BORETSKY v. RICCI et al
Filing
43
MEMORANDUM OPINION filed. Signed by Chief Judge Freda L. Wolfson on 11/13/2019. (jem)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
BORIS BORETSKY,
Civil Action No. 09-771 (FLW)
Petitioner,
MEMORANDUM OPINION
v.
BRUCE DAVIS, et al.,
Respondents.
This matter has been opened to the Court by Petitioner Boris Boretsky’s (“Petitioner”)
filing of a “Motion to Reopen Judgment [Entered on February 29, 2012 in the civil action
entitled Boris Boretsky v. Michelle Ricci, 09- 0771] and for Relief Pursuant to Fed. R. Civ. P.
60(b)(6)” (ECF No. 38) and a “Motion for Leave to File a Supplemental Letter Brief and
Appendix[.]” (ECF No. 39.) For the reasons explained in this Memorandum Opinion, the Court
denies the motions for relief and denies a certificate of appealability.
The Court recounts only the facts necessary to resolve Petitioner’s motions for relief.
Petitioner was tried before a jury and convicted of the first-degree murder (and related offenses)
of his wife and sentenced to life imprisonment without the possibility of parole. See State v.
Boretsky, 2016 WL 6440631, at *1-2 (N.J. Sup. Ct. App. Div. Nov. 1, 2016). After the
conclusion of direct review in state court, but prior to submitting his first state court postconviction relief petition (“PCR”), Petitioner submitted a petition for writ of habeas corpus in the
United States District Court on February 10, 2009; it was captioned Boretsky v. Ricci, 3-09-cv00771 and assigned to the undersigned. On February 25, 2009, the Court advised Petitioner of
his rights pursuant to Mason v. Meyers, 208 F.3d 414 (3d Cir. 2000), explaining the
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consequences of filing such a Petition under the Antiterrorism Effective Death Penalty Act
(“AEDPA”) and giving him an opportunity to file one all-inclusive § 2254 petition. (ECF No.
2.) By letter dated March 2, 2009, Petitioner informed the Court that he wished to have his
Petition ruled on “as is[.]” (ECF No. 4.)
On April 18, 2011, Petitioner filed his first state PCR in New Jersey Superior Court.
(ECF No. 40-2.) On April 18, 2011, Petitioner also submitted a motion to stay the then-pending
habeas corpus petition while pursuing the state PCR. (ECF No. 21.) On August 15, 2011, this
Court denied the motion to stay without prejudice to the filing of a properly supported motion to
amend the habeas petition. 1 (ECF No. 22.) On August 25, 2011, Petitioner filed a motion to
amend and an amended verified petition to add the ineffective assistance of counsel claims
presented in his first state petition for post-conviction relief filed in the New Jersey Superior
Court on April 18, 2011, and to stay the § 2254 Petition. (ECF Nos. 24, 24-5). “The Amended
Verified Petition for Post-Conviction Relief,” which is dated August 25, 2011, raises seven
claims of ineffective assistance of counsel, with subparts. (ECF No. 24-5.)
By Opinion and Order dated February 29, 2012, the Court rejected Petitioner’s arguments
for equitable tolling, denied the motion to amend (and for a stay) as untimely, dismissed the
Petition on the merits, and denied a certificate of appealability (“COA”). (ECF Nos. 27-28.) On
March 5, 2012, Petitioner sought reconsideration of the Court’s denial of his motion to amend
and the dismissal of his habeas petition. (ECF No. 31.) On March 6, 2012, Petitioner submitted
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This Court’s Opinion noted that, because Boretsky’s § 2254 Petition did not include the
ineffective assistance of counsel claims, a stay would be of no use to Petitioner 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 would be time barred. See 28 U.S.C. §52244(d)(1)(A). (ECF No. 22.)
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his notice of appeal. (ECF No. 29.) The Court denied the motion for reconsideration on March
20, 2012. (ECF No. 33.)
On October 18, 2012, the Third Circuit denied a COA, finding that reasonable jurists
would not debate the District Court’s dismissal of the fourteen claims enumerated in habeas
petition. The Third Circuit further determined that Petitioner failed to demonstrate that jurists of
reason would debate the District Court’s denial of his motion for reconsideration or the denial of
his requests to amend his petition and stay his proceedings pending the resolution of his postconviction proceedings. (See ECF No. 37.)
On June 27, 2014, the trial court denied petitioner’s state court PCR without an
evidentiary hearing . (ECF No. 40-11.) Petitioner appealed this judgment, and on November 1,
2016, the Superior Court, Appellate Division affirmed. (ECF No. 40-12.) On May 2, 2017, the
New Jersey Supreme Court denied certification. (ECF No. 40-13.)
