Dear v. Cain et al
Filing
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ORDER DISMISSING CASE - The Court ADOPTS 14 Report and Recommendation; GRANTS Cain and Fitch's 8 Motion to Dismiss; DISMISSES with prejudice Dear's 1 Petition for Writ of Habeas Corpus; and DENIES Dear's requests for counsel and a hearing. Signed by District Judge Kristi H. Johnson on 01/29/2025 (CO)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION
GREGORY J. DEAR
V.
PETITIONER
CIVIL ACTION NO. 3:24-CV-450-KHJ-ASH
BURL CAIN, et al.
RESPONDENTS
ORDER
Before the Court is Magistrate Judge Andrew S. Harris’s [14] Report and
Recommendation. The Court adopts it. The Court thus grants Respondents Burl
Cain and Lynn Fitch’s [8] Motion to Dismiss, dismisses with prejudice Petitioner
Gregory J. Dear’s [1] Petition for Writ of Habeas Corpus, and denies Dear’s requests
for counsel and a hearing.
I.
Background
The Court adopts the [14] Report’s background section, which well describes
the events giving rise to this federal habeas action:
In 2003, a Rankin County grand jury handed down an indictment
against Dear and codefendants George Keyes and Jason Alexander
Warren. The indictment charged all three with sale of cocaine and
conspiracy to sell cocaine. The charges against Dear were tried to a jury
in July 2005; Keyes testified against Dear, and Dear testified in his own
defense. The jury convicted Dear on both charges, and, on August 24,
2005, the court sentenced Dear to serve 60 years with the Mississippi
Department of Corrections.
Dear appealed his conviction, challenging the weight and
sufficiency of the evidence against him and arguing that his trial counsel
provided ineffective assistance with respect to the contents of a jury
instruction the court gave. The Mississippi Court of Appeals affirmed,
and the Mississippi Supreme Court denied certiorari. Dear v. State, 960
So. 2d 542 (Miss. Ct. App. 2006), cert. denied, 959 So. 2d 1051 (Miss.
2007). Dear did not petition for a writ of certiorari with the United
States Supreme Court, and the time to do so expired on October 17,
2007.
Dear first sought post-conviction relief through a June 4, 2008 pro
se application to the Mississippi Supreme Court. His proposed motion
for post-conviction relief asserted that he received ineffective assistance
of counsel and an illegal sentence, challenged the sufficiency of the
evidence, argued he was denied a fair trial, and professed his actual
innocence of the crimes of conviction. On July 23, 2008, the Mississippi
Supreme Court denied Dear’s application, finding his claims “without
merit.” State Ct. R. Vol. 7 [7-7] at 6.
More than four years later, in September 2012, Dear filed a pro
se motion for records and transcripts in his closed criminal case in the
Rankin County Circuit Court. That court denied the motion on
September 13, 2012. Dear appealed but failed to file a brief, so the
Mississippi Supreme Court dismissed the appeal on February 28, 2013.
On April 28, 2014, Dear filed a pro se Motion to Clarify, Reduce,
and or Set Aside Sentence in the Rankin County Circuit Court. That
court docketed it as a new civil action and ultimately dismissed the case
in July 2015.
In the meantime, in May 2015, Dear filed a motion in his closed
2005 appeal seeking permission to examine the content of the record on
appeal. Because Dear then “ha[d] no active appeal pending before” the
Mississippi Court of Appeals, a judge of that court denied his motion on
May 5, 2015. State Ct. R. Vol. 5 [7-5] at 6. Dear next filed a request for
parole authorization in his closed criminal case in Rankin County
Circuit Court in December 2023. The court denied that request later
that month.
Finally, in May 2024, Dear returned to the Mississippi Supreme
Court with a new application for leave to file a motion for post-conviction
relief in the trial court. He simultaneously filed a duplicate of the
application as a new action in Rankin County Circuit Court. In June
2024, the Mississippi Supreme Court denied Dear’s application as
“successive,” “untimely,” “barred by res judicata,” and lacking an
“arguable basis for his claims.” State Ct. R. Vol. 12 [7-12] at 1. In August
2024, the Rankin County Circuit Court dismissed the case for lack of
jurisdiction. State Ct. R. Vol. 13 [7-13] at 14.
Dear filed this habeas petition in August 2024. Dear alleges he is
in custody in violation of the Constitution based on “false imprisonment
on false testimony,” asserts that he received ineffective assistance of
counsel, claims he has a right to parole or conditional release, and avers
that he should be excused from satisfying the statute of limitations due
to his actual innocence. Pet. [1] at 17. He asks the Court to appoint him
counsel, to afford him a hearing, and to “order release from custody.” Id.
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at 16. Respondents seek dismissal of Dear’s petition, and their motion is
fully briefed.
[14] at 1–3 (footnotes omitted).
The [14] Report recommends granting the [8] Motion to Dismiss and
dismissing Dear’s [1] Petition as time-barred. [14] at 9. It first explains that, under
28 U.S.C. § 2244(d), the deadline for Dear’s federal habeas petition was December 8,
2008. [14] at 3–5 (adding 50 days of statutory tolling). It reasons that “Dear is not
entitled to equitable tolling of the statute of limitations for the more than fifteen
years between when the statute began to run and when he finally filed this
petition.” Id. at 6. It concludes that the actual-innocence exception does not apply
because “Dear has submitted no new evidence suggesting his actual innocence.” Id.
at 7. And so it recommends dismissing Dear’s time-barred [1] Petition with
prejudice. [14] at 8. It also recommends denying Dear’s requests for counsel and a
hearing. Id.
