Dale v. Northern NH Correctional Facility, Warden

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
James Dale
v. 	Case No. 16-cv-292-SM
Michelle Goings, Warden,
Northern New Hampshire
Correctional Facility
REPORT AND RECOMMENDATION
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:
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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
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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
1 According to Dale, “[t]estimony by Ruth Knapp that she had
seen Richard Buchanan raping her daughter would have greatly
aided the defense in their stated theory of ‘James Dale didn’t
do it.’” 	Pet. (doc. no. 1) ¶ 33.
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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 to the time of
death;
meaningfully confront Dale’s cellmate’s testimony by
failing to offer evidence regarding where the police
found pillows, which could have impeached the
cellmate’s testimony;
object to the use of a coin flip to select an
alternate juror; and
execute his duty of loyalty to his client by becoming
romantically involved with the prosecutor.
R. & R. (doc. no. 12) 4-5.
The Legal Standard
A federal court may grant habeas corpus relief “only on the
ground that [a petitioner] is in custody in violation of the
Constitution or laws or treaties of the United States.” 	28
U.S.C. § 2254(a). 	Moreover, pursuant to the Anti-Terrorism and
Effective Death Penalty Act of 1996 (“AEDPA”), “[a] 1-year
period of limitation shall apply to an application for a writ of
habeas corpus by a person in custody pursuant to the judgment of
a State court.” 	28 U.S.C. § 2244(d)(1). 	But, “actual
innocence, if proved, serves as a gateway through which a
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[habeas] petitioner may pass” and bring an otherwise time-barred
petition. 	McQuiggin v. Perkins, 569 U.S. 383, 386 (2013). 	In
other words, “AEDPA’s statute of limitations can be overcome by
a showing of actual innocence.” 	Id. at 391. 	That said,
tenable actual-innocence gateway pleas are rare: “[A]
petitioner does not meet the threshold requirement
unless he persuades the district court that, in light
of . . . new evidence, no juror, acting reasonably,
would have voted to find him guilty beyond a
reasonable doubt.” 	Schlup [v. Delo], 513 U.S. [298,]
329 [(1995)]; see House [v. Bell], 547 U.S. [518,] 538
[(2006)] (emphasizing that the Schlup standard is
“demanding” and seldom met).
Id. (parallel citations omitted); see also Schlup, 513 U.S. at
327 (explaining that “the petitioner must show that it is more
likely than not that no reasonable juror would have convicted
him in the light of the new evidence [which is] a stronger
showing than that needed to establish prejudice [but] a lower
burden of proof than the ‘clear and convincing’ standard”).
Discussion
In an order dated July 19, 2016, document no. 6, it was
noted that in Dale’s 2016 petition to this court, he was
challenging a conviction and sentence imposed in 1999, and that
his claim was likely barred by the habeas corpus statute of
limitations, 42 U.S.C. § 2244(d)(1). 	Accordingly, Dale was
directed to show cause why his petition was not time-barred.
Dale responded:
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Petitioner was ordered to show cause as to why
his petition should not be dismissed as barred by
[the] statute of limitations: First and foremost “Mr.
Dale is Actually, Factually and Legally Innocent.”
Pet’r’s Resp. (doc. no. 7) ¶ 2 (emphasis in the original). 	In
addition, Dale discussed various ineffective assistance claims
against the attorney who handled his first state habeas
petition, i.e., the one that Judge McGuire dismissed in 2004.
Based upon petitioner’s showing, the court directed that Dale’s
petition be served:
Dale points to evidence not presented to the jury
that was available prior to trial, which he contends
establishes his actual innocence. 	In particular, he
highlights the victim’s mother’s statements to
investigators, made shortly after the crime occurred,
in which she said she saw Richard Buchanan raping the
victim on the night at issue. 	While it is not clear
to the court that those statements, if accepted as
true, exonerate Dale, this court cannot conclude from
the limited portions of the state court record before
it that Dale cannot state a credible claim of actual
innocence based on the existence of those statements.
Accordingly, the court directs service of the petition
on respondent, without prejudice to the parties’
ability to brief all pertinent claims and defenses,
including a defense based on the statute of
limitations.
Order (doc. no. 8) 4-5.
Respondent then moved to dismiss Dale’s petition, arguing
that: (1) the claims based on Dale’s state habeas attorney’s
alleged ineffective assistance were not cognizable in a federal
habeas petition; (2) as a result of Judge McGuire’s 2004 order,
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Dale’s claims were procedurally defaulted; 2 and (3) Dale’s
petition was time-barred, and the limitation period was not
subject to equitable tolling. 	The claim arising from the
performance Dale’s state habeas attorney was ultimately
dismissed, but as to the claim asserting ineffective assistance
of trial counsel, respondent’s motion to dismiss was denied.
