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BOURDON v. WALKER

United States District Court, Northern District of New York


May 7, 2003

RONALD D. BOURDON, PETITIONER,
v.
HANS WALKER, SUPERINTENDENT AUBURN CORR. FACILITY, RESPONDENT.

The opinion of the court was delivered by: Gary L. Sharpe, United States Magistrate Judge

ORDER

I. Introduction

Petitioner, pro se Ronald D. Bourdon filed a petition for habeas corpus pursuant to 28 U.S.C. § 2254 on March 3, 1999 (Dkt. No. 1) ("Pet."). In his petition, Bourdon alleges several grounds for relief, including: i) ineffective assistance of counsel during pretrial proceedings and at trial; ii) denial of Bourdon's right to counsel at critical stages of the criminal proceedings below; iii) bias on the part of the county court judge who presided over Bourdon's criminal trial; iv) improper denial of Bourdon's right to testify before the grand jury that indicted him; v) the knowing use by the prosecution of perjured testimony; and, vi) ineffective assistance of appellate counsel. See Pet. at PP. 5-6.*fn1 Then-Magistrate Judge David N. Hurd issued an order pursuant to the rules governing Section 2254 cases in the United States District Courts, 28 U.S.C. foll. § 2254, that directed the Office of the Attorney General for the State of New York ("Attorney General") to file a response (Dkt. No. 2). The Attorney General filed an answer and memorandum of law requesting dismissal of the petition (Dkt. Nos. 6-7).

Due to the elevation of Judge Hurd to the position of United States District Judge, this matter was re-assigned to the undersigned on October 20, 1999 for the issuance of a report and recommendation pursuant to Northern District of New York Local Rule 72.3(c). See Dkt. No. 8.

II. Background

On July 13, 1996, Bourdon was arrested in the Town of Bainbridge, Chenango County, after New York State Trooper Steven T. Chriest observed Bourdon drive up to a gasoline station and begin pumping gas into what he believed to be a stolen truck. See Trial Tr. of Ronald D. Bourdon (5/28/97) at PP. 98-99. As Chriest approached Bourdon, he observed that his eyes were glossy and detected a strong odor of alcohol emanating from Bourdon's mouth. Trial Tr. at P. 100. Bourdon was placed under arrest for possessing stolen property (the truck), and after Bourdon refused to perform any sobriety tests, he was also arrested for driving while intoxicated ("DWI").*fn2 Trial Tr. at P. 101. Bourdon was also issued two separate tickets, the first accused him of aggravated unlicenced operation of a motor vehicle, and the second charged him with DWI.*fn3

Chriest executed felony complaints on July 13, 1996, and Bourdon was formally accused of felony DWI, first degree aggravated unlicenced operation of a motor vehicle, and third degree criminal possession of stolen property. Resp't. App. at PP. 1-4. On August 26, 1996, Bourdon appeared before Chenango County Court Judge Kevin M. Dowd for a bail hearing. At that time, Bourdon indicated that he lived in Stanford, New York, between Norwich and Deposit, New York. See Pretrial Proceeding in People v. Bourdon, No. 96-0050 (8/26/96) at P. 1. Judge Dowd then released Bourdon on his own recognizance. Id. at P. 4.

On September 17, 1996, the Chenango County District Attorney sent a notice to Bourdon informing him that a grand jury would be considering charges against him. Resp't App. at PP. 53, 57. That notice, which was sent to the address Bourdon provided to the police at the time of his arrest, was returned to the District Attorney's office marked "Returned to Sender, No Such Street." Resp't App. at PP. 5, 56.*fn4

On September 24, 1996, the District Attorney again attempted to serve Bourdon with notice of the impending grand jury session, however, the second notice (which was sent to the Rochelle Park, New York, address that appeared on Bourdon's tickets (see Resp't App. at PP. 9, 53, 57)), was returned to the District Attorney as undeliverable because the forwarding order at that address had expired. Resp't App. at P. 58.

On October 1, 1996, a Chenango County grand jury returned an eight count indictment against Bourdon that charged him with, inter alia, DWI, first degree aggravated unlicenced operation of a motor vehicle, and third degree criminal possession of stolen property.*fn5 Resp't App. at PP. 24-34. After Bourdon was indicted, the District Attorney sent him a notice concerning his scheduled arraignment. That notice, which was sent to the New Jersey address reflected on Bourdon's traffic tickets (Resp't App. at PP. 54, 59), was returned to the District Attorney as undeliverable. See Resp't App. at P. 60. However, a second arraignment notice, which was sent to Bourdon on October 14, 1996, at a Post Office box in Nineveh, New York, was not returned to the District Attorney as undeliverable at that address. Resp't App. at P. 55.

