Ronald Bourdon v. Warden, Northern New Hampshire Correctional Facility

2022 DNH 095

• Court: District Court, D. New Hampshire
• Decided: August 10, 2022
• Docket: 19-cv-258-SE
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Ronald Bourdon

v. Civil No. 19-cv-258-SE Opinion No. 2022 DNH 095 Warden, Northern New Hampshire Correctional Facility

O R D E R

Ronald Bourdon, who is proceeding pro se, petitioned the

court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.

After a jury trial in Hillsborough County (New Hampshire)

Superior Court, Bourdon was convicted of attempted murder, first

degree assault, simple assault, criminal restraint, and criminal

threatening. In his § 2254 petition, his second such petition

filed in this court, Bourdon challenged the validity of his

convictions and sentence. The court construed the petition to

raise 15 viable claims, including that Bourdon’s convictions

were obtained in violation of his constitutional rights due to

insufficient evidence, ineffective assistance of counsel,

prosecutorial misconduct, and a violation of his right to equal

protection.1 The warden moves for summary judgment on all of

1 The court construed Bourdon’s petition to raise 18 claims but dismissed three of them on preliminary review. See doc. nos. 15, 19. Bourdon’s claims (doc no. 32), and Bourdon objects. For the

reasons that follow, the court grants the warden’s motion.

Standard of Review

The appropriate standard of review for claims brought under

the Antiterrorism and Effective Death Penalty Act of 1996, §

2254, depends on whether a claim was “adjudicated on the merits

in State Court proceedings.” § 2254(d). If a claim was

adjudicated on the merits, a court should not grant an

application for habeas corpus unless the state court decision

was either (1) contrary to or involved an unreasonable

application of clearly established federal law or (2) based on

an unreasonable determination of the facts. Id.

In contrast, where a state court decision does not

adjudicate a petitioner’s federal claims on the merits, the

district court does not, and could not, employ a deferential

standard of review. Fortini v. Murphy, 257 F.3d 39, 47 (1st Cir.

2001) (noting that a court considering a § 2254 petition “can

hardly defer to the state court on an issue that the state court

did not address”). Instead, the district court “reviews federal

claims raised but unadjudicated in state court de novo.” Hodge

v. Mendonsa, 739 F.3d 34, 41 (1st Cir. 2013).

2 In addition, the court’s review of claims asserted in a §

2254 petition is subject to two limitations. First, a state

prisoner must exhaust available state remedies before presenting

his claim to a federal habeas court. § 2254(b)(1). “Second, a

federal court may not review federal claims that were

procedurally defaulted in state court—that is, claims that the

state court denied based on an adequate and independent state

procedural rule.” Davila v. Davis, 137 S. Ct. 2058, 2064 (2017).

But a “state prisoner may overcome the prohibition on reviewing

procedurally defaulted claims if he can show cause to excuse his

failure to comply with the state procedural rule and actual

prejudice resulting from the alleged constitutional violation.”

Id. at 2064-65 (quotation omitted).

Bourdon has challenged his convictions and sentence several

times in various courts. In the warden’s memorandum supporting

his summary judgment motion, he devotes substantial time to

discussing whether the court should consider each of Bourdon’s

claims and, if so, the appropriate standard of review the court

should employ. The warden also addresses each of Bourdon’s

claims on the merits.

For the reasons discussed below, the warden is entitled to

summary judgment on all of Bourdon’s claims under the

3 petitioner-friendly de novo standard. Therefore, in the interest

of judicial economy, the court will forego analyzing whether

each of Bourdon’s claims was procedurally defaulted, exhausted,

raised but not addressed, or adjudicated on the merits in state

court. Instead, the court will assume for purposes of this order

that the de novo standard of review applies to each of Bourdon’s

claims.

With that framework established, the court turns to the

warden’s motion for summary judgment. Summary judgment is

appropriate when the moving party shows that “there is no

genuine dispute as to any material fact and the movant is

entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).

A genuine dispute is “one that must be decided at trial because

the evidence, viewed in the light most flattering to the

nonmovant, would permit a rational factfinder to resolve the

issue in favor of either party.” Joseph v. Lincare, Inc., 989

F.3d 147, 157 (1st Cir. 2021) (quotation omitted). “Facts are

material when they have the potential to affect the outcome of

the suit under the applicable law.” Id. (quotation omitted). In

deciding a motion for summary judgment, the court draws all

reasonable factual inferences in favor of the nonmovant. Kenney

v. Floyd, 700 F.3d 604, 608 (1st Cir. 2012).

4 Background2

I. Factual Background

Bourdon’s convictions arose from an incident at his home in

June 2011. A friend, Robert Derome, was helping him with a

project at the house. Derome’s teenaged son and stepson, Dylan

Fitzgerald and Scott Dunlap, were also helping.3 At the end of

the work day, Fitzgerald, Dunlap, Bourdon, and Derome were

sitting in Bourdon’s kitchen. Derome and Bourdon were drinking

alcohol, and the boys were drinking soda.

Bourdon accused Dunlap and Fitzgerald of stealing his

laptop computers and became angry. According to Fitzgerald’s and

Dunlap’s trial testimony, Bourdon threatened to punch them and

to call the police. When the boys told him that they had not

taken the laptops, Bourdon said that one of them would die

2 The facts in this section are taken from the trial transcript and other documents in the record, as well as orders issued in other cases in which Bourdon challenged his convictions. All facts are construed in the light most favorable to Bourdon. Unless otherwise noted, the facts in this section are undisputed.

3 Because Fitzgerald and Dunlap were teenagers at the time of the incident, they were previously referred to by their initials rather than their names. Their names were used during Bourdon’s criminal trial, however, and they are no longer minors. Therefore, the court will use their full names in this order.

5 before leaving the house. He also said that he would not let

them leave without a knife in their chests.

Fitzgerald and Dunlap testified that Bourdon went to the

kitchen counter, came back with a knife, ran at Dunlap, and

stabbed him in his right side. Fitzgerald tried to help his

brother and was cut twice on the arm in the process. While

Bourdon held Dunlap by the shirt, Fitzgerald pulled Dunlap to

the door to get away from Bourdon, and Dunlap’s shirt was torn

in the struggle. The boys escaped from the house and ran to the

street. Carlos Blanco, Bourdon’s neighbor, called the police

while others tried to help Dunlap and Fitzgerald. Blanco, as

well as another one of Bourdon’s neighbors, Beverly Trevino,

testified at trial.

Nashua Police officers responded to Bourdon’s home. They

later testified as to what they found. Fitzgerald and Dunlap

were lying in the street, both wounded and in distress. Dunlap’s

wound appeared to be more serious. Fitzgerald and Dunlap warned

the officers that Bourdon might have a gun.

The officers saw that Bourdon was inside the house. They

tried to get him to come out, but he refused. The officers set

up an entry team to go into the house with shields, guns, and a

Taser. The team entered the house to apprehend Bourdon. Because

Bourdon continued to refuse to cooperate with the officers, an

6 officer deployed his Taser, which knocked Bourdon to the ground.

He was handcuffed and taken outside.

