UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Ronald Bourdon

v. Civil No. 15-cv-138-LM Opinion No.

Warden, Northern New Hampshire Correctional Facility1

O R D E R

Before the court are petitioner Ronald Bourdon’s post-

judgment 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

(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

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

3Rule 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.,

,

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,

(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

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.

5 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. See Fed. R. Civ. P.

60(b)(5). 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 post-

judgment.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,

, at *2-*3,

, 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

.

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,

(2017)

(citation omitted), including, for example a risk of injustice

to the parties,

(citation omitted). Showing the

existence of “‘a good claim or defense’ is a precondition of

Rule 60(b)(6) relief.”

(citation omitted); see also

Rivera–Velázquez,

.

2. Claim 13

Bourdon seeks to reopen the judgment specifically to

relitigate whether Claim 13 is barred by

(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

(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).

7 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,

(2013); see also Coningford v. Rhode

Island,

, 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,

(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

8 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,

(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,

(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

9 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,

, at *4 (D.N.H. Nov. 7, 2017) (citing Holt v.

Stirling, No. CV 6:15-4865-TMC,

, at

*10,

, at *4 (D.S.C. Mar. 24, 2017) (citing,

e.g., Sawyer v. Whitley,

(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,

(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,

. 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,

(2000).

Here, the grounds for denying Bourdon’s post-judgment

motions (doc. nos. 60, 61) are procedural. Reasonable jurists

12 would not debate whether Bourdon’s claim of actual innocence is

credible, whether Claim 13 falls within the scope of

(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.

13