With regard to the statute-of-limitations issue, the Report and
Recommendation explained, in pertinent part:
Respondent points out that Dale has not demonstrated
diligence in pursuing state post-conviction remedies
[which is a requirement for equitable tolling].
Respondent does not make any argument, however, as to
whether Dale’s actual innocence claim – based largely
on trial counsel’s failure to call Ruth Knapp as a
witness – is the type of credible gateway claim of
actual innocence that might allow a petitioner to
obtain relief upon otherwise untimely federal
constitutional claims, notwithstanding his lack of
diligence.
2 Under the doctrine of procedural default, “a federal court
[generally] ‘will not review a § 2254 habeas claim when the
state court’s decision for that claim rests on a state law
ground that is independent of the federal question and adequate
to support the judgment.’” 	Dilboy v. Warden, N.H. State Prison,
No. 13-cv-465-LM, 2015 WL 5786444, at *3 (D.N.H. Sept. 21, 2015)
(quoting Powell v. Tompkins, 783 F.3d 332, 344 (1st Cir. 2015);
citing Martinez v. Ryan, 566 U.S. 1, 7-11 (2012); Hodge v.
Mendonsa, 739 F.3d 34, 44 (1st Cir. 2013)). 	“Thus, the
procedural default rule bars § 2254 habeas relief when a state
court declined to address a prisoner’s federal claims because
the prisoner had failed to meet a state procedural requirement.”
Dilboy, 2015 WL 5786444, at *3 (quoting Powell, 783 F.3d at 344;
citing Coleman v. Thompson, 501 U.S. 722, 729–30 (1991))
(internal quotation marks omitted).
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R. & R. (doc. no. 12) 5-6 (citing McQuiggin, 569 U.S. at 394-
95). 	The Report and Recommendation also pointed out that
respondent had still not produced an adequate state-court
record. 	However, while respondent’s motion to dismiss was
denied, the dismissal was without prejudice to respondent
arguing, at summary judgment, that Dale’s ineffective assistance
claim was either time-barred or procedurally defaulted.
Now we are at summary judgment, and respondent argues that
she is entitled to judgment as a matter of law because: (1)
Dale’s petition is untimely; (2) his claim was procedurally
defaulted in several different ways; (3) five of the grounds for
his claim have not been exhausted; 3 and (4) his claim fails on
the merits. 	Respondent is entitled to judgment as a matter of
law because Dale’s claim is time-barred.
As a preliminary matter, the court notes that respondent
has produced the remainder of the state-court record, thus
removing one of the obstacles to granting her motion to dismiss.
That said, it is now clear that petitioner has failed to state a
credible claim of actual innocence sufficient to excuse the
tardy filing of his petition.
3 “An application for a writ of habeas corpus on behalf of a
person in custody pursuant to the judgment of a State court
shall not be granted unless it appears that . . . the applicant
has exhausted the remedies available in the courts of the
State.” 	28 U.S.C. § 2254(b)(1)(A).
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As noted, the court began down the actual-innocence path as
a result of the following statement in petitioner’s response to
the July 19, 2016, show-cause order: “First and foremost, ‘Mr.
Dale is Actually, Factually and Legally Innocent.’” 	Pet’r’s
Resp. (doc. no. 7) ¶ 2 (emphasis omitted). 	And, indeed,
“AEDPA’s statute of limitations can be overcome by a showing of
actual innocence.” 	McQuiggin, 569 U.S. at 391. 	In his
objection to respondent’s motion for summary judgment, Dale
elaborates on his assertion of actual innocence:
Not interviewing Ruth Knapp and/or Sarah Knapp,
and thereby not calling either or both of them, caused
a breakdown in the adversarial process that our system
counts on to produce just results. 	Strickland [v.
Washington, 466 U.S. 668 (1984) (setting out the legal
standard for claims of ineffective assistance of
counsel)]. 	This was an inexcusable error of omission
by the defense team. 	Given the unreliability of
Cottingham’s testimony, coupled with the assailing of
the DNA evidence and the lack of a requirement that
the jury believe the DNA evidence, the Court cannot
conclude that the underlying conviction, in the
absence of either or both Ruth Knapp’s and/or Sarah
Knapp’s testimony is reliable. 	Absent the error,
there is a reasonable probability that the jury would
have had a reasonable doubt with respect to guilt,
keeping in mind the legal standard for a reasonable
probability, as probability sufficient to undermine
confidence in the outcome.