Bourdon’s trial testimony offered a different version of

events. He said that when he went into his house from the yard

where he had been working, the boys were in the house, and he

heard them say “here he comes.” He testified that he believed

the boys stole two of his laptops.

Bourdon testified that he told the boys he would call the

police and reached for the telephone. He said that Dunlap took a

knife off the table and threatened him with it. Bourdon then

grabbed Dunlap’s wrist, and they began to struggle. Fitzgerald

joined the struggle to help his brother. Although Bourdon was

unclear about the details, he testified that during the

struggle, Dunlap fell on the knife or stabbed himself and also

cut his brother. Bourdon testified that the boys left the house,

the police responded, and he cooperated with the police.

Fitzgerald and Dunlap were taken to Southern New Hampshire

Medical Center and were treated in the emergency department.

Fitzgerald received stiches for his wounds and was released. Dr.

Peter Row and Dr. Kenneth Howe treated Dunlap in the emergency

department and testified at Bourdon’s trial. Dr. Howe testified

that Dunlap had a stab wound in his right flank area—between

Dunlap’s right hip and the lower part of his right rib cage—and

was sufficiently stable to have a CT scan. The CT scan showed a

7 deep wound and internal bleeding that raised a concern about

internal injuries. The doctors decided to have Dunlap

transferred to a level one trauma center. Dunlap was air-lifted

to Brigham and Women’s Hospital (“Brigham”) in Boston.

Dr. Jonathan Gates, a vascular and trauma surgeon at

Brigham, met Dunlap in the emergency department. Dr. Gates

examined Dunlap, reviewed the CT scan results, and determined

that “he had suffered a stab wound to the right flank, . . .

[and] that he had a significant amount of bleeding [in] the

retroperitoneal area, which is part of the abdomen.” Trial Tr.

at 164. The knife wound was two inches long and at least three

to four inches deep. Dr. Gates decided that surgery was needed

to determine the extent of internal injuries and to repair the

damage to the abdominal muscles caused by the knife.

During surgery, Dr. Gates found a large hematoma, or, as he

described it at trial, a bleed, in the musculature of the

retroperitoneal area, which is the back of the abdomen. The

hematoma pushed the organs in the abdomen forward. There was no

injury to internal organs or the major blood vessel in the area.

Dr. Gates addressed the internal bleeding during surgery and

repaired the damaged muscles.

Dunlap testified that he remained in the hospital for five

days. Once home, he was in bed for the first month and then

continued to recover from the injury for another two months.

8 II. Procedural Background

A. State Court Proceedings

In August 2011, Bourdon was indicted on charges of

attempted murder, first degree assault, criminal restraint,

criminal threatening, simple assault, and felon in possession of

a firearm arising from the stabbing incident at his house. The

indictment for first degree assault stated that Bourdon stabbed

Dunlap “in the abdominal area with a knife, causing a

retroperitoneal hematoma (‘stomach bleed’).” Doc. no. 4-1 at 13.

Bourdon was initially represented by Michael Davidow and

Eleftheria Keans from the New Hampshire Public Defender’s

Office. Early in the proceedings, Davidow was replaced by Joseph

Tessier, also from the New Hampshire Public Defender’s Office.

Bourdon’s case was tried before a jury in September 2012 in

Hillsborough County Superior Court for the Southern District.

The felon-in-possession charge was dismissed during the trial.

Bourdon was acquitted of one criminal restraint charge and was

convicted of all other charges. He was sentenced to 22½ to 50

years in state prison.

Keans filed a notice of appeal on Bourdon’s behalf on

January 11, 2013, challenging the trial judge’s decision to

admit Bourdon’s booking photograph and failure to dismiss some

of the charges. In May 2013, while the appeal was pending,

9 Bourdon filed a pro se motion for a new trial in the superior

court alleging ineffective assistance of counsel. The New

Hampshire Supreme Court stayed Bourdon’s direct appeal pending

resolution of the motion for a new trial.

The superior court appointed Theodore Barnes to represent

Bourdon on his motion for a new trial. Barnes filed an amended

motion for a new trial on Bourdon’s behalf. The superior court

held an evidentiary hearing on April 14, 2014. Both Tessier and

Keans testified. The court denied the motion for a new trial on

July 16, 2014, and subsequently denied Bourdon’s motion for

reconsideration. Bourdon filed a notice of appeal, which the New

Hampshire Supreme Court declined to accept in October 2014.

In April 2015, Bourdon, proceeding pro se, filed a second

motion for a new trial in the superior court, arguing that

Barnes had provided ineffective assistance of counsel with

regard to his prior motion. The state responded that the new

motion was a rehash of arguments made in support of the prior

motion for a new trial. The court denied the motion for the

reasons provided in the state’s objection. Bourdon filed a

notice of appeal, which raised additional claims, and the New

Hampshire Supreme Court declined to accept the appeal in July

2015.

One month prior, in June 2015, Bourdon filed a habeas

corpus petition in the Coos County Superior Court, again

10 alleging that Barnes had provided him with ineffective

assistance of counsel. The superior court denied his petition in

August 2015. Bourdon filed a notice of discretionary appeal in

September 2015. The New Hampshire Supreme Court appears to have

declined to accept the appeal, though a copy of the decision

does not appear in the record.

After the superior court adjudicated Bourdon’s requests for

relief, the New Hampshire Supreme Court lifted the stay on

Bourdon’s direct appeal of his conviction. David Rothstein from

the New Hampshire Public Defender’s Office represented Bourdon

on that appeal. On August 28, 2015, the New Hampshire Supreme

Court affirmed Bourdon’s conviction on all grounds. State v.

Bourdon, No. 2013-0031, 2015 WL 11181919 (N.H. Aug. 28, 2015).

In July 2018, Bourdon again moved for a new trial in the

superior court, based on an EMT report of the treatment provided

to Fitzgerald and Dunlap. Bourdon argued that the EMT report was

new evidence and was critical to his defense because it

contained statements made by Dunlap that could have been used as

impeachment evidence. The state objected on the grounds that the

EMT report was not new evidence and was not material.4 The court

4 In his July 2018 motion for a new trial, Bourdon asserted that his defense counsel did not receive the EMT report prior to his trial. However, he also stated in that motion that his counsel did have a copy of the EMT report at trial but that it was “hidden in between the pages” of other documents that the state provided. Doc no. 41-9 at 6.

11 denied the motion on the grounds set forth in the state’s

objection.

In August 2018, Bourdon moved to compel disclosure of the

911 call from the day of the stabbing, arguing that the call

contained evidence that could have impeached Dunlap and

Fitzgerald. The superior court denied the motion and also denied

Bourdon’s motion for reconsideration. Bourdon filed another

notice of appeal with the New Hampshire Supreme Court, and the

court declined to accept the appeal.

B. Federal Court Proceedings

Concurrently with his efforts in state court, Bourdon filed

an action in this court. On April 20, 2015, he filed a petition

pursuant to 28 U.S.C. § 2254. Bourdon v. Goings, 15-cv-138-LM.

