Labadie v. Mitchell

Filing 61

Judge Richard G. Stearns: ORDER entered denying 53 Motion for Hearing; denying 55 Motion for discovery; adopting in part Report and Recommendations re 58 Report and Recommendations.; finding as moot 60 Motion for Reconsideration ; denying 13 Motion for Discovery; denying 16 Motion for Hearing; granting 36 Motion to Dismiss (Zierk, Marsha)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
CIVIL ACTION NO. 15-10137-RGS
GEORGE LABADIE,
Petitioner
v.
LISA MITCHELL,
Respondent
ORDER ON REPORT AND RECOMMENDATION
OF THE MAGISTRATE JUDGE
February 23, 2016
STEARNS, D.J.
I have no quarrel with Magistrate Judge Dein’s conclusion, based as it
is on an exhaustive review of Petitioner George Labadie’s state court
pleadings, that most of the claims asserted in his habeas petition are
unexhausted and therefore should be dismissed.1 See Adelson v. DiPaola,
131 F.3d 259, 261 (1st Cir. 1997) (“A federal court will not entertain an
application for habeas relief unless the petitioner first has fully exhausted his
state remedies in respect to each and every claim contained within the
application.”). While Labadie has filed a series of motions in the state trial

1 Labadie’s Motion for Reconsideration (Dkt. #60) is treated as an
Objection to the Magistrate’s Report and Recommendation.

court raising aspects of the issues presented in his petition, he has yet to seek
state appellate review of his motions to revise and revoke his sentence. Of
greater consequence, he has never filed in the state court a motion for a new
trial – the appropriate vehicle for a collateral attack on the merits of a
conviction.

“To preserve [objections] for federal habeas scrutiny,

[petitioner] was obliged to try to bring them before the SJC [Supreme
Judicial Court].” Mele v. Fitchburg Dist. Ct., 850 F.2d 817, 820 (1st Cir.
1988). “[A]n appealed issue cannot be considered as having been fairly
presented to the SJC for exhaustion purposes unless the applicant has raised
it within the four corners of the ALOFAR [application for leave to obtain
further appellate review].” Id. at 823.
Because Labadie’s failure to exhaust is not excused, and because the
case does not point to extraordinary circumstances that would warrant
instant federal review, Labadie’s petition will be dismissed. See House v.
Bell, 547 U.S. 518, 538 (2006). In a “mixed petition” case, that is, one that
includes exhausted and unexhausted claims, it is ordinarily deemed “best
practice” to give a petitioner the opportunity to voluntarily dismiss his
unexhausted claims and proceed on those that have been exhausted. See
Delong v. Dickhaut, 715 F.3d 382, 387 (1st Cir. 2013). That, however, is not
the case here. In May of 2015, Magistrate Judge Dein granted Labadie’s

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motion to amend his original petition “to delete the unexhausted claims.”
Dkt #26 at 1.

Labadie responded with an amended petition that simply

repackaged most of his unripe claims. When a petitioner “declines to dismiss
the unexcused claims, ‘the district court should dismiss the entire petition
without prejudice.’” Id., quoting Clements v. Maloney, 485 F.3d 158, 169 (1st
Cir. 2007).

Labadie has also filed several motions asking this court to

expand the record and to conduct a hearing on the merits of his claims. As
the issues raised by these motions are also pending in the state court, I agree
with Magistrate Judge Dein that these requests are more properly handled
by the state court.
ORDER
For the foregoing reasons, the Recommendation of the Magistrate
Judge is ADOPTED. The motions for discovery (Dkts. #13 and #55) and to
hold evidentiary hearings (Dkts. #16 and #53) are DENIED. The motion to
dismiss the petition (Dkt. #36) is GRANTED, and the petition is DISMISSED
without prejudice. 2 Any request for the issuance of a Certificate of
Appealability pursuant to 28 U.S.C. § 2253 is DENIED, the court seeing no
meritorious or substantial ground for an appeal. The Clerk will enter the

As Labadie has failed to demonstrate good cause for his failure to
exhaust his claims in state court, a stay of the proceedings in federal court is
not in order. See Rhines v. Weber, 544 U.S. 269, 277-278 (2005).
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court’s Order and close the case.
SO ORDERED.
/s/ Richard G. Stearns__________
UNITED STATES DISTRICT JUDGE

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