BORETSKY v. RICCI et al
Filing
22
OPINION. Signed by Judge Freda L. Wolfson on 8/15/2011. (gxh)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
BORIS BORETSKY,
Petitioner,
v.
MICHELLE R. RICCI, et al.,
Respondents.
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Hon. Freda L. Wolfson
Civil No. 09-0771 (FLW)
OPINION
APPEARANCES:
BORIS BORETSKY, #946903A
New Jersey State Prison
P.O. Box 861
Trenton, New Jersey 08625
Petitioner Pro Se
NANCY A. HULETT, Assistant Prosecutor
BRUCE J. KAPLAN, MIDDLESEX COUNTY PROSECUTOR
25 Kirkpatrick Street, 3d Floor
New Brunswick, New Jersey 08903
Attorneys for Respondents
WOLFSON, District Judge
Boris Boretsky filed a Petition for a Writ of Habeas Corpus, pursuant to 28 U.S.C. §
2254, challenging a judgment of conviction entered in the Superior Court of New Jersey,
Middlesex County, on April 7, 2006, after a jury found him guilty of the first-degree murder of
his wife Saoule Moukhametova (“Lana”), felony murder, aggravated assault, burglary, terroristic
threats, and other related crimes. Respondents filed an Answer arguing that the Petition should
be dismissed and Petitioner filed a Reply. Presently before this Court is Petitioner’s motion to
stay the Petition while he pursues his first petition for post-conviction relief filed in the New
Jersey Superior Court on or about March 8, 2011. For the reasons expressed below, this Court
will deny the motion to stay without prejudice to Petitioner’s filing a motion, within 20 days, to
amend the Petition to add the claims raised in the state petition for post-conviction relief, to
equitably toll the statute of limitations on those claims, and to stay the amended petition.
I. BACKGROUND
On April 7, 2006, after a jury sitting in the Superior Court of New Jersey, Middlesex
County, Law Division, found Petitioner guilty of all charges. Superior Court Judge James F.
Mulvihill sentenced Petitioner to term of life imprisonment without parole, and a consecutive
23.5 year term.1 Petitioner appealed. In an opinion filed August 28, 2008, the Superior Court of
New Jersey, Appellate Division, affirmed the conviction and sentence. See State v. Boretsky,
2008 WL 4057972 (N.J. Super. Ct., App. Div., Aug. 28, 2008). The New Jersey Supreme Court
denied certification on November 14, 2008. See State v. Boretsky, 197 N.J. 14 (2008) (table).
On February 10, 2009, Petitioner executed the § 2254 Petition before this Court. The
Clerk docketed it on February 17, 2009. The Petition presents the following grounds, which are
identical to the grounds raised on direct appeal:
Ground One: MY 5TH AND 6TH AMENDMENT RIGHTS
WERE VIOLATED BY THE ADMISSION OF STATEMENTS
INITIATED BY POLICE AFTER I ASKED THEM TO SPEAK
TO MY ATTORNEY AND, INSTEAD THEY DISCONNECTED
MY TELEPHONE CALL TO HIM.
1
The state sought the death penalty, but in the penalty phase, the jury could not reach
unanimous agreement on the death penalty. See State v. Boretsky, 208 WL 4057972 at *1 (N.J.
Super. Ct., App. Div., Aug. 28, 2008), certif. den., 197 N.J. 14 (2008) (table).
2
Ground Two: THE TRIAL COURT’S INSTRUCTION THAT
JURY COULD CONSIDER EVIDENCE THAT DEFENDANT
PREVIOUSLY ASSAULTED AND THREATENED HIS WIFE
AS PROOF THAT HE WAS GUILTY OF MURDER DEPRIVED
DEFENDANT OF HIS RIGHT TO A FAIR TRIAL.
Ground Three: THE MEDICAL EXAMINER’S TESTIMONY
THAT THE CAUSE OF DEATH WAS “HOMICIDE”
EXCEEDED THE SCOPE OF PERMISSIBLE EXPERT
TESTIMONY AND IMPROPERLY ADDRESSED THE
ULTIMATE ISSUE BEFORE THE JURY, THEREBY
DEPRIVING DEFENDANT OF A FAIR TRIAL AND
REQUIRING THE REVERSAL OF HIS CONVICTION.
