McLaughlin v . Moore CV-00-218-M 05/22/01 P UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Robert A . McLaughlin, Sr., Petitioner
v. Civil N o . 00-218-M Opinion N o . 2001 DNH 098 Michael W . Moore, Respondent
O R D E R
Robert McLaughlin, Sr., appearing pro s e , petitions for a
writ of habeas corpus, challenging his state court convictions
for first degree murder and conspiracy to commit murder. See 28
U.S.C. § 2254. The State moves to dismiss McLaughlin’s petition,
arguing that it is time barred. Alternatively, the State says
the record conclusively demonstrates that McLaughlin is not
entitled to habeas relief. McLaughlin objects.
Procedural History
On the evening of June 1 , 1988, McLaughlin and his wife
drove to the home of their neighbor, Robert Cushing. While his
wife stood guard, McLaughlin approached the entrance and rang the
door bell. As Cushing opened the door, McLaughlin shot him twice with a shotgun. McLaughlin and his wife fled the scene, disposed
of the weapon in a nearby river, and returned home. Shortly
after the crime, McLaughlin confessed to both his son and a
friend, police officer Victor DeMarco. He was subsequently
indicted on charges of first degree murder and conspiracy to
commit murder. At his trial, McLaughlin admitted shooting
Cushing, but claimed that he was not guilty by reason of
insanity.1 Specifically, McLaughlin argued that he was suffering
from depression, frequent panic attacks, anxiety, and suicidal
tendencies, and, on the night of the shooting, was under the
influence of a substantial amount of Xanax and alcohol.
In support of his insanity defense, McLaughlin called
several expert witnesses. Dr. Edward Rowan, a forensic
psychiatrist, testified to McLaughlin’s medical and mental
history, his treatment by other psychiatrists and psychologists,
his use of the prescription medication Xanax, and his history of
depression, panic attacks, anxiety, suicidal ideation, and
alcohol abuse. See Trial transcript at 628-59. Dr. Rowan also
1 In the alternative, McLaughlin argued that he was guilty of the lesser charge of second degree murder. See Trial transcript at 1103.
2 testified about how and why he believed McLaughlin reached the
decision that, “I think I’ll kill Cushing,” (trial transcript at
643) and why he concluded that McLaughlin was “delusional” on the
night of the shooting. Id. at 656.
Dr. Rick Silverman, a psychologist, described the extensive
battery of psychological tests he had given McLaughlin, explained
the results of those tests as well as those administered by other
experts, and described the bases for his conclusions that
McLaughlin was unable to cope with the stresses in his life,
experienced problems with alcohol and Xanax, suffered from post-
traumatic stress disorder, and had problems associated with
impulse control. Id. at 714-59. D r . Thomas Lynch, another
psychologist called by the defense, testified extensively about
his treatment of McLaughlin for anxiety, depression, acute panic
attacks, insomnia, and suicidal thoughts. Id. at 760-828. D r .
Lynch also reported that he had referred McLaughlin to Dr.
Potter, McLaughlin’s family physician, who prescribed Xanax to
control his anxiety and panic attacks. Id. at 776-77.
3 In his closing argument, counsel for McLaughlin forcefully
argued that the evidence of record compelled the conclusion that,
on the night of the shooting, McLaughlin was depressed and under
the influence of alcohol and an overdose of Xanax. Consequently,
argued defense counsel, McLaughlin was unable to form the
requisite specific intent to murder Mr. Cushing - that i s ,
McLaughlin’s actions were not premeditated nor did he deliberate
prior to driving to Cushing’s home and shooting him. See Trial
transcript at 1080-1129. Notwithstanding counsel’s argument and
the evidence introduced to support that line of defense, the jury
convicted McLaughlin of first degree murder and conspiracy to
commit murder.
McLaughlin appealed his convictions to the New Hampshire
Supreme Court. There, he raised two issues. First, he
challenged a portion of the trial court’s jury instructions,
arguing that they improperly instructed the jury on aspects of
his insanity defense. Next, he claimed that incriminating
statements made by his wife and co-conspirator to the couple’s
son were improperly admitted at trial. As to the issue
concerning the jury instructions, the court ruled that McLaughlin
4 waived any challenge, since he failed to raise a timely objection
at trial. And, as to the evidentiary issue, the court concluded
that his wife’s statements were properly admitted under Rule 804
of New Hampshire’s Rules of Evidence and their admission did not
violate his rights under the Confrontation Clause of the Sixth
Amendment. Accordingly, the court affirmed McLaughlin’s
convictions. State v . McLaughlin, 135 N.H. 669 (1992).
McLaughlin subsequently filed a petition for writ of habeas
corpus in the New Hampshire Superior Court (Rockingham County).
