Kostyshyn v. Danberg et al
Filing
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MEMORANDUM OPINION - Signed by Judge Sue L. Robinson on 6/11/12. (rwc)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
PETER KOSTYSHYN,
Petitioner,
v.
PHILIP MORGAN, Warden, and
and JOSEPH R. BIDEN, III,
Attorney General of the State
of Delaware,
Respondents.
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Civil Action No. 11-1 002-SLR
Peter Kostyshyn. Pro se petitioner.
Gregory E. Smith, Deputy Attorney General, Delaware Department of Justice,
Wilmington, Delaware. Counsel for respondents.
MEMORANDUM OPINION
June 1\ ,2012
Wilmington, Delaware
I. INTRODUCTION
Currently before the court is Peter Kostyshyn's ("petitioner") application for a writ
of habeas corpus filed pursuant to 28 U.S.C. § 2254. (D.1. 2) For the reasons that
follow, the court will dismiss petitioner's § 2254 application without prejudice for failure
to exhaust state remedies.
II. FACTUAL AND PROCEDURAL BACKGROUND
Petitioner's application involves claims related to the two separate incidents
described below.
A. February 12, 2009 Incident: Court of Common Pleas, Crim. 10 No.
0902010151
On February 12, 2009, New Castle County code enforcement officer Donna
Thompson was inside 1201 Brandywine Boulevard, a vacant property owned by
petitioner that had been declared unfit for human habitation because it was structurally
unsound and its roof needed massive repairs. North East Construction Company had
applied for a construction permit to make repairs to the property - which permitted New
Castle County code enforcement officers to inspect the premises at any time. At
approximately 8:45 a.m., petitioner and tlis sister Patricia Kostyshyn arrived at the
property. Kostyshyn entered the residence and demanded to know who was present.
Thompson twice announced, "New Castle County Code Enforcement." Petitioner
confronted Thompson, and yelled at her that she did not have a search warrant and
had no right to be present. When Thompson attempted to place a call to 911 on her
cell phone, petitioner knocked the phone out of her hand, breaking it. Petitioner then
began to punch Thompson with closed fists until Elmore Walker, Mario Ruiz, and
Ignacio Ruiz, all of the North East Construction Company, intervened. Thompson
suffered a bruise to the back of her head and a cut to her right middle finger. Petitioner
was arrested that same day. (0.1. 18 at 1-4)
On February 13, 2009, petitioner was charged by information in the Court of
Common Pleas with third degree assault, malicious interference with communications,
menacing, three counts of offensive touching, criminal mischief, and disorderly conduct.
On March 26, 2010, the Court of Common Pleas determined that petitioner had
forfeited his right to appointed counsel, and allowed his counsel to withdraw. A jury
found petitioner guilty of all charges and, on July 23, 2010, the Court of Common Pleas
sentenced petitioner to a total of one year and ten months of imprisonment. Id.
Prior to sentencing, however, petitioner filed a notice of appeal in the Delaware
Supreme Court. The Delaware Supreme Court dismissed the appeal on August 30,
2010, but directed the Superior Court to docket his appeal in that court effective July
23,2010. See Kostyshyn v. State, 3 A.3d 1097 (Table), 2010 WL 3398943 (Del. Aug.
30, 2010). On February 10, 2011, the Superior Court dismissed petitioner's appeal for
failing to either file an application to proceed in forma pauperis or pay the $100 fee.
(0.1. 18 at 3) Petitioner filed a motion for re-argument. The Superior Court denied the
motion for re-argument on February 25,2011 after holding an evidentiary hearing and
determining that petitioner was not indigent. Id. Petitioner then filed a petition for an
extraordinary writ, which the Delaware Supreme Court denied on July 12, 2011. See In
re Kostyshyn, 23 A.3d 865 (Table), 2011 WL 2696357 (Del. July 12, 2011).
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B. August 22, 2009 Incident: Delaware Superior Court, Crim. 10 No.