On October 17, 1996, Bourdon failed to appear for the scheduled arraignment. Resp't App. at P. 39. After Bourdon's assigned counsel advised Judge Dowd that he was unable to contact Bourdon regarding that proceeding, Judge Dowd issued a warrant for his arrest. Id. Bourdon was eventually located at his parents' home in New Hampshire and returned to Chenango County. See Pretrial Proceeding in People v. Bourdon, No. 96-0050 (11/26/96) at (unnumbered) PP. 3-4. On November 26, 1996, Bourdon appeared in person at his arraignment and plead not guilty to all charges before Judge Dowd, who then set a cash bail in the amount of $3,000.00. Id. at (unnumbered) P. 8.

On December 4, 1996, Bourdon filed an application to dismiss the indictment because he had not received notice of the date of the presentment to the grand jury and therefore, was unable to testify at that hearing in his own defense. Resp't App. at PP. 44-46. That motion was opposed by the District Attorney who argued that because the application was not filed within five days of Bourdon's arraignment, it was untimely under New York's Criminal Procedure Law ("CPL") § 190.50(5)(c). Resp't App. at P. 51.*fn6

While Bourdon's motion to dismiss the indictment was pending, he filed a motion in which he expressed his dissatisfaction with his court-appointed counsel as well as the entire Public Defender's Office, and requested that Judge Dowd assign replacement counsel on his behalf under Article 18-B of the County Law. See Resp't App. at P. 47. Judge Dowd granted that request by order dated December 23, 1996, and appointed an attorney who was not affiliated with the Public Defender's Office to represent Bourdon. Resp't App. at P. 86.

Judge Dowd ruled on Bourdon's application to dismiss the indictment in a decision dated January 2, 1997. See People v. Bourdon, No. 96-0050 (01/02/97) ("Jan. 1997, Decision") (reproduced at Resp't App. at PP. 87-88). In that decision, Judge Dowd found that the motion to dismiss was untimely filed by Bourdon under the CPL. Jan. 1997, Decision at P. 1.*fn7 Judge Dowd also noted that before he could issue a decision regarding the motion to dismiss, Bourdon had filed a pro se motion for appointment of replacement counsel, and never alleged in that application that his attorney failed to move to dismiss the indictment at Bourdon's request. Id.; see also, Resp't App. at PP. 48-50. Since Judge Dowd found "no basis to set aside the statutory requirement that [the] motion be made not more than five days after the defendant has been arraigned," Bourdon's motion was denied. Jan. 1997, Decision at P. 3.

On March 6, 1997, Bourdon's newly-assigned counsel filed a motion to reargue the denial of Bourdon's motion to dismiss the indictment. Resp't App. at P. 93. Judge Dowd reviewed that motion, including Bourdon's supporting affidavit, and denied the request by Decision dated March 27, 1997. Resp't App. at P. 96.

Bourdon was tried on the above-referenced charges in a jury trial that commenced on May 28, 1997, with Judge Dowd presiding. Trial Tr. at P. 1. During the trial, several witnesses testified on behalf of the prosecution, and Bourdon testified in his own defense. The jury ultimately convicted Bourdon of DWI as well as operating a motor vehicle while having .10 percent or more of alcohol in his blood. Trial Tr. at PP. 221-22.*fn8 However, the jury acquitted Bourdon of criminal possession of stolen property. Trial Tr. at 222.

On July 11, 1997, Judge Dowd sentenced Bourdon to one and one-third to four years imprisonment on the DWI conviction, and a concurrent one and one-third to four years term for his conviction for first degree aggravated unlicenced operation of a motor vehicle. Sentencing Tr. at P. 4. Bourdon appealed his convictions and sentences to the New York State Supreme Court Appellate Division, Third Department. In her brief on behalf of Bourdon, appellate counsel argued that: i) although the motion to dismiss the indictment was untimely, the late filing of that motion resulted from factors beyond Bourdon's control; ii) Bourdon's pre-trial counsel improperly failed to notify the District Attorney of Bourdon's desire to testify at the grand jury;*fn9 and, iii) the prosecution failed to afford Bourdon adequate notice of the grand jury proceedings. See App. Br. at PP. 1-28.