In that petition, McLaughlin asserted that: (1) he was denied his
constitutionally protected right to effective assistance of
counsel; (2) “newly discovered evidence” relating to the
intoxicating effects of Xanax and Halcion (another drug he
claimed to have taken on the night of the shooting), if
introduced at trial, would have supported his insanity defense;
(3) “newly discovered evidence” revealed that his wife and co-
conspirator was “on mind altering drugs” and had a personal
interest in making incriminating statements against McLaughlin;
and (4) McLaughlin’s son “was an incredible witness, which
counsel did not pursue.” State Petition for Habeas Corpus at 6-
5 7. On October 2 4 , 1994, the superior court denied McLaughlin’s
petition.
Nearly three years later (well beyond the 30-day limit
imposed by New Hampshire l a w ) , McLaughlin appealed that decision
to the New Hampshire Supreme Court. By order dated December 4 ,
1997, the court declined to accept his appeal. Nearly two-and-
one-half years after that, McLaughlin filed a petition for writ
of habeas corpus in this court. In i t , he alleges three grounds
for relief: (1) his trial counsel was ineffective and failed to
adequately investigate the combined effect of Halcion and Xanax
on his mental state; (2) the trial court improperly instructed
the jury as to the scienter element of first degree murder; and
(3) the introduction of various statements at trial deprived him
of his rights under the Confrontation Clause of the Sixth
Amendment.
Upon initial review of McLaughlin’s petition, the court
(Muirhead, M.J.) noted that the petition appeared to be barred by
the one year limitations period imposed by the Antiterrorism and
Effective Death Penalty Act (“AEDPA”) and determined that
6 McLaughlin had not satisfied his burden of showing that he had
exhausted state remedies relative to all of his claims.
Accordingly, McLaughlin was ordered to amend his petition to
demonstrate exhaustion, and explain why it was not time barred.
After reviewing the amended petition filed by McLaughlin,
the Magistrate Judge concluded that he had adequately alleged
exhaustion of his claims. Next, the Magistrate Judge turned to
the timeliness of McLaughlin’s petition and discussed
McLaughlin’s argument as to why the court should not rule his
petition out of time.
Finally, to get around the statute of limitations deadline, McLaughlin asserts that he has presented a “cognizable claim of ‘actual innocence,’” and a “fundamental miscarriage of justice” will result if his claims are not considered.
McLaughlin v . Moore, N o . 00-218-M, slip op. at 12 (Aug. 1 , 2000).
Noting that “proper consideration of McLaughlin’s actual
innocence claims requires a more fully-developed record than that
which is included in McLaughlin’s petition,” id. at 14-15, the
Magistrate Judge ordered that the petition be served on the State
and directed it to file an answer or responsive pleading. The
7 State has complied and moves to dismiss McLaughlin’s petition.
McLaughlin objects and, in support of that objection, has filed
several documents (consisting mainly of newspaper and magazine
articles) relating to Halcion’s potential side effects.
Discussion
McLaughlin’s petition suffers from two defects. First, his
claim concerning the allegedly improper jury instructions was
procedurally defaulted in state court. Thus, in order to pursue
that claim in this forum, he must satisfy the “cause and
prejudice” test o r , in the alternative, demonstrate that a
fundamental miscarriage of justice would result if he were not
allowed to pursue that claim. See Sawyer v . Whitley, 505 U.S.
333, 338-39 (1992) (“Unless a habeas petitioner shows cause and
prejudice, a court may not reach the merits of . . .
procedurally defaulted claims in which the petitioner failed to
follow applicable state procedural rules in raising the claims
. . . . [Nevertheless,] even if a state prisoner cannot meet the
cause and prejudice standard, a federal court may hear the merits
of the successive claims if the failure to hear the claims would
constitute a ‘miscarriage of justice.’”) (citations omitted). A
8 fundamental miscarriage of justice occurs when “a constitutional
violation has probably resulted in the conviction of one who is
actually innocent.” Murray v . Carrier, 477 U.S. 478, 496 (1986).
Second, and perhaps more importantly, unless McLaughlin can
identify a basis upon which to equitably toll the limitations
period established by AEDPA, his entire petition must be denied
as untimely. See 28 U.S.C. § 2244(d)(1) (“A 1-year period of
limitation shall apply to an application for writ of habeas
corpus by a person in custody pursuant to the judgment of a State
court.”). 2 In support of both his assertion that AEDPA’s one-
year limitation period should be tolled and his argument that the
court should address his procedurally defaulted claim, McLaughlin
argues that his petition falls within recognized exceptions to
procedurally defaulted and untimely habeas claims.
2 Petitioners, like McLaughlin, whose convictions became final prior to the effective date of AEDPA, are afforded a one- year grace period beginning on April 2 4 , 1996 (the date on which AEDPA became effective) and ending on April 2 4 , 1997, within which to file. See Rogers v . United States 180 F.3d 349, 354-55 (1st Cir. 1999)(adopting the one-year grace period for petitions filed under 28 U.S.C. § 2255), cert. denied, 528 U.S. 1126 (2000). McLaughlin filed his section 2254 petition in this court on May 1 , 2000, more than three years after that grace period expired.
