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Kostyshyn v. Morgan

United States District Court, D. Delaware

April 15, 2014

PETER KOSTYSHYN, Petitioner,
v.
PHIL MORGAN, Warden, and ATTORNEY GENERAL OF THE STATE OF DELAWARE, Respondents.

Peter Kostyshyn. Pro se petitioner.

Gregory E. Smith, Deputy Attorney General, Delaware Department of Justice, Wilmington, Delaware. Counsel for respondents.

MEMORANDUM OPINION

SUE L. ROBINSON, District Judge.

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. (0.1. 1) For the reasons that follow, the court will dismiss petitioner's § 2254 application as time-barred by the one-year period of limitations prescribed in 28 U.S.C. § 2244(d)(1) and, alternatively, as meritless.

II. BACKGROUND

A. Delaware Court Proceedings

1. Court of Common Pleas ID 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. (0.1. 13 at 1) The property had been declared unfit for human habitation because it was structurally unsound and its roof needed major repairs. North East Construction Company had applied for a construction permit to make repairs to the property which, in turn, permitted New Castle County code enforcement officers to inspect the premises. At approximately 8:45a.m., petitioner and his sister Patricia Kostyshyn arrived at the property. Petitioner 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, and the phone broke. Petitioner then began to punch Thompson with closed fists until three employees 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. Id. at 1-2.

In February 2009, petitioner was charged with third degree assault, malicious interference with emergency communications, menacing, three counts of offensive touching, criminal mischief, and disorderly conduct. (D.I. 13 at 2) On March 26, 2010, the Court of Common Pleas determined that petitioner had forfeited his right to appointed counsel, and permitted his counsel to withdraw. On May 14, 2010, a jury found petitioner guilty of all charges, and the Court of Common Pleas sentenced petitioner to a total of one year and ten months imprisonment on July 23, 2010. However, prior to his sentencing, petitioner filed two notices of appeal: one in the Delaware Superior Court on July 19, 2010, and one in the Delaware Supreme Court on July 22, 2010. Id. at 2-3. The Superior Court rejected petitioner's appeal for failure to include the filing fee. See Kostyshyn v. State, 3 A.3d 1097 (Table), 2010 WL 3398943 (Del. Aug. 30, 2010). On August 30, 2010, the Delaware Supreme Court dismissed petitioner's appeal, but directed the Superior Court to docket his appeal in that court, effective July 23, 2010. Id.

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. (D. I. 15, Del. Super. Grim. Dkt. ID No. 0902010151, Entry No. 17) Petitioner filed a motion for re-argument. (D.I. 15, Del. Super. Grim. Dkt. ID No. 0902010151, Entry No. 18) After holding an evidentiary hearing and determining that petitioner was not indigent, the Superior Court denied the motion for re-argument on February 25, 2011. (D.I. 15, Del. Super. Grim. Dkt. ID No. 0902010151 Entry No. 18) In March 2011, petitioner filed two petitions for an extraordinary writ of mandamus in the Delaware Supreme Court. See In re Kostyshyn, 19 A. 3d 301 (Table), 2011 WL 1572566 (Del. Apr. 26, 2011) (submitted Mar. 29, 2011); In re Kostyshyn, 19 A.3d 301 (Table), 2011 WL 1584308 (Del. Apr. 27, 2011) (submitted Mar. 15, 2011). The Delaware Supreme Court denied one petition on April 26, 2011 and the other petition on April 27, 2011. See In re Kostyshyn, 2011 WL 1572566; In re Kostyshyn, 2011 WL 1584308. Petitioner filed a third petition for an extraordinary writ of mandamus asking the Delaware Supreme Court to reopen the criminal proceedings in Court of Common Pleas ID No. 0902010151. See In re Kostyshyn, 23 A. 3d 865 (Table), 2011 WL 2696357 (Del. July 12, 2011), reh'g denied, (July 27, 2011). The Delaware Supreme Court denied the petition on July 12, 2011, stating that petitioner's "sole remedy is to seek post-conviction relief' pursuant to Delaware Common Pleas Court Criminal Rule 61. Id. at *1 n.1 Petitioner filed a motion for re-argument, which the Delaware Supreme Court denied on July 27, 2011. Id.; (D. I. 15, Del. Super. Grim. Dkt. ID No. 0902010151, Entry No. 20)

