Dale v. Northern NH Correctional Facility, Warden

Filing 32

/// ORDER approving 29 Report and Recommendation; granting 19 Motion for Summary Judgment. The Clerk of Court shall enter judgment in accordance with this order and close the case. So Ordered by Judge Steven J. McAuliffe.(jbw)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE

James Dale
v.

Case No. 16-cv-292-SM

Northern NH Correctional Facility, Warden

O R D E R

After due consideration of the objection filed, I herewith
approve the Report and Recommendation of Magistrate Judge Andrea
K. Johnstone dated February 5, 2018.
barred.

The petition is time

Petitioner has failed to state a credible claim of

actual innocence sufficient to excuse his failure to file a
timely petition.

That a witness may have been called that may

have reiterated earlier testimony in a different proceeding to
the effect that she saw a different person commit the rape and
murder at issue in this case, does not amount to a credible
claim of petitioner’s actual innocence, particularly where the
jury was made aware of the alternate perpetrator theory, as well
as evidence of DNA testing excluding the other person as the
perpetrator, but not excluding petitioner.

What is required is

not evidence upon which a jury might have found reasonable
doubt, but evidence credibly supporting a claim of actual
innocence of the crimes charged.
Respondent’s Motion for Summary Judgment (document no. 19)
is hereby granted.

Additionally, finding that the petitioner has failed to
make substantial showing of the denial of a constitutional
right, the court declines to issue a certificate of
appealability.

See 28 U.S.C. § 2253(c)(2); Rule 11, Rules

Governing Habeas Corpus Cases Under Section 2254; First Cir. LR
22.0.
The Clerk of Court shall enter judgment in accordance with
this order and close the case.

____________________________
Steven J. McAuliffe
United States District Judge
Date: March 9, 2018
cc:

James Dale, pro se
Elizabeth C. Woodcock, Esq.