0908020496
On August 22, 2009, William Corrigan was walking down his driveway at 905
Marion Avenue to throwaway some trash when he encountered petitioner on the
adjoining property. Petitioner raised a pick-axe that he was holding and yelled at
Corrigan, "I'm going to fucking stab you with this pick-axe." Petitioner was arrested that
same day. (0.1. 18 at 1-4)
On September 14, 2009, petitioner was indicted on charges of aggravated
menacing, terroristic threatening, and possession of a deadly weapon during the
commission of a felony. On February 23, 2010, after a hearing, the Superior Court
granted defense counsel's motion to withdraw and held that petitioner had forfeited his
right to appointed counsel. Petitioner proceed pro se at his six day Superior Court jury
trial in November 2010. The jury found petitioner guilty of all charges, and he was
sentenced on February 11, 2011 to a total non-suspended period of seven years
imprisonment. Id.
Petitioner appealed. The Delaware Supreme Court remanded the matter to the
Superior Court for a determination as to whether petitioner was indigent. Id. The
Superior Court determined that petitioner was not indigent, but appointed counsel to
represent him on appeal and required petitioner to repay the expenses of appointed
counsel. See Kostyshyn v. State, No. 71, 2011, Order (Del. May 12, 2011). Oral
argument is presently scheduled for June 7, 2012 at 10:00 a.m. in the Delaware
Supreme Court. (0.1. 18 at 4)
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III. EXHAUSTION
A district court can entertain a state prisoner's application for federal habeas
relief only on the ground that his custody violates the Constitution or laws or treaties of
the United States. 28 U.S.C. § 2254(a). Absent exceptional circumstances, a federal
court cannot review a habeas application on the merits unless the petitioner has
exhausted his remedies under state law. 28 U.S.C. § 2254(b); O'Sullivan v. Boerckel,
526 U.S. 838, 842-46 (1999); Picard v. Connor, 404 U.S. 270, 275 (1971). A petitioner
satisfies the exhaustion requirement by fairly presenting his claim to the state's highest
court, either on direct appeal or in a post-conviction proceeding, in a manner that
permits those courts to consider the claim on its merits. See O'Sullivan, 526 U.S. at
844-45; Lambert v. Blackwell, 134 F.3d 506,513 (3d Cir. 1997). Generally, a federal
court will dismiss without prejudice a habeas application consisting entirely of
unexhausted claims in order to give a petitioner an opportunity to present the
unexhausted claims to the state courts. Lines v. Larkins, 208 F.3d 153, 159-60 (3d Cir.
2000).
IV. DISCUSSION
Petitioner filed the instant application in October 2011, asserting the following
nine grounds for relief: (1) his arrest and misdemeanor conviction in the Court of
Common Pleas are unlawful because only the Town of Bellefonte has jurisdiction over
his misdemeanor case; (2) the evidence in his Court of Common Pleas case was
obtained through an unconstitutional search; (3) re-asserts claims one and two; (4)
petitioner was denied his constitutional right to representation in both of his cases; (5)
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the State violated Brady and/or committed prosecutorial misconduct in his Superior
Court case: (6) his right to be protected against double jeopardy was violated in his
Superior Court case; (7) the Court of Common Pleas did not have jurisdiction over
petitioner's misdemeanor case; (8) re-asserts claim four's denial of representation
argument; and (9) petitioner was denied his right to appeal from his Court of Common
Pleas case. The State filed an answer asserting that the court should dismiss the
application without prejudice because petitioner has not exhausted state remedies for
any of his claims.
After reviewing the record, the court concurs with the State's determination that
petitioner has not exhausted state remedies for his claims. Claims four, five, six, and
eight are based on petitioner's Superior Court criminal conviction (Del. Super. Ct. Crim.
10 No. 0908020496) for the August 22, 2009 incident. Petitioner's direct appeal from
that case, which asserts an argument mirroring claims four and eight of this case, is still
pending before the Delaware Supreme Court. Additionally, once petitioner's direct
appeal is decided, he has the option of seeking further state court review of claims four,
five, six, and eight in a motion for post-conviction relief filed pursuant to Delaware
Superior Court Criminal Rule 61. Given these circumstances, petitioner has not yet
exhausted state remedies for the claims arising from his criminal conviction in the
Superior Court, Crim. 10 No. 0908020496.
