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Bourdon v. State (3/18/2016) ap-2496

Bourdon v. State (3/18/2016) ap-2496

                                                    NOTICE  

         The text of this opinion can be corrected before the opinion is published in the  

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         errors to the attention of the Clerk of the Appellate Courts:  



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                IN THE COURT OF APPEALS OF THE STATE OF ALASKA  



EUGENE JOHN BOURDON,  

                                                                   Court of Appeals No. A-11768  

                                   Appellant,                       Trial Court No. 1PE-13-42 CI  



                           v.  

                                                                              O P I N I O N  

STATE OF ALASKA,  



                                   Appellee.                        No. 2496 - March 18, 2016  



                                           

                  Appeal   from   the   Superior   Court,   First   Judicial   District,  

                  Petersburg, William B. Carey, Judge.  



                  Appearances:  Eugene John Bourdon, pro se, Juneau. Elizabeth  

                                                                                       

                  T.  Burke,  Assistant  Attorney  General,  Office  of  Criminal  

                                                                                      

                  Appeals, Anchorage, and Craig W. Richards, Attorney General,  

                                                                                        

                  Juneau, for the Appellee.  



                  Before: Mannheimer, Chief Judge, Allard, Judge, and Suddock,  

                                                       

                  Superior Court Judge. *  



                  Judge ALLARD.  



    *    Sitting  by   assignment  made  pursuant  to  Article  IV,  Section  16  of   the  Alaska  



Constitution and Administrative Rule 24(d).  


----------------------- Page 2-----------------------

                        Eugene John Bourdon was convicted in 2000 of four counts of second-                                                  



 degree sexual abuse of a minor.                          Bourdon appealed, and we affirmed his convictions on                                         



                         1  

 direct appeal.              



                                                                                                                                                 

                        On July 31, 2013, more than ten years after his direct appeal was final,  



                                                                                                                                                     

Bourdon filed a fifty-page pro se petition for a writ of habeas corpus, arguing that the  



                                                                                                                                       

 superior  court  lacked  jurisdiction  to  enter  judgment  against  him  in  his  underlying  



                                                                                                                                                 

 criminal case because he was a Native Alaskan sovereign citizen. Superior Court Judge  



                                                                                                                         

William B. Carey issued a lengthy and well-written order denying the petition as both  



                                                                           

untimely and without merit.  This appeal followed.  



                                                                                                                                               

                        On appeal, Bourdon renews his argument that the superior court lacked  



                                                                                                                                       

jurisdiction over his underlying criminal case.  Bourdon asserts that he is a "sovereign  



                                                                                                                                                      

 citizen" and that, absent his consent, the State of Alaska has no power to enforce its  



                                               2  

                                                    

 criminal laws against him. 



                                                                                                                                                      

                        Courts  across  the  country  have  universally  rejected  these  types  of  



                                                                                                                  3  

                                                                                                                                            

 "sovereign  citizen"  claims,  dismissing  them  as  "misguided,"                                                   "completely  without  



       1    Bourdon v. State, 2002 WL 31761482 (Alaska App. Dec. 11, 2002) (unpublished).  



      2     See  Francis  X.  Sullivan,   Comment,    "The  Usurping  Octopus  of  Jurisdictional  



Authority":  The Legal Theories of the Sovereign Citizen Movement, 1999 Wis. L. Rev. 785  

 (1999) (explaining the historical background of the various sovereign citizen theories).  



      3      United States v. Mitchell,  405 F. Supp. 2d 602, 603-06 (D. Md. 2005) (characterizing  



 sovereign citizen claims as "patently  without merit ... [that] would even be humorous - were  

the stakes not so high.").  



                                                                         - 2 -                                                                  2496
  


----------------------- Page 3-----------------------

               4                                                                                                                   5  

merit,"  and having "no conceivable validity in American law."                                                                        We likewise find no                   



merit to Bourdon's argument.             



                           Article IV,              Section   1   of the Alaska Constitution grants the legislature                                        



 authority to prescribe the jurisdiction of courts within the state.                                                                    The legislature has              



 authorized the superior court to exercise original jurisdiction in all criminal matters, and                                                                             



                                                                                                6  

this jurisdiction extends to the whole of Alaska.                                                                                                                          

                                                                                                    Thus, because Bourdon's criminal act  



                                                                                                                                                               

 occurred in Alaska, the superior court had jurisdiction over Bourdon in this criminal  



                                                                                                                                                                      

matter notwithstanding his alleged status as a Native Alaskan sovereign citizen.  



