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Bourdon v. Warden, Northern New Hampshire Correctional Facility

United States District Court, D. New Hampshire

November 20, 2018

Ronald Bourdon
Warden, Northern New Hampshire Correctional Facility[1]

          Ronald Bourdon, pro se Elizabeth C. Woodcock, Esq.

          Landya B. McCafferty, United States District Judge

         Before 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).


          This 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).

         Bourdon 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.[2] 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).


          I. Motion to Reopen and Reinstate Claim 13 (Doc. No. 60)

         A. Rule 60(b) Motion and Standard

         This 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).

         Rule 60(b) allows the court to relieve a party from a final judgment for reasons listed in subsections (1) through (6) of that rule.[3] 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).

         B. Rule 60(b)(1)-(3)

         Although 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).[4] 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).

         C. Rule 60(b)(4)-(5)

         “Rule 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.

         Rule 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.[5] 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. ...

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