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 petitioned this court for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254. Before the court is
respondent’s motion for summary judgment (Doc. No. 25), and
petitioner’s “Cross Motion for Summary Judgment and Petitioner’s
Memorandum of Law in Opposition to Respondent’s Motion for
Summary Judgment” (Doc. No. 31). Both parties’ summary judgment
motions have been referred to this magistrate judge for a report
and recommendation as to disposition, pursuant to LR 72.1.
Background
After a jury trial in the New Hampshire Superior Court
(Hillsborough County, Southern District (“HCSCS”)), Bourdon was
convicted of attempted murder, criminal restraint, simple
assault, first-degree assault, and criminal threatening.
Broadly speaking, the charges against Bourdon arose from an
Case 1:15-cv-00138-LM Document 35 Filed 02/13/17 Page 1 of 18

2
altercation in which he struggled with two teenagers (“Scott”
and “Dylan”), both of whom sustained knife wounds during the
altercation. Bourdon was sentenced, in the aggregate, to a
stand-committed prison term of 22½ to 50 years.
Bourdon appealed his convictions and sentence to the New
Hampshire Supreme Court (“NHSC”). His direct appeal was stayed
while he litigated a motion for a new trial in the HCSCS.
In that motion for a new trial, Bourdon alleged that he
received ineffective assistance from his trial counsel. The
Superior Court appointed Attorney Theodore Barnes to represent
Bourdon in that post-trial proceeding, and counsel filed an
amended motion for a new trial on Bourdon’s behalf. The HCSCS
denied the motion for a new trial on July 16, 2014, see State v.
Bourdon, No. 226-2011-cr-00458 (N.H. Super. Ct., Hillsborough
Cty. S. July 16, 2014) (“2014 HCSCS Order I”), and, on August
20, 2014, denied Bourdon’s motion for reconsideration, also
filed by Attorney Barnes, see id. (N.H. Super. Ct., Hillsborough
Cty. S. Aug. 20, 2014) (Doc. No. 14-3) (“2014 HCSCS Order II”).
Attorney Barnes, on Bourdon’s behalf, filed a notice of
discretionary appeal of the 2014 HCSCS Orders in the NHSC,
arguing that:
• Bourdon’s trial counsel provided ineffective
assistance by failing to obtain a transcript of
Bourdon’s bail hearing;
Case 1:15-cv-00138-LM Document 35 Filed 02/13/17 Page 2 of 18

3
• Bourdon’s trial counsel provided ineffective
assistance by failing to cross-examine the “primary
witnesses” with prior inconsistent statements;
• Bourdon’s trial counsel provided ineffective
assistance by failing to highlight the lack of blood
in the room in which Scott and Dylan were wounded;
• Bourdon’s trial counsel provided ineffective
assistance by successfully objecting to the
admission of hearsay testimony from one of the
police officers, as to statements made by Dylan at
the scene, thus preventing the jury from hearing
Dylan’s prior inconsistent statement; and
• the court considering Bourdon’s motion for a new
trial failed to properly manage the submission of
evidence.
See Not. of App., State v. Bourdon, No. 2014-0608 (N.H., filed
Sept. 18, 2014) (“2014 Notice of Appeal”). The NHSC declined to
accept Bourdon’s appeal of the 2014 HCSCS Orders. See State v.
Bourdon, No. 2014-0608 (N.H. Oct. 24, 2014).
Bourdon then moved pro se to reopen the post-trial
proceedings in the HCSCS. The HCSCS denied that motion to
reopen, “for reasons stated in the State’s objection.” Bourdon,
No. 226-2011-cr-00458 (N.H. Super. Ct., Hillsborough Cty. S.
Apr. 22, 2015) (“2015 HCSCS Order”) (citing State’s Obj. to
Def.’s Mot. to Reopen H’g for a New Trial, id. (N.H. Super. Ct.,
Hillsborough Cty. S., filed Apr. 20, 2015))). Bourdon then
filed a pro se notice of discretionary appeal of the 2015 HCSCS
Order denying the motion to reopen. The NHSC declined to review
Case 1:15-cv-00138-LM Document 35 Filed 02/13/17 Page 3 of 18