The court stayed that case to give Bourdon an opportunity to

exhaust his claims in state court and to complete the state

court proceedings. Bourdon moved to be released on bail or

personal recognizance while his petition was pending. The court

denied his motion.

The court lifted the stay in May 2016, and the Office of

the Attorney General was served. The court granted the

respondent’s motion to dismiss Claim 13,5 which asserted

5 The court construed Bourdon’s petition in that case to allege 13 claims.

12 ineffective assistance of counsel in the post-conviction

proceedings regarding the motion for a new trial. In response to

cross motions for summary judgment, the court concluded that the

petition contained exhausted and unexhausted claims. The court

gave Bourdon an opportunity to file an amended petition without

unexhausted claims, took the motions for summary judgment under

advisement, and put Bourdon on notice that failure to file an

amended petition would result in dismissal of his case. When

Bourdon failed to file an amended petition, the court dismissed

the case without prejudice and denied the motions for summary

judgment as moot. The court declined to issue a certificate of

appealability and entered judgment on August 16, 2017.

Bourdon appealed the court’s judgment. In a decision issued

in June 2018, the First Circuit concluded that Bourdon had not

made the necessary showing for a certificate of appealability.

The First Circuit terminated the appeal.

In October 2018, Bourdon moved to reopen his federal habeas

case and moved to stay. The court denied both motions. Bourdon’s

motion to reopen was construed to challenge the court’s decision

on Claim 13 and to argue actual innocence to overcome his

failure to exhaust his claims in state court. The court found no

error in dismissing Claim 13 and also concluded that Bourdon had

not presented credible evidence of actual innocence. Bourdon v.

13 Warden, No. 15-cv-138-LM, 2018 WL 6069100 (D.N.H. Nov. 20,

2018).

Bourdon filed a second petition under § 2254 in this court,

which initiated this case. On preliminary review, the magistrate

judge identified 18 claims with additional subparts but

recommended that three claims be dismissed. Doc. no. 15. The

court approved the magistrate judge’s recommendation. Doc. no.

19. The identified claims that were served on the warden are as

follows:

1. Bourdon’s convictions for attempted murder and first-degree assault were not supported by sufficient evidence, in violation of his right to due process under the Fourteenth Amendment, as there was insufficient evidence before the jury of serious bodily injury.

2. Bourdon’s trial attorneys failed to investigate issues relating to Bourdon’s case, and were otherwise unprepared for trial, in violation of Bourdon’s Sixth Amendment right to counsel at all critical stages of the prosecution, and in violation of the Sixth Amendment right to the effective assistance of counsel, in that they:

a. did not obtain or review the contents of the bail hearing transcript;

b. did not interview key witnesses, including the first responders (“EMTs”);

c. did not obtain or review a recording of the 911 call;

d. did not consult with medical experts or otherwise adequately investigate issues regarding the nature and severity of the victims’ wounds; and

14 e. did not investigate the blood drop evidence and crime scene photos for purposes of impeaching the victims’ trial testimony.

3. Bourdon’s trial counsel did not challenge the sufficiency of the charging documents, which inaccurately characterized Scott’s abdominal wound as a serious injury and a “stomach bleed,” amounting to a denial of counsel at a critical stage of the prosecution and ineffective assistance of counsel, in violation of Bourdon’s Sixth Amendment right to counsel.

4. Bourdon’s trial counsel did not object to or effectively rebut the prosecutor’s opening statement, which mischaracterized the evidence of the extent and severity of the victims’ wounds, in violation of Bourdon’s Sixth Amendment right to the effective assistance of counsel and to have counsel at all critical stages of the prosecution.

5. Bourdon’s trial counsel’s opening statement did not dispute the State’s version of events or raise Bourdon’s theory of the case - that the stabbing happened during a struggle, and that Bourdon acted in self-defense - in violation of Bourdon’s Sixth Amendment right to the effective assistance of counsel and Sixth Amendment right to have counsel at all critical stages of the case.

6. Bourdon’s trial counsel did not adequately cross- examine or impeach witnesses, in violation of petitioner’s Sixth Amendment right to the effective assistance of counsel, Sixth Amendment right to have counsel at all critical stages of his case, and Sixth Amendment right under the Confrontation Clause, with respect to:

a. Fitzgerald, using his prior inconsistent statements;

b. Dunlap, using his prior inconsistent statements;

15 c. Detective Lee, using his prior statements and bail hearing testimony;

d. Carlos Blanco, for the purpose of impeaching Dylan’s and Scott’s trial testimony and adducing exculpatory evidence;

e. Beverly Trevino, for the purpose of impeaching Dylan’s and Scott’s trial testimony and adducing exculpatory evidence; and

f. the medical experts who testified for the prosecution, for the purpose of adducing exculpatory evidence.

7. Bourdon’s trial attorneys did not adequately prepare him to testify when they failed to ensure that he understood the evidence regarding the nature and severity of the victims’ wounds, in violation of his Sixth Amendment right to the effective assistance of counsel, and the right to have counsel at all critical stages of the case.

8. Bourdon’s trial counsel did not present any expert medical testimony to explain the nature of the wounds at issue and rebut evidence regarding the size of the knife and the severity of the victims’ wounds, in violation of petitioner’s Sixth Amendment right to the effective assistance of counsel, and to have counsel at all critical stages of the case.

9. Bourdon’s trial counsel did not call the EMTs as witnesses to testify regarding the size of the knife and the severity of the victims’ wounds, for purposes of impeaching the victims’ testimony, in violation of petitioner’s Sixth Amendment right to the effective assistance of counsel, and to have counsel at all critical stages of his case.

10. Bourdon’s trial counsel did not object to prosecutorial misconduct, in violation of his Sixth Amendment right to the effective assistance of counsel and to have counsel at all critical stages of the case, where:

16 a. the prosecutor’s closing argument mischaracterized the evidence and testimony of Beverly Trevino and other witnesses regarding the circumstances of the assault and the nature and severity of the victims’ wounds;

b. the prosecutor in his closing argument vouched for the credibility of Dunlap’s and Fitzgerald’s testimony regarding the assault;

c. the prosecutor did not disclose the existence and contents of: (i) the 911 recording, (ii) the EMT report, (iii) Carlos Blanco’s June 14, 2011 statement to Detective Gorman, (iv) Beverly Trevino’s June 14, 2011 statement, (v) Fitzgerald’s June 14, 2011 statements to Detective Anderson, (vi) Dunlap’s June 13 and June 21, 2011 statements, and (vii) Detective Lee’s affidavit, all of which included either exculpatory evidence or evidence that could have impeached the victims’ trial testimony, in violation of Mr. Bourdon’s due process rights under Brady v. Maryland, 373 U.S. 83 (1963), and its progeny.

d. the prosecutor knowingly relied on perjured testimony from Dunlap, regarding the circumstances of the assault and the severity of the wounds, to obtain a conviction; and

e. the prosecutor knowingly relied on perjured testimony from Fitzgerald, regarding the circumstances of the assault and the severity of the wounds, to obtain an indictment and to obtain a conviction.