9 The Magistrate Judge previously addressed and properly
rejected all but one of McLaughlin’s arguments for tolling the
one year limitation period imposed by AEDPA. McLaughlin v .
Moore, N o . 00-218-M, slip op. at 6-12 (D.N.H. Aug. 1 , 2000). The
sole remaining argument for equitable tolling is McLaughlin’s
assertion that he has adequately stated a cognizable claim of
“actual innocence” and demonstrated that a fundamental
miscarriage of justice will occur if the court does not address
the merits of his facially untimely petition. Although the
Magistrate Judge concluded that the record was insufficiently
developed to allow him to resolve that issue, he did observe that
“assertions of actual innocence may justify the consideration of
§ 2254 petitions otherwise time-barred by the AEDPA.” Id. at 1 3 .
Typically, a petitioner raises a claim of “actual innocence”
when he or she cannot otherwise demonstrate “cause and prejudice”
for a procedural default. Whether a claim of “actual innocence”
can also serve to avoid AEDPA’s statute of limitations is a more
cloudy issue that few courts have directly addressed. See, e.g.,
Lucidore v . New York State Div. of Parole, 209 F.3d 107, 114 (2d
Cir. 2000) (“[U]nless [petitioner] can demonstrate that he is
10 actually innocent of the charges to which he pleaded guilty, we
need not reach the question of whether the Constitution requires
an ‘actual innocence’ exception to AEDPA’s statute of
limitations.”). See also Alexander v . Keane, 991 F.Supp. 329,
334-40 (S.D.N.Y. 1998) (discussing in detail, but ultimately
avoiding, the question of whether a petitioner’s “actual
innocence” will toll AEDPA’s limitations period).
Further complicating McLaughlin’s claim is the fact that the
evidence upon which he relies to demonstrate his asserted
innocence has been available to him for several years; the
written material attached to his objection (document n o . 9 ) is
all dated on or before 1994. In fact, that material and his
claims concerning Halcion were the subject of his 1994 state
habeas corpus petition. Accordingly, he easily could have
presented that evidence in support of a timely section 2254
petition. While it is unclear whether a claim of actual
innocence can operate to toll AEDPA’s statute of limitations, it
is even less clear that such an equitable tolling principle can
be invoked by a petitioner who failed to exercise reasonable
diligence in pursuing his federal claims. For example, Judge
11 Siler, writing for seven judges of an equally divided en banc
Court of Appeals for the Sixth Circuit, concluded that, “if a
prisoner purposefully or by inadvertence lets the time run under
which he could have filed his petition, he cannot file a petition
beyond the statutory time, even if he claims ‘actual innocence.’”
Workman v . Bell, 227 F.3d 331, 342 (6th Cir. 2000) (affirmed by
equally divided en banc court).
As discussed more fully below, however, because McLaughlin
has failed to make an adequate showing in support of his claimed
actual innocence of his state crimes of conviction, even if the
one-year statute of limitations could be tolled to permit the
court to address an otherwise untimely habeas corpus petition,
McLaughlin would not benefit from such a rule.
I. Actual Innocence and Procedurally Barred Petitions.
“Actual innocence” is a “narrow exception to the cause-and-
prejudice imperative, seldom to be used, and explicitly tied to a
showing of actual innocence.” Burks v . DuBois, 55 F.3d 712, 717
(1st Cir. 1995). Although the Supreme Court has yet to address
whether actual innocence is available to overcome a statute of
12 limitations bar, it has identified two circumstances in which a
habeas petitioner might invoke the exception, thereby allowing a
reviewing federal court to address otherwise procedurally barred
claims. While those situations arose in the context of death-row
inmates’ petitions for habeas relief, the court will assume that
remedies available to “actually innocent” petitioners are the
same for capital and non-capital defendants. As the United
States District Court for the Northern District of Illinois
observed:
The State suggests that the “actual innocence” exception is only available in capital cases. The Seventh Circuit has never expressly held that to be true, and decisions in other circuits suggest that the “actual innocence” exception is available in non- capital cases. Indeed, this is the only reading that makes sense. How can it be unconstitutional to execute someone who is innocent, but constitutional to jail him?
Hinton v . Snyder, 128 F. Supp. 2d 1165, 1171 (N.D. Ill. 2001)
(citations omitted). See also Simpson v . Matesanz, 175 F.3d 200,
210 (1st Cir. 1999) (suggesting that the “actual innocence” or
“fundamental miscarriage of justice” exception is available to
non-capital defendants), cert. denied, 528 U.S. 1082 (2000);
13 United States v . Barrett, 178 F.3d 3 4 , 57 (1st Cir. 1999) (same),
cert. denied, 528 U.S. 1176 (2000).
