BORETSKY v. RICCI et al
Filing
33
MEMORANDUM OPINION filed. Signed by Judge Freda L. Wolfson on 3/20/2012. (eaj)
NOT FOR PUBLICATION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)
MEMORANDUM OPINION
WOLFSON, District Judge:
1. 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. Presently before this Court is Petitioner’s motion (Dkt. 31) for
reconsideration of the Order denying Petitioner’s motion to amend and stay the Petition,
dismissing the Petition on the merits, and denying a certificate of appealability. (Dkt. 28.)
Procedural History
2. Shortly after Boretsky filed the Petition in February 2009, this Court notified
Petitioner of his rights pursuant to Mason v. Myers, 208 F. 3d 414 (3d Cir. 2000), and Petitioner
responded by asking this Court to proceed with the Petition “as is.” 1
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The 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 allinclusive § 2254 petition within one year of the date the conviction became final and that absent
(continued...)
3. The Petition presented the following grounds, which mimic 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.
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.
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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). In addition, this Court advised Petitioner that it could not grant a writ
unless he had exhausted the claims before the New Jersey courts and 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.)
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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
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.
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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
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.
(Pet. ¶ 12, Grounds One to Fourteen) (Dkt. 1 at 5-12.)
4. This Court ordered service, an answer, and a reply. (Dkt. 5.) The state filed the
Answer and state court record on April 24, 2009, arguing that Petitioner had not filed a state
petition for post-conviction relief, that such was necessary here where several of the grounds
raised in the § 2254 Petition were unexhausted because Petitioner presented them to the New
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Jersey courts as state law claims. The state alternatively argued that this Court should dismiss
the Petition on the merits. (Dkt. 8.)
5. On April 28, 2011 (after the one-year statute of limitations had expired), Boretsky
filed a motion to stay the Petition while he pursued his first state petition for post-conviction
relief, which he claimed he filed in 2011. (Dkt. 21-1.) On August 15, 2011, this Court denied
the motion without prejudice to the filing of a properly supported motion to amend the Petition.
This Court’s Opinion noted that, because Boretsky’s § 2254 Petition did not include the
ineffective assistance of counsel claims (raised in his state petition for post-conviction relief), a
stay would be of no use to Boretsky unless he first amended his § 2254 Petition to include the
ineffective assistance of counsel claims. Moreover, since the one-year statute of limitations, see
28 U.S.C. § 2254(d)(1)(A), expired on February 15, 2010, in the absence of equitable tolling, the
Petition could not be amended because the new claims were time barred.2 See 28 U.S.C. §
2244(d)(1)(A). (Dkt. 22.) This Court denied the motion for stay without prejudice to the filing
of a motion to amend in which Boretsky showed that equitable tolling of the statute of limitations
was warranted from February 15, 2010, until the date on which Boretsky 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
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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.” 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 oneyear statute of limitations began to run on February 13, 2009, and continued running until it
expired 365 days later on February 15, 2010.
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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 postconviction 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 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). This Court’s Opinion also explained the contours of the
equitable tolling doctrine in order to guide Petitioner.
6. On August 30, 2011, Petitioner filed a motion (Dkt. 24) to amend the Petition to add
the ineffective assistance of counsel grounds (which were raised in his state petition for postconviction relief) and to stay the amended petition while Petitioner pursued state post-conviction
relief. The Amended Verified Petition for Post-Conviction Relief, dated August 25, 2011, was
attached. (Dkt. 24-5 at pp. 2-6.)
7. The state opposed these motions, arguing that the motion to amend should be denied
because the new claims were barred by the statute of limitations, and Petitioner failed to show
that equitable tolling was warranted. (Dkt. 25.)
8. In response, Petitioner argued that equitable tolling was warranted as follows:
[T]he petitioner is foreign born, naturalized U.S. citizen and is confused in
understanding the equitable tolling doctrine under 28 U.S.C. § 2244(d)(1)(A), and
AEDPA standard.
In addition, two years ago, when petitioner filed his original petition for Habeas
Relief, he did this following advice, apparently erroneous, of a “prominent
jailhouse lawyer.”
But for this erroneous advice, the Petitioner would have file[d] his first P.C.R.
petition in accordance with N.J. Rules of Court R. 3:22. Post-Conviction Relief.
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Had the petitioner ha[d] advi[c]e of competent, trained attorney, he should not
have made a mistake, and file[d] his first P.C.R. Petition in the State Court
immediately after his Petition for Certification on Direct Appeal was denied by
the Supreme Court of New Jersey.
