United States District Court, D. New Hampshire
Bourdon, pro se Elizabeth C. Woodcock, Esq.
B. McCafferty, United States District Judge
the court are petitioner Ronald Bourdon's post-judgment
motions (doc. nos. 60, 61) to reopen this case and to
reinstate Claim 13 in his § 2254 petition; and to stay
this case until the New Hampshire Supreme Court issues a
final order in State v. Bourdon, No. 2018-0540
(N.H., filed Sept. 27, 2018).
court on August 16, 2017 dismissed Bourdon's § 2254
petition without prejudice, finding that Bourdon had not
exhausted his available and effective state remedies as to
Claims 1(C), 2, 5(D), 5(E), 5(F), 6(B), 6(C), 6(D), 10(A),
and 10(B) in the petition, and that he had neither
demonstrated good cause for a stay, nor stated a credible
claim of actual innocence. See Aug. 16, 2017 Order (doc. no.
47) (approving July 18, 2017 R&R (doc. no. 45)). Judgment
was entered on August 16, 2017 (doc. no. 48).
has moved to reopen that judgment and to reinstate a claim
(Claim 13) that this court dismissed in 2016, pursuant to 28
U.S.C. § 2254(i), before judgment was entered. State
court documents filed as exhibits to that motion to reopen,
see doc. no. 60-1, indicate that Bourdon filed a new
postconviction proceeding in Superior Court after the
dismissal of this action, asserting a completely new claim of
a Brady violation and a six of the claims raised in the 2254
petition (Claims 1(C), 2, 5(E), 5(F), 6(B), and 10(A)) that
this court had found were previously
unexhausted. Bourdon asserts that the Superior
Court denied his motion for a new trial on August 3, 2018 and
then denied his motion to reconsider on September 6, 2018.
Bourdon filed a notice of discretionary appeal as to those
rulings, which remains pending. See State v.
Bourdon, No. 2018-0540 (N.H., filed Sept. 27, 2018).
Motion to Reopen and Reinstate Claim 13 (Doc. No. 60)
60(b) Motion and Standard
court construes Bourdon's motion to reopen and reinstate
Claim 13 (doc. no. 60) as seeking to vacate the August 16,
2017 judgment (doc. no. 48), pursuant to Federal Rule of
Civil Procedure 60(b), and to reopen the case. Construed
liberally, Bourdon's motion to reopen asserts that this
court erred in finding that Bourdon lacked a viable gateway
claim of actual innocence sufficient to overcome his failure
to exhaust his state remedies as to all of the claims in his
mixed petition. Bourdon also asserts that the court erred in
finding that Claim 13 was barred by 28 U.S.C. § 2254(i).
60(b) allows the court to relieve a party from a final
judgment for reasons listed in subsections (1) through (6) of
that rule. Relief under Rule 60(b) is
“extraordinary, ” so that a party seeking relief
“must establish, at the very least, that his motion is
timely; that exceptional circumstances exist, favoring
extraordinary relief; that if the judgment is set aside,
” he can “mount a potentially meritorious claim
or defense; and that no unfair prejudice will accrue to the
opposing parties should the motion be granted.”
Rivera- Velázquez v. Hartford Steam Boiler Insp.
& Ins. Co., 750 F.3d 1, 3-4 (1st Cir. 2014).
Bourdon's motion does not specify which part of Rule
60(b) he intends to invoke to vacate the judgment, Bourdon
appears to rely on Rule 60(b)(1)-(3). Bourdon appears to be
asserting claims of excusable neglect, newly discovered
evidence, and/or respondent's misconduct as grounds for
relief under Rule 60(b)(1)-(3). Bourdon's Rule 60(b)
motion to reopen was filed more than a year after the August
2017 entry of judgment, however, too late to obtain relief
under those subdivisions of the rule. See Fed.R.Civ.P.
60(c)(1). Bourdon's motion is thus denied as untimely to
the extent Bourdon intended to rely on the grounds specified
in Rule 60(b)(1)-(3).
60(b)(4) applies only in the rare instance where a judgment
is premised either on a certain type of jurisdictional error
or on a violation of due process that deprives a party of
notice or the opportunity to be heard.” United
Student Aid Funds, Inc. v. Espinosa, 559 U.S. 260, 271
(2010); see also 11 Charles A. Wright, Arthur R. Miller et
al., Fed. Prac. & Proc. Civ. § 2862 (3d ed.). There
is no error in this court's exercise of jurisdiction over
Bourdon's claims pursuant to 28 U.S.C. §§ 2241
and 2254. Bourdon has failed to show that he did not receive
due process in this case. Rule 60(b)(4) does not provide
grounds for reopening the judgment here.
60(b)(5) applies where the underlying judgment has some
prospective effect that has since been satisfied, released,
or discharged, or where the judgment was based on an earlier
judgment since vacated or reversed. See Fed.R.Civ.P.
60(b)(5). While the dismissal without prejudice has not
prevented Bourdon from seeking to exhaust his state remedies
and then seeking to refile a new petition here, none of this
court's orders underlying the judgment required Bourdon
to do so post-judgment. His belated (as-yet incomplete)
exhaustion efforts were not compelled by any order of this
court. Accordingly, this court denies the motion to reopen
the judgment at this time, to the extent Bourdon seeks relief
under Rule 60(b)(5). See Brooks v. Williams, No.
2:10-cv-00045-GMN-LRL, 2013 WL 835973, at *2-*3, 2013 U.S.