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Boris Boretsky v. Michelle R. Ricci

December 9, 2010

BORIS BORETSKY, PETITIONER,
v.
MICHELLE R. RICCI, ET AL., RESPONDENTS.



The opinion of the court was delivered by: Wolfson, District Judge

NOT FOR PUBLICATION

OPINION

APPEARANCES:

This matter comes before the Court by motion filed by Petitioner Boris Boretsky to amend his Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2254 (docket entry no. 16). No response to this motion was filed by Respondents.

I. PROCEDURAL BACKGROUND

Petitioner Boris Boretsky was charged on May 23, 2002 with nine counts, including aggravated assault, terroristic threats, contempt, burglary, murder, felony murder, possession of a weapon with the purpose to use it unlawfully, and tampering with evidence. Boretsky was convicted as charged at trial before Judge James F. Mulvihill, J.S.C., Superior Court of Middlesex, New Jersey and sentenced by Judge Mulvihill on April 7, 2006. Boretsky filed an appeal to the New Jersey Superior Court, Appellate Division on August 21, 2006, and the judgment was affirmed on August 28, 2008. Boretsky then petitioned the New Jersey Supreme Court for Certification on September 16, 2008. Certification was denied on November 14, 2008.

Boretsky's Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2254 was dated February 10, 2009 and filed on February 17, 2009. The motion to file an Amended Petition was filed on April 12, 2010 seeking to amend to include an issue which Petitioner failed to present at the time of filing his Petition for Writ of Habeas Corpus. Boretsky now seeks to assert in the proposed Amended Complaint that his rights of confrontation under Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354 (2004), were violated when the State, during cross examination of their witness Dr. Weinapple, referred to a prior police report.*fn1

The text of the claim that Petitioner now wishes to assert is: "Reference made by the State to the Patrolman Rickle' report during the cross-examination of Dr. Weinapple, the defense witness, violated the Petitioner substantial right to Confrontation. U.S. Constitution, amend. VI."

Petitioner acknowledges in his motion that while he previously raised this issue on direct appeal he "inadvertently omitted this issue when he filed his Petition for a Writ of Habeas Corpus."

II. ANALYSIS

A. Petitioner's Pro Se Status

Boretsky brings his Petition for a Writ of Habeas Corpus as a pro se litigant.

A pro se pleading is held to less stringent standards than more formal pleadings drafted by lawyers. Estelle v. Gamble, 429 U.S. 97, 106 (1976); Haines v. Kerner, 404 U.S. 519, 520 (1972). A pro se habeas petition and any supporting submissions must be construed liberally and with a measure of tolerance. See Royce v. Hahn, 151 F.3d 116, 118 (3d Cir. 1998); Lewis v. Attorney General, 878 F.2d 714, 721-22 (3d ...


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