4
that order. See State v. Bourdon, No. 2015-0320 (N.H. July 10,
2015). The NHSC then lifted the stay in Bourdon’s direct appeal
and affirmed his conviction. See State v. Bourdon, No. 2013-
0031, 2015 WL 11181919, at *1, 2015 N.H. LEXIS 104, at *1 (N.H.
Aug. 28, 2015) (affirming conviction).
While Bourdon’s discretionary appeal of the 2015 HCSCS
Order was still pending, Bourdon filed a state habeas petition
in Coos County Superior Court (“CCSC”), in which he asserted
that Attorney Barnes’s performance in litigating the motion for
a new trial violated Bourdon’s right to the effective assistance
of post-conviction counsel. The CCSC ruled against petitioner
and denied that state habeas petition “for the reasons . . .
articulate[d]” in the respondent’s objection. See Bourdon v.
Goings, No. 214-2015-cv-00056 (N.H. Super. Ct., Coos Cty. Aug.
17, 2015) (Doc. No. 14-4) (“2015 CCSC Order”) (citing Resp.’s
Obj. to Def.’s Pet. (Doc. No. 15-14, at 1-6)).
Bourdon next filed a notice of discretionary appeal in the
NHSC of the 2015 CCSC Order denying his state habeas petition.
The NHSC declined to accept Bourdon’s discretionary appeal of
that order. See Bourdon v. Warden, No. 2015-0551 (N.H. Oct. 26,
2015).
Petitioner filed this action on April 20, 2015. The matter
here was stayed in June 2015, pending the final resolution of
Case 1:15-cv-00138-LM Document 35 Filed 02/13/17 Page 4 of 18

5
Bourdon’s various actions in state court. See June 3, 2015
Order (Doc. No. 6).
The May 13, 2016 Order (Doc. No. 16) in this case lifted
the stay in the § 2254 petition. In that order, this court
identified the claims asserted by Bourdon that remain in this
case, and directed “respondent to file an answer or other
response to the petition, and, in particular, to address whether
each claim identified by the court in this Order has been
exhausted.” Order (Doc. No. 16), at 7. Presently pending in
this matter are the following Sixth Amendment ineffective
assistance of trial counsel claims:
1. Bourdon’s trial counsel, Attorneys Eleftheria Keans
and Joseph Tessier, failed to investigate issues relating
to Bourdon’s case and were otherwise unprepared for trial,
in that they:
A. did not obtain or review the contents of the bail
hearing transcript;
B. did not interview key witnesses, including the
first responders (EMTs);
C. did not obtain or review a recording of Dylan’s
conversation with the 911 operator; and
D. did not consult with medical experts or otherwise
adequately investigate issues regarding the nature and
severity of the victims’ wounds.
2. Bourdon’s trial counsel did not challenge the
sufficiency of the charging documents, which inaccurately
characterized Scott’s abdominal wound as a “stomach bleed.”
Case 1:15-cv-00138-LM Document 35 Filed 02/13/17 Page 5 of 18

6
3. Bourdon’s trial counsel did not object to the
prosecutor’s opening statement, which mischaracterized the
evidence of the extent and severity of the victims’ wounds.
4. Bourdon’s trial counsel’s opening statement did not
raise Bourdon’s theory of the case, that the stabbing
happened during a struggle, and that Bourdon acted in self-
defense.
5. Bourdon’s trial counsel did not adequately cross-
examine or impeach the state’s witnesses, as follows:
A. Dylan, using his prior inconsistent statements;
B. Scott, using his prior inconsistent statements;
C. Detective Lee, using his prior statements;
D. Detective Anderson;
E. Carlos Blanco; and
F. Beverly Trevino.
6. Bourdon’s trial counsel did not object to or otherwise
challenge misleading and unduly prejudicial evidence
regarding the severity of the victims’ wounds and the
circumstances relating to the incident, in that counsel:
A. failed to object to the admission of evidence
referring to Scott’s abdominal wound as a “stomach
bleed”;
B. failed to object to Scott’s courtroom
presentation of his scar;
C. failed to object to the admission in evidence of
the EMT report; and
D. failed to object to the admission in evidence of
the hospital photos of the victims.
7. Bourdon’s trial counsel did not adequately prepare
Bourdon to testify when they failed to ensure that Bourdon
understood the evidence regarding the nature and severity
Case 1:15-cv-00138-LM Document 35 Filed 02/13/17 Page 6 of 18

