UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Robert Labrecque

v. Civil No. 14-cv-503-JD Opinion No.

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

. 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. 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.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

1 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.

2 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. Indeed, such a

3 claim would not support relief under § 2254 in a noncapital

case. See Herrera v. Collins,

(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,

(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,

, at *4

(S.D. W. Va. Mar. 25, 2015); Riva v. Ficco,

, 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,

(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

4 v. Delo,

(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,

(quoting Schlup,

).

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

5 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. Without explanation, the

photographs lack any probative value. 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 newly-

6 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,

.

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

(c)(2).

7 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.

8