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The Petitioner pleads that, utterly erroneous advice of “jailhouse lawyer”, the
intricacies and complexities of Fed. R. Civ. P. and the record that clearly indicates
that he is diligently pursuing his rights, his failure to correctly file Habeas
Petition, be considered by this Court, is effected by extraordinary circumstances
which warrants granting his motion to amend, stay and protect the Petition for
Habeas Relief.
(Dkt. 26 at 2-3.)
9. This Court denied Boretsky’s motion to amend the Petition to add the ineffective
assistance of counsel claims raised in the 2011 state petition for post-conviction relief because
Boretsky failed to show that equitable tolling was warranted. Specifically, this Court found:
First, Boretsky states that he is a naturalized citizen. Presumably, his native
language is not English. The Third Circuit has held that “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, 654 F. 3d at 400. But here, Boretsky does not contend that he is
unable to read or understand English. The fact that Boretsky is a naturalized
citizen is not an extraordinary circumstance.
Second, Boretsky states that he failed to pursue state post-conviction relief before
filing this § 2254 Petition because a prominent jailhouse lawyer mistakenly
advised him to file his § 2254 petition first. The Supreme Court has determined
that “counsel’s mistake in miscalculating the limitations period [does not] entitle
[a petitioner] to equitable tolling. If credited, this argument would essentially
equitably toll limitations periods for every person whose attorney missed a
deadline. Attorney miscalculation is simply not sufficient to warrant equitable
tolling, particularly in the postconviction context where prisoners have no
constitutional right to counsel.” Lawrence v. Florida, 549 U.S. 327, 336-37
(2007). If attorney negligence or miscalculation does not constitute an
extraordinary circumstance warranting equitable tolling, then it follows that the
negligence of a jailhouse lawyer cannot constitute an extraordinary circumstance.
To be sure, in Holland v. Florida, 130 S.Ct. 2549, 2563 (2010), the Supreme
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Court rejected the Eleventh Circuit’s ruling that attorney conduct, even if grossly
negligent, can never warrant tolling absent bad faith, dishonesty, divided loyalty,
or mental impairment on the lawyer’s part . . . .
In this case, Boretsky’s claimed ignorance of the AEDPA and reliance on the
mistaken legal advice of a jailhouse lawyer is belied by the record. To prevent the
very ignorance claimed by Boretsky, the Third Circuit requires district courts to
inform § 2254 petitioners of the procedural and other limitations imposed by the
AEDPA. See Mason v. Myers, 208 F.3d 414 (3d Cir. 2000). Accordingly, by
Order entered on February 25, 2009 - two days after the docketing of Boretsky’s §
2254 Petition and almost one year before the statute of limitations expired - this
Court informed Boretsky that his § 2254 petition must include all available federal
claims because the AEDPA bars second or successive petitions, that federal
claims must be exhausted in the state courts, and that this all-inclusive § 2254
petition must be filed within one year of the date his conviction becomes final
upon the conclusion of direct review or the expiration of the time for seeking such
review. (Dkt. 2.) The Mason Order cited the relevant federal statutes and asked
Boretsky if he wanted this Court to rule on the Petition “as is” or if he wanted to
withdraw the pending Petition in order to add additional claims, subject to the
one-year statute of limitations. Id. Boretsky notified this Court that he wanted the
Court to consider his all-inclusive petition “as is.” (Dkt. 4.)
Boretsky had actual notice of the limitations (time, successive petition bar, and
exhaustion requirement) imposed by the AEDPA. Accordingly, he cannot show
that some extraordinary circumstance stood in his way and prevented him from
presenting his ineffective assistance of counsel claims - to the New Jersey court
in a petition for post-conviction relief or to this Court in a timely motion to amend
the Petition - before the statute of limitations expired on February 15, 2010. This
Court will deny the motion to amend the Petition to add the new claims and will
deny the motion to stay the Petition pending the outcome of Boretsky’s state
petition for post-conviction relief. See Irwin v. Dep’t of Veterans Affairs, 498
U.S. 89, 96 (1990) ([T]he principles of equitable tolling . . . do not extend to what
is at best a garden variety claim of excusable neglect”); Hall v. Warden, Lebanon
Correctional Inst., 662 F.3d 745, 751 (6th Cir. 2011) (pro se status and lack of
knowledge of law are not sufficient to constitute extraordinary circumstances and
excuse late filing); Griffith v. Rednour, 614 F.3d 328, 331 (7th Cir. 2010)
(“Holland tells us that a simple legal mistake does not excuse an untimely filing”);
see also Drew v. MacEachern, 620 F.3d 16, 24 (1st Cir. 2010); Webster v. Ricci,
2012 WL 295671 (D.N.J. Jan. 30, 2012); Skelton v. Ricci, 2011 WL 1402687
(D.N.J. Apr. 13, 2011).