7
of the victims’ wounds.
8. Bourdon’s trial counsel did not present any expert
testimony to rebut evidence regarding the size of the knife
and the severity of the victims’ wounds.
9. Bourdon’s trial counsel did not call the EMTs as
witnesses to testify regarding the size of the knife and
the severity of the victims’ wounds.
10. Bourdon’s trial counsel did not object to
prosecutorial misconduct, where:
A. the prosecutor’s closing argument
mischaracterized the evidence and testimony of
witnesses regarding the circumstances of the assault
and the nature and severity of the victims’ wounds;
B. the prosecutor in his closing argument vouched
for the credibility of Dylan’s testimony regarding the
circumstances of the assault;
C. the prosecutor knowingly relied on perjured
testimony from Scott, regarding the circumstances of
the assault and the severity of the wounds, to obtain
a conviction; and
D. the prosecutor knowingly relied on perjured
testimony from Dylan, regarding the circumstances of
the assault and the severity of the wounds, to obtain
a conviction.
11. Bourdon’s trial counsel failed to subject the
prosecutor’s case to meaningful adversarial testing at
critical stages of the case.
12. Bourdon’s lead trial counsel, Attorney Tessier, acted
under an actual conflict of interest, and failed to
disclose that conflict, which adversely affected his
representation of Bourdon, as Attorney Tessier wanted to be
a prosecutor and never disclosed that fact.
In her summary judgment motion, respondent argues that
summary judgment is proper on the merits as to all of the claims
Case 1:15-cv-00138-LM Document 35 Filed 02/13/17 Page 7 of 18

8
currently pending in this action. She also argues that
petitioner has not exhausted his available state remedies as to
a number of those claims, including Claims 1(C), 2, 5(D)-(F),
6(B)-(D), 10(A)-(B). Petitioner maintains that he has exhausted
his state remedies, and he seeks summary judgment on the merits
of all of his claims.
Discussion
I. Exhaustion Standard
“An application for a writ of habeas corpus on behalf of a
person in custody pursuant to the judgment of a state court
shall not be granted unless it appears that . . . the applicant
has exhausted the remedies available in the courts of the
State.” 28 U.S.C. § 2254(b)(1)(A). To demonstrate exhaustion,
“‘a habeas petitioner bears a heavy burden to show that he
fairly and recognizably presented to the state courts the
factual and legal bases of [his] federal claim.’” Coningford v.
Rhode Island, 640 F.3d 478, 482 (1st Cir. 2011). To exhaust the
remedies available in state court, “a petitioner must have
tendered his federal claim in such a way as to make it probable
that a reasonable jurist would have been alerted to the
existence of the federal question.” Jaynes v. Mitchell, 824
F.3d 187, 192 (1st Cir.) (citation omitted), cert. denied, 137
Case 1:15-cv-00138-LM Document 35 Filed 02/13/17 Page 8 of 18

9
S. Ct. 312 (2016). Moreover, the petitioner must have presented
his federal claim to the highest court in the state system,
Janosky v. St. Amand, 594 F.3d 39, 50 (1st Cir. 2010), which in
New Hampshire is the NHSC.
II. Unexhausted Claims
A. Claims 1(C), 6(C), 10(A)-(B)
Petitioner contends that he presented Claims 1(C), 6(C),
and 10(A)-(B) to the NHSC. No mention of those claims, however,
appears in any of petitioner’s four notices of appeal, in the
underlying Superior Court orders, or in the state’s memoranda
incorporated by reference in those orders. Thus, Bourdon has
not exhausted those claims. See Janosky, 594 F.3d at 50.
B. Claims 2 and 6(D)
Bourdon argues that he exhausted his state remedies on
Claims 2 and 6(D) by briefing them in his state habeas petition.
Bourdon did not, however, raise those issues in the notice of
appeal he filed with the NHSC after his state habeas petition
was denied, and he did not attach his state habeas petition to
that notice of appeal. Neither the 2015 CCSC Order, nor the
state’s objection to the state habeas petition which the order
incorporated by reference, specifically addresses those issues.
Bourdon did not raise the issues asserted in Claims 2 and 6(D)
in any of his other three notices of appeal. Thus, petitioner
Case 1:15-cv-00138-LM Document 35 Filed 02/13/17 Page 9 of 18

