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. The parties filed
cross motions for summary judgment on the petition. See Doc.
Nos. 25, 31. The respondent’s motion (Doc. No. 25) argues,
among other things, that petitioner did not exhaust state
remedies as to each claim asserted in the petition.
This court’s June 12, 2017 Order (Doc. No. 43) (“June 12
Order”) concluded that Bourdon’s petition was a mixed petition,
as Claims 1(C), 2, 5(D), 5(E), 5(F), 6(B), 6(C), 6(D), 10(A),
and 10(B) -- identified in the February 13, 2017 Report and
Recommendation (“R&R”) (Doc. No. 35) -- were unexhausted. In
the June 12 Order, the court granted Bourdon thirty days to move
to amend his habeas petition to drop the unexhausted claims, and
stated that the court would dismiss Bourdon’s petition without
prejudice if he did not move to amend the petition to drop the
Case 1:15-cv-00138-LM Document 45 Filed 07/18/17 Page 1 of 4

2
unexhausted claims within that time frame. The court in the
June 12 Order took under advisement the pending summary judgment
motions (Doc. Nos. 25, 31), pending Bourdon’s response.
Bourdon moved to reconsider the June 12 Order, see Mot.
Recons. (Doc. No. 44), and that motion was denied in an Order
issued July 12, 2017. The thirty day period for Bourdon to drop
the unexhausted claims expired on July 12, 2017, without Bourdon
having filed a motion seeking to drop the unexhausted claims.
This court has issued prior rulings in this case
establishing that:
1. Bourdon’s § 2254 petition is a mixed petition,
containing both exhausted and unexhausted claims;
2. Bourdon has not shown that state remedies are
presently unavailable or ineffective as to each unexhausted
claim;
3. Bourdon has not shown good cause for failing
previously to exhaust his state remedies as to his
unexhausted claims; and
4. Bourdon has not stated a credible claim of actual
innocence which might exempt him from the exhaustion
requirement.
See June 12, 2017 Order (Doc. No. 43) (approving Feb. 13, 2017
R&R (Doc. No. 35)); June 12, 2017 Order (Doc. No. 42) (approving
Case 1:15-cv-00138-LM Document 45 Filed 07/18/17 Page 2 of 4

3
Apr. 27, 2017 Suppl. R&R (Doc. No. 39)). A mixed petition,
including both exhausted and unexhausted claims, is properly
dismissed without prejudice. See 28 U.S.C. § 2254(b)(1); Rose
v. Lundy, 455 U.S. 509, 522 (1982). Bourdon was advised by this
court that he could abandon his unexhausted claims and proceed
with his exhausted claims only, and he was further advised that
if he chose not to drop the unexhausted claims, the court would
dismiss the entire petition without prejudice. See, e.g., Feb.
13, 2017 R&R (Doc. No. 35), approved by June 12, 2017 Order
(Doc. No. 43). Bourdon has not manifested any intent to drop
the unexhausted claims. Accordingly, the district judge should
dismiss Bourdon’s petition without prejudice.
Certificate of Appealability
The Rules Governing Section 2254 Proceedings (Ҥ 2254
Rules”) require the court to “issue or deny a certificate of
appealability [“COA”] when it enters a final order adverse to
the party.” § 2254 Rule 11(a). Here, the grounds for dismissal
are purely procedural, and not substantive.
When the district court denies a habeas petition on
procedural grounds without reaching the prisoner’s
underlying constitutional claim, a COA 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.
Case 1:15-cv-00138-LM Document 45 Filed 07/18/17 Page 3 of 4

4
Slack v. McDaniel, 529 U.S. 473, 484 (2000). Reasonable jurists
would not find it debatable that the instant petition is a mixed
petition subject to dismissal. Accordingly, the district judge
should decline to issue a certificate of appealability in this
case.
Conclusion
For the foregoing reasons, the district judge should
dismiss Bourdon’s § 2254 petition without prejudice and should
not issue a certificate of appealability. The cross motions for
summary judgment (Doc. Nos. 25, 31) should 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
July 18, 2017
cc: Ronald Bourdon, pro se
Elizabeth C. Woodcock, Esq.
Case 1:15-cv-00138-LM Document 45 Filed 07/18/17 Page 4 of 4