Bourdon v. Northern NH Correctional Facility, Warden

Filing 62

ORDER denying 60 Motion to Reopen Case; denying as moot 61 Motion to Stay. So Ordered by Chief Judge Landya B. McCafferty.(js)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

Ronald Bourdon
v.

Civil No. 15-cv-138-LM
Opinion No. 2018 DNH 229

Warden, Northern New Hampshire
Correctional Facility1

O R D E R
Before the court are petitioner Ronald Bourdon’s postjudgment motions (doc. nos. 60, 61) to reopen this case and to
reinstate Claim 13 in his § 2254 petition; and to stay this case
until the New Hampshire Supreme Court issues a final order in
State v. Bourdon, No. 2018-0540 (N.H., filed Sept. 27, 2018).
Background
This court on August 16, 2017 dismissed Bourdon’s § 2254
petition without prejudice, finding that Bourdon had not
exhausted his available and effective state remedies as to
Claims 1(C), 2, 5(D), 5(E), 5(F), 6(B), 6(C), 6(D), 10(A), and
10(B) in the petition, and that he had neither demonstrated good
cause for a stay, nor stated a credible claim of actual

1Bourdon

filed this petition while Michelle Goings remained
the Northern New Hampshire Correctional Facility warden. Goings
no longer holds that position. The court has substituted the
office of the warden as the respondent in the case caption.

innocence.

See Aug. 16, 2017 Order (doc. no. 47) (approving

July 18, 2017 R&R (doc. no. 45)).

Judgment was entered on

August 16, 2017 (doc. no. 48).
Bourdon has moved to reopen that judgment and to reinstate
a claim (Claim 13) that this court dismissed in 2016, pursuant
to 28 U.S.C. § 2254(i), before judgment was entered.

State

court documents filed as exhibits to that motion to reopen, see
doc. no. 60-1, indicate that Bourdon filed a new postconviction
proceeding in Superior Court after the dismissal of this action,
asserting a completely new claim of a Brady violation and a six
of the claims raised in the 2254 petition (Claims 1(C), 2, 5(E),
5(F), 6(B), and 10(A)) that this court had found were previously
unexhausted.2

Bourdon asserts that the Superior Court denied his

motion for a new trial on August 3, 2018 and then denied his
motion to reconsider on September 6, 2018.

Bourdon filed a

notice of discretionary appeal as to those rulings, which
remains pending.

See State v. Bourdon, No. 2018-0540 (N.H.,

filed Sept. 27, 2018).

2Bourdon

appears to have abandoned Claim 6(C) as a ground
for relief; Claim 6(C) was one of several claims this court
previously found were unexhausted. The parts of the state court
record Bourdon has filed with his motion to reopen, see doc. no.
60-1, however, do not reveal whether Bourdon has abandoned or
recently raised in the state courts the three remaining claims
this court had found were unexhausted (Claims 5(D), 6(D), and
10(B)).
2

Discussion
I.

Motion to Reopen and Reinstate Claim 13 (Doc. No. 60)
A.

Rule 60(b) Motion and Standard

This court construes Bourdon’s motion to reopen and
reinstate Claim 13 (doc. no. 60) as seeking to vacate the August
16, 2017 judgment (doc. no. 48), pursuant to Federal Rule of
Civil Procedure 60(b), and to reopen the case.

Construed

liberally, Bourdon’s motion to reopen asserts that this court
erred in finding that Bourdon lacked a viable gateway claim of
actual innocence sufficient to overcome his failure to exhaust
his state remedies as to all of the claims in his mixed
petition.

Bourdon also asserts that the court erred in finding

that Claim 13 was barred by 28 U.S.C. § 2254(i).
Rule 60(b) allows the court to relieve a party from a final
judgment for reasons listed in subsections (1) through (6) of
that rule.3

3Rule

Relief under Rule 60(b) is “extraordinary,” so that

60(b) provides as follows:

On motion and just terms, the court may relieve a party or
its legal representative from a final judgment, order, or
proceeding for the following reasons:
(1) mistake, inadvertence, surprise, or excusable
neglect;
(2) newly discovered evidence that, with reasonable
diligence, could not have been discovered in time to
move for a new trial under Rule 59(b);
3

a party seeking relief “must establish, at the very least, that
his motion is timely; that exceptional circumstances exist,
favoring extraordinary relief; that if the judgment is set
aside,” he can “mount a potentially meritorious claim or
defense; and that no unfair prejudice will accrue to the
opposing parties should the motion be granted.”

