United States District Court, D. Delaware
Kostyshyn. Pro se Petitioner.
J. Vella, Deputy Attorney General of the Delaware Department
of Justice, Wilmington, Delaware. Attorney for Respondents.
U.S. DISTRICT JUDGE
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.
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
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.
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.
GOVERNING LEGAL PRINCIPLES
Exhaustion and Procedural Default
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
(ii) circumstances exist that render such process ineffective
to protect the rights of the applicant.
28 U.S.C. § 2254(b)(1).
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
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).
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.
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).
Standard of Review
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
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).
timely filed the § 2254 Petition presently pending
before the Court, which asserts the following four grounds
for relief: (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