The first situation in which a claim of “actual innocence”
might arise occurs when a petitioner acknowledges that his trial
was fair and free of constitutional defects but, because he
claims to be actually innocent of the crime of conviction, says
the punishment imposed on him violates the Eighth Amendment. See
Herrera v . Collins, 506 U.S. 390 (1993). The second occurs when
a petitioner claims that his criminal trial was tainted in some
manner that violates the Constitution (e.g., ineffective
assistance of counsel) and argues that because he is actually
innocent of his crime of conviction, the court should excuse his
failure to adhere to the procedural rules applicable to habeas
corpus petitions and, instead, consider the merits of his
constitutional claims. See Schlup v . Delo, 513 U.S. 298 (1995).
The Court explained the distinction as follows:
As a preliminary matter, it is important to explain the difference between Schlup’s claim of actual innocence and the claim of actual innocence asserted in Herrera v . Collins, 506 U.S. 390 (1993). In Herrera, the petitioner advanced his claim of innocence to support a novel substantive constitutional claim, namely, that the execution of an innocent person would violate the
14 Eighth Amendment. Under petitioner’s theory in Herrera, even if the proceedings that had resulted in his conviction and sentence were entirely fair and error free, his innocence would render his execution a “constitutionally intolerable event.”
Schlup’s claim of innocence, on the other hand, is procedural, rather than substantive. His constitutional claims are based not on his innocence, but rather on his contention that the ineffectiveness of his counsel, and the withholding of evidence by the prosecution, denied him the full panoply of protection afforded to criminal defendants by the Constitution.
Schlup, 513 U.S. at 313-14 (citations omitted). Here,
McLaughlin, like the petitioner in Schlup, does not claim that
his asserted “actual innocence” has itself given rise to any
constitutional violation relative to his continued imprisonment.
That is to say, he does not challenge his sentence on grounds
that he was wrongfully convicted notwithstanding a
constitutionally error-free trial. Instead, he presents a claim
of actual innocence as a means by which to justify this court’s
consideration of his otherwise untimely Strickland claims and his
procedurally barred challenge to the state trial court’s jury
instructions - attacks upon his underlying state convictions.
His challenge i s , therefore, what has come to be known as a
“gateway” claim of actual innocence. See Schlup, 513 U.S. at 315
(“Schlup’s claim of innocence does not by itself provide a basis
15 for relief. Instead, his claim for relief depends critically on
the validity of his Strickland and Brady claims. Schlup’s claim
of innocence is thus ‘not itself a constitutional claim, but
instead a gateway through which a habeas petitioner must pass to
have his otherwise barred constitutional claim considered on the
merits.’”) (citation omitted).
To meet his threshold burden of proof, McLaughlin must point
to sufficient evidence suggesting his actual innocence to
undermine confidence in his state court convictions. Again, the
Supreme Court’s opinion in Schlup is instructive.
If there were no question about the fairness of the criminal trial, a Herrera-type claim would have to fail unless the federal habeas court is itself convinced that those new facts unquestionably establish Schlup’s innocence. On the other hand, if the habeas court were merely convinced that those new facts raised sufficient doubt about Schlup’s guilt to undermine confidence in the result of the trial without the assurance that the trial was untainted by constitutional error, Schlup’s threshold showing of innocence would justify a review of the merits of the constitutional claims.
Id. at 317. In the latter category of habeas corpus petitions
(into which McLaughlin falls), the petitioner must show “that a
constitutional violation has probably resulted in the conviction
16 of one who is actually innocent.” Id. at 327. And, to satisfy
that burden, the petitioner must demonstrate that “it is more
likely than not that no reasonable juror would have convicted him
in the light of the new evidence.” Id.
In other words, that standard “requires the district court
to make a probabilistic determination about what reasonable,
properly instructed jurors would d o . Thus, a petitioner does not
meet the threshold requirement unless he persuades the district
court that, in light of the new evidence, no juror, acting
reasonably, would have voted to find him guilty beyond a
reasonable doubt.” Id. at 329. In her concurrence, Justice
O’Connor explained: “This standard is higher than that required
for prejudice, which requires only a reasonable probability that,
absent the errors, the factfinder would have had a reasonable
doubt respecting guilt. Instead, a petitioner does not pass
through the gateway erected by Murray v . Carrier, 477 U.S. 478
(1986), if the district court believes it more likely than not
that there is any juror who, acting reasonably, would have found
the petitioner guilty beyond a reasonable doubt.” Id. at 333-34.
17 II. Actual v s . Legal Innocence.
Having identified the burden of proof imposed on petitioners
asserting “gateway” claims of actual innocence, the court next
considers the State’s claim that McLaughlin’s factual allegations
are not properly viewed as an assertion of actual innocence and
must, instead, be viewed merely as a claim of legal innocence.
