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BOURDON v. WALKER

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 ...


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