This Court also finds that Boretsky has not shown that he exercised reasonable
diligence in bringing his claims. See Holland, 130 S. Ct. at 2562. “The
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obligation to act diligently pertains to both the federal habeas claim and the period
in which the petitioner exhausts state court remedies, and the court may consider
the time of filing the habeas petition as a factor in determining reasonable
diligence.” Alicia v. Karestes, 389 Fed. App’x 118, 122 (3d Cir. 2010)’ LaCava
v. Kyler, 398 F.3d 271, 277 (3d Cir. 2005). This Court finds that Boretsky was
not diligent in seeking to amend his § 2254 Petition to include the ineffective
assistance claims, given that this Court issued the Mason order almost a year
before the statute of limitations expired.
The equitable tolling doctrine extends the AEDPA’s statutory deadline in
extraordinary circumstances for petitioners who were prevented from complying
through no fault or absence of diligence. Equitable tolling is not warranted here
because Boretsky has not offered any basis for finding that he has been prevented
by an extraordinary circumstance from asserting his ineffective assistance claims,
nor has he shown he has been diligent in pursuing those claims. And because
Boretsky has not made good faith allegations that would, if true, entitle him to
equitable tolling, he is not entitled to an evidentiary hearing on his equitable
tolling argument. See Roy v. Lampert, 465 F.3d 964, 969 (9th Cir. 2006).
(Dkt. 27 at 13 to 17) (footnote omitted).
10. This Court denied the motion to stay the Petition because, where the Petition did not
raise the ineffective assistance of counsel claims that Boretsky was litigating in his state petition
for post-conviction relief, a stay would be of no use in preserving Boretsky’s ineffective
assistance claims for litigation in this Court after the conclusion of the state petition for postconviction relief proceedings. Without deciding whether the Petition was “mixed,” this Court
exercised its discretion to deny all claims raised in the Petition on the merits pursuant to 28
U.S.C. § 2254(b)(2). (Dkt. 27 at p. 2 n.1.)
Motion for Reconsideration
11. On March 5, 2012, Boretsky filed the motion for reconsideration presently before this
Court, supported by Boretsky’s declaration. In the declaration, Boretsky avers:
I never intended for this Court to substantively adjudicate my Petition for Habeas
Corpus. Rather, my purpose for filing my habeas petition and associated motion
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to amend/stay was to preserve my unexhausted claims for subsequent federal
review. Such unexhausted claims are the subject of my Petition for PostConviction Relief (PCR), which is currently pending in the Superior Court of
New Jersey, Law Division, in Middlesex County . . .
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From the beginning, I desired to pursue my aforementioned conflict-of-interest
claim through the state-court system and then present that claim to this Court by
petitioning for habeas corpus. The reason why my conflict-of-interest claim was
not raised in my present Petition for Habeas Corpus (Docket Entry No. 1) was
because that claim was unexhausted.
Initially, I sought to preserve my aforementioned conflict-of-interest claim by
seeking to stay my present habeas petition during the pendency of my state-court
PCR matter (see Docket Entry No. 21). This Court denied my initial Motion to
Stay without prejudice to my moving to amend and stay my habeas petition as
amended (see Docket Entry No. 23). I followed that particular course of action
(see Docket Entry No. 24), believing all along that my conflict-of interest claim,
as raised in my attached PCR petition and PCR brief, would be preserved.
I was completely surprised when I received the Court’s order (Docket Entry No.
28), which dismissed, with prejudice, my Petition for Habeas Corpus. As
discussed above, I never intended for this Court to substantively adjudicate my
Petition for Habeas Corpus. I intended, instead, that the Court either grant my
motion to amend/stay or dismiss my habeas petition without prejudice to my filing
another habeas petition after exhausting my claims during state-court proceedings.
In light of the foregoing facts and attendant circumstances, I desire that the Court
reconsider and vacate its order dated February 29, 2012 (Docket Entry No. 28),
and dispose of my Petition for Habeas Corpus in such manner as would preserve
all claims raised in my attached PCR petition and PCR brief, including my
aforementioned conflict-of-interest claim.
(Dkt. 31-2 at 1 to 3) (paragraph numbers omitted).
12. “The scope of a motion for reconsideration . . . is extremely limited.” Blystone v.
