Dempsey v. Smith
- Pitts
- 5:23-cv-02182
- U.S. District Court · Northern District of California
- 5
In Dempsey v. Smith, Judge Pitts denied Dempsey’s request to excuse exhaustion and required him to choose how to proceed.
Patrick Dugan Dempsey must choose how to address his unexhausted claims; Stephen Smith remains the named defendant, and the court has not yet required a response or decided the underlying claims.
What happened
Dempsey v. Smith concerns Patrick Dugan Dempsey’s federal petition under a law allowing state prisoners to challenge custody that violates federal law. Dempsey acknowledged that he had not presented some claims to the California Supreme Court and asked the court to excuse that requirement. He was representing himself.
The court denied Dempsey’s request without prejudice. It said he had not shown the unusual circumstances required to excuse exhaustion, especially because he was still pursuing relief in state court and had previously been represented by counsel in some state proceedings. The court did not decide whether Dempsey’s underlying claims were valid.
Judge Pitts ordered Dempsey to choose among three options: dismiss the entire case and return to state court, proceed federally only with exhausted claims, or seek a stay while exhausting the remaining claims. If Dempsey does not make a choice or file the required stay motion by the deadline, the court will assume he chose the first option and will dismiss the petition. His other motions will be addressed after he makes that election.
The detailed version
- Dempsey v. Smith · No. 5:23-cv-02182
- Pitts
- Jan. 3, 2024
Background
Patrick Dugan Dempsey, a state prisoner representing himself, filed a petition under 28 U.S.C. § 2254. The petition included both claims that had been presented to the California Supreme Court and claims that had not. Dempsey asked the court to excuse exhaustion of thirteen claims. He also filed motions concerning counsel, documents, and other case administration issues.
Exhaustion ruling
Before a federal court generally can decide a state prisoner’s federal claims, the prisoner must give the state courts an opportunity to address those claims. A petition containing both exhausted and unexhausted claims is called a mixed petition, and the court stated that it could not decide the merits of such a petition while any claim remained unexhausted.
Dempsey argued that exhaustion should be excused because he lacked adequate access to the prison law library, had ineffective counsel during his appeal and a state petition, faced prosecutorial misconduct, and was unable to raise structural errors. The court rejected those arguments at this stage. It noted that Dempsey had been represented by counsel during his appeal and at least one state proceeding, and that his filings indicated he was still pursuing relief in Alameda County Superior Court. The court concluded that he had not shown the unusually serious circumstances required to excuse exhaustion and that state remedies were not shown to be unavailable or ineffective.
The court therefore denied without prejudice Dempsey’s motion to excuse exhaustion. The court did not decide the merits of his underlying claims.
Required election
Because the petition was mixed, the court required Dempsey to state which of three paths he wanted to take:
- Dismiss the entire case, return to state court to exhaust the unexhausted claims, and later file a new federal petition;
- Dismiss the unexhausted claims and continue this case with only the exhausted claims; or
- File a motion to stay this case while he exhausts the unexhausted claims in state court.
The court warned that each option carried risks, including possible statute-of-limitations problems. A stay request under the procedure discussed in Rhines v. Weber must show good cause for the failure to exhaust, that the claims are not meritless, and that Dempsey was not intentionally delaying the case. The court also described an alternative procedure discussed in Kelly v. Small and warned that it could create time-bar problems for claims that do not relate closely enough to the original petition.
Order
If Dempsey chose the first or second option, he could file a short notice identifying his choice. If he chose the third option, he had forty-two days from the date of the order to file a motion for a stay addressing the required criteria. If he did not choose an option or file the required motion by the deadline, the court would assume he selected the first option and would dismiss the petition. The order terminated Docket No. 26, and the court deferred consideration of Dempsey’s other motions until after he made his election. Judge P. Casey Pitts issued the order.
Read the full 5-page opinion on CourtListener, the free public archive maintained by the Free Law Project.