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
Before the court are two motions (Doc. Nos. 50, 51) filed
by petitioner, Ronald Bourdon, seeking leave to file an in forma
pauperis (“IFP”) appeal of this court’s August 16, 2017 Order
and Judgment (Doc. Nos. 47, 48). The Order at issue approved
the magistrate judge’s July 18, 2017 Report and Recommendation
(“R&R”) (Doc. No. 45), which found that Bourdon’s petition for
writ of habeas corpus, filed under 28 U.S.C. § 2254, was a
“mixed petition,” see Aug. 16, 2017 Order (Doc. No. 47). The
court dismissed the petition without prejudice on that ground,
and declined to issue Bourdon a certificate of appealability.
See Aug. 16, 2017 Order (Doc. No. 47).
Standard
In determining whether an applicant may proceed IFP on
appeal, pursuant to 28 U.S.C. § 1915(a) and Fed. R. Civ. P.
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24(a), this court considers, among other things, the applicant’s
objective good faith. See 28 U.S.C. § 1915(a)(3); Coppedge v.
United States, 369 U.S. 438, 445 (1962). An appeal is frivolous
if it lacks any rational, arguable basis in law or fact. See
Santiago-Lugo v. United States, 94 F. Supp. 3d 156, 158 (D.P.R.
2015).
Discussion
Bourdon is seeking to proceed IFP on appeal without having
obtained a certificate of appealability from the district court.
Although courts have concluded that the standard for granting a
motion to proceed IFP on appeal is not the same as the standard for
granting a certificate of appealability, see Walker v. O'Brien,
216 F.3d 626, 632 (7th Cir. 2000); Richardson v. United States,
No. 09-cv-30079-MAP, 2010 U.S. Dist. LEXIS 117385, at *3, 2010
WL 4450446, at *1 (D. Mass. Oct. 14, 2010) (IFP standard is
“somewhat lower”), R&R adopted, 2010 U.S. Dist. LEXIS 117351, at
*2, 2010 WL 4450408, at *1 (D. Mass. Nov. 4, 2010), that
difference in this case is inconsequential. The district judge
approved the July 18, 2017 R&R, which concluded that reasonable
jurists could not disagree as to whether Bourdon’s § 2254
petition was subject to dismissal for lack of complete
exhaustion. See July 18, 2017 R&R (Doc. No. 45), approved by
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Aug. 16, 2017 Order (Doc. No. 47). Under such circumstances,
Bourdon’s appeal lacks any arguable basis in law or fact.
Therefore, the district judge should deny both of Bourdon’s
motions (Doc. Nos. 50, 51) to proceed IFP on appeal in this
matter. 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). The fourteen day period may be
extended upon motion. Failure to file objections within the
specified time waives the right to appeal the district court’s
order. See Santos-Santos v. Torres-Centeno, 842 F.3d 163, 168
(1st Cir. 2016).
__________________________
Andrea K. Johnstone
United States Magistrate Judge
September 5, 2017
cc: Ronald Bourdon, pro se
Elizabeth C. Woodcock, Esq.
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