Labrecque v. Northern NH Correctional Facility, Warden
Filing
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///ORDER granting 6 Motion to Dismiss, petition is dismissed as untimely filed. Court declines to issue a certificate of appealability. Clerk to enter judgment and close the case. So Ordered by Judge Joseph A. DiClerico, Jr.(dae)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Robert Labrecque
v.
Civil No. 14-cv-503-JD
Opinion No. 2015 DNH 120
Warden, Northern New Hampshire
Correctional Facility
O R D E R
Robert Labrecque, proceeding pro se, filed a petition
seeking a writ of habeas corpus under 28 U.S.C. § 2254.
The
warden moved to dismiss the petition on the ground that it was
untimely pursuant to § 2244(d)(1).
In response, Labrecque
agrees that he did not file the petition within the time allowed
but argues that his petition must be considered under the actual
innocence exception to § 2244(d).
The court directed the warden
to file a response to Labrecque’s assertion of the actual
innocence exception, and the warden has done so.
Background
Labrecque was found guilty of aggravated felonious sexual
assault, incest, and endangering the welfare of a child on
November 5, 2009, and he was sentenced on March 10, 2010.
charges arose from an incident on August 27, 2007, when
Labrecque played a drinking game with his sixteen-year-old
daughter.
During the game, both Labrecque and his daughter
The
removed pieces of clothing until they were both naked.
After
his daughter had vomited twice and was so impaired by the
effects of alcohol that she was unable to sit up, Labrecque
sexually assaulted her.1
The daughter did not immediately report the assault because
she was worried about the effect that would have on her family.
In March of 2008, she told the principal at her school what had
happened.
The daughter talked to the police soon after her
report to the principal.
Labrecque voluntarily attended
interviews at the Manchester Police Department on March 31,
2008, and April 1, 2008, which were recorded.
Labrecque was not
under arrest and was free to leave the interviews at any time.
During the April 1 interview, he admitted all of the
charged conduct, including that his daughter was intoxicated and
that he engaged in oral sex and other sexual activity with his
daughter, except that he denied having performed actual sexual
intercourse.
He contended that the sexual activity was
consensual.
In support of his petition under § 2254, Labrecque raises
claims of ineffective assistance of counsel.
Specifically, he
contends that his trial counsel was ineffective because he
The warden provided recordings and transcripts of the police
interviews with Labrecque when he admitted having engaged in
sexual activity with his daughter, while she was intoxicated, on
August 27, 2007.
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failed to call witnesses in Labrecque’s defense, he did not
confront the victim with her prior inconsistent statements, he
failed to cross examine the prosecution’s witnesses, he did not
prepare for trial and lacked a trial strategy, and he did not
have a psychiatric evaluation done.
Discussion
The warden moves to dismiss Labrecque’s petition on the
ground that it is barred by the statute of limitations,
§ 2244(d)(1).
As is noted above, Labrecque does not dispute
that his petition was filed beyond the limitation period but
asserts that he is entitled to proceed under the exception for
petitioners who can show that they are actually innocent of the
crimes of conviction.
The warden disputes Labrecque’s reliance
on the actual innocence exception.
A.
Exhaustion
As a preliminary matter, the warden misunderstands
Labrecque’s assertion of actual innocence.
The warden argues
that because Labrecque did not exhaust a claim of actual
innocence in the state courts, he has waived that claim for
purposes of this case.
Contrary to the warden’s arguments,
Labrecque is not raising a free standing claim of actual
innocence as a constitutional basis for habeas relief, which
would implicate the exhaustion requirement.
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Indeed, such a
claim would not support relief under § 2254 in a noncapital
case.
See Herrera v. Collins, 506 U.S. 390, 400 (1993).
Instead, Labrecque raises actual innocence under the
fundamental miscarriage of justice exception to the limitation
period established by § 2244(d).
See McQuiggin v. Perkins, 133
S. Ct. 1924, 1928 (2013) (“[A]ctual innocence, if proved, serves
as a gateway through which a petitioner may pass whether the
impediment is a procedural bar . . . or . . . expiration of the
statute of limitations.”)
Therefore, the issue of actual
innocence is raised to provide an exception to the time bar and
is not a claim that is subject to the exhaustion requirement of
§ 2254(b).
See, e.g., Smith v. Mirandy, 2015 WL 1395781, at *4
(S.D. W. Va. Mar. 25, 2015); Riva v. Ficco, 2014 WL 4165364, at
*19-*21 (D. Mass. Aug. 21, 2014).