Ground Four: THE COURT COMMITTED REVERSIBLE
ERROR IN ITS REFUSAL TO SEVER THE COUNTS
CHARGING CONTEMPT FOR VIOLATION OF A
RESTRAINING ORDER.
Ground Five: BECAUSE THE STATE FAILED TO PROVE THE
ELEMENTS OF TERRORISTIC THREATS BEYOND A
REASONABLE DOUBT, THE TRIAL JUDGE ERRED IN
DENYING DEFENDANT’S MOTION FOR A JUDGMENT OF
ACQUITTAL ON COUNT TWO.
Ground Six: DEFENDANT’S BURGLARY AND FELONY
MURDER CONVICTIONS MUST BE REVERSED BECAUSE
THE TRIAL COURT FAILED TO INFORM THE JURY THAT
VIOLATION OF A DOMESTIC VIOLENCE RESTRAINING
ORDER DOES NOT SATISFY THE REQUIREMENTS OF A
“PURPOSE TO COMMIT AN OFFENSE THEREIN.”
Ground Seven: DURING THE TRIAL AND SUMMATION, THE
PROSECUTOR COMMITTED SEVERAL ACTS OF
MISCONDUCT WHICH VIOLATED DEFENDANT’S DUE
PROCESS RIGHT TO A FAIR TRIAL, THE AMENDMENT
XIV OF THE U.S. CONSTITUTION.
Ground Eight: THE TRIAL COURT COMMITTED
REVERSIBLE ERROR BY ALLOWING THE JURY TO
CONSIDER THAT THE DEFENDANT CAUSED SERIOUS
BODILY INJURIES, OR CAUSED SIGNIFICANT BODILY
INJURIES. THE JURY’S CONSIDERATION SHOULD HAVE
3
BEEN LIMITED TO ATTEMPT TO CAUSE SERIOUS OR
SIGNIFICANT BODILY INJURY ONLY.
Ground Nine: THE TRIAL JUDGE ABUSED HIS DISCRETION
BY ALLOWING THE STATE TO DISPLAY TO THE JURY
PICTURES DEPICTING INJURIES SUSTAINED BY SAOULE
MOUKHAMETOVA ON THE NIGHT OF JANUARY 19, 2002
WHERE THE LEAST POSSIBLE INFLAMMATORY
EVIDENCE TO PROVE THIS POINT WAS AVAILABLE
THROUGH THE TESTIMONY OF DR. GARIBALDI AND
OFFICER DROST. THUS, DEFENDANT WAS UNDULY
PREJUDICED THEREBY AND WAS DENIED HIS
CONSTITUTIONAL RIGHT TO A FAIR TRIAL.
Ground Ten: THE ADMISSION OF HEARSAY TESTIMONY
UNDER THE “EXCITED UTTERANCE” EXCEPTION
PROVIDED AT TRIAL BY MARINA MIROSHNICHENKO AS
TO ALLEGED STATEMENTS MADE TO HER BY SAOULE
MOUKHAMETOVA, AND THE DECISION BY THE TRIAL
COURT IN A PRE-TRIAL HEARING TO PERMIT THIS
HEARSAY WERE VIOLATIVE OF ESTABLISHED LEGAL
PRINCIPLES AND CASE LAW, AND THUS CONSTITUTED A
GROSS ABUSE OF JUDICIAL DISCRETION CLEARLY
CAPABLE OF PRODUCING AN UNJUST RESULT, AND
DENIED DEFENDANT DUE PROCESS AND A FAIR TRIAL.
Ground Eleven: THE IMPROPER INTRODUCTION (AGAINST
TIMELY OBJECTION) OF DOUBLE-HEARSAY (OR
HEARSAY WITHIN HEARSAY) DURING THE CROSSEXAMINATION OF DR. UTKIWICZ VIOLATED N.J.R.E. 802,
703(7), 404(b), AND 403, AS WELL AS VIOLATING
DEFENDANT’S RIGHT TO CONFRONT HIS ACCUSER,
THUS DEPRIVING HIM OF HIS RIGHT TO A FAIR TRIAL.
