United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
DOUGLAS P. WOODLOCK, UNITED STATES DISTRICT JUDGE
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.
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.
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.
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
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).
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.
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).
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.
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. 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. 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
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
Possession of Counterfeiting Equipment and ...