11. Bourdon’s lead trial counsel, Joseph Tessier, acted under an actual conflict of interest, and failed to disclose that conflict, which adversely affected his representation of Bourdon, as Tessier, at the time he was representing Bourdon, wanted to be a prosecutor and never disclosed

17 that fact, in violation of Bourdon’s Sixth Amendment right to counsel and Fourteenth Amendment right to due process.

12. The prosecutor engaged in prosecutorial misconduct, in violation of Bourdon’s Fourteenth Amendment right to due process, in that:

a. The prosecutor, in concert with Detective Lee, instructed Dunlap and Fitzgerald to lie and then relied on their perjured testimony regarding the circumstances of the assault and the severity of the wounds to obtain an indictment and a conviction;

b. The prosecutor did not disclose the existence of (i) the 911 recording, (ii) the EMT report, (iii) Carlos Blanco’s June 14, 2011 statement to Detective Gorman, (iv) Beverly Trevino’s June 14, 2011 statement, (v) Dylan’s June 14, 2011 statements to Detective Anderson, (vi) Scott’s June 13 and June 21, 2011 statements, and (vii) Detective Lee’s affidavit, which included exculpatory statements and evidence that could impeach the victims’ trial testimony, in violation of Bourdon’s due process rights under Brady and its progeny; and

c. The prosecutor in an effort to advance her election campaign to become the county attorney, conspired with Detective Lee to obtain a grand jury indictment upon fabricated evidence that Scott suffered a serious bodily injury or stomach bleed.

13. In violation of Bourdon’s Sixth Amendment right to a fair trial and Fourteenth Amendment right to due process, Bourdon’s lead trial counsel, Tessier, acting in a conspiracy with the prosecutor, for the purpose of advancing the personal, professional, and political goals of both himself and the prosecutor:

a. fabricated evidence regarding the existence of a stomach bleed;

18 b. failed to impeach Fitzgerald and Dunlap;

c. failed to obtain expert medical testimony that would have provided exculpatory and impeaching evidence;

d. failed to adequately cross-examine witnesses at trial;

e. failed to object when the prosecutor elicited perjured testimony from Fitzgerald and Dunlap;

f. failed to call the EMTs as witnesses regarding what Scott said to them about the knife;

g. failed to object to the prosecutor’s use of the EMT report as the basis for Bourdon’s indictment;

h. failed to seek dismissal of the indictments for first degree assault and attempted murder;

i. suppressed or otherwise kept the 911 recordings from Bourdon and the jury;

j. suppressed or otherwise kept the EMTs’ report from Bourdon and the jury;

k. suppressed or otherwise kept Bourdon’s booking photo from the jury;

l. suppressed or otherwise kept Officer Yeomelakis’s report from Bourdon and the jury;

m. failed to object to the prosecutor’s opening and closing arguments, particularly regarding Beverly Trevino’s testimony;

n. failed to object to other instances of prosecutorial misconduct; and

o. failed to vigorously dispute the prosecutor’s version of events presented to

19 the jury in the prosecutor’s opening and closing arguments.

14. In violation of Bourdon’s Fourteenth Amendment right to due process, the trial court failed to declare a mistrial sua sponte when the prosecutor argued facts not in evidence regarding Beverly Trevino’s testimony.

15. Bourdon’s conviction was obtained in violation of the Fourteenth Amendment Equal Protection Clause.

Doc. no. 15 at 7-12.

Discussion

The warden moves for summary judgment on all 15 claims.

Bourdon objects. The court addresses each claim in turn.

I. Sufficiency of the Evidence (Claim 1)

Bourdon alleges that his due process rights were violated

because the evidence adduced at trial was not sufficient to

prove attempted murder and first degree assault beyond a

reasonable doubt. With regard to the assault charge, Bourdon

contends specifically that the injuries Dunlap sustained were

not serious enough to support the conviction.

Under the due process clause, “no person shall be made to

suffer the onus of a criminal conviction except upon sufficient

proof—defined as evidence necessary to convince a trier of fact

beyond a reasonable doubt of the existence of every element of

the offense.” Jackson v. Virginia, 443 U.S. 307, 316 (1979). In

20 applying that test, the court views the evidence in the light

most favorable to the prosecution to decide whether “any

rational trier of fact could have found the essential elements

of the crime beyond a reasonable doubt.” Id. at 319; accord

Musacchio v. United States, 577 U.S. 237, 243 (2016). The

court’s review “does not intrude on the jury’s role to resolve

conflicts in the testimony, to weigh the evidence, and to draw

reasonable inferences from basic facts to ultimate facts.”

Musacchio, 577 U.S. at 243 (quotation omitted).

A. Attempted Murder

Under New Hampshire law, to “prove attempted murder, the

State is required to submit sufficient evidence that a person

took a substantial step toward killing another with the purpose

of accomplishing the killing.” State v. Karasi, 170 N.H. 543,

546 (2018) (quotation omitted) (citing RSA § 626:2, II(a) & RSA

§ 629:1, I). Bourdon was charged with and convicted of attempted

murder with regard to Dunlap.

Viewed in the light most favorable to Bourdon, the record

demonstrates that ample evidence was presented at trial to allow

a rational trier of fact to convict Bourdon of attempted murder.

Fitzgerald and Dunlap testified that Bourdon threatened to kill

them. They also testified that Bourdon said that they would not

leave his house without a knife in their chests. The jury heard

21 testimony that Bourdon then got a knife and ran at Dunlap,

stabbing him in the right side.

A rational trier of fact could have found that this

evidence established beyond a reasonable doubt that Bourdon

acted with the purpose to kill Dunlap and took actions

constituting a substantial step toward achieving that goal.

Although Bourdon testified that different circumstances led to

the knife wound and to the treatment that Dunlap received, the

jury did not credit his account. The evidence of attempted

murder is sufficient to sustain Bourdon’s conviction.

Although not clear from his petition, Bourdon also may

allege that Dunlap’s wound was not a “serious bodily injury” and

was therefore not severe enough to support a conviction for

attempted murder. That contention is misplaced. As the New

Hampshire Supreme Court stated when affirming Bourdon’s

conviction, serious bodily injury is not an element of the

offense of attempted murder. Bourdon, 2015 WL 11181919, at *2;

see Karasi, 170 N.H. at 546.

B. First Degree Assault

A person is guilty of first degree assault under New

Hampshire law if he purposely causes serious bodily injury to

another. RSA § 631:1, I(a). New Hampshire law defines serious

bodily injury as “any harm to the body which causes severe,

22 permanent or protracted loss of or impairment to the health or

of the function of any part of the body.” RSA § 625:11, VI.

Despite Bourdon’s attempts to minimize Dunlap’s wound,

there was significant evidence offered at trial that would allow

the jury to conclude beyond a reasonable doubt that Dunlap

suffered a serious bodily injury. The state presented the

following evidence: Dunlap’s wound from the knife was two inches

long and at least three to four inches deep. He was transported

to Southern New Hampshire Medical Center where treating doctors

thought the injury could be life threatening. He was then

airlifted to Brigham. Once there, Dr. Gates decided that the

risks of internal bleeding and injury required surgery, which

was performed. As part of the surgery, Dr. Gates addressed

Dunlap’s internal bleeding and repaired the injury to his

abdominal muscle caused by the knife. Dunlap remained in the

hospital for five days and required three months to recover from

the injury.