Ground Twelve: THE TRIAL COURT VIOLATED
DEFENDANT’S RIGHT TO A FAIR TRIAL BY PERMITTING
INTO EVIDENCE THE TESTIMONIAL HEARSAY
STATEMENTS OF SAOULE MOUKHAMETOVA TO JUDGE
MARY CASEY IN DIRECT VIOLATION OF THE
CONFRONTATION CLAUSE OF THE 6TH AMENDMENT OF
THE UNTIED STATES CONSTITUTION . . . , AS WELL AS
DENYING THE DEFENDANT THE EFFECTIVE ASSISTANCE
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OF COUNSEL AND THE DUE PROCESS CLAUSE OF THE
U.S. CONSTITUTION.
Ground Thirteen: THE ALLOWING OF E.M.S. TECHNICIAN
LEMMERLING, A GOVERNMENT OFFICER, TO TESTIFY
CONCERNING A HEARSAY TESTIMONIAL STATEMENT
MADE TO HIM BY SAOULE MOUKHAMETOVA WAS IN
VIOLATION OF THE CONFRONTATION CLAUSE . . . , AND
THE RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL.
Ground Fourteen: DURING JURY SUMMATION, THE TRIAL
JUDGE GAVE THE JURY INCORRECT (AS A MATTER OF
LAW) INSTRUCTION AS TO HOW TO WEIGH THE
EVIDENCE, RELIEVING THE PROSECUTOR FROM ITS
BURDEN OF PROVING ITS CASE BEYOND A
REASONABLE DOUBT.
(Dkt. 1 at 5-12.) 2
II. MOTION FOR STAY
On April 18, 2011, Petitioner executed (and filed) a motion (Dkt. 21) to stay the Petition
pending the final outcome in the New Jersey courts of his first state petition for post-conviction
relief, which, according to Petitioner, was filed on March 8, 2011. (Dkt. 21-1.) Attached to the
motion is a copy of a Verified Petition for Post-Conviction Relief dated April 18, 2011, in State
2
Prior to ordering an answer, this Court notified Petitioner that under the Anti-Terrorism
and Effective Death Penalty Act a prisoner challenging detention pursuant to the judgment of a
state court may file one all-inclusive § 2254 petition within one year of the date the conviction
became final and that absent extremely limited circumstances and the approval of the United
States Court of Appeals for the Third Circuit, a claim presented in a second or successive § 2254
petition shall be dismissed, see 28 U.S.C. § 2244(b). This Court gave Petitioner the opportunity
to withdraw the Petition. (Dkt. 2.) On March 6, 2009, Petitioner asked this Court to consider the
Petition as his all-inclusive petition. (Dkt. 4.) After the Answer was filed, Petitioner filed a
motion for leave to file an amended petition adding one additional ground, i.e., Dr. Weinapple’s
testimony referring to a police report violated the Confrontation Clause. (Dkt. 17 at 2.) By
Order entered December 9, 2010, this Court denied the motion. (Dkt. 18.)
5
v. Boretsky, Ind. No. 02-05-00642 PCR petition (N.J. Super. Ct., Law Div., Apr. 18, 2011). The
post-conviction relief petition raises five grounds of ineffective assistance of counsel:
Point I: FAILURE OF THE TRIAL, OR THE APPELLATE
COUNSEL TO RAISE THE FOLLOWING ISSUES
REGARDING THE ASSISTANT MIDDLESEX COUNTY
MEDICAL EXAMINER DR. FALZON, FABRICATING
AND/OR TAMPERING WITH PHYSICAL EVIDENCE, RAISES
TO THE LEVEL OF INEFFECTIVE ASSISTANCE OF
COUNSEL. U.S. Const. Amend. V, VI and XIV.
A. THE EVIDENCE [IS] NEWLY DISCOVERED, AND
W[AS] NOT DISCOVERABLE THROUGH DUE
DILIGENCE PRIOR TRIAL.
B. CONCLUSION OF DR. FALZON IN THE AUTOPSY
REPORT THAT THE4 KNIFE TRAVERSE ALMOST
EIGHT INCHES OF TISSUE IS NOT SUPPORTED BY
CREDIBLE MEDICAL EVIDENCE.