Bourdon submitted a supplemental pro se appellate brief in support of his appeal in which he argued that: i) he received ineffective assistance of trial counsel; ii) he was denied his right to counsel at a critical stage of his trial; iii) the trial court wrongfully denied him sufficient time to prepare for his trial; iv) Judge Dowd improperly denied him the opportunity to call a witness to testify in his defense; and, v) the actions and comments of Judge Dowd during the trial denied him of his right to a fair trial. See pro se appellate Br. at PP. 1-10. On November 5, 1998, the Appellate Division issued a decision in which it affirmed Bourdon's convictions and sentences in all respects. See People v. Bourdon, 255 A.D.2d 619 (3rd Dept. 1998). The Court of Appeals subsequently denied Bourdon leave to appeal to that court. People v. Bourdon, 92 N.Y.2d 1028 (1998).*fn10

III. Discussion

A. Knowing Use of Perjured Testimony

The Third Ground in Bourdon's petition alleges that his conviction was obtained by the knowing use of perjured testimony on the part of the prosecution. Pet. at Ground Three.

Prior to seeking federal habeas relief, a petitioner must exhaust available state remedies, or demonstrate that there is either an absence of available state remedies or that such remedies cannot adequately protect petitioner's rights. Aparicio v. Artuz, 269 F.3d 78, 89 (2d Cir. 2001) (quoting 28 U.S.C. § 2254(b)(1)); Ellman v. Davis, 42 F.3d 144, 147 (2d Cir. 1994). This exhaustion doctrine recognizes "respect for our dual judicial system and concern for harmonious relations between the two adjudicatory institutions." Daye v. Attorney General of New York, 696 F.2d 186, 191 (2d Cir. 1982) (en banc). Though both federal and state courts are charged with securing a state criminal defendant's federal rights, the state courts must initially be given the opportunity to consider and correct any violations of federal law. Id. "The chief purposes of the exhaustion doctrine would be frustrated if the federal habeas court were to rule on a claim whose fundamental legal basis was substantially different from that asserted in state court." Glover v. Bennett, No. 98-CV-0607, 1998 WL 278272, at *1 (N.D.N.Y. May 21, 1998) (Pooler, D.J.) (quoting Daye, 696 F.2d at 192) (footnote omitted).

This exhaustion requirement is satisfied if the federal claim has been "fairly presented" to the state courts. See Dorsey v. Kelly, 112 F.3d 50, 52 (2d Cir. 1997) (quoting Picard v. Connor, 404 U.S. 270, 275 (1971)). A claim has been "fairly presented" if the state courts are apprised of "both the factual and the legal premises of the claim [the petitioner] asserts in federal court." Daye, 696 F.2d at 191; Morales v. Miller, 41 F. Supp.2d 364, 374 (E.D.N.Y. 1999). Thus, "the nature or presentation of the claim must have been likely to alert the court to the claim's federal nature." Daye, 696 F.2d at 192; Morales, 41 F. Supp.2d at 374.

Bourdon has not exhausted the claims raised in his third ground for relief. Neither appellate counsel's brief, nor Bourdon's own pro se appellate brief, allege the knowing use of perjury on the part of the prosecution at the time of Bourdon's trial. See e.g., App. Br. at PP. 6-29; pro se Appellate Br. at PP. 1-10. The finding that Bourdon has not exhausted this ground is further supported by the fact that: i) Bourdon states in his petition that he filed no challenges to his convictions and sentences other than his direct appeal (Pet. at ¶ 10); ii) in his memorandum of law in opposition to Bourdon's habeas petition, the respondent does not reference any collateral challenge filed by Bourdon regarding his convictions (Dkt. No. 7 at PP. 6-7); and, iii) no copies of any collateral challenge to Bourdon's convictions were provided to the court by the respondent.

Now, Bourdon cannot file an appeal with the Appellate Division as to this claim because in New York, a criminal defendant is "entitled to one (and only one) appeal" to the Appellate Division. Aparicio v. Artuz, 269 F.3d 78, 91 (2d Cir. 2001). Moreover, since "New York does not otherwise permit collateral attacks on a conviction when the defendant unjustifiably failed to raise the issue on direct appeal" Id. (citing CPL § 440.10(2)(c)), Bourdon now could not properly raise this claim in an Article 440 motion. Aparicio, 269 F.3d at 91; Bossett v. Walker, 41 F.3d 825, 829 (2d Cir. 1994). This claim which appears to be based upon the record, see Pet. at P. 6,*fn11 is therefore "deemed exhausted" for purposes of his habeas application. Spence v. Superintendent Great Meadow Correctional Facility, 219 F.3d 162, 170 (2d Cir. 2000); Senor v. Greiner, No. 00-CV-5673, 2002 WL 31102612, at *10 (E.D.N.Y. Sept. 18, 2002); see also, DeLeon v. Duncan, No. 99-CIV-9086, 2002 WL 1997892, at *3 (S.D.N.Y. Aug. 28, 2002) (citations omitted).