Although, as discussed further below, Bourdon argues that

the prosecutor improperly led the jury to believe that Dunlap’s

wound was more severe than the evidence suggested, there was

ample direct evidence from which a rational factfinder could

conclude that Dunlap suffered a serious bodily injury. The

nature of Dunlap’s wound, based on the evidence adduced at

trial, was far more significant than injuries the New Hampshire

23 Supreme Court has held sufficient to constitute serious bodily

injury. See State v. Dorrance, 165 N.H. 162, 164-65 (2013)

(holding that evidence that the victim suffered from blurry

vision for weeks after being punched by the defendant was

sufficient for the jury to conclude that victim had suffered

serious bodily injury); State v. Kiluk, 120 N.H. 1, 4 (1980)

(holding that a “wound requiring sutures and a scratched eyeball

resulting in blurred vision certainly qualify as serious bodily

injury”).

For these reasons, the warden is entitled to summary

judgment on Claim 1.

II. Ineffective Assistance of Counsel (Claims 2-11)

Bourdon contends that his trial counsel, Tessier and Keans,

were ineffective in their representation of him and alleges a

multitude of errors and omissions. Specifically, Bourdon alleges

in various claims that his trial counsel provided deficient

representation by failing to prepare adequately for trial, to

challenge the indictments for referring to a “stomach bleed,” to

challenge the prosecutor’s opening statement, to make a

sufficient opening statement on his behalf, to cross-examine

witnesses adequately at trial, to call necessary witnesses, and

to object to alleged prosecutorial misconduct. For the reasons

discussed below, none of these perceived missteps establishes a

24 claim for ineffective assistance of counsel.

“To prevail on a Sixth Amendment claim alleging ineffective

assistance of counsel, a defendant must show that his counsel’s

performance was deficient and that his counsel’s deficient

performance prejudiced him.” Andrus v. Texas, 140 S. Ct. 1875,

1881 (2020). To be constitutionally deficient, counsel’s

representation must be shown to have been “below an objective

standard of reasonableness.” Strickland v. Washington, 466 U.S.

668, 688 (1984). Prejudice requires the petitioner to show “that

there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have

been different.” Id. A “court need not determine whether

counsel’s performance was deficient before examining the

prejudice suffered by the defendant as a result of the alleged

deficiencies.” Id. at 697.

Bourdon raises ineffective assistance of counsel in Claims

2, 3, 4, 5, 6, 7, 8, 9, 10, and 11. The court addresses each

claim in turn.

A. Trial Preparation (Claim 2)

Bourdon alleges that his trial counsel failed to prepare

meaningfully for his trial. He alleges that his counsel did not:

(1) obtain or review the transcript of his bail hearing, (2)

interview the EMTs who arrived at his house after the incident

25 with Fitzgerald and Dunlap, (3) obtain or review the 911 call

pertaining to the incident, (4) consult with medical experts

about or otherwise investigate the severity of Dunlap’s wound,

or (5) investigate the amount of blood at the crime scene for

purposes of impeaching Fitzgerald, Dunlap, or both. For the

reasons discussed in this section, the record shows that the

omissions Bourdon alleges do not constitute deficient

representation. Even if they did, viewing the evidence in the

light most favorable to Bourdon, there is no reasonable

probability that, but for his attorneys’ alleged errors, the

result of his trial would have been different.

1. Bail Hearing Transcript

Detective Dennis Lee, who investigated the incident at

Bourdon’s house, was the only witness who testified at the bail

hearing. Bourdon contends that the transcript of that hearing

would have provided impeachment evidence against Dunlap, because

Detective Lee testified that Dunlap “had been stabbed during a

struggle,” contradicting Dunlap’s “trial testimony that he was

sitting on a milk crate when stabbed.” Doc. no. 41 at 5. He also

argues that the transcript shows that Detective Lee obtained a

warrant to search his house illegally. Bourdon claims that the

warrant application relies on the responding officers’

statements (rather than Detective Lee’s) and that Detective Lee

26 intentionally did not state in his application that Dunlap was

stabbed “during a struggle.” Doc. no. 41 at 34.

Viewing the evidence in the light most favorable to

Bourdon, the warden is entitled to summary judgment on the

portion of Claim 2 based on the bail hearing transcript. Even

assuming that his counsel’s failure to order the transcript or

challenge the warrant constituted deficient representation,

Bourdon suffered no prejudice.

The jury heard the testimony of many witnesses about the

stabbings, including the victims, Detective Lee, and Bourdon

himself. Bourdon does not explain how the minor discrepancies he

cites would have impacted the jury’s verdict. Nor do Bourdon’s

complaints about Detective Lee’s application for the search

warrant undermine the legitimacy of the warrant. Therefore,

counsel’s failure to obtain, review, and use the bail hearing

transcript does not constitute ineffective assistance of

counsel.

2. Interview with EMTs

Many of Bourdon’s claims focus on his contention that

Dunlap’s wound was not as severe as Dunlap or his treating

doctors described at trial. According to Bourdon, the EMTs would

have provided impeachment evidence against Dunlap. Bourdon

asserts that the EMT report shows that Dunlap lied to the EMTs

27 as they were treating his wound in the aftermath of the stabbing

by making false statements about the size of the knife and depth

of the wound. Bourdon also notes that the EMT report does not

mention a “stomach bleed,” a fact which he contends is

exculpatory.6

Assuming that his counsel should have interviewed the EMTs

and that the interview would have been helpful to Bourdon, which

is not clear from the record or Bourdon’s filings, Bourdon

suffered no prejudice by the lack of such a meeting. Given the

evidence adduced at trial, including the treating doctors’

testimony about the severity of the wounds, any information

gleaned from the EMTs would not have changed the outcome of the

trial.

3. Remaining parts of Claim 2

Bourdon’s three other allegations of ineffective assistance

of counsel in Claim 2 are that his attorneys failed to (1)

obtain or review a recording of the 911 call, (2) consult

medical experts or adequately investigate the victims’ wounds,

or (3) investigate the blood drop evidence. None of these claims

6 As discussed above, Bourdon appears to concede in filings in state court proceedings that the state produced a copy of the EMT’s report to the defense prior to trial. For purposes of this order, and in light of Bourdon’s pro se status, the court assumes that Bourdon did not receive a copy of the report until post-trial proceedings.

28 has merit.

Bourdon makes no coherent argument as to the relevance of

the 911 call or how he suffered any prejudice by his counsel’s

failure to obtain a transcript of the call. Carlos Blanco, who

made the 911 call, testified at trial and was cross-examined by

defense counsel. Bourdon does not explain why a transcript of

the call would have made any difference in light of Blanco’s

testimony.

Bourdon also does not explain how he suffered prejudice

from his counsel’s alleged failure to investigate adequately the

nature and severity of the victims’ wounds. Four doctors

testified about Fitzgerald’s and Dunlap’s wounds, and defense

counsel cross-examined each one. Bourdon offers no theory as to

how obtaining medical experts to testify about the wounds would

have changed the outcome of the trial.

