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Kostyshyn v. Metzger

United States District Court, D. Delaware

March 19, 2018


          Peter Kostyshyn. Pro se Petitioner.

          Andrew J. Vella, Deputy Attorney General of the Delaware Department of Justice, Wilmington, Delaware. Attorney for Respondents.




         Presently pending before the Court is Petitioner Peter Kostyshyn's ("Petitioner") Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C § 2254 ("Petition"). (D.I. 1) The State filed an Answer in opposition. (D.I. 14) For the reasons discussed, the Court will dismiss the Petition.


         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, 418 (Del. 2012). Petitioner was indicted on charges of aggravated menacing, possession of a deadly weapon during the commission of a felony, and terroristic threatening. In October 2009, the Delaware Superior Court appointed an attorney ("Attorney 1") to represent Petitioner. Id. Attorney 1 filed a motion to withdraw as counsel on December 9, 2009, which the Superior Court granted on December 10, 2009. Id. On January 27, 2010, the Superior Court appointed a new attorney ("Attorney 2") to represent Petitioner. Attorney 2 filed a motion to withdraw as counsel on January 27, 2010, which the Superior Court granted after a hearing on February 23, 2010. Id. From this point forward, Petitioner represented himself.

         On October 13, 2010, Petitioner filed a "multifaceted" motion in the Superior Court asking, among other things, for a mental health examination to determine his ability to represent himself. (D.I. 17-9 at 6, Entry Nos. 44 & 46) On October 22, 2010, the Superior Court denied the motion, finding that Petitioner offered no basis for a mental health evaluation. (D.I. 17-9 at 6, Entry No. 46) 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 12 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 at 423.

         In June 2013, Petitioner filed a pro se motion for post-conviction relief pursuant to Delaware Superior Court Criminal Rule 61 ("Rule 61 motion"). See State v. Kostyshyn, 2016 WL 3226322, at *1 (Del. Super. Ct. May 31, 2016). The Superior Court appointed conflict counsel ("post-conviction counsel") to represent Petitioner during the Rule 61 proceeding. (D.I. 14 at 2) Post-conviction counsel requested, and was granted, an extension of time to file a new Rule 61 motion on Petitioner's behalf. Id. The Superior Court denied the Rule 61 motion on January 26, 2015, and the Supreme Court affirmed that decision on September 14, 2015. See Kostyshyn, 2016 WL 3226322, at *1.


         A. Exhaustion and Procedural Default

         Absent exceptional circumstances, a federal court cannot grant habeas relief unless the petitioner has exhausted all means of available relief under state law. See 28 U.S.C. § 2254(b); O'Sullivan v. Boerckel, 526 U.S. 838, 842-44 (1999); Picard v. Connor, 404 U.S. 270, 275 (1971). The AEDPA states, in pertinent part:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that -
(A) the applicant has exhausted the remedies available in the courts of the State; or
(B)(i) there is an absence of available State corrective process; or
(ii) circumstances exist that render such process ineffective to protect the rights of the applicant.

28 U.S.C. § 2254(b)(1).

         The exhaustion requirement is based on principles of comity, requiring a petitioner to give "state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process." 0 'Sullivan, 526 U.S. at 844-45; see Werts v. Vaughn, 228 F.3d 178, 192 (3d Cir. 2000). A petitioner satisfies the exhaustion requirement by demonstrating that the habeas claims were "fairly presented" to the state's highest court, either on direct appeal or in a post-conviction proceeding, in a procedural manner permitting the court to consider the claims on their merits. Bell v. Cone, 543 U.S. 447, 451 n.3 (2005); Castille v. Peoples, 489 U.S. 346, 351 (1989).

         A petitioner's failure to exhaust state remedies will be excused if state procedural rules preclude him from seeking further relief in state courts. See Lines v. Larkins, 208 F.3d 153, 160 (3d Cir. 2000); Teague v. Lane, 489 U.S. 288, 297-98 (1989). Although treated as technically exhausted, such claims are nonetheless procedurally defaulted. See Lines, 208 F.3d at 160; Coleman v. Thompson, 501 U.S. 722, 750-51 (1991). Similarly, if a petitioner presents a habeas claim to the state's highest court, but that court "clearly and expressly" refuses to review the merits of the claim due to an independent and adequate state procedural rule, the claim is exhausted but procedurally defaulted. See Coleman, 501 U.S. at 750; Harris v. Reed, 489 U.S. 255, 260-64 (1989).