Although the respondent has argued that Bourdon's claim of ineffective assistance of appellate counsel is unexhausted (Dkt. No. 7 at PP. 11-12), he has not claimed that Bourdon's allegation regarding the knowing use of perjury at his trial was unexhausted. See Dkt. No. 7 at PP. 12-13. Although a district court can properly raise the issue of a petitioner's failure to exhaust a claim in the state courts sua sponte, see Acosta v. Artuz, 221 F.3d 117, 121 (2d Cir. 2000) (citing Kiser v. Johnson, 163 F.3d 326, 329 (5th Cir. 1999); Hardiman v. Reynolds, 971 F.2d 500, 504 (10th Cir. 1992)), the Second Circuit has held that before a claim in a petition may properly be dismissed on procedural grounds sua sponte, a district court must afford the petitioner notice of its intention to dismiss the claim on that procedural basis and an opportunity to be heard. Acosta, 221 F.3d at 124.*fn12

Therefore, this Court directs that, within thirty days of the date of this order, Bourdon inform the Court and the Attorney General, in an affidavit or declaration under oath, whether he has ever raised his claim that the prosecution knowingly used perjured testimony at the time of his trial in any state court. If Bourdon indicates that he has filed such a collateral challenge, he shall also state: i) the type of proceeding he brought asserting that challenge;*fn13 ii) the date on which that state court proceeding was filed; iii) the date on which the court denied Bourdon's application; and, iv) whether he appealed that adverse ruling and, if so, the date on which any appeal was decided. Bourdon is advised that if he fails to provide this information in the time period referenced above, this Court will conclude that Bourdon has never raised the claims asserted in his third ground for relief.

B. Ineffective Assistance of Appellate Counsel

Bourdon alleges in his federal petition, inter alia, that he received ineffective assistance of appellate counsel. Pet. at Ground Four. As noted above, Bourdon has indicated in his petition that he did not file any state court challenge regarding this claim with the Appellate Division. See Pet. at ¶ 10. However, unlike his claim regarding the knowing use of perjured testimony, Bourdon could still assert his unexhausted claim alleging ineffective assistance of appellate counsel by way of a writ of error coram nobis because, under New York Law, there is no time limit for filing an application for a writ of error coram nobis. Cameron v. People of State of New York, No. 01CIV.9988, 2002 WL 31898076, at *9 (S.D.N.Y. Dec. 30, 2002) (citing People v. Richetti, 302 N.Y. 290 (1951)).

Under the AEDPA, where the respondent argues that a petitioner has failed to exhaust a federal claim for habeas relief, a federal district court has the discretion to deny, on the merits, such an unexhausted claim.*fn14 28 U.S.C. § 2254(b)(2); Orraca v. Walker, 53 F. Supp.2d 605, 607-13 (S.D.N.Y. 1999). That discretion has typically been exercised by district courts within this circuit where the unexhausted claims are "patently frivolous." Pacheco v. Artuz, 193 F. Supp.2d 756, 761 (S.D.N.Y. 2002) (citation omitted); Orraca, 53 F. Supp.2d at 611 (collecting cases). However, this court cannot recommend, based upon the information provided by Bourdon regarding this claim, that the fourth ground in the petition is patently frivolous.

In Zarvela v. Artuz, 254 F.3d 374 (2nd Cir.), cert. denied sub nom. Fischer v. Zarvela, 534 U.S. 1015 (2001), the Second Circuit provided guidance regarding the manner in which a federal court should proceed where a petitioner has presented an unexhausted claim in a federal habeas petition which is not frivolous on its face, and cannot be found by a district court to be "deemed exhausted" for purposes of the federal habeas petition. In Zarvela, the court stated that "[a]s to the exhausted claims, we think a district court should exercise discretion either to stay further proceedings on the remaining portion of the petition or to dismiss the petition in its entirety." Zarvela, 254 F.3d at 380. That court went on to hold that in light of the one year statute of limitations imposed on federal habeas petitions under the AEDPA, staying the federal action is the "only appropriate" course of action "where an outright dismissal `could jeopardize the timeliness of a collateral attack.'" Id. (quoting Freeman v. Page, 208 F.3d 572, 577 (7th Cir.), cert. denied, 531 U.S. 946 (2000)).