On April 30, 2013, petitioner filed in the Court of Common Pleas a motion for post-conviction relief pursuant to Delaware Common Pleas Court Criminal Rule 61. (D.I. 15, Ct. C. Pl. Grim. Dkt. Entry Date 4/30/2013 and 10/03/2013) On October 3, 2013 the Court of Common Pleas denied the motion as time barred under Delaware Court of Common Pleas Criminal Rule 61 (1). (D.I. 15, Ct. C. Pl. Grim. Dkt. ID No. 0902010151, Entry Date 10/03/2013) Petitioner filed a motion for reargument on October 17, 2013, which the Court of Common Pleas denied on October 23, 2013. (D. I. 15, Ct. C. Pl. Grim. Dkt. ID No. 0902010151, Entry Date 10/17/2013 and Dkt. Entry Date 10/23/2013)

2. Superior Court ID No. 0908020496

On August 22, 2009, a person living next to petitioner's house took out his garbage. Petitioner was working on the ground with a pickax, and threatened to stick the pickax into the individual. See Kostyshyn v. State, 51 A.3d 416 (Del. 2012).

In November 2010, a Delaware Superior Court jury convicted petitioner of aggravated menacing, possession of a deadly weapon during the commission of a felony, and terroristic threatening. See In re Kostyshyn, 72 A.3d 501 (Table), 2013 WL 3788235, at *1 (Del. July 16, 2013). The Superior Court sentenced petitioner to a total period of twelve years at Level V incarceration, to be suspended after serving seven years in prison for decreasing levels of supervision. Id. The Delaware Supreme Court affirmed petitioner's convictions and sentence on direct appeal. See Kostyshyn, 51 A.3d 416.

Petitioner filed a prose motion for post-conviction relief pursuant to Rule 61 in June 2013. (D. I. 15, Del. Super. Crim. Dkt. Entry No. 143) The Superior Court appointed conflict counsel to represent petitioner during his Rule 61 proceeding. (D. I. 15, Del. Super. Crim. Dkt. Entry No. 143) Conflict counsel requested, and was granted, an extension of time to file a new Rule 61 motion on petitioner's behalf. (D.I. 15, Del. Super. Crim. Dkt. Entry No. 152)

B. Proceedings in the United States District Court of Delaware

Over the years, petitioner has filed several federal habeas applications raising similar claims challenging his conviction in the Court of Common Pleas and his conviction in the Superior Court. The court dismissed these applications without prejudice for failure to exhaust state remedies. See Kostyhsyn v. Morgan, C.A. No. 10-891-SLR (challenging Ct. C. Pl. ID No. 0902010151); Kostyshyn v. Herlihy, C.A. No. 10-975-SLR (challenging Del. Super. ID No. 0908020496); Kostyshyn v. Danberg, C.A. No. 11-520-SLR (challenging Del. Super. ID No. 0908020496); Kostyshyn v. Danberg, C.A. No. 11-521-SLR (challenging Ct. C. Pl. ID No. 0902010151); Kostyshyn v. Danberg, C.A. No. 11-550-SLR (challenging Ct. C. Pl. ID No. 0902010151); Kostyshyn v. Markell, C.A. No. 11-551-SLR (challenging Del. Super. ID No. 0908020496); Kostyshyn v. Danberg, C.A. No. 11-1002-SLR (challenging both Ct.C. Pl. ID No. 0902010151 and Del. Super. ID No. 0908020496); Kostyshyn v. Morgan, C.A. No.12-508-SLR (challenging Del. Super. JD No. 0908020496); Kostyshyn v. Morgan, C.A. No.12-527-SLR (challenging Del. Super. ID No. 0908020496).

The instant application for federal habeas relief was docketed in this court in March 2013. (D.I. 1) As filed, the application asserted eight claims for relief. After reviewing the State's answer, it became apparent that petitioner's application challenged convictions entered by the Superior Court and convictions entered by the Court of Common Pleas. Specifically, claims one and four of the application raised 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 challenged 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 ...


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