         Federal courts may not consider the merits of procedurally defaulted claims unless the petitioner demonstrates either cause for the procedural default and actual prejudice resulting therefrom, or that a fundamental miscarriage of justice will result if the court does not review the claims. See McCandless v. Vaughn, 172 F.3d 255, 260 (3d Cir. 1999); Coleman, 501 U.S. at 750-51. To demonstrate cause for a procedural default, a petitioner must show that "some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule." Murray v. Carrier, 477 U.S. 478, 488 (1986). To demonstrate actual prejudice, a petitioner must show "that [the errors at trial] worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions." Id. at 494.

         Alternatively, a federal court may excuse a procedural default if the petitioner demonstrates that failure to review the claim will result in a fundamental miscarriage of justice. See "Edwards v. Carpenter, 529 U.S. 446, 451 (2000); Wenger v. Frank, 266 F.3d 218, 224 (3d Cir. 2001). A petitioner demonstrates a miscarriage of justice by showing a "constitutional violation has probably resulted in the conviction of one who is actually innocent." Murray, 477 U.S. at 496. Actual innocence means factual innocence, not legal insufficiency. See Bousley v. United States, 523 U.S. 614, 623 (1998). In order to establish actual innocence, the petitioner must present new, reliable evidence - not presented at trial - that demonstrates "it is more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt." House v. Bell, 547 U.S. 518, 537-38 (2006); see Sweger v. Chesney, 294 F.3d 506, 522-24 (3d Cir. 2002).

         B. Standard of Review

         If a state's highest court adjudicated a federal habeas claim on the merits, the federal court must review the claim under the deferential standard contained in 28 U.S.C. § 2254(d). Pursuant to 28 U.S.C. § 2254(d), federal habeas relief may only be granted if the state court's decision was "contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States, " or the state court's decision was an unreasonable determination of the facts based on the evidence adduced in the trial. 28 U.S.C. § 2254(d)(1) & (2); see also Williams v. Taylor, 529 U.S. 362, 412 (2000); Appel v. Horn, 250 F.3d 203, 210 (3d Cir. 2001). A claim has been "adjudicated on the merits" for the purposes of 28 U.S.C. § 2254(d) if the state court decision finally resolves the claim on the basis of its substance, rather than on a procedural or some other ground. See Thomas v. Horn, 570 F.3d 105, 115 (3d Cir. 2009). The deferential standard of § 2254(d) applies even "when a state court's order is unaccompanied by an opinion explaining the reasons relief has been denied." Harrington v. Richter, 562 U.S. 86, 98 (2011). As explained by the Supreme Court, "it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary." Id. at 99.

         Finally, when reviewing a habeas claim, a federal court must presume that the state court's determinations of factual issues are correct. See 28 U.S.C. § 2254(e)(1). This presumption of correctness applies to both explicit and implicit findings of fact, and is only rebutted by clear and convincing evidence to the contrary. See 28 U.S.C. § 2254(e)(1); Campbell v. Vaughn, 209 F.3d 280, 286 (3d Cir. 2000); Miller-El v. Cockrell, 537 U.S. 322, 341 (2003) (stating that clear and convincing standard in § 2254(e)(1) applies to factual issues, whereas unreasonable application standard of § 2254(d)(2) applies to factual decisions).


         Petitioner timely filed the § 2254 Petition presently pending before the Court, which asserts the following four grounds for relief:[2] (1) Attorneys 1 and 2 provided ineffective assistance during the pre-trial stages of Petitioner's criminal proceeding because they did not request a competency evaluation; (2) the State was aware of Petitioner's mental health issues and failed to disclose documentation of those issues to him; (3) the failure to disclose unidentified records to Petitioner constituted prosecutorial and judicial misconduct; and (4) post-conviction counsel provided ...

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