Finally, Bourdon’s claim regarding the blood drop evidence

is similarly unavailing. Bourdon appears to contend that an

analysis of that evidence would have undermined Fitzgerald’s and

Dunlap’s testimony that they briefly went back into Bourdon’s

house after the attack to get their father. Even if Bourdon is

correct, which, again, is far from clear from the record, there

is no reasonable possibility that such minor impeachment

evidence would have led to a different result in Bourdon’s

29 Further, as the warden notes in his memorandum, Bourdon’s

lawyers testified that they made a strategic decision not to

pursue any blood drop evidence. They determined that the absence

of Bourdon’s blood undermined their defense that Dunlap’s wound

was the result of a struggle and not an intentional stabbing.

This type of strategic decision is insufficient to form the

basis of an ineffective assistance of counsel claim. See Phoenix

v. Matesanz, 233 F.3d 77, 84 (1st Cir. 2000) (“Defense counsel

is allowed to make strategic decisions, within the wide bounds

of professional competence, as to which leads to follow up, and

on which areas to focus his energies. This is especially true

during trial when time is short.”).

judgment on Bourdon’s ineffective assistance claim in Claim 2.

B. Failure to Challenge Indictment (Claim 3)

Bourdon asserts that his counsel should have challenged his

indictment for first degree assault because it incorrectly

stated that Dunlap suffered a serious bodily injury and

inaccurately described the injury as a “stomach bleed.” Bourdon

contends that the charges would have been dismissed had his

attorneys challenged the indictment.

Under New Hampshire law, an “indictment, information or

complaint is sufficient if it sets forth the offense fully,

30 plainly, substantially and formally . . . .” RSA § 601:4. “To

meet this constitutional standard, an indictment must inform a

defendant of the offense with which he is charged with

sufficient specificity to enable him to prepare for trial and at

the same time protect him from being put in jeopardy a second

time for the same offense.” State v. Marshall, 162 N.H. 657, 661

(2011). “The question is not whether the indictment could have

been more certain and comprehensive, but whether it contains the

elements of the offense and enough facts to warn a defendant of

the specific charges against him.” Id. at 661-62.

Bourdon’s indictment for first degree assault reads that he

“purposely caused serious bodily injury to [Dunlap] by stabbing

him in the abdominal area with a knife, causing a

retroperitoneal hematoma (‘stomach bleed’) . . . .” Doc. no. 4-1

at 13. The indictment informed Bourdon of the charge against him

and contained the elements of the offense. Although, as

discussed above, Bourdon contends that the evidence adduced at

trial was insufficient to prove that Dunlap suffered a stomach

bleed or that he suffered “serious bodily injury,” that

contention does not implicate the sufficiency of the indictment.

An attempt by his attorneys to dismiss the indictment on the

grounds Bourdon raises would have been futile. Therefore,

Bourdon’s claim for ineffective assistance of counsel based on

31 his attorneys’ failure to challenge the indictment is without

merit. The warden is entitled to summary judgment on Claim 3.

C. Prosecutor’s Opening Statement (Claim 4)

Bourdon asserts that his attorneys unreasonably failed to

object to the prosecutor’s opening statement, which allegedly

mischaracterized the evidence and the extent and severity of

Dunlap’s wound. Although Bourdon’s petition is unclear as to the

exact portions of the prosecutor’s opening statement to which he

believes his counsel should have objected, he refers to several

alleged misrepresentations in his objection. Specifically,

Bourdon contends that his counsel was ineffective for failing to

object to the prosecutor telling the jury that Bourdon attempted

to kill Dunlap, Bourdon stabbed Dunlap in the stomach, and

Dunlap suffered a serious injury. He also notes that the

prosecutor stated she would be showing the jury pictures of the

wound, even though she never did or intended to do so.

Bourdon does not explain how his attorneys’ decision to not

object to the prosecutor’s statements, which summarized evidence

the prosecution planned to show the jury, could give rise to an

ineffective assistance of counsel claim. The fact that Bourdon

believes events occurred differently from the way the prosecutor

described during her opening statement, for example that Dunlap

was not stabbed, but rather received a “laceration during a

32 struggle,” doc. no. 41 at 20, does not render the prosecutor’s

remarks objectionable. See, e.g., 2 Lane Goldstein Trial

Technique § 10:5 (3d ed.) (Westlaw, last updated Nov. 2021)

(explaining the purpose of an opening statement is to forecast

for the jury what admissible evidence is expected to be

presented at trial). Even if his counsel’s lack of an objection

were deficient representation, which it was not, Bourdon does

not explain how any objection to the opening statement creates a

reasonable probability that the outcome of his trial would have

been different. The warden is thus entitled to summary judgment

on Claim 4.

D. Defense Counsel’s Opening Statement (Claim 5)

Bourdon contends that his trial attorney, Keans, was

ineffective for failing to dispute the prosecution’s version of

events or present the theory in her opening statement that

Bourdon had acted in self-defense. The record, viewed in the

light most favorably to Bourdon, does not support that claim.

During her opening statement, Keans forecasted the victims’

credibility issues several times, and discussed how the evidence

would show that Fitzgerald’s and Dunlap’s descriptions differed

from the other’s. Trial Tr. at 77-81. Keans testified during

post-trial proceedings that her decision not to raise self-

defense in her opening statement was strategic because it was

33 not certain that Bourdon would testify. Moreover, she stated in

her opening statement that the evidence would show that

Fitzgerald and Dunlap instigated the struggle. Keans later

explained why she and Tessier thought it more prudent to pursue

the “struggle” defense. See, e.g., Young v. Pliler, 273 F.

App’x. 670, 672-73 (9th Cir. 2008) (concluding trial counsel was

not ineffective for failing to put on evidence that defendant

acted in self-defense because “[t]rial counsel could have made a

rational, strategic decision not to present Young’s weak self-

defense case at trial,” and “could have rationally believed the

‘surprise’ theory was stronger than ‘self-defense’”).

Nothing in the record supports Bourdon’s contention that

Keans’s opening statement fell below an objective standard of

reasonableness. Even if it did, there is no reasonable

probability that the outcome of the trial would have been

different had Keans argued in her opening statement the points

Bourdon urges in his petition. Viewing the evidence in the light

most favorable to Bourdon, the warden is entitled to summary

judgment on Claim 5.

E. Failure to Impeach or Effectively Cross-Examine Witnesses (Claim 6)

Bourdon alleges that his attorneys failed to cross-examine

several witnesses in an effective manner, including Fitzgerald,

34 Dunlap, Detective Lee, Blanco (the 911 caller), Beverly Trevino

(Bourdon’s neighbor), and the doctors who treated Fitzgerald and

Dunlap. Bourdon contends that his attorneys did not confront

Fitzgerald and Dunlap with inconsistent statements and did not

bring out facts from other witnesses that could have further

undercut Fitzgerald’s and Dunlap’s testimony.

