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
SUPPLEMENTAL REPORT AND RECOMMENDATION
Ronald Bourdon has petitioned this court for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254. The February 13,
2017 Report and Recommendation (“February 13 R&R”) (Doc. No. 35)
recommends dismissal of Bourdon’s § 2254 petition because it is
a mixed petition containing both exhausted and unexhausted
claims, unless Bourdon amends the § 2254 petition to forego the
unexhausted claims identified in that R&R. Bourdon has
responded to the February 13 R&R by asserting that he is
innocent of attempted murder and first degree aggravated
assault, the convictions at issue here. This Supplemental
Report and Recommendation addresses issues raised in that
response (Doc. No. 37). An Order issued this date grants
Bourdon until May 30, 2017 to object to both the February 13 R&R
and this Supplemental Report and Recommendation.
Assuming, without deciding, that a claim of actual
innocence could provide grounds for this court to grant relief
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on the merits of any unexhausted claims in a § 2254 petition
without first requiring the claim to be exhausted, see
Coningford v. Rhode Island, 640 F.3d 478, 482 n.2 (1st Cir.
2011) (there “may be an exception to the exhaustion bar for
cases involving colorable claims of actual innocence”), this
court turns to whether Bourdon’s claims of innocence are of the
type that could provide an exception to the exhaustion
requirement in § 2254(b)(1)(A). To access the “actual
innocence” or “miscarriage of justice” exception, a petitioner
must make “a credible showing of actual innocence.” McQuiggin
v. Perkins, 133 S. Ct. 1924, 1931 (2013). “Actual innocence” in
this context, “means factual innocence, not mere legal
insufficiency.” Bousley v. United States, 523 U.S. 614, 623
(1998). The actual innocence exception “applies to a severely
confined category: cases in which new evidence shows ‘it is more
likely than not that no reasonable juror would have convicted
[the petitioner]’” in light of that new evidence. McQuiggin,
133 S. Ct. at 1933 (citation omitted).
The only “new” evidence cited by Bourdon in connection with
his claims for relief under § 2254 is the Emergency Medical
Technician (“EMT”) Report, which he asserts was not admitted
into evidence at trial, and unspecified statements of the first
responding EMTs, who were not called as witnesses at trial.
Bourdon has claimed that the EMTs could have testified regarding
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the size of the knife that caused the victim’s wounds, and the
severity of those wounds. As to the EMT Report, Bourdon does
not describe the contents but baldly asserts that counsel at
trial knew that the victim’s statement in that report was a
“total lie,” and that the victim’s “reason for lying was to get
pain pills for his addi[c]tion.” Such evidence does not show
actual innocence, that it is more likely than not that no
reasonable juror considering that evidence would have convicted
petitioner. Accordingly, the district judge should not permit
petitioner to avoid the exhaustion requirement, as petitioner
has not stated a credible claim of actual innocence.
The Order issued this date extends the deadline for filing
objections to this Report and Recommendation, pursuant to Fed.
R. Civ. P. 72(b)(2). Such objections must be filed by May 30,
2017. That deadline may be extended upon motion. Failure to
file specific written 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
April 27, 2017
cc: Ronald Bourdon, pro se
Elizabeth C. Woodcock, Esq.
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