1As petitioner is in custody at the Northern New Hampshire

Correctional Facility (“NCF”), I construe the respondent to be

the Warden of the NCF. See Habeas Rule 2 (where petitioner is in

custody pursuant to a state judgment, the state officer having

custody of the petitioner shall be named as respondent).

UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Gary S. Dean

v. Civil No. 08-cv-123-JL

Commissioner, New Hampshire

Department of Corrections1

REPORT AND RECOMMENDATION

Pro se petitioner Gary S. Dean has filed a petition for a

writ of habeas corpus, pursuant to 28 U.S.C. § 2254, challenging

the constitutionality of his state court conviction and

confinement (document no. 1). The petition is before me for

preliminary review. See Rule 4 of the Rules Governing Section

2254 Proceedings (“Habeas Rules”) (requiring initial review to

determine whether the petition is facially valid and may be

served); United States District Court for the District of New

Hampshire Local Rules 4.3(d)(authorizing the magistrate judge to

preliminarily review pro se pleadings). For the reasons stated

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2

below, I recommend that the petition be dismissed as time-barred. 

Standard of Review

In reviewing a pro se petition, this court is obliged to

construe the pleading liberally and in favor of the pro se

litigant. See Erickson v. Pardus, __ U.S. __, 127 S. Ct. 2197,

2200 (2007) (holding that a document filed pro se is “to be

liberally construed”)(quoting Estelle v. Gamble, 429 U.S. 97, 106

(1976)(noting that pro se habeas petitions should be construed

liberally in the petitioner’s favor). “‘[A] pro se [pleading],

however inartfully pleaded, must be held to less stringent

standards than formal pleadings drafted by lawyers.’” Id.

(quoting Estelle, 429 U.S. at 106). Nevertheless, a federal

district court can dismiss a habeas petition if it appears from

the face of the petition that the petitioner is not entitled to

relief. See Lonchar v. Thomas, 517 U.S. 314, 320 (1996). I

apply this standard in reviewing Dean’s petition. 

Background

Convicted in March 1986 by the New Hampshire Superior Court

(Strafford County) of aggravated felonious sexual assault, Dean

Case 1:08-cv-00123-JL Document 4 Filed 06/02/08 Page 2 of 13
2Dean further alleges that he was convicted of armed

robbery, however, the record is silent as to that conviction.

3

was sentenced to a term of imprisonment2. He is currently serving

his sentence at the NCF. Dean alleges that he filed various

applications for state post-conviction relief with the New

Hampshire state courts but has failed to provide this Court with

copies of the relevant documents. The record reflects that he

filed a direct appeal of his conviction with the New Hampshire

Supreme Court (“NHSC”) in which he raised the following claims: 

(1) whether the trial court erred in its application

of the Rape Shield Statute, RSA 632-A:6

(prohibiting inquiry into the prior consensual

sexual activities of victims of aggravated

felonious sexual assault);

(2) whether the trial court erred by improperly

admitting into evidence the victim’s thirty-threepage statement given to the police;

(3) whether the trial court erred by improperly

permitting the foreman of the jury and an

alternate juror to remain on the panel after

potential biases were exposed; 

(4) whether the trial erred by imposing an extended

term of imprisonment when there was insufficient

evidence to support the statutorily required

finding of an infliction of serious bodily injury

requires under RSA 651:6, I(d); and

(5) whether the trial court violated Dean’s right to

due process and erred when it prohibited the

cross-examination of the victim on the details of

her prior sexual activity and on alleged

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4

inconsistent statements she made concerning those

activities.

State v. Dean, 129 N.H. 744, 745-751, 533 A.2d 333, 334-338

(1987). The NHSC affirmed Dean’s conviction on October 9, 1987

and denied his motion for reconsideration in November 1987. Id.

He did not file a petition for certiorari review with the United

States Supreme Court.

On January 13, 1987, Dean filed a motion for new trial,

presumably with the New Hampshire Superior Court (Stafford

County) in which he allegedly raised the following claims: (1)

ineffective assistance of counsel; and (2) “illegally constituted

jury.” Dean alleges that he subsequently filed a “motion to

withdraw the motion for new trial” and that the superior court

“refused to let the case proceed.” 

Without providing any relevant dates or identifying the

claims raised, Dean alleges that he filed a habeas corpus

petition with the New Hampshire Superior Court (Stafford County)

which, according to the docket number, appears to have been filed

in 1988. He further alleges that he filed an appeal with the

NHSC which was subsequently denied. In January 1988, he filed a

petition for certiorari review with the United States Supreme

Court in which he claimed that he was convicted by an illegally

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5

constituted jury; his petition was denied.

In January 1988, Dean filed a federal habeas corpus petition

with this Court in which he allegedly raised the following claim:

“illegally constituted jury.” In April 1988, his petition was

dismissed without prejudice for failure to demonstrate exhaustion

of state remedies. He did not seek further appellate review. 