Rivera–

Velázquez v. Hartford Steam Boiler Insp. & Ins. Co., 750 F.3d 1,
3–4 (1st Cir. 2014).
B.

Rule 60(b)(1)-(3)

Although Bourdon’s motion does not specify which part of
Rule 60(b) he intends to invoke to vacate the judgment, Bourdon
appears to rely on Rule 60(b)(1)-(3).

Bourdon appears to be

asserting claims of excusable neglect, newly discovered
evidence, and/or respondent’s misconduct as grounds for relief

(3) fraud (whether previously called intrinsic or
extrinsic), misrepresentation, or misconduct by an
opposing party;
(4) the judgment is void;
(5) the judgment has been satisfied, released, or
discharged; it is based on an earlier judgment that
has been reversed or vacated; or applying it
prospectively is no longer equitable; or
(6) any other reason that justifies relief.
Fed. R. Civ. P. 60(b)(1)-(6).
4

under Rule 60(b)(1)-(3).4

Bourdon’s Rule 60(b) motion to reopen

was filed more than a year after the August 2017 entry of
judgment, however, too late to obtain relief under those
subdivisions of the rule.

See Fed. R. Civ. P. 60(c)(1).

Bourdon’s motion is thus denied as untimely to the extent
Bourdon intended to rely on the grounds specified in Rule
60(b)(1)-(3).
C.

Rule 60(b)(4)-(5)

“Rule 60(b)(4) applies only in the rare instance where a
judgment is premised either on a certain type of jurisdictional
error or on a violation of due process that deprives a party of
notice or the opportunity to be heard.”

United Student Aid

Funds, Inc. v. Espinosa, 559 U.S. 260, 271 (2010); see also 11
Charles A. Wright, Arthur R. Miller et al., Fed. Prac. & Proc.
Civ. § 2862 (3d ed.).

There is no error in this court’s

exercise of jurisdiction over Bourdon’s claims pursuant to 28
U.S.C. §§ 2241 and 2254.

Bourdon has failed to show that he did

4Bourdon

asserts that respondent in filing its answer in
this action did not include a copy of a motion filed by his
post-conviction counsel in the state courts which Bourdon
asserts he needed to respond appropriately to respondent’s
dispositive motion, and that officers at the prison left his
legal files in disarray after searching his cell, in a manner
that impinged on his ability to litigate post-conviction
proceedings in the state courts and in this court.
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not receive due process in this case.

Rule 60(b)(4) does not

provide grounds for reopening the judgment here.
Rule 60(b)(5) applies where the underlying judgment has
some prospective effect that has since been satisfied, released,
or discharged, or where the judgment was based on an earlier
judgment since vacated or reversed.
60(b)(5).

See Fed. R. Civ. P.

While the dismissal without prejudice has not

prevented Bourdon from seeking to exhaust his state remedies and
then seeking to refile a new petition here, none of this court’s
orders underlying the judgment required Bourdon to do so postjudgment.5

His belated (as-yet incomplete) exhaustion efforts

were not compelled by any order of this court.

Accordingly,

this court denies the motion to reopen the judgment at this
time, to the extent Bourdon seeks relief under Rule 60(b)(5).
See Brooks v. Williams, No. 2:10-cv-00045-GMN-LRL, 2013 WL
835973, at *2-*3, 2013 U.S. Dist. LEXIS 32618, at *6-*8 (D. Nev.
Mar. 6, 2013) (petitioner’s post-judgment exhaustion of state
remedies, after federal court had dismissed petition without
prejudice, did not provide grounds for reopening judgment).

5This

court expresses no opinion at this time as to whether
the statute of limitations would affect Bourdon’s ability to
litigate his claims successfully in a new petition filed under
28 U.S.C. § 2254.
6

D.

Rule 60(b)(6)
1.

Standard

Rule 60(b)(6) is a catch-all provision for motions to
reopen a judgment that do not raise issues encompassed by the
other subdivisions of Rule 60(b).

“Relief is available under

subdivision (b)(6), however, only in ‘extraordinary
circumstances,’” Buck v. Davis, 137 S. Ct. 759, 772 (2017)
(citation omitted), including, for example a risk of injustice
to the parties, id. at 778-779 (citation omitted).

