United States District Court, D. New Hampshire
JOSEPH A. DiCLERICO, Jr., District Judge.
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.
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. The 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 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.
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 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.
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.
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. 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." 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 ...