10
has not exhausted those claims. See id.
C. Claims 5(D)-(F)
Claims 5(D)–(F) assert that trial counsel’s cross
examination of Anderson, Blanco, and Trevino was substandard and
prejudicial to Bourdon. Bourdon argues that he exhausted those
claims in the NHSC and in his pro se state habeas petition, by
arguing broadly that trial counsel failed to subject the
prosecutor’s case to meaningful adversarial testing, see Cross
Mot. for Summ. J. (Doc. No. 31) at 37-38, 40-41. Bourdon
further contends that he asked Attorney Barnes to raise that
issue, but that counsel failed to do so on his behalf. Id.
None of the pro se notices of appeal, the Superior Court
orders at issue in those notices of appeal, or the state’s
briefs incorporated by reference in those underlying orders,
includes any discussion of trial counsel’s cross-examination of
Trevino, Blanco, or Anderson. Furthermore, it is evident that
Attorney Barnes did not exhaust Claims 5(D)-(F) on Bourdon’s
behalf; in the 2014 Notice of Appeal, counsel sought NHSC review
of a claim challenging the cross examination of the state’s
“primary witnesses,” which the context shows are Dylan and
Scott, see 2014 Notice of Appeal ¶¶ 1-3, at 7-8. Bourdon’s
assertion in his appeals to the NHSC of claims challenging the
cross examination of Dylan and Scott, and the alleged failure of
Case 1:15-cv-00138-LM Document 35 Filed 02/13/17 Page 10 of 18

11
trial counsel to subject the state’s case to meaningful
adversarial testing, were not presented in a manner calculated
to alert a reasonable jurist on the NHSC to the existence of a
separate, specific Sixth Amendment ineffective assistance of
counsel claim, relating to the cross-examination of Anderson,
Blanco, or Trevino. Accordingly, Bourdon has not exhausted the
state court remedies on Claims 5(D)-(F). See Jaynes, 824 F.3d
at 192.
D. Claim 6(B)
Petitioner states in Claim 6(B) that his trial counsel
provided him with ineffective assistance by failing to object to
the courtroom presentation of Scott’s scar. Petitioner contends
that he fairly presented this issue to the state courts in his
state habeas corpus petition. Specifically, Bourdon contends
that he exhausted Claim 6(B) in the context of arguing that
Attorney Barnes failed to raise a claim of “prosecutorial
misconduct for knowingly allowing the alleged victims to give
false testimony.” Pet’r’s Cross Mot. for Summ. J. (Doc. No.
31), at 48.
The issue that Bourdon raised in his state habeas petition
was the ineffective assistance of post-conviction counsel,
Attorney Barnes, for failing to brief a question of
prosecutorial misconduct, not the ineffective assistance of his
Case 1:15-cv-00138-LM Document 35 Filed 02/13/17 Page 11 of 18

12
trial counsel. Further, the trial conduct underlying the
misconduct claim advanced in the state habeas petition was the
prosecutor’s alleged introduction of perjured testimony, not the
prosecutor’s presentation of Scott’s scar to the jury. Bourdon
did not raise the issue underlying Claim 6(B) in any of his
notices of appeal to the NHSC, and no discussion of that claim
appears in either the underlying Superior Court orders or the
briefs incorporated by reference in those orders. Thus, Bourdon
has not exhausted Claim 6(B). See Janosky, 594 F.3d at 50.
III. Remaining Claims
A. Claims 1(A), 3, 5(A)-(C), 7, 10(C)-(D), 11
Respondent concedes that Bourdon has exhausted his state
remedies on Claims 1(A), 3, 5(A)-(C), 7, 10(C)-(D), and 11. The
record supports a finding that those claims have been exhausted.
B. Claims 1(B), 4, 6(A), 8, 9, 12
Respondent contends that Bourdon did not exhaust state
remedies as to Claims 1(B), 4, 6(A), 8, 9, and 12. Bourdon
litigated the issues underlying those claims in Superior Court,
and filed pro se notices of appeal of those orders. Those
Superior Court orders addressed the merits of Claims 1(B), 4,
6(A), 8, 9, and 12; discussed closely-related claims; or
incorporated by reference the reasoning of state briefs filed in
Bourdon’s post-trial proceedings, explicitly rejecting such
Case 1:15-cv-00138-LM Document 35 Filed 02/13/17 Page 12 of 18