On April 5, 2019, Petitioner submitted the instant “Motion to Reopen Judgment and for
Relief Pursuant to Fed. R. Civ. P. 60(b)(6)” (ECF No. 38), and, on May 23, 2019, Petitioner
submitted the instant “Motion for Leave to File a Supplemental Letter Brief and Appendix[.]” 2
(ECF No. 39.) Respondents submitted opposition on June 27, 2019. (ECF No. 40.) The matter
is fully briefed and ready for disposition.
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This letter brief notes that it is “In support of and Motion for Remand to the District Court for
Evidentiary Hearing to Determine Movant’s eligibility to File a Second Petition for
Habeas Relief.” This “letter brief” is captioned in the “United States Court of Appeals for the
Third Circuit,” but is not filed in connection with any of Petitioner’s cases filed on the electronic
docket of the Third Circuit Court of Appeals. Petitioner did, however, file a successive petition
under 28 U.S.C. § 2244, seeking an Order requiring the Prosecutor’s Office to produce evidence
that would enable Petitioner to prove his actual innocence claim. (In re: Boris Boretsky, 17-3776
(3d Cir.). Petitioner’s requests were denied by the Third Circuit Court of Appeals on February
20, 2019. (See id.)
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“Rule 60(b) allows a party to seek relief from a final judgment, and request reopening of
his case, under a limited set of circumstances including fraud, mistake, and newly discovered
evidence.” Gonzalez v. Crosby, 545 U.S. 524, 528 (2005). Rule 60(b)(6), the particular
provision on which Petitioner relies, permits reopening when the movant shows “any ... reason
justifying relief from the operation of the judgment” other than the more specific circumstances
set out in Rules 60(b)(1)-(5). Id. at 528–29. A motion filed under Rule 60(b)(6) must
demonstrate “extraordinary circumstances” that would justify “the reopening of a final
judgment.” Id. at 535 (quotation omitted). Motions filed under subsection (6) “must be made
within a reasonable time.” Fed. R. Civ. P. 60(c).
The Court begins by addressing whether Plaintiff’s Rule 60(b) motion seeks to vindicate
a new claim or merely challenges the Court’s denial of his motion to amend (and the resulting
failure to reach the merits of his PCR claims). In Gonzalez v. Crosby, the Supreme Court
analyzed when a motion couched in terms of Rule 60(b) was in reality a second or successive §
2254 habeas petition subject to the requirements of 28 U.S.C. § 2244(b). 3 Gonzalez makes clear
that where a Rule 60 motion asserts a new claim, it is a successive petition. 545 U.S. at 530–32.
“Claim” for purposes of the analysis (as used in § 2244(b)) is defined as “an asserted federal
basis for relief from a state court’s judgment of conviction.” 545 U.S. at 530. A 60(b) motion
3
The relevant provisions of the AEDPA-amended habeas statutes, 28 U.S.C. §§ 2244(b)(1)-(3),
impose three requirements on second or successive habeas petitions: First, any claim that has
already been adjudicated in a previous petition must be dismissed. § 2244(b)(1). Second, any
claim that has not already been adjudicated must be dismissed unless it relies on either a new and
retroactive rule of constitutional law or new facts showing a high probability of actual innocence.
§ 2244(b)(2). Third, before the district court may accept a successive petition for filing, the court
of appeals must determine that it presents a claim not previously raised that is sufficient to meet
§ 2244(b)(2)’s new-rule or actual-innocence provisions. § 2244(b)(3). Thus if, Petitioner’s
motion is a second or successive petition, he must first get permission from the Court of Appeals
before filing it here.
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that challenges “a district court’s failure to reach the merits of a petition based on the statute of
limitations does not constitute a second or successive habeas petition” and is thus not subject to
dismissal as second or successive. See United States v. Andrews, 463 F. App’x 169, 171–72 (3d
Cir. 2012). Here, Petitioner’s Rule 60(b) motion appears to ask the Court to reconsider the
denial of his motion to amend, excuse the untimeliness of the PCR claims he sought to bring in
his motion to amend, and reach the merits of the PCR claims contained therein. Because
Petitioner asks the Court to reconsider its timeliness analysis in connection with the denial of his
motion to amend, the Court finds that such a request does not amount to a second or successive
petition under Gonzalez.
