Dean v. Sheriff, Smith County
ORDER ADOPTING 12 Report and Recommendations of the United States Magistrate Judge. Petitioner's petition for habeas corpus is hereby DISMISSED without prejudice. The Court DENIES a certificate of appealability. Signed by District Judge Jeremy D. Kernodle on 7/28/2022. (wea, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
HORACE GRELY DEAN, III,
SHERIFF, SMITH COUNTY,
Case No. 6:21-cv-368-JDK-KNM
ORDER ADOPTING THE REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
Petitioner Horace Grely Dean, III, a pretrial detainee in the Smith County Jail proceeding
pro se, filed this petition for writ of habeas corpus to challenge the legality of a criminal charge
pending against him in state court. The case was referred to United States Magistrate Judge K.
Nicole Mitchell for findings of fact, conclusions of law, and recommendations for the disposition
of the case. Docket No. 2. Sheriff Smith responded and moved to dismiss the petition, relying in
part on Petitioner’s failure to exhaust his state law remedies. Docket No. 9 at 6–7, 11. On July 1,
2022, Judge Mitchell issued a Report recommending that the petition be dismissed without
prejudice and that a certificate of appealability be denied. Docket No. 12. Petitioner filed timely
a written objection. Docket No. 13.
This Court reviews the findings and conclusions of the Magistrate Judge de novo if a party
objects within fourteen days of the Report and Recommendation. 28 U.S.C. § 636(b)(1). In
conducting a de novo review, the Court examines the entire record and makes an independent
assessment under the law. Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1430 (5th Cir.
1996) (en banc), superseded on other grounds by statute, 28 U.S.C. § 636(b)(1) (extending the
time to file objections from ten to fourteen days).
Petitioner’s objection is without merit. The Magistrate Judge reports that a charge of
aggravated assault against a public servant, for which Petitioner was indicted by a Smith County
grand jury on March 31, 2020, remains pending in state court and is the subject of the instant
petition. Docket No. 12 at 1. Accordingly, she recommends that the Court abstain from intervening
in Petitioner’s ongoing criminal prosecution pursuant to Younger v. Harris, 401 U.S. 37 (1971),
and dismiss the petition without prejudice as unexhausted. Id. at 3–9. Petitioner’s objection does
not address the applicability of the Younger abstention doctrine or the unexhausted nature of his
Petitioner’s primary point of contention with the Report is that the Magistrate Judge refers
to the pending 2020 indictment as a “new” charge, when he says it arose from an incident that
occurred in 2018. Docket No. 13 at 1, 3. But that quarrel over semantics has no bearing on the
legal reasons for the recommended dismissal. Likewise, his insistence that he was never properly
arraigned on the state charges, id. at 3, is not determinative on the critical questions of abstention
or exhaustion. In fact, Petitioner continues to assert in his objection a right to “relief in the form
of a dismissal” of the state criminal charge, which underscores the applicability of the Younger
abstention doctrine to this case. Id.
Having conducted a de novo review of the Report and the record in this case, the Court has
determined that the Report of the United States Magistrate Judge is correct, and Petitioner’s
objections are without merit. The Court therefore OVERRULES Petitioner’s objections (Docket
No. 13) and ADOPTS the Report and Recommendation of the Magistrate Judge (Docket No. 12)
as the opinion of the District Court. Petitioner’s petition for habeas corpus is hereby DISMISSED
without prejudice. The Court DENIES a certificate of appealability.
So ORDERED and SIGNED this 28th day of July, 2022.
JEREMY D. KERNODLE
UNITED STATES DISTRICT JUDGE
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