If the State is correct, McLaughlin cannot avail himself of the
fundamental miscarriage of justice or “actual innocence”
exception, even if that exception could, under appropriate
circumstances, serve to toll AEDPA’s limitations provision.
In order to show that he is actually innocent, a petitioner
“must show a fair probability that, in light of all the evidence,
. . . the trier of facts would have entertained a reasonable
doubt about his guilt.” Kuhlmann v . Wilson, 477 U.S. 436, 455
n.17 (1986) (citation omitted) (emphasis supplied). Thus, there
is a meaningful distinction between a claim of “actual innocence”
and a claim of “legal innocence.” In the latter category a
petitioner does not assert that he or she is factually innocent,
but instead argues, for example, that inadmissible evidence led
to his or her conviction, or that the evidence admitted at trial
18 was legally insufficient to support a conviction. See Bousley v .
United States, 523 U.S. 614, 623 (1998) (“It is important to note
in this regard that ‘actual innocence’ means factual innocence,
not mere legal insufficiency.”). See also United States v .
Barrett, 178 F.3d 3 4 , 57 (1st Cir. 1999).
What is somewhat unusual about McLaughlin’s petition -
rendering more difficult the determination as to whether he
properly claims “actual” or merely “legal” innocence - is that he
does not deny that he fatally shot Robert Cushing. Instead, he
says that although he caused the death of his victim, he is
“innocent” of first degree murder since, at the time of the
shooting, he suffered from drug and alcohol-induced intoxication
and, therefore, did not have the culpable mental state essential
for first degree murder. In response, the State suggests that
McLaughlin cannot demonstrate his actual innocence, since: (1) he
concedes that he shot Cushing; and (2) under New Hampshire law,
“intoxication is not, as such, a defense.” N.H. Rev. Stat. Ann.
(“RSA”) 626:4. Importantly, however, New Hampshire criminal law
provides that while intoxication is not a defense, evidence of
intoxication may be introduced “whenever it is relevant to negate
19 an element of the offense charged, and it shall be taken into
consideration in determining whether such element has been proved
beyond a reasonable doubt.” Id. Here, McLaughlin plainly
asserts that, if the jury had been presented with a full and
accurate picture of the true extent of his intoxication, it would
have acquitted him of first degree (i.e., deliberate or
premeditated) murder and conspiracy to commit murder. See RSA
630:1-a and RSA 629:3.
That (as the State argues) McLaughlin might have been found
guilty of a lesser charge, is of no significance. The focus must
necessarily remain on whether a petitioner has demonstrated his
or her actual innocence of the crime(s) of conviction.
Although a prototypical example of “actual innocence” is the case where the State has convicted the wrong person of the crime, one is also actually innocent if the State has the “right” person but he is not guilty of the crime with which he is charged. Should [petitioner’s] contention that he could not deliberate prove true, he would have been incapable of satisfying an essential element of the crime for which he was convicted. This meets the definition of actual innocence. Although [petitioner] is responsible for the victim’s death in the sense that he was the causative agent that inflicted the mortal wounds, his alleged incapacity to form the predicate deliberative intent, without which he could not have been found
20 guilty of capital murder, differentiates his claim from one of mere legal innocence.
Jones v . Delo, 56 F.3d 878, 883 (8th Cir. 1995)(citations and
internal quotation marks omitted) (emphasis supplied). See also
Britz v . Cowan, 192 F.3d 1101, 1103 (7th Cir. 1999) (holding that
if acquitted on grounds of insanity, a defendant is actually
innocent of murder, notwithstanding the fact that he caused the
death of his victim).
Nevertheless, it is unclear from McLaughlin’s petition and
subsequent filings whether he truly advances a claim of actual
innocence or merely one of legal innocence. His pleadings might
plausibly be read to assert that, due to ineffective assistance
of trial counsel, the jury was not presented with additional (but
readily available) evidence of McLaughlin’s intoxication on the
night of the shooting - i.e., his alleged use of Halcion. Viewed
in that light, McLaughlin’s claim would appear to be one of
insufficiency of the evidence. That is to say, one might
interpret McLaughlin’s petition as asserting that if the jury had
been presented with evidence concerning his alleged use of
Halcion, that would have tipped the scales and compelled the jury
21 to find that his diminished capacity - caused by the combined
effects of alcohol, Xanax, and Halcion - precluded him from
forming the requisite criminal intent. Such a claim, however, is
not legally distinct from an assertion that if the jury had been
presented with additional evidence concerning, say, the quantity
of alcohol he had consumed, it would then have had sufficient
evidence to find him not guilty by reason of insanity. In short,
such a claim advances the following theory: evidence of one more
drink of alcohol or one more drug that he had taken on the night
in question would have persuaded all rational jurors that
McLaughlin was sufficiently intoxicated to be unable to form the
requisite culpable state of mind. If that is McLaughlin’s
position, it must be viewed as a claim of legal, rather than
actual, innocence because it focuses on the weight of the
evidence presented to the jury and argues that a bit more
evidence of his general state of intoxication would have been
sufficient to obtain an acquittal.