Claims one, two, three, four, seven, eight, and nine raise arguments concerning
petitioner's criminal conviction in the Court of Common Pleas (Ct. Comm. Pleas Crim.
10 No. 0902010151) for the February 12, 2009 incident. In one of its many decisions
concerning petitioner's voluminous filings, the Delaware Supreme Court explained that
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petitioner may still be able to attack his conviction from the Court of Common Pleas
(claims one, two, three, four, seven, eight, and nine) through a Rule 61 motion. See In
re Kostyshyn, 23 A.3d 865 (Table), 2011 WL 2696357, at *1 n.2 (Del. July 12, 2011).
The court is bound by the Delaware Supreme Court's interpretation and application of
Delaware law to petitioner's case. See Bradshaw v. Richey, 546 U.S. 74, 76 (2005).
Therefore, petitioner has not exhausted state remedies for claims one, two, three, four,
seven, eight, and nine, because he is not clearly foreclosed from pursuing further
review of those claims in the Delaware state courts. See Del. Super. Ct. Crim. Rule
61 (i)(1) (imposing a one-year filing deadline on Rule 61 motions, calculated from the
date on which the judgment of conviction became final).
For the aforementioned reasons, the court concludes that petitioner has not
exhausted state remedies for any of his claims. Accordingly, the court will dismiss
petitioner's application without prejudice to his refiling an application under 28 U.S.C.
§ 2254 once his state court proceedings are final and he has exhausted state court
remedies. 1 See Slack v. McDaniel, 529 U.S. 473, 485-86 (2000).
1Petitioner has presented the court with a wholly unexhausted application, rather
than an application containing both exhausted and unexhausted claims (i.e., a mixed
application). Consequently, the court need not provide petitioner with prior notice of the
dismissal of his application and the option to choose one of three alternative methods
for proceeding as suggested in Urcinoli v. Cathel, 546 F.3d 269, 274-77, 277 n.9 (3d
Cir. 2008)(prior to dismissing a mixed application, it would be "good practice" for a
district court to provide the petitioner with three options for proceeding with his mixed
application: (1) dismissal of the application without prejudice in order to enable the
petitioner to return to state court to exhaust state remedies; (2) deletion of the
unexhausted claims from the application so that the habeas proceeding would continue
with only the remaining exhausted claims; or (3) in limited circumstances, staying the
mixed application and holding the case in abeyance while the petitioner returns to state
court to exhaust his previously unexhausted claims.). The court does, however, remind
petitioner that habeas applications filed pursuant to 28 U.S.C. § 2254 must be filed
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V. CERTIFICATE OF APPEALABILITY
When a district court issues a final order denying a § 2254 application, the court
must also decide whether to issue a certificate of appealability. See 3d Cir. L.A.R. 22.2
(2011). A certificate of appealability is appropriate when a petitioner makes a
"substantial showing of the denial of a constitutional right" by demonstrating "that
reasonable jurists would find the district court's assessment of the constitutional claims
debatable or wrong." 28 U.S.C. § 2253(c)(2); Slack, 529 U.S. at 484.
If a federal court denies a habeas application on procedural grounds without
reaching the underlying constitutional claims, the court is not required to issue a
certificate of appealability unless the petitioner demonstrates that jurists of reason
would find it debatable: (1) whether the application states a valid claim of the denial of a
constitutional right; and (2) whether the court was correct in its procedural ruling. Id.
"Where a plain procedural bar is present and the district court is correct to invoke it to
dispose of the case, a reasonable jurist could not conclude either that the district court
erred in dismissing the petition or that the petitioner should be allowed to proceed
further." Slack, 529 U.S. at 484.
The court has concluded that petitioner's application for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254 is unexhausted. Reasonable jurists would not find this
conclusion to be debatable. Consequently, the court declines to issue a certificate of
appealability.
within a one-year limitations period, and he is responsible for determining the events
that trigger and toll the limitations period.
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VI. CONCLUSION
For the reasons stated, petitioner's application for habeas relief filed pursuant to
28 U.S.C. § 2254 is dismissed without prejudice. An appropriate order shall issue.
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