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Dale v. Goings

United States District Court, D. New Hampshire

February 5, 2018

James Dale
v.
Michelle Goings, Warden, Northern New Hampshire Correctional Facility

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

          REPORT AND RECOMMENDATION

          Andrea K. Johnstone United States Magistrate Judge

         After a jury trial in the Merrimack County Superior Court, James Dale was convicted on one count of reckless second degree murder, in violation of N.H. Rev. Stat. Ann. (“RSA”) § 630:1-b, I(b) (1996); and (2) two counts of aggravated felonious sexual assault, in violation of RSA 632-A:2, I(a) (Supp. 2000). He is currently incarcerated in the Northern New Hampshire Correctional Facility. Appearing pro se, Dale petitions for a writ of habeas corpus. See 28 U.S.C. § 2254. Before this magistrate judge for a report and recommendation is respondent's motion for summary judgment, to which Dale objects. For the reasons that follow, respondent's motion for summary judgment should be granted.

         Background

         In the opinion in which it affirmed Dale's convictions, the New Hampshire Supreme Court (“NHSC”) described the evidence established at trial this way:

On July 3, 1997, the victim, a six-year-old girl, was found dead in the apartment she shared with her mother [Ruth Knapp], sister and her mother's boyfriend, Richard Buchanan. An autopsy revealed that she had been raped and had died from asphyxiation. The victim's mother told the police that she saw Buchanan raping and suffocating her daughter with a pillow. Buchanan was indicted for murder in September 1997. The State eventually dropped the charges after DNA testing conclusively excluded him as the source of the sperm in and on the victim's body.
At the time of the murder, the defendant lived in the same apartment building as the victim. In August 1997, he left New Hampshire, and in December 1997, he was arrested in Arizona for probation violations. DNA testing showed that the defendant could not be excluded as the source of the sperm found in and on the victim's body.

State v. Dale, 146 N.H. 286, 287 (2001).

         The NHSC issued its decision on Dale's appeal on April 13, 2001. In September of 2001, he filed a petition for a writ of habeas corpus in the state court, asserting several grounds for a claim that he had been denied the effective assistance of counsel, in violation of his rights under the Part I, Article 15 of the New Hampshire Constitution and the Sixth Amendment to the United States Constitution. After Dale refused to participate in the hearing on his petition by videoconference - he was then serving his New Hampshire sentence at a correctional facility in Pennsylvania - the court dismissed his petition with prejudice, in an order dated November 24, 2004.

         In August of 2013, Dale filed a pro se motion for a new trial in the court that had convicted him. Subsequently, the court appointed counsel to represent Dale and allowed his counsel to withdraw the motion for a new trial and replace it with: (1) a petition for a writ of habeas corpus that asserted five grounds for a claim of ineffective assistance of trial counsel; and (2) a motion to reconsider the November 2004 dismissal of the first petition for a writ of habeas corpus. In response to an objection to the motion to reconsider and a motion to dismiss the petition, Judge McGuire ruled “that both the motion for reconsideration and the pending petition [were] untimely and barred by laches, ” Resp't's Mot. to Dismiss, Ex. A (doc. no. 10-6), at 22 of 32. On that basis, she denied the motion and dismissed the petition. Dale appealed Judge McGuire's decision to the NHSC, which declined his notice of appeal.

         This petition followed. In it, Dale claims that his trial counsel provided him with ineffective assistance, in violation of the Sixth Amendment to the U.S. Constitution, by failing to:

call Ruth Knapp as a witness, who would have testified that she saw Buchanan commit the crime;[1]
call the victim's younger sister as a witness; meaningfully challenge the DNA evidence, in that: (i) counsel withdrew a motion to exclude that evidence before trial; and (ii) counsel failed to cross-examine the state's expert on issues that could undermine the impact of such evidence, relating to the methodology used, the possibility of human error, the risk of contamination, the detection limits, and bias;
present a coherent defense, by failing to attack the DNA evidence adequately, and by failing to present available evidence that someone other than Dale committed the crime;
meaningfully confront the medical evidence, with respect to the pathologist's opinion as ...

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