I f , on the other hand, McLaughlin is asserting that the
intoxicating effect of Halcion necessarily precluded him from
forming the requisite criminal intent, that claim would properly
22 be viewed as one of actual innocence. In other words, if
McLaughlin could credibly assert that Halcion like, for example,
Rohypnol (also known as the “date rape drug”), precludes anyone
who is under its influence (particularly someone who is also
under the influence of alcohol and Xanax) from forming cogent,
rational thoughts, the court might properly treat his claim as
one of actual innocence. In that case, the argument would focus
on an (allegedly) known and predictable effect Halcion has on its
users: that it renders all who take it unable to form organized
and rational thoughts. Thus, it would not constitute merely
cumulative evidence of general intoxication, but instead would
amount to evidence of a unique form of intoxication that, if
presented to a jury, would have persuasively established that he
was incapable of forming the requisite culpable state of mind.
What McLaughlin claims is not entirely clear. His filings
and references to attached documents might plausibly be read
either way. Accordingly, giving McLaughlin the benefit of the
doubt, the court will treat his claim as a valid assertion of
actual innocence: i.e., his alleged use of Halcion did not simply
`exacerbate his level of intoxication but, instead, actually
23 precluded him from forming the requisite culpable state of mind
prior to shooting his victim.
III. McLaughlin’s Evidence of Actual Innocence.
Treating McLaughlin’s claim as one of actual innocence, the
final inquiry is whether he has pointed to sufficient evidence to
warrant the conclusion that, if defense counsel had introduced
evidence of his alleged use of Halcion on the night of the
shooting, no reasonable juror would have convicted him of first
degree murder. On that point, McLaughlin’s petition comes up
short.
First, the evidence McLaughlin offers to support his claim
that he was under the influence of Halcion on the night of the
shooting is both weak and contradictory. It consists solely of
his unsworn and uncorroborated representation that, prior to
shooting Cushing, he had been drinking and taking Xanax and
Halcion. Additionally, the source of the Halcion he claims to
have taken appears to be the subject of some confusion. In his
state habeas petition, McLaughlin represented that “he had been
on prescribed nerve medication Xanax and was taking his wife’s
24 sleeping medication Halcion . . . The Halcion pills Petitioner
was taking with his large dosage of prescribed Xanax, were in
fact from his wife’s prescription of Halcion.” State petition at
3-4 (emphasis supplied). In his federal habeas petition,
however, McLaughlin claims that “Petitioner was prescribed to
take 0.5 mg of both Halcion and Xanax for some two years.”
Petition for Habeas Corpus (document n o . 1 ) at 17 (emphasis
supplied). Although a copy of his prescription for Xanax was
introduced at trial and expert witnesses testified about his use
of Xanax and explained why it had been prescribed, McLaughlin has
failed to point to any evidence that Halcion was ever prescribed
for him, as he now claims.
And, notwithstanding having interviewed McLaughlin and/or
engaged in an extensive review of his well-documented and
substantial medical history, not one of the expert witnesses who
testified at trial made even a single reference to McLaughlin’s
claimed prescription for or use of Halcion. I f , as McLaughlin
says, there was “an emerging body of medical research . . . since
the 1970’s which grew in volume and authenticity in the 1980’s”
that supported an insanity (or diminished capacity) defense based
25 on the use of Halcion, petitioner’s objection at 5 , it seems
reasonable to assume that even if his legal counsel did not
recognize the significance of his alleged prescription for and
use of Halcion, at least one of his medical experts would have
done s o . This is particularly so in light of the fact that each
of those experts fully understood that McLaughlin acknowledged
shooting Cushing but was pursuing an insanity defense and each
expert realized that he had been retained to examine McLaughlin
and testify in support of that line of defense. Their complete
silence on that issue, combined with McLaughlin’s conflicting
statements as to the source of the Halcion, reflect adversely on
McLaughlin’s current bald assertion that he had been taking
Halcion for as long as two years prior to the shooting and was,
in fact, under the influence of Halcion on that night.
Even if McLaughlin had presented plausible facts supporting
his claim to have been under the influence of Halcion on the
night of the shooting (which he has n o t ) , he has failed to show
that a person under the influence of Halcion (whether alone or
when combined with alcohol and Xanax) is more likely to be
incapable of premeditation and/or deliberation than one under the
26 influence of only alcohol and Xanax. Although he points to some
anecdotal evidence suggesting that some criminal defendants (and
civil plaintiffs) have successfully demonstrated that Halcion can
have an adverse effect on a patient’s mental state, he has failed
to point to any reliable study or finding supporting his claim
that Halcion “cause[s] extreme and uncontrolled psychological
changes in persons” using i t . Petition for Habeas Corpus at 1 7 .