B.
Actual Innocence Exception
The actual innocence exception will apply only in
extraordinary cases “where a constitutional violation has
probably resulted in the conviction of one who is actually
innocent.”
Murray v. Carrier, 477 U.S. 478, 496 (1986).
To
succeed in overcoming the statute of limitations, the petitioner
must present new evidence of his actual innocence, and “must
show that it is more likely than not that no reasonable juror
would have convicted him in light of the new evidence.”
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Schlup
v. Delo, 513 U.S. 298, 327 (1995).
In addition, the “‘court may
consider how the timing of the submission and the likely
credibility of [a petitioner’s] affiants bear on the probable
reliability of . . . evidence [of actual innocence].’”
McQuiggin, 133 S. Ct. at 1935 (quoting Schlup, 513 U.S. at 332).
Labrecque filed forty pages of documents and eight
photographs in support of his response to the warden’s motion to
dismiss.
Labrecque’s response does not make clear which
documents were intended to support his assertion of actual
innocence and which pertain to his claims of ineffective
assistance of counsel.
The documents submitted are: signed
statements of Debra Lebrecque (Robert Labrecque’s sister), Rita
M. Labrecque (his mother), Raymond L. Labrecque (his brother),
Felicia Herbert (a daughter - not the victim); a copy of the
transcript of a hearing on the state’s motion to amend the
information with handwritten notes and highlighting; a copy of
an “Incident/Investigation Report” dated April 2, 2008; a copy
of parts of the transcript of Cecelia Labrecque’s testimony with
notes and highlighting; copies of emails to and from Labrecque’s
trial counsel; a copy of part of a transcript with “Argument” at
the top; a copy of part of the transcript of the prosecutor’s
opening statement at the jury trial; a copy of part of the
transcript of Kody Ingles’s trial testimony; a copy of an
“Incident/Investigation Report,” dated April 2, 2008; a copy of
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an “Incident/Investigation Report” dated May 2, 2008; a copy of
“Case Summary” in State v. Robert Labrecque; copies of
“Assessment Referral Information” from the New Hampshire
Division for Children, Youth and Families dated November 3 and
15, 2010, with attached summaries of contacts related to Cecilia
Labrecque’s report of sexual abuse by her father, Robert
Labrecque.
The photographs show unidentified people and a room
next to a staircase.
The court has reviewed the documents Labrecque submitted
and the record submitted by the warden.
The four signed
statements show that family members represented, more than six
years after the date of the assault, that they did not see or
hear anything to indicate the assault had occurred and that they
do not believe the daughter’s story.
photographs lack any probative value.
Without explanation, the
The other documents
Labrecque submitted do not appear to relate to his claims of
actual innocence.
Labrecque confessed that the incident occurred, that he
drank with his daughter until she became intoxicated, and that
he engaged in all of the sexual activity that his daughter
reported, except that he denied having had sexual intercourse
with her.
Although Labrecque now argues that his confession was
coerced, neither the transcript of the police interviews nor the
circumstances surrounding the interviews supports his newly6
formed challenge.
He provides no new evidence to show coercion.
The jury found him guilty on all charges.
The jury heard Labrecque’s confession, along with this
daughter’s testimony and other evidence, and found Labrecque
guilty on all charges.
Given Labrecque’s confession and the
other evidence of his guilt, the statements provided by his
relatives and the documents and photographs he submitted with
his response to the motion to dismiss do not show that, more
likely than not, no reasonable juror would have convicted
Labrecque.
To the contrary, the evidence strongly supports his
conviction.
Under these circumstances, Labrecque has not made the
necessary showing by new evidence that he is actually innocent
of the crimes of which he was convicted.
Because Labrecque has
not established that the actual innocence exception applies or
that the limitation period was tolled for any reason, his
petition is dismissed as untimely.
Schlup, 513 U.S. at 316.
Conclusion
For the foregoing reasons, the respondent’s motion to
dismiss (document no. 6) is granted, and the petition is
dismissed as untimely filed.
The court declines to issue a certificate of appealability.
See 28 U.S.C. § 2253(c)(2).
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The clerk of court shall enter judgment accordingly and
close the case.
SO ORDERED.
__________________________
Joseph DiClerico, Jr.
United States District Judge
June 15, 2015
cc:
Robert Labrecque, pro se
Elizabeth C. Woodcock, Esq.
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