Pet’r’s Obj. (doc. no. 22) 13. 4
4 Roy Cottingham was for a time incarcerated with Dale at
the New Hampshire State Prison and testified that Dale had
confessed to raping and suffocating the victim.
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Under McQuiggin, in order to receive relief from the §
2244(d)(1) time bar, petitioner must “persuade[] the . . . court
that, in light of the new evidence [i.e., Knapp’s testimony that
she saw Buchanan rape and suffocate the victim] no juror, acting
reasonably, would have voted to find him guilty beyond a
reasonable doubt.” 	569 U.S. at 386 (quoting Schlup, 513 U.S. at
329). 	He has not done so.
In determining whether the evidence at issue meets the
standard articulated in McQuiggin, the court “must assess the
probative force of the newly presented evidence in connection
with the evidence of guilt adduced at trial.” 	Schlup, 513 U.S.
at 332. 	At Dale’s trial, the jury did not hear Ruth Knapp
testify that she saw Buchanan rape and suffocate the victim or
that she had told investigators that she saw Buchanan do those
things, but the jury did hear Kevin McMahon, a criminalist at
the New Hampshire State Police laboratory, testify that he “had
information through the investigators that there was an actual
eyewitness who saw Richard Buchanan rape and hold a pillow over
the face of Elizabeth Knapp.” 	Trial Tr. vol. VII, 70:12-15.
Thus, much of the substance of the new evidence, i.e., the
existence of an eyewitness statement implicating Buchanan, was
before the jury, just not through the testimony of Ruth Knapp.
Moreover, the fact that evidence of an eyewitness statement came
in through a criminalist, and was offered as an explanation for
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why Buchanan had been treated as a suspect, would seem to
enhance the persuasive value of that evidence as actually
presented to the jury. 	Viewed in that light, the evidence that
Dale criticizes his trial counsel for not introducing appears to
be largely cumulative of, and less persuasive than, evidence on
the same point that Dale’s trial counsel did introduce.
The jury also heard testimony that: (1) DNA testing
excluded Buchanan as a possible source of the semen found in and
on the body of the victim, see id. at 73:11-74:17, 189:22-23;
207:15-18; (2) DNA testing did not exclude Dale as a possible
source of that semen, see id. at 188:13-189:13; and (3) the
genetic characteristics of that semen are found in “about one in
every three million Caucasians,” id. at 205-06, including Dale
but not Buchanan.
Because the jury did hear testimony that an eyewitness had
seen Buchanan rape and suffocate the victim, and testimony that
Buchanan had been excluded as a possible source of the semen
recovered from the victim’s body, petitioner has failed to
persuade the court that if Ruth Knapp had testified about seeing
Buchanan assault the victim, no reasonable juror would have
voted to find him, i.e., Dale, guilty beyond a reasonable doubt.
Thus, petitioner has not made a credible claim of actual
innocence sufficient to excuse his failure to file his petition
within the time limit established by 28 U.S.C. § 2244(d)(1).
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Accordingly, respondent is entitled to judgment as a matter of
law.
Conclusion
For the reasons described above, respondent’s motion for
summary judgment, document no. 19, should be granted.
Moreover, because Dale has not “made a substantial showing
of the denial of a constitutional right, 28 U.S.C. § 2253(c)(2),
I recommend that the court decline to issue a certificate of
appealability. 	Should the court follow my recommendation, Dale
may, however, seek such a certificate from the court of appeals
under Federal Rule of Appellate Procedure 22(b). 	See Rule 11,
Federal Rules Governing Section 2254 Cases (2010); 18 U.S.C. §
2253(c).
Any objection to this Report and Recommendation must be
filed within 14 days of receipt of this notice. 	See Fed. R.
Civ. P. 72(b)(2). 	The 14-day period may be extended upon
motion. 	Failure to file a specific written objection to the
Report and Recommendation within the specified time waives the
right to appeal the district court’s order. 	See Santos-Santos
v. Torres-Centeno, 842 F.3d 163, 168 (1st Cir. 2016); Fed. R.
Civ. P. 72(b)(2).
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______________________________
Andrea K. Johnstone
United States Magistrate Judge
February 5, 2018
cc: 	James Dale, pro se
Elizabeth C. Woodcock, Esq.
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