C. FAILURE OF DR. FALZON TO PROVIDE A
TANGIBLE EVIDENCE, SUCH AS PHOTOGRAPHS,
TO SUPPORT HIS CONTENTION THAT HE
ALLEGEDLY FOUND DEFECTS ON THE RIGHT
LUNG AND THE INFERIOR VENA CAVA OF THE
DECEASED, DEPRIVED THE DEFENDANT OF HIS
RIGHT TO A DEFENSE AND VIOLATE[D] HIS RIGHT
TO A FAIR TRIAL. U.S. Const. Amend. VI, XIV.
D. DURING THE AUTOPSY DR. FALZON ALTERED
THE PHYSICAL APPEARANCE OF EVIDENCE TO
SUPPORT THE STATE’S THEORY.
E. EVIDENCE WAS INSUFFICIENT TO SUSTAIN A
CONVICTION FOR MURDER OR FELONY MURDER.
Point II: FAILURE OF THE TRIAL, OR THE APPELLATE
COUNSEL, TO RAISE THE ISSUE THAT THE EVIDENCE
THAT WERE INTRODUCED AT GRAND JURY
PROCEEDINGS AND AT TRIAL WERE OBTAINED
ILLEGALLY AND IN VIOLATION OF SEARCH AND
SEIZURE PROVISION OF THE UNITED STATES
6
CONSTITUTION RAISES TO THE LEVEL OF INEFFECTIVE
ASSISTANCE OF COUNSEL. U.S. Const. Amend. IV, V, VI,
XIV.
Point III: FAILURE OF THE TRIAL, OR THE APPELLATE
COUNSEL TO RAISE THE FOLLOWING ISSUE[S] AT TRIAL
OR ON DIRECT APPEAL VIOLATED THE DEFENDANT’S
RIGHTS TO DUE PROCESS AND EQUAL PROTECTION.
U.S. CONST. Amend. V, XIV.
A. INSTRUCTION TO RETURN GUILTY VERDICT
ON CHARGE OF MANSLAUGHTER IF DEFENDANTS
CAUSED DEATH IN THE HEAT OF PASSION
PLACED ON DEFENDANT BURDEN OF PROVING
PASSION/PROVOCATION AND DISPROVING
AGGRAVATED OR RECKLESS MANSLAUGHTER
AND VIOLATED HIS DUE PROCESS RIGHTS. U.S.
Const. Amends. V, XIV.
B. GIVING OF JURY INSTRUCTIONS, PROVIDING
THAT CONVICTION FOR BURGLARY COULD BE
BASED UPON DEFENDANT’S DISOBEDIENCE OF
COURT’S ORDER NOT TO ENTER HIS HOUSE,
VIEWED THROUGH THE PRISM OF EQUAL
PROTECTION WAS REVERSIBLE ERROR. U.S. Const.
Amend. VI, XIV.
C. FAILURE TO SEVER CHARGES OF CONTEMPT
OF COURT (VIOLATION OF FINAL RESTRAINING
ORDER) AND FAILURE TO SANITIZE CHARGE OF
CONTEMPT OF COURT (VIOLATION OF
TEMPORARY RESTRAINING ORDER) DEPRIVED
THE DEFENDANT OF HIS RIGHT TO FAIR TRIAL
AND HIS RIGHT FOR EQUAL PROTECTION. U.S.
CONST. Amend. XIV.\
D. CONVICTION FOR TERRORISTIC THREATS WAS
OBTAINED BASED ON INSUFFICIENT EVIDENCE
AND IN VIOLATION OF DEFENDANT’S RIGHTS.
U.S. CONST. Amend. VI, XIV.
E. CONVICTION FOR AGGRAVATED ASSAULT
SECOND DEGREE IS IN VIOLATION OF THE
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DEFENDANT’S RIGHT TO EQUAL PROTECTION.
U.S. CONST. Amend. xiv.
F. WHEN THE TRIAL COURT ALLOWED THE STATE
TO ELICIT 404(B) EVIDENCE THROUGH THE
TESTIMONY OF DR. WEINAPPLE IT VIOLATED NOT
ONLY THE DEFENDANT’S RIGHT TO
CONFRONTATION, BUT ALSO HIS RIGHT TO
EQUAL PROTECTION.
Point IV: FAILURE OF TRIAL COUNSEL TO INVESTIGATE
LEVEL OF THE DEFENDANT’S INTOXICATION ON THE
NIGHT HE ALLEGEDLY ASSAULTED HIS WIFE, RAISES TO
THE LEVEL OF INEFFECTIVE ASSISTANCE OF COUNSEL.