Dear timely objected to the [14] Report. Objs. [15]. Liberally construed, his
filing raises four specific objections: (1) his disability resulted in an “absence of state
corrective process,” (2) his disability warrants equitable tolling, (3) he is entitled to
the actual-innocence exception, and (4) he should receive counsel and a hearing. See
id. at 2–5.
II.
Standard
The Court reviews de novo the portions of the [14] Report to which Dear
objects. 28 U.S.C. § 636(b)(1). It reviews the remaining portions under a clearly
erroneous, abuse-of-discretion, and contrary-to-law standard of review. United
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States v. Wilson, 864 F.2d 1219, 1221 (5th Cir. 1989) (per curiam). The Court need
not “reiterate the findings and conclusions of the magistrate judge.” Koetting v.
Thompson, 995 F.2d 37, 40 (5th Cir. 1993) (per curiam).
III.
Analysis
The Court first addresses each of Dear’s objections. It then turns to the rest of
the [14] Report.
A. First Objection
Dear first argues that his disability resulted in an “absence of state corrective
process.” [15] at 3; see also id. at 5 (citing 28 U.S.C. § 2254(b)(1)(B)).
The [14] Report correctly rejected that argument. Even if Dear could prove
that state corrective process was unavailable, that would only “excuse him from
having exhausted his federal claims in state court.” [14] at 6 n.5 (citing 28 U.S.C.
§ 2254(b)(1)(B)). It “would not excuse him from complying with the statute of
limitations” set forth in Section 2244(d). Id. So the Court overrules Dear’s first
objection.
B. Second Objection
Dear next argues that equitable tolling should apply. [15] at 3. He submits
that he has a disability, so he “must rely on prison writ writ[ers] for help,” which
delayed his federal habeas petition. Id.; see also, e.g., Resp. [11] at 9 (stating that
Dear is “[d]isabled with asthma . . . living in overcrowded conditions”).
Equitable tolling requires a petitioner to show “(1) that he has been pursuing
his rights diligently, and (2) that some extraordinary circumstance stood in his way
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and prevented timely filing.” Holland v. Florida, 560 U.S. 631, 649 (2010) (cleaned
up). A petitioner’s disability thus warrants equitable tolling only if he shows a
“causal connection between [his disability] and his failure to file a timely federal
habeas petition.” Jones v. Stephens, 541 F. App’x 499, 505 (5th Cir. 2013) (per
curiam); see also id. at 505 n.34 (collecting cases).
Dear fails to establish that equitable tolling is warranted. Indeed, the record
shows that Dear has been able to file many pro se filings in state court. See [14] at
2–3 (discussing Dear’s pro se filings from June 2008, September 2012, April 2014,
May 2015, July 2015, January 2016, December 2023, and May 2024). So Dear fails
to show that his disability entitles him to “equitable tolling of the statute of
limitations for the more than fifteen years between when the statute began to run
and when he finally filed this petition.” [14] at 6. The Court therefore overrules
Dear’s second objection.1
C. Third Objection
Dear also argues that he is entitled to the actual-innocence exception. See
[15] at 2–3, 5. He first submits that no reasonable jury could have found him guilty.
Id. at 5; see also id. at 2 (“not guilty actual innocence relief”). He next contends that
prosecutorial misconduct warrants actual-innocence relief. See id. at 3 (arguing that
“knowing use of false witness” establishes actual-innocence exception); see also id.
at 5 (alleging prosecutorial and judicial misconduct).
1 To the extent that Dear argues that his defense counsel’s “incompetent”
performance is an extraordinary circumstance that warrants equitable tolling, cf. [15] at 3,
the Court overrules that objection. For the reasons discussed above and in the [14] Report,
Dear fails to show that 15 years’ worth of equitable tolling is warranted.
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But the [14] Report correctly concluded that the actual-innocence exception
does not apply. [14] at 6–8. An actual-innocence claim requires “new reliable
evidence.” Schlup v. Delo, 513 U.S. 298, 324 (1995). Yet “Dear has submitted no new
evidence suggesting his actual innocence.” [14] at 7; see also id. at 7–8. The Court
thus overrules Dear’s third objection.
D. Fourth Objection
Finally, Dear argues that he should receive counsel and an evidentiary
hearing. [15] at 5. But “Dear has not shown that the interests of justice require
appointment of counsel here.” [14] at 8 (citing 18 U.S.C. § 3006A(a)(2)(B)). And
because Dear’s [1] Petition is plainly time-barred, the Court need not hold an
evidentiary hearing. [14] at 8. The Court therefore overrules Dear’s fourth objection.
E. Remainder of Report
The rest of the [14] Report is not clearly erroneous, an abuse of discretion, or
contrary to law. The Court thus adopts the [14] Report as the opinion of this Court.
IV.
Conclusion
The Court has considered all arguments. Those not addressed would not have
changed the outcome. For the stated reasons, the Court ADOPTS Magistrate Judge
Andrew S. Harris’s [14] Report and Recommendation; GRANTS Cain and Fitch’s [8]
Motion to Dismiss; DISMISSES with prejudice Dear’s [1] Petition for Writ of
Habeas Corpus; and DENIES Dear’s requests for counsel and a hearing. The Court
will enter a separate final judgment consistent with this Order.
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SO ORDERED, this 29th day of January, 2025.
s/ Kristi H. Johnson
UNITED STATES DISTRICT JUDGE
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