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LaBadie v. Cruz

United States District Court, D. Massachusetts

January 19, 2017

GEORGE LABADIE, Petitioner
v.
NOEMI CRUZ Respondent.

          MEMORANDUM AND ORDER

          DOUGLAS P. WOODLOCK, UNITED STATES DISTRICT JUDGE

         George LaBadie seeks habeas corpus relief to vacate his Massachusetts state court conviction for larceny by embezzlement, possession of counterfeiting equipment, and attempt to commit a crime. The Commonwealth has moved to have the petition dismissed as time-barred.

         I. BACKGROUND

         Although the procedural background of this case is complex and potentially confusing, the factual background is comparatively simple. In 2010, George LaBadie and his wife, Susan Carcieri, were convicted in a jury trial of embezzlement by a bank employee, possession of counterfeiting equipment, and attempt to commit a crime. LaBadie then appealed his conviction on the grounds that the evidence presented was legally insufficient, and that his conviction for the kind of embezzlement charged was improper.

         The Massachusetts Appeals Court agreed with LaBadie that the embezzlement conviction was improper. This was because LaBadie and his wife stole from a federal credit union, not a bank, and that, therefore, Massachusetts state courts did not have jurisdiction to convict him. See Com. v. LaBadie, 972 N.E.2d 66, 70-71 (Mass. App. Ct. 2012). The Appeals Court, however, rejected LaBadie's factual sufficiency of the evidence claim as to the other charges, finding that the convictions for counterfeiting tools and attempt to commit a crime were supported by the evidence. Id. at 70-72. The Appeals Court issued its opinion on July 25, 2012.

         Both LaBadie and the Commonwealth sought leave for further appellate review in the Supreme Judicial Court. The SJC initially granted leave as to all issues. However, on November 26, 2012, the Court issued an order limiting further review to the embezzlement charge, Com. v. LaBadie, 979 N.E.2d 224 (Mass. 2012) (table), leaving the Appeals Court's affirmance of the other charges as the highest state court decision regarding those matters.

         Consequently, on February 23, 2013, ninety days after the limiting order denying review as to LaBadie's counterfeiting and attempt to commit a crime convictions, the convictions on those charges became final. See Foxworth v. St. Amand, 570 F.3d 414, 430 n. 5 (1st Cir. 2009) (citing Griffith v. Kentucky, 479 U.S. 314, 321 n. 6 (1987)) (noting that an appellant has ninety days to appeal a final state court judgment to the Supreme Court for certiorari).

         On February 5, 2014, the SJC issued an opinion affirming the Appeals Court's determination that LaBadie could not properly have been convicted in Massachusetts state court of the type of embezzlement he was convicted of at trial. However, the SJC also held that the evidence presented at trial could support a conviction for a lesser-included offense of larceny by embezzlement, and remanded the case to the trial court for resentencing in accordance with the new charge. Com. v. LaBadie, 3 N.E.3d 1093, 1105 (Mass. 2014). The SJC did not disturb the finality of the sentence as to the other charges. LaBadie was resentenced on this larceny charge in the trial court on April 30, 2014. He then sought direct federal review of the conviction on the lesser-included offense in the Supreme Court of the United States, which denied certiorari on October 6, 2014. Carcieri v. Massachusetts, 135 S.Ct. 257 (2014) (cert. denied). At this point, LaBadie's embezzlement conviction became final.

         On January 20, 2015, LaBadie submitted his first petition for habeas corpus in this court. That petition contained claims that had not been brought before Massachusetts appellate courts in his original appeals or in a motion for a new trial and were, therefore, unexhausted. The petition also included the exhausted embezzlement claim. Magistrate Judge Dein afforded LaBadie the opportunity to amend the petition to proceed only on the exhausted claim. LaBadie responded by submitting a petition that simply restated the unexhausted claims and added more unexhausted claims. Judge Stearns, in review of a Report and Recommendation by Magistrate Judge Dein, dismissed the entire petition observing that LaBadie “simply repackaged most of his unripe claims” when given the opportunity voluntarily to delete the unexhausted claims and proceed with the exhausted one. Labadie v. Mitchell, 15-cv-10137-RGS, 2016 WL 727106, at *1 (D. Mass. Feb. 23, 2016). Judge Stearns held that “[w]hen a petitioner declines to dismiss the unexcused claims, the district court should dismiss the entire petition without prejudice.” Id. (internal quotation marks and citation omitted).

         Labadie filed the instant petition on April 15, 2016. In it, as the grounds on which he claims the right to habeas relief, LaBadie states that “[t]he evidence was insufficient as a matter of law. Jurisdiction.” It is apparent he is mounting a challenge to the jurisdiction of Massachusetts courts to convict him of the crime of embezzlement involving a federal bank and that he also challenges the sufficiency of the evidence to support his convictions in the other charges.

         II. ANALYSIS

         As a threshold matter, I must first satisfy myself that the grounds on which LaBadie challenges his conviction in the instant petition have been exhausted. Otherwise, the petition must again be dismissed on the mixed petition grounds relied upon by Judge Stearns.[1] I find the contentions LaBadie raises in this petition were either directly addressed by the SJC or unsuccessfully submitted to the SJC through his application for further appellate review. Although the petition itself might be said to be somewhat unclear as to precisely which convictions LaBadie is in fact challenging, his opposition to the Commonwealth's motion to dismiss clarifies the matter. In that opposition, in addition to challenging the legal conclusion reached by the SJC with regard to the larceny by embezzlement charge, LaBadie also challenges the sufficiency of the evidence with regard to his other charges: possession of counterfeiting equipment and attempt to commit a crime.[2] I need not, however, proceed to the merits of his contentions because any challenge with regard to his convictions is time-barred under the strict statute of limitations imposed by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”).

         AEDPA's statute of limitations dictates that “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. That one year period starts to run when “the availability of direct appeal to the state courts, and to [the Supreme Court], has been exhausted.” Jimenez v. Quarterman, 555 U.S. 113, 119 (2009) (citations omitted). This applies to cases in which the Supreme Court has denied certiorari, and in which a potential petitioner has chosen not to seek certiorari and the time for filing a certiorari petition has expired. Id.

         A. Possession of Counterfeiting Equipment and ...


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