U.S. Const. Amend. VI, XIV.
Point V: FAILURE OF TRIAL COUNSEL TO OBJECT TO
TESTIMONY OF MICHAEL GRUBER WHICH VIOLATED
THE DEFENDANT’S ATTORNEY/CLIENT PRIVILEGE, AND
FAILURE OF APPELLATE COUNSEL TO RAISE4 THE ISSUE
ON DIRECT APPEAL RISES TO THE LEVEL OF
INEFFECTIVE ASSISTANCE OF COUNSEL. U.S. Const.
Amend. V, VI, and XIV.\
\
(Dkt. 21-2 at 2-5.)
In Rhines v. Weber, 544 U.S. 269 (2005), the Supreme Court held that a district court has
the authority to stay a § 2254 petition which contains unexhausted federal claims “to allow the
petitioner to present his unexhausted claims to the state court in the first instance, and then to
return to federal court for review of his perfected petition.” Rhines at 271-72. The Rhines Court
explained that, “if the District Court in this case had dismissed the petition because it contained
unexhausted claims, AEDPA’s 1-year statute of limitations would have barred Rhines from
returning to federal court after exhausting the previously unexhausted claims in state court.”
Rhines at 275. The Rhines Court determined that “it likely would be an abuse of discretion for a
district court to deny a stay and to dismiss a . . . petition [containing unexhausted claims] if the
8
petitioner had good cause for his failure to exhaust, his unexhausted claims are potentially
meritorious, and there is no indication that the petitioner engaged in intentionally dilatory
litigation tactics.” Id. at 278. See also Heleva v. Brooks, 581 F. 3d 187 (3d Cir. 2009) (holding
that stay-and-abeyance under Rhines also applies to a request to stay § 2254 petition which
contains only unexhausted claims).
In Pace v. DiGuglielmo, 544 U.S. 408, 416 (2005), the Supreme Court ruled that a state
petition for post-conviction relief that is dismissed by the state court as untimely does not toll the
federal statute of limitations because an untimely state petition for post-conviction relief is not
“properly filed” within the meaning of 28 U.S.C. § 2244(d)(2). In rejecting the prisoner’s
argument, the Supreme Court observed that, in the event that a state prisoner who is pursuing
state post-conviction relief is “reasonably confused” as to whether the state petition was timely or
otherwise “properly filed,” that prisoner could file a protective § 2254 petition. The Court
explained:
Finally, petitioner challenges the fairness of our interpretation. He
claims that a “petitioner trying in good faith to exhaust state
remedies may litigate in state court for years only to find out at the
end that he was never ‘properly filed,’” and thus that his federal
habeas petition is time barred. Brief for Petitioner 30. A prisoner
seeking state postconviction relief might avoid this predicament,
however, by filing a “protective” petition in federal court and
asking the federal court to stay and abey the federal habeas
proceedings until state remedies are exhausted. See Rhines v.
Weber, ante, 544 U.S., at 278 . . . (2005). A petitioner's reasonable
confusion about whether a state filing would be timely will
ordinarily constitute “good cause” for him to file in federal court.
Ibid. (“[I]f the petitioner had good cause for his failure to exhaust,
his unexhausted claims are potentially meritorious, and there is no
indication that the petitioner engaged in intentionally dilatory
tactics,” then the district court likely “should stay, rather than
dismiss, the mixed petition”).
9
Pace, 544 U.S. at 416-417.
In this case, Boretsky timely filed a § 2254 Petition in this Court on February 10, 2009,
containing the 14 claims he raised in the New Jersey courts on direct appeal. The § 2254 Petition
does not raise the five ineffective assistance of counsel claims contained in the state petition for
post-conviction relief, which Petitioner states that he filed in the Law Division on March 8, 2011.