The record, viewed in the light most favorable to Bourdon,

does not show that his attorneys’ cross-examination of witnesses

was unreasonable. His lawyers cross-examined every witness

Bourdon mentions and brought out facts favorable to Bourdon’s

theory of the case. In post-trial proceedings, Bourdon’s

attorneys testified that they tried to avoid emphasizing the

circumstances of the incident and the wounds, which they did not

believe would help Bourdon, and that they intentionally did not

bring out certain of the victims’ minor inconsistent statements

in pursuit of that strategic objective. They also testified that

they challenged both victims on various portions of their

testimony that undermined their story and aided in the defense’s

theory of the case. The record supports Bourdon’s attorneys’

Even if there were a genuine issue of material fact as to

whether Bourdon’s attorneys’ cross-examination of witnesses fell

below the standard of reasonableness, he did not suffer any

prejudice. Bourdon points to several instances where he believes

35 his counsel failed either to elicit or use other witnesses’

testimony to impeach Fitzgerald and Dunlap, such as to dispute

their testimony that they ran back into the house after the

incident to get their father rather than leaving with him at the

same time. In light of the evidence adduced at trial, such

discrepancies, if brought up on cross-examination, do not create

a reasonable probability that the outcome of the trial would

have been different. The warden is entitled to summary judgment

on Claim 6.

F. Failure to Prepare Bourdon to Testify (Claim 7)

Bourdon argues that his attorneys failed to prepare him

adequately to testify in that they did not ensure that he

understood the evidence regarding the nature and severity of

Dunlap’s wound. Specifically, he contends that his attorneys

failed to explain that Dunlap did not have a serious injury and

that the wound was not as severe as the indictment suggested.

This argument is again premised on Bourdon’s steadfast

belief that Dunlap’s injury was exaggerated. As discussed above,

the evidence does not support Bourdon’s characterization of

Dunlap’s wound. Therefore, Bourdon’s ineffective assistance of

counsel claim based on his attorneys’ failure to view the

evidence as he did is without merit.

36 Even if Bourdon could show deficient representation

regarding his attorneys’ actions concerning preparing him to

testify, Bourdon suffered no prejudice. Tessier testified during

post-conviction proceedings that he did not want Bourdon to

testify because of inconsistencies in his story, but that

Bourdon insisted. Keans’ testimony echoed Tessier’s—that she did

not think it was a good idea for Bourdon to testify—and she also

explained that she and Tessier discussed Bourdon’s anticipated

testimony with him before the day he took the stand. Bourdon

does not dispute his attorneys’ testimony or explain how his

testimony would have been any different had his attorneys

described the nature of Dunlap’s wound in a manner consistent

with Bourdon’s own views. Further, Bourdon was present during

the trial and, before testifying, heard testimony from Dunlap,

Fitzgerald, and their treating doctors about the boys’ wounds.

Viewing the evidence in the light most favorable to Bourdon, the

warden is entitled to summary judgment on Claim 7.

G. Failure to Introduce Additional Evidence Regarding the Victims’ Wounds (Claims 8 and 9)

In Claims 8 and 9, Bourdon alleges that his attorneys

provided ineffective assistance of counsel by failing to offer

evidence regarding the victims’ wounds. In Claim 8, Bourdon

alleges that his attorneys offered ineffective assistance by

37 failing to present expert medical testimony regarding the size

of the knife used to inflict the victims’ wounds and the

severity of Dunlap’s wound. In Claim 9, Bourdon makes the same

allegations, but with regard to his attorneys’ failure to call

the EMTs as witnesses to testify as to the nature and severity

of Dunlap’s wound.

For the reasons discussed above in the court’s analysis of

Bourdon’s allegations in Claim 2, even if his attorneys acted

unreasonably in failing to present medical expert testimony or

call the EMTs as witnesses, Bourdon suffered no prejudice.

Viewing the evidence in the light most favorable to Bourdon,

there is no reasonable probability that, but for these alleged

errors, the result of his trial would have been different. The

warden is entitled to summary judgment on Claims 8 and 9.

H. Failure to Object to Prosecutorial Misconduct (Claim 10)

Bourdon contends that the prosecutor engaged in misconduct

and that his lawyers were ineffective for failing to object.7

Specifically, he alleges that his attorneys did not object to

the following instances of prosecutorial misconduct: (1) the

prosecutor’s closing argument mischaracterized testimony

concerning the victims’ wounds and the incident generally,

7 Bourdon also alleges a separate claim of prosecutorial misconduct in Claim 12.

38 including Trevino’s testimony, (2) the prosecutor vouched for

the victims’ credibility in her closing argument, (3) the

prosecutor did not disclose certain evidence, including a

transcript of the 911 call and the EMT report, and (4) the

prosecutor knowingly relied on the victims’ perjured testimony.

Bourdon’s allegations, if supported by the record, could

show that the prosecution acted improperly. For example, a

prosecutor cannot include evidence in the closing argument that

was not introduced during trial. See United States v. Corliss,

919 F.3d 666, 670 (1st Cir. 2019). A prosecutor also cannot

vouch for the credibility of a witness by suggesting that the

jury should believe a government witness because the witness was

offered by the government, United States v. Rosario-Perez, 957

F.3d 277, 300-01 (1st Cir. 2020), or knowingly use perjured

testimony. United States v. Bagley, 473 U.S. 667, 679-80 (1985).

In addition, a prosecutor is required to disclose to the defense

material exculpatory and impeachment evidence. United States v.

Laureano-Salgado, 933 F.3d 20, 26 (1st Cir. 2019). A defendant

may base an ineffective assistance of counsel claim on his

attorney’s failure to object to a prosecutor’s improper conduct.

See Kirwan v. Spencer, 631 F.3d 582, 590 (1st Cir. 2011).

The problem with Bourdon’s claim, however, is that viewing

the evidence in the light most favorable to him, the record is

devoid of any factual support for any of his allegations. The

39 prosecutor was well within the bounds of an appropriate closing

to repeat testimony given during the trial, even if Bourdon

disagrees with that testimony, and to suggest that the jury draw

inferences as to the credibility of the testimony given by the

witnesses, particularly when contrasting it with Bourdon’s.8 See

United States v. Henderson, 320 F.3d 92, 105 (1st Cir. 2003);

United States v. Garcia, 818 F.2d 136, 143 (1st Cir. 1987). He

also has not shown that either Fitzgerald or Dunlap gave

perjured testimony at trial or that the prosecutor knowingly

relied on perjured testimony. Bourdon’s mere disagreement with

the boys’ version of events does not create a genuine dispute of

fact as to whether they were lying. Nor has Bourdon shown that

any discovery violations occurred with regard to the transcript

of the 911 call or the EMT report, as he has not demonstrated

that the prosecution failed to comply with an obligation to

produce either item or that they would provide exculpatory or

impeachment evidence.

Therefore, the warden is entitled to summary judgment on

Bourdon’s claim of ineffective assistance of counsel based on

his attorneys’ failure to object to prosecutorial misconduct in

Claim 10.

8 The court addresses Trevino’s testimony and Bourdon’s misplaced complaints about the prosecutor’s reference to that testimony during its discussion of Bourdon’s claim of court error in Claim 14.

