BORETSKY v. RICCI et al

Filing 69

MEMORANDUM OPINION filed. Signed by Chief Judge Freda L. Wolfson on 2/18/2022. (abr, )

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 for an evidentiary hearing on Petitioner’s habeas claim alleging that his trial
counsel had a conflict of interest which deprived Petitioner of a fair trial (hereafter “the conflict
of interest claim”). (See ECF No. 64.) This matter has been closed since 2012. The Court has
already denied two motions pursuant to Fed. R. Civ. P. 60(b) in which Petitioner seeks to reopen
this matter to assert the conflict of interest claim. For the reasons explained in this Memorandum
Opinion, the Court denies the motion for an evidentiary hearing and will enter an Order
precluding Petitioner from submitting any new motions, however labeled, seeking to reopen this
matter based on the conflict of interest claim.
The Court recounts only the facts necessary to resolve Petitioner’s motion for an
evidentiary hearing. 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
post-conviction relief petition (“PCR”), Petitioner submitted a petition for writ of habeas corpus

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in the United States District Court on February 10, 2009; it was captioned Boretsky v. Ricci, 309-cv-00771 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
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 seven 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 motion to
amend and stay the Petition did not include or mention the conflict of interest claim. See id.
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
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. §2244(d)(1)(A). (ECF No. 22.)
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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.) In the motion for reconsideration,
Petitioner explained that he sought to amend his habeas petition to raise a claim based on his trial
counsel’s alleged conflict of interest. (See ECF No. 31-2, Petitioner’s Declaration at ¶¶ 3-7.) On
March 6, 2012, Petitioner submitted 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.) The conflict of
interest claim was adjudicated by the New Jersey Appellate Division, which “reject[ed]
defendant’s contention that he was denied the effective assistance of counsel due to a conflict of
interest on the part of his trial attorney.” State v. Boretsky, No. A–0402–14T1, 2016 WL
6440631, at *6 (N.J. Super. App. Div. Nov. 1, 2016). In May 2017, the Supreme Court of New
Jersey denied certification. State v. Boretsky, 230 N.J. 365 (2017).
On April 5, 2019, seven years after the Court dismissed Petitioner’s habeas Petition,
Petitioner submitted his first “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 “Motion for Leave
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to File a Supplemental Letter Brief and Appendix[.]” 2 (ECF No. 39.) Respondents submitted
opposition on June 27, 2019. (ECF No. 40.) Petitioner did not submit a reply. The Court denied
the First Rule 60(b) motion on November 13, 2019. (ECF Nos. 43-44.)
Petitioner filed his second Rule 60(b) motion on October 29, 2020. (ECF No. 47.) His
second Rule 60(b) motion was followed by two motions seeking to clarify and supplement the
record. (ECF Nos. 50-51.) The Court denied Petitioner’s second Rule 60(b) motion as untimely
based on the seven year delay in bringing the Rule 60(b) motions and also determined that the
relief he sought amounted to an unauthorized second or successive pursuant to Gonzalez v.
Crosby, 545 U.S. 524, 531–32 (2005). The Court also denied a certificate of appealability.
(ECF Nos. 56-57.)
The Court also notified Petitioner that it did not intend to accept any further Rule 60(b)
motions on the issue of his trial counsel’s alleged conflict of interest and resulting claims of
ineffective assistance and provided Petitioner with 30 days to respond prior to entering a
preclusion order. (See id.) Petitioner appealed, and the Third Circuit affirmed the denial of a
COA on October 13, 2021. (See ECF Nos. 62, 68.)
In the meantime, Petitioner sought an extension of time to respond to the Court’s Order
denying his second Rule 60(b) motion, and he thereafter submitted the instant motion for an
evidentiary hearing, which was docketed on July 8, 2021. (See ECF No. 64.) In a nutshell,

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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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Petitioner seeks an evidentiary hearing to “develop” his claim that he was deprived of a fair trial
due to his trial counsel’s conflict of interest, resulting from a retainer agreement trial counsel
entered with Petitioner’s business partner. Petitioner’s prior Rule 60(b) motions sought to
reopen and amend his Petition based on these same facts, and the Court has twice denied
Petitioner’s Rule 60(b) motions and declines to revisit its prior determinations. 3 Moreover, it is
axiomatic that there is no basis for an evidentiary hearing where the habeas petition is no longer
pending and the matter is closed. As such, the request for an evidentiary hearing is denied. To
the extent necessary, the Court denies a certificate of appealability. At this time, the Court will
also enter an Order precluding Petitioner from moving to reopen this matter based on the conflict
of interest claim.
An appropriate Order follows.

February 18, 2022

s/Freda L. Wolfson
Freda L. Wolfson
U.S. Chief District Judge

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The Court notes that it need not determine whether the conflict of interest claim is a “new
claim” subject to dismissal under Gonzalez, 545 U.S. at 530–32, or if Petitioner’s filing of a
motion for reconsideration, which asked the Court to vacate its prior judgment and allow
Petitioner to amend to include the conflict of interest claim, is sufficient to avoid the second or
successive bar. The Court also found Petitioner’s Rule 60(b) motions untimely, as Petitioner
filed his first Rule 60(b) motion seven years after the Court denied his Petition and long after he
was aware of the facts underlying his conflict of interest claim.
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