Dale v. Northern NH Correctional Facility, Warden

UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
James Dale
v.
Northern NH Correctional Facility, Warden
Case No. 16-cv-292-SM
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. 	The petition is time
barred. 	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.
Case 1:16-cv-00292-SM Document 32 Filed 03/09/18 Page 1 of 2

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.
Case 1:16-cv-00292-SM Document 32 Filed 03/09/18 Page 2 of 2