17 David Ernesto Mackey, who is in the custody of the State of California Department 18 of State Hospitals, filed a petition for writ of habeas corpus under 28 U.S.C. 2254. Mackey 19 was convicted in 1994 of forcible rape, and served his sentence. As a condition of parole, 20 he was hospitalized as a mentally disordered offender. Before the termination of his parole 21 in 2012, following a court trial, he was found to be suffering from a severe mental disorder 22 and represented a substantial danger of physical harm to others, and was recommitted to 23 Atascadero State Hospital. In 2013, Mackey pursued state habeas petitions in lower courts 24 challenging the November 26, 2012 civil commitment order. In late 2019 and early 2020, 25 Mackey filed petitions in San Diego County Superior Court requesting compassionate 26 release, which were denied first for lack of venue and second because he had not provided 27 the required documentation. 28 /// 1 20cv0962-LAB (DEB) Case 3:20-cv-00962-LAB-DEB Document 16 Filed 01/05/21 PageID.205 Page 2 of 2 1 Respondent filed a motion to dismiss the petition as unexhausted. (Docket no. 9.) 2 The petition and any dispositive motions were referred to Magistrate Judge Daniel Butcher 3 for report and recommendation. On December 4, Judge Butcher issued his report and 4 recommendation (the “R&R”), recommending that the motion to dismiss be granted 5 because all claims in the petition were unexhausted. Mackey filed two pages of objections, 6 making clear he has not yet submitted his claims to the California Supreme Court. He 7 acknowledges the R&R’s finding that the records show he presented his claims only to the 8 lower California courts, and says he “will present to the California Supreme Court . . . a 9 petition for writ of habeas corpus . . . . in the highest state court.” (Docket no. 15 10 (Objections) at 1–2.) Mackey believes his collateral attack on his previous criminal 11 conviction amounts to exhaustion. (Docket no. 10 (Opp’n to Mot. to Dismiss), at 1–2.) 12 But he has already served his sentence for that conviction, and his conviction and sentence 13 are not the subject of his petition. Rather, he is challenging his civil commitment and 14 requesting compassionate release. For reasons the R&R correctly sets forth, the claims in 15 his petition are unexhausted, and dismissal is required. 16 17 18 19 Furthermore, Mackey’s challenge to the November 26, 2012 civil commitment order is time-barred. The Court ADOPTS the R&R and GRANTS the motion to dismiss. The petition is DISMISSED for failure to exhaust. 20 21 22 IT IS SO ORDERED. Dated: January 4, 2021 Hon. Larry Alan Burns Chief United States District Judge 23 24 25 26 27 28 2 20cv0962-LAB (DEB)

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