Thus, he has failed to plausibly suggest a causal connection
between Halcion and uncontrollable violent behavior and/or
reduced mental capacity. Simply because one may have committed a
violent act while taking Halcion does not establish that Halcion
caused or contributed to that violence, or rendered the user
incapable of forming the requisite intent for first degree
murder.
McLaughlin’s reference to a 1991 decision by the British
Department of Health to ban sales of Halcion in Great Britain is
not very compelling since, according to the materials submitted
by McLaughlin, that decision was based on “evidence that the pill
is associated with a much higher frequency of side effects,
particularly memory loss and depression.” Petition for Habeas
27 Corpus, Exhibit H. That decision does not appear to have been
related in any way to McLaughlin’s point – that Halcion might
contribute to violent conduct or prevent users from premeditating
or deliberating prior to engaging in acts of violence.3
At trial, McLaughlin’s defense counsel vigorously pursued a
diminished capacity defense and presented substantial evidence
concerning McLaughlin’s depressed mental state, anxiety, suicidal
tendencies, and intoxication (from both alcohol and an overdose
of Xanax) on the night of the shooting. Three expert witnesses
testified extensively in support of McLaughlin’s insanity
defense. And, in his closing, defense counsel repeatedly and
forcefully urged the jury to credit that expert testimony and
find that the State had failed to prove that McLaughlin killed
Mr. Cushing with the requisite premeditation. In light of the
3 It is unclear from the record whether Britain has revisited its decision to ban the sale of Halcion. And, while the documentation submitted by McLaughlin suggests that the Food and Drug Administration has, in response to consumer complaints, investigated the drug’s safety, it does not appear that the FDA has concluded that the drug is unsafe or likely to cause dangerous side effects. As one of the articles submitted by petitioner points out, “Many researchers contend that the media have exaggerated Halcion’s dangers. ‘This is sensationalism at its worst,” says Dr. James Walsh, president of the American Sleep Disorders Associations. ‘There is no scientific justification for this action.’” Petition for Habeas Corpus, Exhibit H.
28 vigor with which counsel pursued an insanity defense, additional
evidence of McLaughlin having also been under the influence of
Halcion (assuming, of course, he could produce such evidence)
likely would have been merely cumulative. In any event, the
court cannot say that evidence of McLaughlin’s use of Halcion
would have been sufficiently compelling to warrant a conclusion
that, had that evidence been presented and considered in light of
the entire record, it is more likely than not that no reasonable
juror would have found him guilty beyond a reasonable doubt.
Also counseling against adoption of McLaughlin’s position is
the fact that the prosecution presented substantial and
compelling evidence that, notwithstanding his intoxicated state
(regardless of the underlying source of that intoxication),
McLaughlin acted with premeditation and deliberation on the
evening of the shooting. As the New Hampshire Supreme Court
observed, the jury was presented with evidence that: prior to
driving to the victim’s home, McLaughlin and his wife formulated
a moderately elaborate plan to kill Cushing involving, among
other things, the use of disguises; McLaughlin and his wife both
brought weapons to the victim’s home - she carried a karate staff
29 and he carried a shotgun; McLaughlin’s wife stood guard while he
approached the victim’s door; after McLaughlin shot Cushing, the
pair quickly fled the scene and disposed of the murder weapon;
McLaughlin confessed to his son that he shot Cushing “to pay this
guy back” for a multi-year grudge he held; and, notwithstanding
his claim to have been so intoxicated as to have been unable to
form the requisite criminal intent, McLaughlin remembered events
of that evening six weeks later when he confessed to his son, and
nearly three months later when he confessed to Officer Victor
DeMarco. See State v . McLaughlin, 135 N.H. at 670-71.
Despite having heard substantial evidence and expert
testimony concerning McLaughlin’s intoxication, a reasonable
juror certainly could have credited the State’s witnesses and
found his course of conduct, and subsequent recollection of the
events in question, to be the product of “a mind capable of
deliberation and premeditation.” Wilson v . Greene, 155 F.3d 396,
405 (4th Cir. 1998). McLaughlin has failed to plausibly suggest
that additional evidence related to his intoxication defense - in
the form of testimony concerning his alleged use of Halcion, as
well as Xanax and alcohol, prior to and on the evening of the
30 shooting - would have so undermined the compelling evidence
establishing both deliberation and premeditation that no
reasonable juror would have voted to convict. Consequently, the
court cannot conclude that, if presented with the additional
evidence of intoxication upon which McLaughlin relies, “it is
more likely than not that no reasonable juror would have
convicted him in the light of the new evidence.” Schlup, 513
U.S. at 327.