(Dkt. 21-1, 21-2.) This Court notes that it notified Petitioner by Order filed February 25, 2009,
that the AEDPA contains a one-year statute of limitations and bars successive petitions, asked
Petitioner whether he wanted to withdraw the § 2254 Petition in order to add claims in an allinclusive § 2254 petition, and informed him that, if he elected to withdraw the pending Petition
because it did not include all claims, then the statute of limitations would be tolled from February
10, 2009, until 45 days after the entry of the Order. (Dkt. 2.) See n. 2, supra; Mason v. Meyers,
208 F. 3d 414 (3d Cir. 2000). On March 2, 2009, Petitioner “request[ed] that this Court consider
his Petition for Writ of Habeas Corpus all-inclusive petition ‘as is.’” (Dkt. 4.)
That being said, there are two more significant problems with Petitioner’s motion for
stay. First, the § 2254 Petition before this Court does not include the five unexhausted claims
contained in the state post-conviction relief petition. Accordingly, even if this Court were to
grant a stay pending the outcome of the state post-conviction relief petition, this Court would not
be able to entertain those claims upon the completion of post-conviction proceedings and
dissolution of the stay because none of those claims are included in Petitioner’s timely filed §
2254 Petition.
The second problem is that, as February 15, 2010, it was too late for Petitioner to add
these new claims to his pending § 2254 Petition because, absent equitable tolling, the statute of
10
limitations expired on February 15, 2010. See 28 U.S.C. § 2244(d)(1)(A). Section
2244(d)(1)(A) provides that a § 2254 petition must be filed within one year from “the date on
which the judgment of conviction became final.” Id. Boretsky’s conviction became final on
February 12, 2009, upon expiration of his time to file a petition for certiorari in the Supreme
Court. See Kapral v. United States, 166 F. 3d 565, 575 (3d Cir. 1999). The one-year statute of
limitations began to run on February 13, 2009, and continued running until it expired 365 days
later on February 15, 2010. Accordingly, if this Court were to allow Petitioner to amend the §
2254 Petition now to add the new ineffective assistance of counsel claims, it would frustrate the
intent of Congress that § 2254 claims be advanced within one year after a judgment of conviction
becomes final (unless one of the other circumstances in § 2244(d)(1) is applicable, which does
not appear to be so in this case.)3 See United States v. Duffus, 174 F. 3d 333, 337-38 (3d Cir.
3
Under § 2244(d)(1), the limitations period runs from the latest of
(A) the date on which the judgment became final by the conclusion
of direct review or the expiration of the time for seeking such
review;
(B) the date on which the impediment to filing an application
created by State action in violation of the Constitution or laws of
the United States is removed, if the applicant was prevented from
filing by such State action;
(C) the date on which the constitutional right asserted was initially
recognized by the Supreme Court, if the right has been newly
recognized by the Supreme Court and made retroactively
applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims
presented could have been discovered through the exercise of due
diligence . . . .
(continued...)
11
1999) (“[I]f the court permitted the amendment it would have acted contrary to the policy of the
AEDPA, which requires courts to measure the running of the limitations periods from the date on
which the judgment of conviction becomes final”). Nor would the new claims be considered
timely as relating back under Rule 15(c)(2) because the new claims are distinctly separate from
the 14 claims already pled. See United States v. Thomas, 221 F. 3d 430, 436 (3d Cir. 2000)
(“Rule 15(c)(2) applies to [habeas] petitions insofar as a District Court may, in its discretion,
permit an amendment to a petition to provide factual clarification or amplification after the
expiration of the one-year period of limitations, as long as the petition itself was timely filed and
the petitioner does not seek to add an entirely new claim or new theory of relief”).
Thus, the only way this Court would be able to entertain the new ineffective assistance of
counsel claims (even if a stay were granted) would be for this Court to allow Petitioner to amend
the Petition and to rule that equitable tolling of the limitations period was warranted from
February 15, 2010 (date on which the statute of limitations expired), until the date on which
Petitioner presumably “properly filed” his state petition for post-conviction relief, insofar as
statutory tolling would kick in on that date if the state petition were properly filed. See 28 U.S.C.
§ 2244(d)(2) (“The time during which a properly filed application for State post-conviction or
other collateral review with respect to the pertinent judgment or claim is pending shall not be
counted toward any period of limitation under this subsection”); Allen v. Siebert, 552 U.S. 3
(2007) (petition for state post-conviction relief that was rejected by the state courts as untimely is
not “properly filed” under § 2244(d)(2)); Artuz v. Bennett, 531 U.S. 4, 8 (2000) (petition for
3
(...continued)
28 U.S.C. § 2244(d)(1).
12
post-conviction relief is “filed” when “it is delivered to, and accepted by, the appropriate court
officer for placement into the official record”) (citations omitted).