Horn, 664 F.3d 397, 415 (3d Cir. 2011). “Such motions are not to be used as an opportunity to
relitigate the case; rather, they may be used only to correct manifest errors of law or fact or to
present newly discovered evidence.” Id. “Accordingly, a judgment may be altered or amended
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[only] if the party seeking reconsideration shows at least one of the following grounds: (1) an
intervening change in the controlling law; (2) the availability of new evidence that was not
available when the court granted the motion for summary judgment; or (3) the need to correct a
clear error of law or fact or to prevent manifest injustice.” Howard Hess Dental Labs., Inc. v.
Dentsply Int’l Inc., 602 F.3d 237, 251 (3d Cir. 2010); see also Lazaridis v. Wehmer, 591 F.3d
666, 669 (3d Cir. 2010) (Where plaintiff’s motion for reconsideration advanced the same
arguments that were in his complaint and motions, District Court appropriately denied the motion
“[b]ecause this is not a proper basis for reconsideration” ). Mere disagreement with the district
court’s decision is inappropriate on a motion for reconsideration, and should be raised through
the appellate process. See Assisted Living Associates of Moorestown, L.L.C., v. Moorestown
Tp, 996 F. Supp. 409, 442 (D.N.J. 1998) (citing Bermingham v. Sony Corp. of America, Inc.,
820 F. Supp. 834, 859 n.8 (D.N.J. 1992), aff’d, 37 F.3d 1485 (3d Cir. 1994)).
13. Boretsky states that he wanted this Court to “either grant my motion to amend/stay or
dismiss my habeas petition without prejudice to my filing another habeas petition after
exhausting my claims during state-court proceedings.” (Dkt. 31-2 at 3.) This Court considered
Boretsky’s motion to amend and stay the Petition and denied those motions because the new
claims raised in Boretsky’s state post-conviction relief petition were time barred and Boretsky
failed to show any basis for equitable tolling. The instant motion for reconsideration does not
present an intervening change in the controlling law, the availability of new evidence that was
not available when the court denied the motion, or the need to correct a clear error of law or fact
or to prevent manifest injustice. Accordingly, this Court must deny Boretsky’s motion to
reconsider the Order denying his motion to amend and stay the amended petition.
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14. Boretsky also states in his motion that, if the motion to amend and stay were denied,
he expected this Court to “dismiss my habeas petition without prejudice to my filing another
habeas petition after exhausting my claims during state-court proceedings.” (Dkt. 31-2 at 3.)
Boretsky further states that he wanted this Court to dispose of the § 2254 Petition in a way that
preserved his opportunity to present the ineffective assistance claims to this Court after he
exhausted the claims. However, because those claims are time barred and Boretsky failed to
show any basis to warrant equitable tolling, there is no way this Court could have “preserved”
those claims. Even if this Court had dismissed the (unamended) § 2254 Petition as a mixed
petition (assuming, without deciding, that the Petition was indeed mixed), this course of action
would not “preserve” the ineffective assistance claims because, as previously stated, those claims
are time barred. The claims would still be time barred if Boretsky included them in a § 2254
petition filed in this Court after he exhausted those claims.
15. Boretsky could have “preserved” the ineffective assistance of counsel claims by
withdrawing the § 2254 Petition in response to the Mason order and including them in a timely
filed § 2254 petition. When this Court issued the Mason Order on February 25, 2009, Boretsky
had almost a full year left on the one-year statute of limitations. If Boretsky had “properly filed”
his state petition for post-conviction relief in the Law Division before the statute of limitations
expired on February 15, 2010, then the limitations period would have been statutorily tolled as
long as the state petition were pending. In that case, Boretsky could have filed his § 2254
petition (including the ineffective assistance claims) after he exhausted the ineffective assistance
claims, provided he did so within the time remaining on the one-year statute of limitations.
Boretsky created his own statute of limitations problem by failing to either (a) pursue state post
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conviction relief before the one year statute of limitations expired, in which case the limitations
period would be tolled, or (b) including the ineffective assistance of counsel claims in a timely
all-inclusive § 2254 petition filed in response to the Mason Order.
16. This Court will deny Boretsky’s motion to reconsider the Order denying his motion
to amend and stay the Petition and dismissing the Petition on the merits because he has not
shown “(1) an intervening change in the controlling law; (2) the availability of new evidence that
was not available when the court granted the motion for summary judgment; or (3) the need to
correct a clear error of law or fact or to prevent manifest injustice.” Howard Hess Dental Labs.,
Inc., 602 F.3d at 251.
17. An appropriate Order accompanies this Memorandum Opinion.
s/Freda L. Wolfson
FREDA L. WOLFSON, U.S.D.J.
Dated:
March 20 , 2012
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