As the Supreme Court has held, to prevail on an actual
innocence claim, the petitioner must not merely demonstrate that
“a reasonable doubt exists in the light of the new evidence, but
rather that no reasonable juror would have found [him] guilty.”
Id. at 329. McLaughlin has not met that burden. See generally
Simpson, 175 F.3d at 210 (holding that defendant was “far from
being able to claim actual innocence” in light of compelling
evidence of his guilt); Mathenia v . Delo, 99 F.3d 1476, 1481-82
(8th Cir. 1996) (concluding that evidence that defendant
announced his intention to retaliate against his victims and
drove two blocks to commit the second murder, would have
permitted a rational fact-finder to conclude that he deliberated
31 before killing his victims even if evidence of his prior
institutionalization and mental health history had been
presented); McQueen v . Scroggy, 99 F.3d 1302, 1318 (6th Cir.
1996) (concluding that in light of compelling evidence of
defendant’s guilt and notwithstanding evidence of his
intoxication, “there was no plausible claim of actual
innocence.”); Nave v . Delo, 62 F.3d 1024, 1032-33 (8th Cir. 1995)
(holding that in light of substantial evidence of defendant’s
guilt, even if jury had been presented with evidence of his
intoxication, it still “probably would have convicted [him] of
capital murder.”).
Conclusion
McLaughlin’s petition for habeas corpus relief was filed in
May of 2000, well beyond the statutory one-year limitations
period established by AEDPA. None of the issues raised in that
petition involves “newly discovered evidence” in the sense that
such evidence was unavailable to McLaughlin in 1997, when a
timely petition could have been filed. In fact, when he
petitioned the State court for habeas relief in 1994, McLaughlin
raised precisely the same issues on precisely the same grounds he
32 now advances in this court. Then, as now, he claimed that “new
evidence” concerning the effects of Halcion undermined the jury’s
conclusion that he acted with deliberation and premeditation
prior to killing Mr. Cushing. After that petition was denied,
McLaughlin inexplicably waited nearly three years before filing
an untimely appeal to the New Hampshire Supreme Court. And, he
then inexplicably waited another two-and-one-half years before
filing a federal habeas petition. He has advanced no justifiable
explanation for why he could not have pursued those same claims
in this court in a timely manner.
As to McLaughlin’s assertion that his “actual innocence” of
first degree murder justifies consideration of his otherwise
time-barred and procedurally defaulted claims, he has failed to
demonstrate entitlement to such relief, even assuming an actual
innocence exception to the statute of limitations. Moreover,
since McLaughlin plainly knew that he had been taking Halcion for
two years prior t o , and on the evening o f , the shooting
(assuming, of course, that was actually the case), and because he
possessed evidence concerning what he calls the “Halcion defense”
since at least 1994, it is doubtful that McLaughlin could invoke
33 equitable relief given his lack of diligence in pursuing his
federal habeas claim.
Plainly, AEDPA was designed and intended to encourage
petitioners to file timely claims, before evidence becomes stale,
witnesses’ memories fade, records are mislaid, etc. Here,
notwithstanding his assertion of “actual innocence,” McLaughlin
waited more than three years after AEDPA’s grace period expired
before presenting his federal claims, despite the fact that he
has possessed all the evidence upon which he currently relies for
more than six years. There is at least some judicial authority
suggesting that even if an actual innocence exception to AEDPA’s
time limitation must necessarily be inferred, that exception is
not available to petitioners who fail to pursue their claims in a
diligent manner. See Workman v . Bell, supra.
In summary, the State’s evidence concerning McLaughlin’s
behavior prior to and following the murder amounted to
substantial and compelling proof of McLaughlin’s premeditation
and deliberation. McLaughlin has failed to plausibly show: (1)
that he was actually taking Halcion on or before the night of the
34 shooting; or (2) even assuming he was taking Halcion, that it is
more likely than not that, if presented with such evidence, no
reasonable juror would have convicted him of first degree murder
or conspiracy to commit murder; or (3) even if he had
sufficiently demonstrated his “actual innocence” and assuming
such evidence might, in some cases, warrant the tolling of
AEDPA’s limitation period, that such an equitable tolling
principle may be invoked by a petitioner who failed to pursue his
or her claims in a diligent and reasonably prompt, albeit
untimely, manner.
Because McLaughlin has failed to demonstrate that the court
may properly address the substance of his procedurally defaulted
and time-barred claims, the State’s motion to dismiss (document
n o . 8 ) is granted. The Clerk of Court shall enter judgment in
accordance with this order and close the case.
35 SO ORDERED.
Steven J. McAuliffe United States District Judge
May 2 2 , 2001
cc: Robert A . McLaughlin, Sr. Stephen D. Fuller, Esq