During that year, Dean also filed a petition with the New

Hampshire Superior Court (Merrimack County) in which he allegedly

raised the following claims: (1) governmental interference with

access to the courts; and (2) violation of due process. The

petition for access was granted on December 5, 1988, and Dean did

not seek further review. He filed a second petition with the New

Hampshire Superior Court (Merrimack County) in which he raised

the following claims: (1) governmental interference with access

to the courts; and (2) violation of due process. The petition

for access was granted on August 22, 1989. Although the record

is unclear, it appears that in December 1989 Dean filed an appeal

with the NHSC which was subsequently declined in 1990.

On June 29, 1995, Dean allegedly filed with the New

Hampshire Superior Court (Strafford County) a “motion to bring

forward” which, he maintains, related to his previously filed

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6

motion for new trial, his alleged involuntary notice of

withdrawal and his unidentified habeas corpus petition. On July

24, 1995, the court dismissed the motion without prejudice for

improper form. Subsequently, Dean filed a “motion to revive”

which apparently was denied by the court on January 17, 1996.

There is no indication that Dean filed any application for

state post-conviction relief or other collateral review from

February 1996 through June 1997. On July 22, 1997, he filed a

“motion for leave to file untimely motion for reconsideration”

which was denied by the court on August 27, 1997. The court also

denied his motion for reconsideration on September 2, 1997. On

November 14, 1998, Dean filed a “writ of error” with the NHSC

which was denied on March 29, 1999. There is no indication that

he filed any application for state post-conviction relief or

other collateral review from April 1999 through 2005. 

On May 22, 2006, Dean filed a habeas corpus petition with

the New Hampshire Superior Court (Coos County) in which he raised

the following claims:

(1) ineffective assistance of trial counsel;

(2) illegally constituted jury;

(3) denial of the right to appeal by motion for new 

trial;

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7

(4) denial of the right to habeas corpus relief; and

(5) illegal sentence; and

 (6) illegal parole process. 

The superior court dismissed the petition as untimely on November

9, 2006 and denied his motion for reconsideration on December 12,

2006. On January 5, 2007, Dean filed a notice of appeal with the

NHSC. The NHSC declined his appeal on March 9, 2007 and denied

his motion for reconsideration on April 17, 2007. On July 12,

2007, Dean filed a petition for certiorari review which was

denied by the United States Supreme Court on October 1, 2007. 

On July 13, 2006, Dean filed a petition with the New

Hampshire Superior Court (Coos County), in which he sought

injunctive relief and a writ of mandamus with regard to his

claims of interference with access to the courts, retaliation and

harassment. His petition was denied on November 1, 2006.

Lastly, Dean alleges that he filed a “petition for contempt”

with the New Hampshire Superior Court (Merrimack County) in which

he raised the following claims:

 (1) illegally constituted jury;

(2) denial of the “right to normal post-conviction 

remedy of a motion for new trial”;

(3) denial of the right to habeas corpus relief; and

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8

(4)) governmental interference with access to the 

courts and interference with the right to assert a

claim for ineffective assistance of trial counsel.

The petition allegedly is pending.

He now brings the instant petition in which he raises the

following grounds for federal habeas corpus relief:

(1) denial of equal protection, due process and effective

assistance of trial counsel when counsel failed to (a)

prepare and present a defense, (b) effectively defend Dean

against an illegally constituted jury, (c) confront

witnesses and evidence against him, (d) present all proofs

favorable to him; and (e) protect the trial record; Dean

further alleges that trial counsel assigned a former

assistant prosecutor to serve as co-counsel in representing

him;

(2) denial of equal protection, due process and a fair

trial when a juror provided false testimony during voir dire

thereby denying Dean the right to exercise a peremptory

challenge;

(3) denial of equal protection, due process and right to

appeal when the state seized Dean’s legal and personal

papers, issued threats against him and “other acts of

retaliation, obstruction, and repression”;

(4) denial of equal protection, due process and habeas

corpus guarantees arising from the state’s failure to comply

with certain court orders, the state’s obstruction of Dean’s

access to the courts and the state’s obstruction of court

proceedings; 

(5) denial of equal protection and due process when Dean

was illegally sentenced to an extended term of imprisonment

of 10 to 30 years without a proper indictment from the grand

jury or a return from the petit jury;

(6) denial of equal protection and due process when

Dean was denied consideration for parole on the basis

Case 1:08-cv-00123-JL Document 4 Filed 06/02/08 Page 8 of 13
9

that he failed to complete a program that was not

available to him;

(7) denial of equal protection, due process and habeas

corpus guarantees when the court denied Dean’s claims

as untimely “without a limiting statute, or a finding

of prejudice, lack of diligence or ill intent”; and

(8) denial of equal protection, due process and habeas

corpus guarantees when the court ruled that the state

had discretion to dismiss Dean’s habeas corpus petition

as untimely “without performing the minimum function of

determining whether the petition presents any claim of

a current deprivation of a protected liberty.”