                                                                                                                                                                              

                            Bourdon also raises a second claim on appeal.   This claim relates to a  



                                                                                                                                                              

pretrial proceeding in which the superior court imposed bail conditions on Bourdon  



                                                                                                                       

while the State appealed the superior court's dismissal of Bourdon's indictment.  (The  



                                                                                                                                                         

 State's   appeal  was  successful  and  resulted  in  the  reinstatement  of  Bourdon's  

 indictment.7)  



       4      United States  v.  Jagim , 978 F.2d 1032, 1036 (8th Cir. 1992) (rejecting defendant's  



 claim   that he was "outside"   the jurisdiction of   the United States as "completely   without  

merit" and "patently  frivolous");  see also   United States v. Benabe, 654 F.3d 753, 767 (7th  

 Cir.  2011)  ("Regardless  of   an  individual's  claimed  status  ...  as  a  'sovereign   citizen,'  a  

 'secured-party creditor,' or a 'flesh-and-blood human being,' that person is not beyond the  

jurisdiction of the courts.").  



       5      United States v. Schneider, 910 F.2d 1569, 1570 (7th Cir. 1990) (rejecting ineffective  



 assistance  of   counsel  claim   because  defendant  would  have  had  same   "irreconcilable  

 differences" with any  ethical and competent attorney  due to his proposed sovereign citizen  

 defense, and concluding that, because this defense had "no conceivable validity  in American  

 law, the judge would not have permitted it to be presented to the jury, and no reputable  

 lawyer could have been found to attempt to persuade the judge otherwise.").  



       6      AS 22.10.020.  



       7      See   State  v.  Bourdon,  1999  WL  61016,  at  *1  (Alaska  App.  Feb.  10,  1999)  



 (unpublished).  



                                                                                    - 3 -                                                                            2496
  


----------------------- Page 4-----------------------

                                       Bourdon objected to the imposition of the bail conditions at the time, and                                                                                                                               



the   superior   court   ruled   that   it   had   authority   to   impose   the   conditions   under  



AS 12.30.035, which directs the trial court to "treat the defendant in accordance with the                                                                                                                                                         



provisions governing pretrial release" while an appeal of the dismissal of an indictment                                                                                                                                    



is   pending   before   the   appellate   court.     Now,   more   than   a   decade   later,   Bourdon  



challenges this ruling, arguing for the first time that the superior court violated the ex                                                                                                                                                         



post facto clause of the state and federal constitutions by applying AS 12.30.035, which                                                                                                                                                 



was enacted shortly after Bourdon committed his underlying criminal offenses.                                                                                                                               



                                       As the State correctly points out, this claim is not properly before us.                                                                                                                                               



Bourdon did not coherently raise this ex post facto argument in his petition for writ of                                                                                                                                               



                                                                                                                                                               8  

habeas corpus, and the superior court did not rule on it.                                                                                                                                                                             

                                                                                                                                                                    Bourdon has therefore waived  



                                                                                        

this claim for purposes of this appeal.  



                                                                                                                                                                                                                                            

                                       In any case, this is not the type of claim that can form the basis for post- 



                                                                                                                                                                                                                                                    

conviction relief.  An application for post-conviction relief - whether it is styled as an  



                                                                                                                                                                                                                               

application under Criminal Rule 35.1, a petition for writ of habeas corpus, or otherwise  



                                                                                                                                                                                                                                             

-  is fundamentally a collateral attack on the validity of a criminal judgment.   The  



                                                                                                                                                                                                                                                       

purpose of the attack is to obtain relief from an invalid judgment -  i.e., to have a  



                                                                                                                                                                                                                                            

conviction reversed or a sentence vacated.   A claim for post-conviction relief must  



                                                                                                                                                                                                                                                  

therefore show not only that an error occurred but also that the error directly tainted the  



                                                                                                                                                                           9  

                                                                                                                                                                                                                                                     

proceedings and the resulting conviction and/or sentence.                                                                                                                        Here, even if we were to  



                                                                                                                                                                                                                                                  

assume that Bourdon's claim is true, there would be no basis on which to grant him the  



                                                                                                                                                                                                                                           

relief he seeks. Whether or not the superior court violated the ex post facto clause when  



          8        See Pore v. State, 452 P.2d 433, 436-37 (Alaska 1969).  



          9         Cf. Roberts v. State, 445 P.2d 674, 676 (Alaska 1968) ("Habeas corpus is not available  



to  review  questions,  no  matter  how  important,  which  are  not   related   to  the  cause  of  

petitioner's detention.").  



                                                                                                                       - 4 -                                                                                                              2496
  


----------------------- Page 5-----------------------

it imposed temporary bail conditions on Bourdon has no bearing on the validity of his  



convictions or his sentence.                                           



                                                  We accordingly AFFIRM the superior court's judgment.                                                                                                                              



                                                                                                                                                           -  5 -                                                                                                                                                2496
  

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