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. The petition includes a claim
which this court has identified as Claim 13, asserting a Sixth
Amendment violation based on the alleged ineffectiveness of
counsel appointed to represent Bourdon in a motion for a new
trial in Superior Court. Before this court is respondent’s
motion to dismiss Claim 13 (Doc. No. 18).
Procedural History
In September 2012, a jury in Hillsborough County Superior
Court South (“HCSCS”), convicted Bourdon of attempted murder,
first degree assault, criminal restraint, criminal threatening,
and simple assault, in connection with a stabbing incident in
which two minors were injured. Bourdon filed a notice of
mandatory appeal in the New Hampshire Supreme Court (“NHSC”),
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and then filed a pro se motion for a new trial in the HCSCS,
asserting claims of ineffective assistance of trial counsel.
The NHSC stayed Bourdon’s direct appeal pending resolution of
the motion for a new trial. The HCSCS appointed Attorney
Theodore Barnes to represent Bourdon in the motion for new trial
proceeding, and Attorney Barnes filed an amended motion for a
new trial on Bourdon’s behalf. The HCSCS denied that motion on
July 16, 2014, and then denied Bourdon’s motion for
reconsideration on August 20, 2014. See State v. Bourdon, No.
226-2011-cr-00458 (N.H. Super. Ct., Hillsborough Cty. S. Aug.
20, 2014) (Doc. No. 14-3). The NHSC declined to accept a
discretionary appeal of the order denying the motion for a new
trial. See State v. Bourdon, No. 2014-0608 (N.H. Oct. 24,
2014). Bourdon then moved to reopen the motion for new trial
proceeding in the HCSCS, asserting a claim that Attorney Barnes
had provided ineffective assistance of post-conviction counsel.
The HCSCS denied that motion, “for reasons stated in the State’s
objection.” Bourdon, No. 226-2011-cr-00458 (N.H. Super. Ct.,
Hillsborough Cty. S. Apr. 22, 2015). The NHSC declined to
accept a discretionary appeal of 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)
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(affirming conviction).
Bourdon litigated additional post-conviction proceedings in
the state courts. 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 his right to the effective assistance of counsel.
The CCSC ruled against petitioner and denied the state habeas
petition. See Bourdon v. Goings, No. 214-2015-cv-00056 (N.H.
Super. Ct., Coos Cty. Aug. 17, 2015). The NHSC declined to
accept a discretionary appeal of that order. See Bourdon v.
Warden, No. 2015-0551 (N.H. Oct. 26, 2015).
In the § 2254 petition filed in this court, Bourdon asserts
a claim, identified by this court as Claim 13, alleging that
Attorney Barnes provided ineffective assistance of counsel while
representing him on the new trial motion, violating Bourdon’s
Sixth Amendment right to the effective assistance of counsel.
See May 13, 2016 Order (Doc. No. 16). This court directed the
Warden to respond to the petition. The Warden has moved to
dismiss Claim 13, and has moved for summary judgment on the
remaining claims. The motion to dismiss is addressed here.
Discussion
In the motion to dismiss Claim 13 (Doc. No. 18), respondent
contends that Bourdon had no Sixth Amendment right to counsel as
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to his motion for a new trial, and that Claim 13 falls within
the scope of claims precluded by 28 U.S.C. § 2254(i). To
support those arguments, respondent relies on the text of
§ 2254(i), and cites cases including Coleman v. Thompson, 501
U.S. 722, 752 (1991), and Pennsylvania v. Finley, 481 U.S. 551
(1987). Bourdon argues that the cited cases are
distinguishable, and that section 2254(i) does not apply because
Bourdon’s direct appeal was stayed during the pendency of the
motion for a new trial, which, he argues, rendered that motion a
“post-trial” motion, but not a “post-conviction” motion.
Section 2254(i) provides, in pertinent part, that “[t]he
ineffectiveness or incompetence of counsel during Federal or
State collateral post-conviction proceedings shall not be a
ground for relief in a proceeding arising under section 2254.”
28 U.S.C. § 2254(i). That statute appears applicable here.
Attorney Barnes was appointed to represent Bourdon in a state
proceeding, challenging the underlying conviction, initiated
after a jury convicted Bourdon.
Bourdon’s motion for a new trial is properly characterized
as a “post-conviction” proceeding that is “collateral” in
nature, for purposes of § 2254(i). The Supreme Court has
construed a similar term -- an application for “post-conviction”
or other “collateral review” -- in a related statute (28 U.S.C.
