Bourdon v. Northern NH Correctional Facility, Warden

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Ronald Bourdon
v. Civil No. 15-cv-138-LM
Michelle Goings, Warden, Northern
New Hampshire Correctional Facility
REPORT AND RECOMMENDATION
Ronald Bourdon has filed a petition for a writ of habeas
corpus under 28 U.S.C. § 2254. Before the court is Bourdon’s
motion, seeking release on bail or personal recognizance while
the § 2254 petition remains pending (doc. no. 10).
The federal courts have inherent power to admit a § 2254
petitioner to bail. That power may only be used sparingly, as
the state has a “substantial interest in executing its
judgment,” and the presumption of innocence faded with the
conviction. Glynn v. Donnelly, 470 F.2d 95, 98 (1st Cir. 1972).
A showing of exceptional circumstances is generally
required before the federal court may release a state inmate on
bail while a § 2254 petition is pending. Pelletier v. Rhode
Island, No. CIV.A. 07-186 S, 2008 U.S. Dist. LEXIS 58201 at *5,
2008 WL 2977790 at *2 (D.R.I. July 18, 2008) (citing Glynn, 470
F.2d at 98), R&R adopted, No. C.A. 07-186S, 2008 U.S. Dist.
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LEXIS 64235, 2008 WL 3887623 (D.R.I. Aug. 19, 2008); Bader v.
Coplan, No. 02-cv-508-JD, 2003 DNH 15, 2003 U.S. Dist. LEXIS 875
at *12 (D.N.H. Jan. 23, 2003). In the absence of exceptional
circumstances, “the court will not grant bail prior to the
ultimate final decision unless petitioner presents not merely a
clear case on the law, but a clear, and readily evident, case on
the facts.” Glynn, 470 F.2d at 98 (citation and footnote
omitted).
Bourdon’s case has been stayed to allow Bourdon an
opportunity to exhaust his state remedies. Although Bourdon has
asserted that all pending state proceedings have ended, and he
requested that the stay be lifted in December 2015 when he filed
the instant motion for bail, this court has concluded that it
requires additional documentation to determine whether Bourdon
completely exhausted his remedies. Where the record does not
show conclusively that all of Bourdon’s state remedies have been
exhausted, Bourdon may not be released on bail at this time.
See Eaton v. Holbrook, 671 F.2d 670, 673 (1st Cir. 1982).
Assuming, without deciding, Bourdon could demonstrate that
his state remedies are exhausted, and that he has raised
substantial questions of constitutional error in the state court
proceedings, he has not shown that that there are extraordinary
circumstances in his case warranting bail. Bourdon’s sentence
is lengthy, and much of it remains to be served. Bourdon argues
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that but for trial counsel’s errors, the jury would have found
that he lacked the mens rea necessary for an attempted murder
conviction, and that but for post-conviction counsel’s errors,
Bourdon’s motion for a new trial would have succeeded. Bourdon
has not made the kind of showing of factual innocence here that
could be characterized as “clear, and readily evident.” Glynn,
470 F.2d at 98. Accordingly, the district judge should deny
Bourdon’s motion for bail (doc. no. 10).
Conclusion
For the foregoing reasons, the district judge should deny
Bourdon’s motion for bail while the § 2254 petition is pending
(doc. no. 10). Any objections to this Report and Recommendation
must be filed within fourteen days of receipt of this notice.
See Fed. R. Civ. P. 72(b)(2). Failure to file objections within
the specified time waives the right to appeal the District
Court’s order. See Garayalde-Rijos v. Mun. of Carolina, 747
F.3d 15, 21-22 (1st Cir. 2014).
__________________________
Andrea K. Johnstone
United States Magistrate Judge
April 8, 2016
cc: Ronald Bourdon, pro se
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