Kostyshyn v. Markell, et al

Filing 25

MEMORANDUM AND ORDER. Signed by Judge Sue L. Robinson on 2/19/14. (cla, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
PETER KOSTYSHYN,

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) Civ. No. 13-364-SLR
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Petitioner,

v.
JACK MARKELL, et al.,
Respondents.

MEMORANDUM AND ORDER

1. Background. Presently pending before the court is petitioner's application
for federal habeas relief. After reviewing the State's answer (D.I. 13), it has become
apparent to the court that petitioner's application challenges two separate convictions
entered by two different Delaware courts at two different times. For instance, claims
one and four of the application raise the following two challenges to petitioner's
misdemeanor convictions in the Delaware Court of Common Pleas, ID. No.
0902010151: (1) petitioner was denied his right to appeal (claim one); and (2) the
misdemeanor convictions violate his right to be protected against double jeopardy
(claim four). In contrast, five claims of the application challenge petitioner's convictions
in the Delaware Superior Court, ID No. 0908020496: (1) defense counsel provided
ineffective assistance of counsel (claim two); (2) his arrest was illegal based on the
location of the offenses (claim three); (3) the prosecution failed to disclose evidence of
his innocence (claim five); (4) his arrest was unlawful (claim six); and (5) he was
unlawfully seized (claim seven).

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2. Finally, claim eight of the application alleges that petitioner suffered head
trauma from assaults that occurred both in prison and in the court house.
3. The State asserts that petitioner has not exhausted state remedies for the five
claims challenging his Superior Court convictions, because a timely filed Rule 61
motion raising those same claims is presently pending before the Delaware Superior
Court. (D. I. 13, at 8-10) The State also contends that claim eight fails to assert an
issue cognizable on federal habeas review and that, to the extent this claim may be
raised, it mus be presented pursuant to 42 U.S.C. § 1983. Finally, the State contends
that the court should sever the five claims challenging petitioner's Superior Court
convictions because they cannot be presented in the same application with claims
challenging petitioner's Court of Common Pleas convictions. The State further asserts
that, once these five claims are severed, they must be dismissed without prejudice for
failure to exhaust state remedies.
4. Standard of Review. Federal habeas relief is only available to a state
prisoner if he alleges he "is in custody in violation of the Constitution of laws ... of the
United States." See 28 U.S.C. § 2254(a) and (d). In turn, a petitioner is not entitled to
federal habeas relief unless he has exhausted state remedies for his habeas claims.
28 U.S.C. § 2254(b)(1 )(A). A petitioner satisfies the exhaustion requirement by "fairly
presenting" the substance of the federal habeas claims to the state's highest court,
either on direct appeal or in a post-conviction proceeding, and in a procedural manner
permitting the state courts to consider them on the merits. See Duncan v. Henry, 513
U.S. 364, 365 (1995); Castille v. Peoples, 489 U.S. 346, 351 (1989); Lambert v.

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Blackwell, 134 F.3d 506, 513 (3d Cir. 1997).

5. Additionally, pursuant to Rule 2(e) of the Rules Governing Section 2254
Actions, 28 U.S.C. foil.§ 2254, a "petitioner who seeks relief from judgments of more
than one state court must file a separate petition covering the judgment or judgments of
each court."
6. Discussion. In claim eight, petitioner alleges that he has suffered head
trauma while in prison and in the court house. Because this claim fails to challenge the
legality of petitioner's conviction or sentence, it fails to assert a claim cognizable on
federal habeas review. If petitioner wishes to pursue this claim, it must be brought as a
civil rights action under 42 U.S.C. § 1983. Accordingly, the court will dismiss without
prejudice claim eight.
7. With respect to the remaining seven claims, petitioner improperly attempts to
challenge two different judgments of conviction rendered by two different Delaware
state courts in one habeas application. In turn, the record supports the State's
assertion that the five claims challenging petitioner's convictions in the Delaware
Superior Court, ID No. 0908020496, are unexhausted. Given these circumstances,
the court will dismiss without prejudice the five unexhausted claims (claims two, three,
five, six and seven) challenging petitioner's convictions in the Superior Court, ID No.
0908020496. If petitioner wishes to pursue relief for these claims, he must raise them
in a separate habeas application challenging only his Superior Court convictions (ID No.
0908020496). 1 Claims one and four, which challenge petitioner's convictions in the
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The court notes that any claims raised in a new habeas application will be
subject to the exhaustion requirement and the one-year limitations period. Petitioner is

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Court of Common Pleas, ID No. 0902010151, will remain pending before the court in
this proceeding.
8. Conclusion. For the above reasons, the court will dismiss without prejudice
claim eight because it does not assert an issue cognizable on federal habeas review.
The court will also dismiss without prejudice the five claims (claims two, three, five, six,
and seven) challenging petitioner's convictions in the Delaware Superior Court, ID No.
0908020496, because they are unexhausted and because they improperly challenge a
different conviction. Finally, the remaining two claims (claims one and four) challenging
petitioner's convictions in the Court of Common Pleas, ID No. 0902010151, will
continue on in this proceeding. A separate order shall issue. See Fed. R. Civ. P.
58(a)("every judgment must be set out in a separate document").

Dated: February

lq , 2014

responsible for determining the events that trigger and toll the limitations period, as well
as the time remaining in the limitations period once it starts again after such tolling.

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