Showing the

existence of “‘a good claim or defense’ is a precondition of
Rule 60(b)(6) relief.”

Id. at 780 (citation omitted); see also

Rivera–Velázquez, 750 F.3d at 3.
2.

Claim 13

Bourdon seeks to reopen the judgment specifically to
relitigate whether Claim 13 is barred by 28 U.S.C. § 2254(i).
See Dec. 29, 2016 Order (doc. no. 34) (approving Nov. 30, 2016
R&R (doc. no. 32)) (dismissing Claim 13).

Section 2254(i)

generally precludes this court from granting relief on the
merits of claims asserting ineffective assistance of counsel in
post-conviction proceedings.

See 28 U.S.C. § 2254(i).

Nothing

asserted in Bourdon’s motion to reopen calls into question this
court’s prior ruling, see Dec. 29, 2016 Order (doc. no. 34),
that relief on Claim 13 is barred by section 2254(i).
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Accordingly, this court declines to vacate the judgment to
reinstate Claim 13 (doc. no. 60).
3.

Actual Innocence
a.

Standard

Bourdon seeks to avoid procedural impediments to his
ability to obtain relief on the merits of his claims in his
section 2254 petition by maintaining his actual innocence here.
“[A]ctual innocence, if proved, serves as a gateway” through
which a court may review the merits and grant relief on federal
habeas claims that would otherwise be subject to procedural
bars, like the procedural default rules.

See McQuiggin v.

Perkins, 569 U.S. 383, 386 (2013); see also Coningford v. Rhode
Island, 640 F.3d 478, 482 n.2 (1st Cir. 2011) (colorable claims
of actual innocence may provide gateway for courts to issue
relief on merits of unexhausted claims) (dicta).
To plead a “credible” claim of actual innocence, the
petitioner must “support his allegations of constitutional error
with new reliable evidence -- whether it be exculpatory
scientific evidence, trustworthy eyewitness accounts, or
critical physical evidence -- that was not presented at trial.”
Schlup v. Delo, 513 U.S. 298, 324 (1995).

“To succeed on his

actual innocence claim, [petitioner] ‘must establish that, in
light of new evidence, it is more likely than not that no
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reasonable juror would have found [him] guilty beyond a
reasonable doubt,’” if that evidence had been known at the time
of the conviction.

Gaskins v. Duval, 640 F.3d 443, 454 (1st

Cir. 2011) (citations omitted).

Gateway claims of actual

innocence must show that a petitioner is factually innocent; it
is not enough for a petitioner to establish the legal
insufficiency of the inculpatory evidence.

Bousley v. United

States, 523 U.S. 614, 623 (1998).
b.

Impeachment Evidence

Bourdon relies on what he considers to be new impeachment
evidence to support his present claim of actual innocence:
specifically, an EMT report attached to his motion to reopen,
see doc. no. 60-1, and a recording of the 911 call that summoned
the EMTs to Bourdon’s house after the wounded teenage victims
(“Scott” and “Dylan”) fled the premises.

Bourdon argues that

jurors would not believe the victims’ testimony regarding the
stabbing: if the jurors had been able to compare the victims’
testimony about re-entering the house to get their father out,
and what Bourdon believes the 911 recording would show regarding
their failure to re-enter the house after they had fled; and if
the jurors had been aware of inconsistencies between Scott’s
statements to the EMTs regarding the size and type of knife
(“butcher knife,” approximately “5 to 8 inches” long) and its
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depth of penetration (“to the hilt”), and the EMTs’ observations
regarding the width of the wound in his lower right side (2 to 3
inches wide) and the body parts visible and protruding from the
wound (blood and “subcutaneous fat”).

Bourdon characterizes

those statements as evidence that Scott was seeking pain pills
for his addiction by exaggerating the nature of his stab wound,
and he argues specifically that the impeachment evidence would
have drawn into question the victims’ testimony that Bourdon
considered necessary for his attempted murder and first degree
assault convictions.
Impeachment evidence of the type highlighted by Bourdon is
generally deemed to provide an inadequate basis for proving
actual innocence.