§ 2244(d)(2)), in a broad manner that would cover proceedings
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like the new trial motion in Bourdon’s case, which have occurred
outside of the direct appeal of the conviction. See Wall v.
Kholi, 562 U.S. 545, 553 (2011) (“‘collateral review’” of a
judgment or claim, for purposes of 28 U.S.C. § 2244(d)(2), means
a judicial reexamination of a judgment or claim in a proceeding
outside of the direct review process). The NHSC has deemed a
motion for a new trial under state law to be a post-conviction
proceeding that is collateral to the direct appeal of a
conviction. See State v. Grande, 168 N.H. 487, 491-92, 131 A.3d
399, 402-03 (2016) (defendant who litigated ineffective
assistance of trial counsel claim in “post-conviction” motion
for new trial filed during pendency of direct appeal of
conviction, was collaterally estopped from obtaining further
review of that claim within direct appeal, where defendant did
not separately appeal Superior Court order denying motion for
new trial). The NHSC rules characterize appeals from “motions
for new trial” generally as “post conviction review
proceedings,” and require that appeals from adverse orders in
those proceedings be filed as discretionary appeals. See N.H.
Sup. Ct. R. 3. Therefore, Bourdon’s claim challenging the
performance of Attorney Barnes on a motion for a new trial
litigated during a stay in Bourdon’s direct appeal is the type
of claim encompassed within the scope of the plain language of
§ 2254(i).
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Martinez v. Ryan, 132 S. Ct. 1309 (2012), includes a
comment regarding the scope of § 2254(i) that is consistent with
this court’s finding that the statute bars Bourdon from
obtaining any relief on the merits of a stand-alone claim of
ineffective assistance of counsel appointed to represent
petitioner in a motion for a new trial. The Court in Martinez
distinguished stand-alone claims for relief in petitions filed
under 28 U.S.C. § 2254, from claims of ineffective assistance of
post-conviction counsel that may avoid a procedural default of
other claims for relief. The Court held that a showing of
ineffective assistance of post-conviction counsel in state
collateral proceedings may establish cause for a procedural
default of a claim of ineffective assistance of trial counsel.
Id. at 1320. In doing so, the Court stated that although
Ҥ 2254(i) precludes [petitioner] from relying on the
ineffectiveness of his postconviction attorney as a ‘ground for
relief,’ it does not stop [petitioner] from using it to
establish ‘cause’” to excuse a procedural default. Martinez,
132 S. Ct. at 1320. That Court’s willingness to ascribe such a
broad scope to § 2254(i), encompassing claims of ineffective
assistance of counsel in the type of post-conviction proceeding
at issue in Martinez, is consistent with this court finding
Claim 13 to be precluded as a ground for relief in this case.
There is a footnote in a recent First Circuit case that
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provides grounds for concluding that certain claims of
ineffective assistance of post-conviction counsel, not presented
here, could be outside of the scope of § 2254(i). The court in
Lee v. Corsini, 777 F.3d 46 (1st Cir. 2015), concluded that
§ 2254(i) provided grounds for denying relief on the stand-alone
claim of ineffective assistance of post-conviction counsel in
that case, after specifically noting that the post-conviction
proceeding in that case had not been consolidated into the
direct appeal and had occurred after the completion of the
direct appeal. Id. at 21-22 & n.6. The First Circuit in that
case suggested that if appellate review of the post-conviction
proceeding had been consolidated with the direct appeal of the
petitioner’s conviction, the proceeding could not properly be
deemed “collateral.” Id. at 21 n.6. Here, the NHDC did not
consolidate the pertinent appeals in Bourdon’s case, and nothing
in the record suggests that the motion for a new trial in
Bourdon’s case was part of the direct appeal of Bourdon’s
conviction.
In the absence of pertinent authority limiting the scope of
§ 2254(i), or otherwise calling the validity of that statute
into question as applied to Claim 13, the district judge should
conclude that § 2254(i) bars petitioner from obtaining relief on
that claim. Respondent’s motion to dismiss Claim 13 (Doc. No.
18) should be granted.
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Conclusion
For the foregoing reasons, the district judge should deny
the petition, in part, to the extent it seeks relief based on
Claim 13, and respondent’s motion to dismiss that claim (Doc.
No. 18) should be granted. 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
November 30, 2016
cc: Ronald Bourdon, pro se
Elizabeth C. Woodcock, Esq.
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