In light of the foregoing, this Court will deny the motion for stay at this time without
prejudice to the filing, within 20 days, of a motion by Boretsky to amend the Petition to add the
five new claims, to equitably toll the statute of limitations on those new claims, and to grant a
stay of the Petition, if this Court permits amendment. See Henderson v. DiGuglielmo, 138 Fed.
App’x 463, 467 n.5 (3d Cir. 2005).
III. EQUITABLE TOLLING DOCTRINE
To guide Petitioner, this Court will outline the equitable tolling doctrine. “A statute of
limitations ‘can be tolled when principles of equity would make [its] rigid application unfair.’”
Urcinoli v. Cathel, 546 F. 3d 269, 272 (3d Cir. 2008)(quoting Shendock v. Dir., Office of
Workers’ Comp. Programs, 893 F. 2d 1458, 1462 (3d Cir. 1990)). “Generally, a litigant seeking
equitable tolling bears the burden of establishing two elements: (1) that he has been pursuing his
rights diligently, and (2) that some extraordinary circumstance stood in his way.” Holland v.
Florida, 130 S. Ct. 2549, 2562 (2010) (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005));
see also LaCava v. Kyler, 398 F.3d 271, 275-276 (3d Cir. 2005). “There are no bright lines in
determining whether equitable tolling is warranted in a given case. Rather, the particular
circumstances of each petitioner must be taken into account.” Pabon v. Mahanoy,
F. 3d
2011 WL 2685586 at *12 (3d Cir. July 12, 2011).
Extraordinary circumstances have been found where “(1) the defendant has actively
misled the plaintiff; (2) if the plaintiff has in some extraordinary way been prevented from
13
,
asserting his rights; or (3) if the plaintiff has timely asserted his rights mistakenly in the wrong
forum.” Urcinoli, 546 F. 3d at 272 (quoting Satterfield v. Johnson, 434 F. 3d 185, 195 (3d Cir.
2006) (internal quotation marks omitted).4 “[A] garden variety claim of excusable neglect, such
as a simple miscalculation that leads a lawyer to miss a filing deadline does not warrant equitable
tolling,” Holland, 130 S. Ct. at 2564 (citations and internal quotation marks omitted), but “an
attorney’s failure to satisfy professional standards of care” can warrant equitable tolling where
the behavior is egregious. Id. at 2562, 2564; see also Nara v. Frank, 264 F. 3d 310, 320 (3d Cir.
2001) (ordering evidentiary hearing as to whether petitioner who was “effectively abandoned” by
lawyer merited tolling).
“The diligence required for equitable tolling purposes is ‘reasonable diligence,’ . . . not
‘maximum feasible diligence.’” Holland, 130 S. Ct. at 2565 (internal citations omitted).
However, even where extraordinary circumstances exist, “[i]f the person seeking equitable
tolling has not exercised reasonable diligence in attempting to file after the extraordinary
circumstances began, the link of causation between the extraordinary circumstances and the
failure to file is broken, and the extraordinary circumstances therefore did not prevent timely
filing.” Brown v. Shannon, 322 F.3d 768, 773 (3d Cir. 2003) (quoting Valverde v. Stinson, 224
F.3d 129, 134 (2d Cir. 2000)).
4
For example, “inability to read or understand English, combined with denial of access to
translation or legal assistance, can constitute extraordinary circumstances that trigger equitable
tolling.” Pabon at *13. In Brinson v. Vaughn, 398 F. 3d 225, 230 (3d Cir. 2005), the Court of
Appeals held that an extraordinary circumstance exists “where a court has misled a party
regarding the steps that the party needs to take to preserve a claim.”
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IV. CONCLUSION
Based on the foregoing, the Court denies the motion for stay without prejudice to the
filing, within 20 days, of a motion to amend the Petition to add the unexhausted claims, to
equitably toll the statute of limitations on the new claims, and to stay the amended petition.
s/Freda L. Wolfson
FREDA L. WOLFSON, U.S.D.J.
Dated:
August 15, 2011
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