13
claims on the merits. Considering that Bourdon litigated all
but one of those post-trial proceedings pro se, and described
the issues on appeal in each proceeding in a manner that appears
intended to incorporate the issues raised in prior proceedings
by reference, it is a close question as to whether state
remedies on those claims were exhausted. Recognizing that
courts reviewing pro se pleadings may construe those pleadings
liberally, and that the exhaustion inquiry in certain
circumstances may include reference to matters in the state
court record other than the notice of appeal, cf. Janosky, 594
F.3d at 50-51 & n.4 (discussing Barresi v. Maloney, 296 F.3d 48
(1st Cir. 2002), and declining to conclude that Baldwin v.
Reese, 541 U.S. 27, 32 (2004), abrogates Barresi)), this court
cannot conclude as a matter of law that a reasonable jurist
would not have been alerted to the existence of Claims 1(B), 4,
6(A), 8, 9, and 12, under the circumstances. Accordingly, to
the extent respondent seeks summary judgment in this matter on
the basis that Claims 1(B), 4, 6(A), 8, 9, and 12 are not
exhausted, summary judgment on that ground is properly denied at
this time.
IV. Availability of State Remedies
In a motion to lift the stay in this case, Bourdon argued
that he believed he had used all procedures available under
Case 1:15-cv-00138-LM Document 35 Filed 02/13/17 Page 13 of 18

14
state law to raise his claims, and that further state litigation
would be futile. See Doc. No. 14, at 2. The Superior Court and
NHSC orders in the record do not expressly state that Bourdon is
barred from litigating any additional ineffective assistance of
counsel claims in the state courts at this point. This court
declines to speculate as to whether the state courts would
nevertheless deem Claims 1(C), 2, 5(D)-(F), 6(B)-(D), and 10(A)-
(B) to be waived in the state courts, as a matter of state law.
Moreover, this court cannot conclude that further litigation and
development of those claims in the state courts would be futile.
Accordingly, Bourdon has not carried his burden of showing that
there are no effective state remedies available to him as to
those claims.
V. Mixed Petition
Bourdon’s § 2254 petition contains both exhausted and
unexhausted claims, and is thus properly characterized as a
“mixed” petition. Mixed petitions are subject to dismissal
without prejudice. Rosa v. Gelb, 152 F. Supp. 3d 26, 28 (D.
Mass. 2015) (citing Rose v. Lundy, 455 U.S. 509, 522 (1982)).
A petitioner may avoid dismissal of a mixed petition by
moving to amend the petition to forego all of the unexhausted
claims, leaving only the exhausted claims in this matter. See
Rhines v. Weber, 544 U.S. 269, 277 (2005). A petitioner who
Case 1:15-cv-00138-LM Document 35 Filed 02/13/17 Page 14 of 18