Petitioner’s Rule 60(b) motion appears to rely on the Supreme Court’s decision in
McQuiggin v. Perkins, 569 U.S. 383 (2013), which extended the actual innocence doctrine
announced in Schlup v. Delo, 513 U.S. 298 (1995) to allow a petitioner to overcome the AEDPA
one-year statute of limitations if the petitioner can make the required actual innocence showing.
In doing so, the Supreme Court recognized that an untimely petition should not prevent a
petitioner who can adequately demonstrate his actual innocence from pursuing his or her claims.
To establish actual innocence, however, a petitioner must demonstrate that “in light of all the
evidence, it is more likely than not that no reasonable juror would have convicted him.” Bousley
v. United States, 523 U.S. 614, 623 (1998) (internal quotation marks and citations omitted).
“[A]ctual innocence means factual innocence, not mere legal insufficiency.” Id. at 623–24
(internal quotation marks and citations omitted).
The Third Circuit recently addressed the actual innocence exception in the context of
Rule 60(b). In Satterfield v. District Attorney of Philadelphia, 872 F.3d 152 (3d Cir. 2017), the
Third Circuit reversed the denial of a Rule 60(b) motion filed by a petitioner who claimed that
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McQuiggin was a change in law which constituted extraordinary circumstances and justified
relief under Rule 60(b). Id. at 155. The Third Circuit remanded the case to the district court and
directed the court to give full consideration to equitable circumstances:
The nature of the change in decisional law must be weighed
appropriately in the analysis of pertinent equitable factors.
McQuiggin implicates the foundational principle of avoiding the
conviction of an innocent man and attempts to prevent such a
mistake through the fundamental miscarriage of justice exception.
If [the petitioner] can make the required credible showing of actual
innocence to avail himself of the fundamental miscarriage of
justice exception had McQuiggin been decided when his petition
was dismissed, equitable analysis would weigh heavily in favor of
deeming McQuiggin’s change in law, as applied to [the
petitioner]’s case, an exceptional circumstance justifying Rule
60(b) relief.
Id.; see also Penney v. United States, 870 F.3d 459, 463 (6th Cir. 2017) (holding that an “an
actual-innocence claim may be considered on the merits even though it would otherwise be
barred by an untimely Rule 60(b) motion”). Thus, whether a petitioner relying on McQuiggin
can avail himself of the fundamental miscarriage of justice exception under Rule 60(b)(6) hinges
largely on whether he or she can make the required showing of actual innocence. To satisfy the
actual innocence standard, however, “a petitioner must [first] present new, reliable evidence” and
second, “show by a preponderance of the evidence ‘that it is more likely than not that no
reasonable juror would have convicted him in the light of the new evidence.’” Reeves v. Fayette
SCI, 897 F.3d 154, 160 (3d Cir. 2018) (quoting Houck v. Stickman, 625 F.3d 88, 93 (3d Cir.
2010) (further quotations omitted)). Stated differently, a petitioner must establish that it is “more
likely than not any reasonable juror would have reasonable doubt.” Reese, 897 F.3d at 1601–6
(quoting House v. Bell, 547 U.S. 518, 538 (2006) ).
In his motion papers, Plaintiff asserts that his case is indistinguishable from Reeves v.
Fayette, SCI, 897 F.3d 154 (3d Cir. 2018). There, the petitioner filed an untimely habeas petition
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and sought to excuse the petition’s untimeliness based on the actual innocence exception to
procedural default under McQuiggin. The petitioner asserted that his trial counsel failed to
present to the jury the very exculpatory evidence that demonstrates his actual innocence.
Specifically, Reeves identified evidence – police reports and other proofs suggesting that
alternative suspects committed the crimes – that may show his actual innocence. Because the
district court determined that the evidence regarding alternative suspects was not “new” and had
been provided to trial counsel, it denied Reeves’ request for an evidentiary hearing and dismissed
the petition as untimely. Id. at 159. The Third Circuit reversed, holding that “when a petitioner
asserts ineffective assistance of counsel based on counsel’s failure to discover or present to the
fact finder the very exculpatory evidence that demonstrates his actual innocence, such evidence
constitutes new evidence for purposes of the Schlup actual innocence gateway.” Id. at 164.
Notably, the Court did not determine that Reeves made the required showing of actual
innocence; rather it vacated the order dismissing the petition and remanded for the trial court to
make that determination. Id. at 165 (explaining that if Reeves made the required showing, the
district court should analyze his ineffective assistance of counsel claims on the merits under the
applicable AEDPA standard of review).