40 I. Conflict of Interest (Claim 11)

The right to effective assistance of counsel includes the

right to be represented by counsel without a conflict of

interest. United States v. Simon, 12 F.4th 1, 53 (1st Cir.

2021). In addition, the Due Process Clause of the Fourteenth

Amendment also protects a defendant’s right to be represented by

conflict-free counsel. See Wood v. Georgia, 450 U.S. 261, 271-72

(1981). To prevail on a claim that counsel represented him under

a conflict of interest, a defendant must show “that (1) the

lawyer could have pursued a plausible alternative defense

strategy or tactic and (2) the alternative strategy or tactic

was inherently in conflict with or not undertaken due to the

attorney’s other interests or loyalties.” Simon, 12 F.4th at 53

(quotation omitted). A defendant must show that his attorney had

an actual conflict of interest, “as opposed to a mere

theoretical division of loyalties.” Mickens v. Taylor, 535 U.S.

162, 171 (2002).

Bourdon contends that Tessier represented him under a

conflict of interest because he wanted to become a prosecutor

and that a guilty verdict in Bourdon’s case would help further

41 that interest.9 Bourdon, however, provides no evidence to support

his claim. Bourdon was represented by both Tessier and Keans,

and he makes no allegations or points to any evidence that Keans

had a conflict of interest or that Tessier overrode any strategy

Keans wanted to pursue. He also presents no evidence that

Tessier and Keans failed to pursue a plausible alternative

defense strategy, much less that they did so in order to further

Tessier’s goal of becoming a prosecutor. As such, his claim that

his counsel represented him under a conflict of interest in

Claim 11 fails.

III. Prosecutorial Misconduct (Claim 12)

In addition to his claim for ineffective assistance of

counsel for failing to object to the prosecution’s alleged

improper conduct, Bourdon also asserts a separate claim based on

prosecutorial misconduct which relies on similar allegations.

For example, Bourdon alleges that the prosecutor knowingly put

forth Dunlap’s and Fitzgerald’s perjured testimony and that she

failed to produce exculpatory evidence. For the reasons provided

9 Neither party points to anything in the record showing Tessier’s career path after Bourdon’s trial. However, Bourdon stated in his motion to reopen his hearing for a new trial in superior court that, shortly after his trial, Tessier accepted an offer for a job in the “Hudson Prosecutor’s Office.” Doc no. 32-2 at 13.

42 in the court’s discussion of Claim 10, Claim 12 also lacks

merit.

Bourdon also alleges that the prosecutor conspired with

Detective Lee to obtain a grand jury indictment for first degree

assault based on fabricated evidence that Dunlap had a serious

bodily injury and stomach bleed. Simply put, there is no

evidence in the record supporting a conspiracy or the

fabrication of evidence. Bourdon’s claims regarding whether

Dunlap suffered serious bodily injury and concerning the

description of Dunlap having suffered a “stomach bleed” are

addressed above and do not entitle him to relief. The warden is

entitled to summary judgment on Claim 12.

IV. Conspiracy (Claim 13)

Bourdon alleges that Tessier conspired with the prosecutor

to violate his right to a fair trial to advance both of their

careers in violation of his Sixth and Fourteenth Amendment

rights. A conspiracy requires an agreement to commit an unlawful

act between at least two parties, knowing and voluntary

participation, and an overt act in furtherance of the

conspiracy. See United States v. Clough, 978 F.3d 810, 816 (1st

Cir. 2020). Bourdon alleges that in furtherance of their

conspiracy, Tessier and the prosecutor worked together to

accomplish many of the actions that form the basis of his other

43 claims. For example, he alleges a conspiracy to fabricate

evidence of a stomach bleed, to allow the admission of perjured

testimony, and to refrain from obtaining exculpatory medical

expert evidence.

Bourdon provides no competent evidence that any of these

acts occurred or of the conspiratorial agreement that he

alleges, and the record does not support any such agreement. As

explained above, Bourdon relies on improbable inferences that do

not support his claim. Therefore, the warden is entitled to

summary judgment on Claim 13.

V. Court Error (Claim 14)

Bourdon argues that the trial court violated his right to a

fair trial by failing to declare a mistrial, sua sponte, during

the prosecutor’s closing argument. A prosecutor’s closing

argument will violate a defendant’s Fourteenth Amendment right

to due process only if “the prosecutors’ comments so infected

the trial with unfairness as to make the resulting conviction a

denial of due process.” Darden v. Wainwright, 477 U.S. 168, 181

(1986) (quotation omitted).

In support of his claim, Bourdon contends that the

prosecutor argued facts that were not in evidence in summarizing

Trevino’s testimony. Specifically, the prosecutor in closing

stated that Trevino testified that Dunlap and Fitzgerald came

44 out of Bourdon’s house and then went back to get Derome.

Instead, Trevino testified that she saw a young man, who was

bleeding, open the door and leave Bourdon’s house, and that an

older man and a younger boy were behind him with the younger boy

urging his dad to leave.

Bourdon believes that this discrepancy, and the court’s

failure to declare a mistrial sua sponte after the prosecutor’s

statement, rendered his conviction a denial of due process. It

did not.

Bourdon testified that Derome left the house on his own

before the boys. Regardless of the minor discrepancy between

Trevino’s testimony and the prosecutor’s statement, Fitzgerald,

Dunlap, and Trevino all testified that Derome left with the

boys, not before. This testimony contradicts Bourdon’s testimony

that Derome left on his own before the boys.

The prosecutor’s comments about Trevino’s testimony caused

no unfairness and did not require a mistrial. The warden is

entitled to summary judgment on Claim 14.

VI. Equal Protection (Claim 15)

Bourdon alleges that he is bringing an equal protection

class-of-one claim. A class-of-one equal protection claim

requires proof that the plaintiff was intentionally treated

differently from others who were similarly situated to the

45 plaintiff without a rational basis for the difference in

treatment. Village of Willowbrook v. Olech, 528 U.S. 562, 564

(2000). A plaintiff bringing a class-of-one claim bears the

burden of showing that he was similarly situated to others in

all respects that are relevant to the challenged action. Zell v.

Ricci, 957 F.3d 1, 12-13 (1st Cir. 2020).

Bourdon provides no evidentiary support for his equal

protection claim or to suggest that he was treated differently

from others who were similarly situated. Instead, his equal

protection claim is simply a rehash of his claims of ineffective

assistance of counsel, which are without merit. He has not shown

that he is in custody because his conviction violated the Equal

Protection Clause. Therefore, the warden is entitled to summary

judgment on Claim 15.

Conclusion

For the foregoing reasons, the warden’s motion for summary

judgment (document no. 32) is granted on all claims. As a

result, all of the claims alleged in the petition are denied.

Because Bourdon has not made a substantial showing of the

denial of a constitutional right, the court declines to issue a

certificate of appealability. 28 U.S.C. § 2253(c)(2); Rule 11,

Rules Governing Habeas Corpus Cases Under Section 2254.

46 The clerk of court shall enter judgment accordingly and

close the case.

SO ORDERED.

______________________________ Samantha D. Elliott United States District Judge

August 10, 2022

cc: Ronald Bourdon, pro se. Counsel of record.