In this case, it is clear that outright dismissal of Bourdon's petition could well jeopardize the timeliness of any future habeas petition filed by him regarding his convictions because the AEDPA's one year statute of limitations is not tolled while a federal habeas petition is pending. Duncan v. Walker, 533 U.S. 167, 181-82 (2001); Rodriguez v. Bennett, 303 F.3d 435, 438 (2d Cir. 2002). Therefore, the court will not recommend that the petition be dismissed pending exhaustion.

In Jones v. Spitzer, No. 01CIV.9754, 2002 WL 737649 (S.D.N.Y. Apr. 26, 2002), the court was faced with a federal habeas petition in which the petitioner had similarly failed to exhaust a claim alleging ineffective assistance of appellate counsel. Id., 2002 WL 737649, at *4. Based upon that finding, that court afforded petitioner the option of either requesting that the district court dismiss, with prejudice, his unexhausted federal claim or alternatively, pursuing a writ of error coram nobis in the appropriate Appellate Division while his federal habeas petition was stayed. Id., 2002 WL 737649, at *5.

The approach adopted in Jones is both fair and sensible, and therefore, Bourdon shall be afforded the option of either requesting the dismissal of his unexhausted claim alleging ineffective assistance of appellate counsel or pursuing that claim with the Appellate Division while this federal proceeding is stayed. Accordingly, within thirty days of the date of this order, Bourdon shall inform the court and the Attorney General, in a second affidavit or declaration under oath, whether petitioner wishes to withdraw his unexhausted ineffective assistance of appellate counsel claim.*fn15 If petitioner advises the court of his desire to withdraw that claim, his fourth ground for relief will be dismissed and Bourdon will be deemed to have forever forfeited any federal court review of his ineffective assistance of appellate counsel claim.

As indicated above, Bourdon may instead choose to file (in the 3rd Dept.) an application seeking a writ of error coram nobis alleging ineffective assistance of appellate counsel within thirty days of the date of this order.*fn16 In the event petitioner decides to pursue this alternative, his second affidavit or declaration filed in accordance with this order shall state that he has chosen to pursue that course of action, in which, the present federal habeas proceeding will be stayed. Should petitioner choose to pursue exhaustion of the ineffective assistance of appellate counsel claim, he will also be required to notify this court of any final disposition of his application for a writ of error coram nobis within thirty days of his receipt of the decision. Bourdon is further advised that his failure to comply with the above deadlines will result in a recommendation that his entire petition be dismissed. Jones, 2002 WL 737649, at *5 (citing Zarvela, 254 F.3d at 381).

C. In Forma Pauperis Application

Finally, Bourdon apparently filed an in forma pauperis application on June 8, 1999, which was only recently brought to the attention of this court. See Dkt. No. 5. In light of the substantial period of time that has passed between the date on which Bourdon completed that application and the date of this order, the court denies that application without prejudice. Should Bourdon wish to resubmit a current in forma pauperis application, this court will determine, based on the information contained in that renewed application, whether Bourdon may properly proceed with this action in forma pauperis.

WHEREFORE, it is hereby

ORDERED, that within THIRTY (30) DAYS of the date of this order, Bourdon inform the Court and the Attorney General, in an affidavit or declaration under oath, whether he ever asserted in any state court the claims raised in his third ground for relief; and it is further

ORDERED, that if Bourdon filed any collateral challenge in state court as to that claim, he provide the Court and the Attorney General with the information referenced above concerning the date on which he filed such challenge, and the date of the state court decision denying that application; and it is further

ORDERED, that if Bourdon fails to timely provide the above-referenced information, this court will conclude that he has never raised his claim regarding the knowing use of perjured testimony in any state court; and it is further

ORDERED, that within THIRTY (30) DAYS of the date of this order, Bourdon advise this court, in a separate affidavit or declaration under oath, whether he wishes to withdraw his unexhausted ineffective assistance of appellate counsel claim; and it is further

ORDERED, that if Bourdon chooses to pursue his ineffective assistance of appellate counsel claim in state court, he shall so notify this court and file an application seeking a writ of error coram nobis in the Third Department; and it is further

ORDERED, that if Bourdon files an application for a writ of error coram nobis within the time period referenced above, the present federal habeas petition be stayed; and it is further

ORDERED, that within THIRTY (30) DAYS following Bourdon's receipt of a decision by the Third Department on his petition for a writ of error coram nobis (should he choose to file such an application), Bourdon advise this court whether he wishes this court to lift the stay that will have been imposed on this federal habeas petition; and it is further

ORDERED, that Bourdon's in forma pauperis application (Dkt. No. 5) is DENIED without prejudice to renew; and it is further

ORDERED, that the Clerk of the court serve a copy of this order upon the parties by regular mail.


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