Discussion

I. Statute of Limitations

Dean’s petition for habeas corpus is barred from

consideration due to his failure to file within the statutory

limitations period. The Antiterrorism and Effective Death

Penalty Act of 1996 (“AEDPA”), enacted on April 24, 1996,

requires that prisoners file applications for writs of habeas

corpus within one year from the date on which the challenged

judgment becomes final. 28 U.S.C. § 2244(d)(1)(A). This

limitation period begins to accrue from the date of the final

disposition of any direct appeal to the state court of last

resort and the conclusion of certiorari review by the United

States Supreme Court, or the running of the ninety-day period in

Case 1:08-cv-00123-JL Document 4 Filed 06/02/08 Page 9 of 13
3Prisoners whose state convictions became final prior to

AEDPA are afforded a one-year grace period, running from the date

of AEDPA’s enactment. See Duncan v. Walker, 533 U.S. 167, 183 &

n.1 (2001); Gaskins v. Duval, 183 F.3d 8, 9 (1st Cir. 1999). 

10

which to seek such review. 28 U.S.C. § 2244(d)(1)(A).3

 “Statutory exceptions exist where the state impeded relief,

new constitutional rights were created by the Supreme Court, or

newly discovered facts underpin the claim.” David v. Hall, 318

F.3d 343 (1st Cir. 2003)(citing Section 2244(d)(1)(B)-(D)). The

limitations period may be tolled during the pendency of a

properly filed application for state post-conviction relief or

other collateral review in state court, and may be equitably

tolled in appropriate circumstances. 28 U.S.C. § 2244(d)(2). 

See also Neverson v. Farquharson, 366 F.3d 32, 41 (1st Cir. 2004)

(holding “the one-year limitations period in § 2244(d)(1) is not

jurisdictional and, accordingly, can be subject to equitable

tolling in appropriate cases.”). 

The party seeking to invoke equitable tolling bears the

burden of establishing the basis of it. See Lattimore v. Dubois,

311 F.3d 46, 55 (1st Cir. 2002). In the AEDPA context, equitable

tolling is the exception rather than the rule and is deemed

justified only in extraordinary circumstances. Id. “It is

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11

reserved for cases in which circumstances beyond the litigant’s

control have prevented him from promptly filing.” Id.

“Ignorance of the law alone, even for incarcerated pro se

prisoners, does not excuse an untimely filing.” Lattimore, 311

F.3d at 55 (citing Delaney v. Matesanz, 264 F.3d 7, 15 (1st Cir.

2001)). 

Here, Dean challenges a conviction that became final on

October 9, 1987. Because his final conviction precedes AEDPA, he

is afforded a one-year grace period running from the date of

enactment of the statute. Thus, absent tolling, he had until

April 24, 1997 to file a federal habeas corpus petition. He

filed his first federal petition in January 1988. Although his

first federal petition was timely filed, it was dismissed without

prejudice in April 1988 for failure to exhaust state remedies. 

Dean did not file his second federal petition until April 2,

2008, eleven years after the AEDPA grace period had expired. His

second federal petition, therefore, is time-barred unless he can

demonstrate that an application for state post-conviction or

other collateral review tolled the limitations period. 

While Dean alleges that he filed various state court appeals

prior to April 24, 1997, the period of time during which the

appeals were pending fails to bring his federal habeas corpus

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12

petition within the one-year limitations period under AEDPA. 

There is no indication that he filed any application for state

post-conviction relief or other collateral review from February

1996 through June 1997. While Dean allegedly filed additional

applications for state post-conviction relief from July 22, 2007

through the present, they were not filed during the AEDPA

limitations period therefore their pendency is not relevant to

the tolling provisions. Dean has not identified any other

properly filed applications for state post-conviction relief for

purposes of tolling the AEDPA limitations period. Nor has he

identified any extraordinary circumstances that would justify the

use of equitable tolling to save his untimely claims. 

Conclusion

For the reasons stated above, I find that Dean’s federal

petition is barred from consideration due to his failure to file

within the statutory limitations period and, therefore, recommend

that it be dismissed.

The claims identified in this report and recommendation will

be considered for all purposes to be the claims raised in the

petition. If the petitioner disagrees with the identification of

the claims herein, he must do so by objection filed within ten

(10) days of receipt of this order, or he must properly move to

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13

amend the petition.

Any objection to this report and recommendation must be

filed within ten days of receipt of this notice. Failure to file

an objection within the specified time waives the right to appeal

the district court’s order. See Unauthorized Practice of Law

Committee v. Gordon, 979 F.2d 11, 13-14 (1st Cir. 1992); United

States v. Valencia-Copete, 792 F.2d 4,6 (1st Cir. 1986).

______________________________

James R. Muirhead

United States Magistrate Judge

Date: June 2, 2008

cc: Gary S. Dean, pro se

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