At issue here is whether Petitioner has presented any new reliable evidence of his actual
innocence. Pursuant to Reeves, the Court assumes that (1) evidence in the possession of
Petitioner’s attorney but not used at trial or (2) evidence Petitioner’s attorney failed to discover
could qualify as “new evidence” for purposes of the actual innocence inquiry. The Court
nevertheless finds that Petitioner has not met the standard for the actual innocence gateway.
Petitioner’s actual innocence arguments are convoluted. He first asserts that his trial
counsel had a conflict of interest based on a retainer agreement negotiated between Petitioner,
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trial counsel, and Petitioner’s business associates. (ECF No. 38, at 3.) Petitioner speculates that
trial counsel failed to get a mitigating expert to dispute certain computer-generated animations
the state sought to admit into evidence in order to shield this fee arrangement. (Id. at 4.)
Petitioner next asserts that had trial counsel obtained the mitigating expert, rather than moving to
suppress the animations, the mitigating expert would have testified that the medical examiner’s
testimony was perjured, and the autopsy report was fabricated. (Id. at 5-6.) Petitioner asserts
that the following evidence was not presented to the factfinder due to his trial counsel’s
ineffectiveness: 1) Autopsy photographs on the body of the victim performed on March 4, 2002
by the medical examiner, which included photographs depicting the victims injuries; 2) transcript
of the recordings of the autopsy; 3) single frontal view chest X-ray of the victim; and 4)
computer generated animations created by one of the state’s experts. (Id. at 6.) Petitioner
principally asserts that these pieces of evidence would show that the knife used on the victim
could not have entered her body a full eight inches in the manner asserted by one of the state’s
experts. 4 (Id.) Notably, Petitioner has not presented any of this evidence. Instead, he asks for
the Court’s assistance in obtaining the evidence needed to prove his actual innocence claim. (See
id. at 14.)
Petitioner’s allegations that his attorney provided ineffective assistance due to a conflict
of interest and his allegations that the evidence described above would have exonerated him
amount to sheer speculation. As explained by the Supreme Court, “tenable actual-innocence
4
In his PCR, Petitioner argued that his trial counsel was ineffective for failing to conduct a
proper investigation of the medical evidence, including the purportedly fabricated autopsy report
and the lack of autopsy photos to support the medical examiner’s opinion that the knife entered
the victim’s body a full eight inches. The Appellate Division affirmed the trial court’s
determination that Petitioner had not presented a prima facie case of ineffective assistance. See
State v. Boretsky, 2016 WL 6440631, at *6 (N.J. Sup. Ct. App. Div. Nov. 1, 2016).
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gateway pleas are rare: ‘[A] petitioner does not meet the threshold requirement unless he
persuades the district court that, in light of the new evidence, no juror, acting reasonably, would
have voted to find him guilty beyond a reasonable doubt.’” McQuiggin, 569 U.S. at 332 (quoting
Schlup, 513 U.S., at 329). Petitioner has not met this burden. In this regard, the Court also notes
that the totality of the evidence against Petitioner at trial was substantial and not limited to
medical testimony. See State v. Boretsky, 2016 WL 6440631, at *1–2 (N.J. Super. App. Div.
2016). For these reasons, the Court finds that Petitioner has not satisfied the actual innocence
gateway or otherwise presented extraordinary circumstances under Rule 60(b)(6), and the Court
will deny his motions for relief on that basis.
Alternatively, to the extent Petitioner is also asserting a new free-standing actualinnocence claim or attempting to bring a new habeas petition under 28 U.S.C. § 2244, the Court
lacks jurisdiction to address such a petition, and Petitioner must first file a motion for
authorization to file a second or successive § 2254 petition, not a Rule 60(b) motion. See 28
U.S.C. § 2244(b)(2)(B)(ii); Gonzalez, 545 U.S. at 532. Here, the Court declines to transfer ECF
Nos. 38-39 to the Third Circuit, as the Third Circuit has already denied Petitioner’s request to
file a second or successive petition. 5
For the reasons explained in this Memorandum Opinion, the Court denies the “Motion to
Reopen Judgment [Entered on February 29, 2012 in the civil action entitled Boris Boretsky v.
Michelle Ricci, 09- 0771] and for Relief Pursuant to Fed. R. Civ. P. 60(b)(6)” (ECF No. 38) and
the “Motion for Leave to File a Supplemental Letter Brief and Appendix[.]” (ECF No. 39.) To
the extent Petitioner seeks a certificate of appealability, that request is denied. An appropriate
Order follows.
5
See Footnote 2.
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/s/ Freda L. Wolfson
Freda L. Wolfson
U.S. Chief District Judge
DATED:11/13/2019
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