Dempsey v. Lawrence

Full title: GEORGE A. DEMPSEY, Petitioner, v. AL ST. LAWRENCE and THE ATTORNEY GENERAL…

Court: United States District Court, S.D. Georgia, Savannah Division

Date published: Jan 28, 2009

CASE NO. CV408-142 (S.D. Ga. Jan. 28, 2009)

Opinion

CASE NO. CV408-142.

January 28, 2009

ORDER

WILLIAM MOORE JR., District Judge

Before the Court is the Magistrate Judge's Report and Recommendation (Doc. 9), to which objections have been filed (Docs. 16, 17, 22). After a careful de novo review, the Court concurs with the Magistrate Judge's Report and Recommendation. Accordingly, the Report and Recommendation is ADOPTED as the Opinion of this Court. Mr. Dempsey's objections are rejected for the reasons that follow, and his Habeas Petition is DISMISSED WITHOUT PREJUDICE. The Clerk of Court is DIRECTED to CLOSE this case.

The Magistrate Judge recommends that Petitioner's Habeas Petition be dismissed for failure to exhaust state remedies, as Mr. Dempsey has neither appealed his conviction nor filed a state habeas petition. (Doc. 9 at 2.) Mr. Dempsey responds that any appeal or collateral attack on his state conviction would be futile. (Doc. 16 at 2.) In support of this position, he points to a Motion to Withdraw his Plea filed in state court, which has been dormant for over six months. However, that dormant Motion cannot support a finding of futility; courts find futility only when the state court's failure to respond to a habeas petition is extreme. See Hollis v. Davis, 912 F.2d 1343 (11th Cir. 1990) (finding that further exhaustion of state remedies was unnecessary where Plaintiff had filed repeated habeas petitions for over 25 years without an adequate response), Breazeale v. Bradley, 582 F.2d 5 (5th Cir. 1978) (finding futility where state court had allowed prisoner's habeas petition to be completely dormant for over a year without an adequate explanation). In this case, Mr. Dempsey has not even filed a state habeas petition on which to claim dormancy, and, thereby, futility. Moreover, even if this Court were to consider his Motion to Withdraw his Plea sufficient to take the place of a habeas petition, his wait is not sufficiently egregious to justify a finding of futility.

Accordingly, after careful consideration of the Report and Recommendation, and the objections to the same, the Court ADOPTS the Report and Recommendation. (Doc. 9.) Mr. Dempsey's Habeas Petition is DISMISSED WITHOUT PREJUDICE. The Clerk of Court is DIRECTED to CLOSE this case.

SO ORDERED.