15
foregoes unexhausted claims may lose the opportunity to obtain
any federal habeas review of those claims in the future, as 28
U.S.C. § 2244(b) places limits on a petitioner’s ability to
litigate claims in second or successive petitions.
In the alternative, a petitioner who has filed a mixed
petition may file a motion to stay that petition in federal
court pending the exhaustion of available state remedies as to
the claims that have not yet been exhausted. See Rhines, 544
U.S. at 277. “[T]he ‘stay and abeyance’ method should only be
available in instances where the petitioner can: 1) show good
cause for failing to present the claims before the state court
in the first instance, and 2) show that his unexhausted claims
are not ‘plainly meritless.’” Wagner v. Smith, 581 F.3d 410,
419 (6th Cir. 2009) (quoting Rhines, 544 U.S. at 277). A stay
may be denied if good cause is lacking, or if the petitioner
appears to have engaged in dilatory tactics, see Rosa, 152 F.
Supp. 3d at 28.
While nothing before this court suggests that petitioner
has engaged in any dilatory tactics, Bourdon cannot show good
cause for renewing the stay in this case. This matter was
previously stayed for ten months, while Bourdon litigated state
post-conviction proceedings. Nothing in the record before this
court suggests any reasons why Bourdon could not have squarely
Case 1:15-cv-00138-LM Document 35 Filed 02/13/17 Page 15 of 18

16
presented and litigated Claims 1(C), 2, 5(D)-(F), 6(B)-(D),
10(A)-(B) in both the Superior Courts and the NHSC, along with
all of the other claims he did litigate, either before he filed
this case or during the stay allowed by this court. Without
showing good cause for failing to exhaust previously each of the
claims asserted here, Bourdon cannot obtain a new stay. See
Rhines, 544 U.S. at 277.
Accordingly, the district judge should find that Bourdon’s
petition is a “mixed petition,” and dismiss the petition on that
basis, unless Bourdon moves to amend his petition to forego the
unexhausted claims, acknowledging that in foregoing such claims
now, Bourdon would lose the opportunity to seek relief on Claims
1(C), 2, 5(D)-(F), 6(B)-(D), and 10(A)-(B) in any future “second
or successive” § 2254 petition, pursuant to 28 U.S.C. § 2244(b).
Upon receipt of a motion to amend the petition to drop each
unexhausted claim, the court would promptly consider the pending
summary judgment motions, as to the remaining claims.
Conclusion
For the reasons detailed above, the magistrate judge
recommends that the district judge approve this Report and
Recommendation (Doc. No. 35) and issue the following Order:
1. Bourdon has not exhausted his state remedies on
Case 1:15-cv-00138-LM Document 35 Filed 02/13/17 Page 16 of 18

17
Claims 1(C), 2, 5(D), 5(E), 5(F), 6(B), 6(C), 6(D), 10(A),
and 10(B).
2. Bourdon’s petition is a mixed petition,
containing both exhausted and unexhausted claims.
3. Granting Bourdon leave to file a motion to renew
the stay of the § 2254 petition would be futile, as Bourdon
is unable to demonstrate good cause for his failure, to
date, to exhaust available state remedies on Claims 1(C),
2, 5(D), 5(E), 5(F), 6(B), 6(C), 6(D), 10(A), and 10(B).
4. Bourdon’s petition will be dismissed, without
prejudice, unless, within thirty days of the date of the
Order approving the February 2017 Report and Recommendation
(Doc. No. 35), Bourdon moves to amend his § 2254 petition
to forego each unexhausted claim, specifically, Claims
1(C), 2, 5(D)-(F), 6(B)-(D), and 10(A)-(B).
5. Bourdon’s motion to amend his petition must
include an acknowledgment that in foregoing the unexhausted
claims, Bourdon will lose the opportunity to seek relief on
those claims in a second or successive habeas petition,
under 28 U.S.C. § 2244(b).
6. The parties’ summary judgment motions (Doc. Nos.
25 and 31) are taken under advisement, pending Bourdon’s
filing of a motion to forego each unexhausted claim, or the
Case 1:15-cv-00138-LM Document 35 Filed 02/13/17 Page 17 of 18

18
expiration of the time in which Bourdon may file that
motion. If Bourdon files a motion to forego the
unexhausted claims, the court will promptly consider the
merits of both summary judgment motions as to each claim
remaining in this action. If Bourdon does not forego each
of those unexhausted claims, the § 2254 petition will be
dismissed without prejudice, and both summary judgment
motions will be denied as moot.
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
February 13, 2017
cc: Ronald Bourdon, pro se
Elizabeth C. Woodcock, Esq.
Case 1:15-cv-00138-LM Document 35 Filed 02/13/17 Page 18 of 18