Boretsky v. Ricci
Decision Date | 29 February 2012 |
Docket Number | Civil No. 09-0771 (FLW) |
Parties | BORIS BORETSKY, Petitioner, v. MICHELLE R. RICCI, et al., Respondents. |
Court | U.S. District Court — District of New Jersey |
NOT FOR PUBLICATION
Hon. Freda L. Wolfson
BORIS BORETSKY, #946903A
New Jersey State Prison
PetitionerProSe
NANCY A. HULETT, Assistant Prosecutor
BRUCE J. KAPLAN, MIDDLESEX COUNTY PROSECUTOR
Attorneys for Respondents
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 as unexhausted and on the merits.Petitioner filed a Reply.
Petitioner thereafter filed a motion to amend the 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.The State filed opposition, arguing that Petitioner has not shown grounds warranting equitable tolling, and Petitioner filed a response.For the reasons expressed below, this Court will deny Petitioner's motion to amend and for a stay, dismiss the Petition on the merits, and deny a certificate of appealability.1
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 a term of life imprisonment without parole and a consecutive 23.5 year term.2Petitioner appealed.In an opinion filed August 28, 2008, the Superior Court of New Jersey, Appellate Division, affirmed the conviction and sentence.SeeState v. Boretsky,2008 WL 4057972(N.J. Super. Ct., App. Div., Aug. 28, 2008).The New Jersey Supreme Court denied certification on November 14, 2008.3SeeState v. Boretsky, 197 N.J. 14(2008)(table).
The Appellate Division summarized the facts as follows:
Boretsky, 2008 WL 4057972 at **3-4.
On February 10, 2009, Petitioner executed the § 2254 Petition before this Court.The Clerk docketed it on February 17, 2009.After this Court notified Petitioner of his rights pursuant to Mason v. Myers, 208 F. 3d 414(3d Cir.2000), Petitioner elected to proceed with the Petition.4The Petition presents the following grounds, which mimic the grounds raised on direct appeal:
(Pet. ¶ 12, Grounds One to Fourteen)(Dkt. 1at 5-12.)
On April 28, 2011, Boretsky filed a motion to stay the Petition while he pursued his first state petition for post-conviction relief, which he claims was filed on March 8, 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 does not include the ineffective assistance of counsel claims, a stay would be of no use to Boretsky unless he first amended his § 2254Petition to include the ineffective assistance of counsel claims.Moreover, since the one-year statute of limitations, see28 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.5See28 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.See28 U.S.C. § 2244(d)(2)();Allen v. Siebert, 552 U.S. 3(2007)( );Artuz v. Bennett, 531 U.S. 4, 8(2000)(...
Get this document and AI-powered insights with a free trial of vLex and Vincent AI
Get Started for FreeStart Your 3-day Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant
-
Access comprehensive legal content with no limitations across vLex's unparalleled global legal database
-
Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength
-
Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities
-
Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting

Start Your 3-day Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant
-
Access comprehensive legal content with no limitations across vLex's unparalleled global legal database
-
Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength
-
Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities
-
Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting

Start Your 3-day Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant
-
Access comprehensive legal content with no limitations across vLex's unparalleled global legal database
-
Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength
-
Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities
-
Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting

Start Your 3-day Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant
-
Access comprehensive legal content with no limitations across vLex's unparalleled global legal database
-
Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength
-
Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities
-
Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting

Start Your 3-day Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant
-
Access comprehensive legal content with no limitations across vLex's unparalleled global legal database
-
Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength
-
Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities
-
Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting
