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Boretsky v. Davis

United States District Court, D. New Jersey

November 13, 2019

BORIS BORETSKY, Petitioner,
v.
BRUCE DAVIS, et al., Respondents.

          MEMORANDUM OPINION

          FREDA L. WOLFSON U.S. CHIEF DISTRICT JUDGE

         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 post-conviction 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-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 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 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 post-conviction 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.

         “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 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 Fed.Appx. 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 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)). ...


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