Bourguignon v. Superintendent
- Colleen McMahon
- 1:20-cv-01834
- U.S. District Court · Southern District of New York
- 1
In Bourguignon v. Superintendent, Judge McMahon dismissed the action without prejudice because no required petition was filed, and denied appeal-related fee status and a certificate.
Nixon Bourguignon; the action was dismissed without prejudice, leaving open the possibility of a future petition under 28 U.S.C. § 2254.
What happened
In Bourguignon v. Superintendent, the court had given Nixon Bourguignon 60 days to file a petition challenging his custody under a federal law. The court warned that failing to file it would result in dismissal.
Bourguignon did not file the petition within the time allowed. The court therefore dismissed the action without prejudice, meaning he may file a future petition under that law.
Judge McMahon also denied permission to appeal without paying filing fees and declined to issue a certificate of appealability, which is required for this type of appeal. The court did not decide the underlying custody claims.
The detailed version
- Bourguignon v. Superintendent · No. 1:20-cv-01834
- Colleen McMahon
- June 26, 2020
Background
On March 4, 2020, the court gave Petitioner Nixon Bourguignon 60 days to file a petition under 28 U.S.C. § 2254, the federal procedure for challenging a state-court custody judgment. The order warned that failing to comply would result in dismissal of the action without prejudice.
Bourguignon did not file the petition. The opinion states that the action had been filed without paying the filing fee under 28 U.S.C. § 1915(a)(1).
Ruling
The court dismissed the action without prejudice to any future § 2254 petition filed by Bourguignon. This order did not address the merits of any custody or constitutional claim because no petition had been filed.
The court also certified under 28 U.S.C. § 1915(a)(3) that an appeal from the order would not be taken in good faith and denied permission to appeal without paying the filing fee. It further declined to issue a certificate of appealability because Bourguignon had not made a substantial showing that a constitutional right had been denied.
Classification
This is a procedural order because the case was dismissed for failure to file the required petition, without a decision on the underlying claims.
Read the full 1-page opinion on CourtListener, the free public archive maintained by the Free Law Project.