See Conlan v. Hazlewood, No. 17-CV-181-JL,

2017 WL 6464713, at *4 (D.N.H. Nov. 7, 2017) (citing Holt v.
Stirling, No. CV 6:15-4865-TMC, 2017 U.S. Dist. LEXIS 42904, at
*10, 2017 WL 1105064, at *4 (D.S.C. Mar. 24, 2017) (citing,
e.g., Sawyer v. Whitley, 505 U.S. 333, 349 (1992) (“This sort of
latterday evidence brought forward to impeach a prosecution
witness will seldom, if ever, make a clear and convincing
showing that no reasonable juror would have believed the heart
of [the witness’s] account of petitioner’s actions.”), R&R
adopted, No. 17-CV-00181-JL, 2018 WL 2303100 (D.N.H. May 21,
2018).

Bourdon’s case is not exceptional in this regard.

10

While it may be possible that inconsistencies between
Scott’s statements and the EMTs’ observations could cast doubt
on the accuracy of Scott’s self-described condition, the size or
type of knife, or how far up it penetrated, such evidence would
not preclude any reasonable juror from finding Bourdon’s guilt
based on the doctors’ trial testimony regarding the nature and
extent of Scott’s wound; other evidence in the record that
corroborated details of the victims’ narratives, including their
consistent testimony that Bourdon had been drinking and became
enraged when he accused them of stealing his laptops; evidence
regarding Bourdon’s resisting arrest at the scene and his
inculpatory statements to the police (“I did what I had to do.
Put me in jail for the rest of my life; I don’t care.”); and
Bourdon’s failure to state contemporaneously to the police that
he had acted in self-defense, the defense he presented at trial.
Furthermore, much of what Scott is alleged to have said to the
EMTs regarding the knife and its depth of penetration came
before the jury when they heard the testimony of the surgeon who
operated on Scott, who recalled that Scott continued to report
about the knife and his wound upon his arrival at Brigham and
Women’s Hospital.

Neither the EMT report nor Bourdon’s

speculation regarding the 911 call is the type of “new” reliable
“exculpatory scientific evidence, trustworthy eyewitness

11

accounts, or critical physical evidence,” which could establish
factual innocence.

Schlup, 513 U.S. at 324.

Bourdon has not

shown that the judgment should be reopened under Rule 60(b)(6)
based on a claim of actual innocence.
II.

Motion to Stay (Doc. No. 61)
Bourdon has moved to stay this petition pending a ruling in

State v. Bourdon, No. 2018-0540 (N.H., filed Sept. 27, 2018).
In light of this Order’s denial of Bourdon’s motion to reopen
the judgment (doc. no. 60), Bourdon’s motion to stay this case
(doc. no. 61) is denied as moot.
Certificate of Appealability
The Rules Governing Section 2254 Proceedings (Ҥ 2254
Rules”) require the court to “issue or deny a certificate of
appealability when it enters a final order adverse to the
party.”

§ 2254 Rule 11(a).

When the district court denies a habeas petition on
procedural grounds without reaching the prisoner’s
underlying constitutional claim, a [certificate of
appealability] should issue when the prisoner shows, at
least, that jurists of reason would find it debatable
whether the petition states a valid claim of the denial of
a constitutional right and that jurists of reason would
find it debatable whether the district court was correct in
its procedural ruling.
Slack v. McDaniel, 529 U.S. 473, 484 (2000).
Here, the grounds for denying Bourdon’s post-judgment
motions (doc. nos. 60, 61) are procedural.
12

Reasonable jurists

would not debate whether Bourdon’s claim of actual innocence is
credible, whether Claim 13 falls within the scope of 28 U.S.C.
§ 2254(i), whether the section 2254 petition remains a mixed
petition including both exhausted and unexhausted claims, or
whether Bourdon’s motions (doc. nos. 60, 61) otherwise warrant
an order vacating and reopening the judgment and then staying
this case until the New Hampshire Supreme Court case is ended.
Accordingly, the court declines to issue a certificate of
appealability.
Conclusion
For the foregoing reasons, the court denies the motion to
reopen the judgment and to reinstate Claim 13 (doc. no. 60);
denies the motion to stay (doc. no. 61) as moot; and declines to
issue a certificate of appealability.
SO ORDERED.

__________________________
Landya B. McCafferty
United States District Judge
November 20, 2018
cc:

Ronald Bourdon, pro se
Elizabeth C. Woodcock, Esq.

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