Goldstein v. Delaware Bureau of Adult Corrections, 95-232-RRM.

• Court: U.S. District Court — District of Delaware
• Writing for the Court: McKELVIE
• Citation: Goldstein v. Delaware Bureau of Adult Corrections, 931 F.Supp. 284 (D. Del. 1996)
• Decision Date: 26 June 1996
• Docket Number: No. 95-232-RRM.,95-232-RRM.
• Parties: Louis GOLDSTEIN, Petitioner, v. DELAWARE BUREAU OF ADULT CORRECTIONS and Superintendent, Plummer Work Release, Respondents.

931 F. Supp. 284

Louis GOLDSTEIN, Petitioner, v. DELAWARE BUREAU OF ADULT CORRECTIONS and Superintendent, Plummer Work Release, Respondents.

No. 95-232-RRM.

United States District Court, D. Delaware.

June 26, 1996.

COPYRIGHT MATERIAL OMITTED

Philip B. Bartoshesky, Biggs & Battaglia, Wilmington, Delaware, Thomas Colas Carroll, Carroll & Cedrone, Philadelphia, Pennsylvania, for petitioner.

Donald L. Gouge, Jr., Heiman Aber & Goldlust, Wilmington, Delaware, Loren C. Meyers, Deputy Attorney General, Delaware Department of Justice, Wilmington, Delaware, for respondents.

McKELVIE, District Judge.

This is a petition for a writ of habeas corpus. On March 16, 1992, petitioner Louis Goldstein pled guilty to two misdemeanor charges of violating the City of Wilmington Health and Sanitation Code. On that same date, Delaware Superior Court Judge Susan C. Del Pesco sentenced Goldstein to 6 months incarceration, suspended for 6 months probation on each count. On December 6, 1994, Judge Del Pesco found that Goldstein had violated the conditions of his probation and consequently revoked his probation. In his petition, Goldstein alleges that Judge Del Pesco's revocation of his probation violated his right to due process. This is the court's decision on Goldstein's petition.

I. FACTUAL BACKGROUND

Respondents have filed an answer to Goldstein's petition for a writ of habeas corpus. Goldstein has also filed a reply to respondents' answer. The court draws the following facts from petitioner's complaint and reply, respondents' answer, and the record of the state court proceedings that the parties have filed.

A. Goldstein's Original Conviction and Sentence

In March of 1989, Goldstein was convicted in Wilmington Municipal Court of nine violations of the City of Wilmington Health and Sanitation Code (the "City Code") based on the condition of certain unrenovated properties that Goldstein owned in Wilmington. Five of those properties are relevant to the present case: 1) 719 Church Street ("719 Church"); 2) 1300 West Street ("1300 West"); 3) 1401 West Sixth Street ("1401 W. 6th"); 4) 707 Washington Street ("707 Washington"); and 5) 2701 Washington Street ("2701 Washington").

Goldstein appealed his convictions to the Delaware Superior Court. On March 16, 1992, during the pendency of that appeal, Goldstein pled guilty in the Superior Court to two misdemeanor charges of violating the City Code. On the same date, Goldstein entered into a written agreement (the "Agreement") with the City of Wilmington (the "City") to resolve the criminal charges pending against him. Also on that same date, Judge Del Pesco sentenced Goldstein to 6 months incarceration, suspended for 6 months probation, on each count. Judge Del Pesco made adherence to any agreements with the City a special condition of Goldstein's probation.

In its Preamble, the Agreement states that it applies to Goldstein, his immediate family (i.e. his wife and children), and any corporations in which he or his immediate family (collectively "the Goldsteins") own a 50% or greater interest. Paragraph 1 of the Agreement states that "by May 18, 1992, all `vacant properties' owned or controlled by the Goldsteins will be sold, demolished, or rehabilitated." Paragraph 2 defines "vacant properties" and recites that the Goldsteins and the City had previously agreed to a list of all such properties. This list of vacant properties included 1300 West, 1401 W. 6th, and 707 Washington. At the time the parties entered into the Agreement, they could not resolve whether 719 Church or 2701 Washington were vacant properties subject to the Agreement.

Paragraph 4 establishes Goldstein's duties with respect to the vacant properties that he does not sell, renovate, or demolish in a timely manner:

4. By May 18, 1992, Goldstein will transfer any and all of the Goldsteins' equitable interests in the ownership of "vacant properties" to a Receiver. During the term of the Receivership, any interest Goldstein has or obtains in any residential property which has been or becomes unoccupied and not rehabilitated for one hundred twenty (120) days shall be assigned to the Receiver. Goldstein will on May 18, 1992, transfer to the Receiver all equitable interests in mortgages on these "vacant properties".

Paragraph 5 gives Goldstein the right to select the Receiver to whom Paragraph 4 refers from three candidates chosen by Judge Del Pesco. Paragraph 7 states that the Receiver shall receive compensation for his duties and for costs incurred pursuant to those duties. Goldstein shall deposit $5,000 in a bank account for compensation. Paragraph 9 establishes specific duties regarding 1300 West:

9. With respect to the property at 1300 West Street, Goldstein shall by May 4, 1992, apply to the Zoning Board of Adjustment to request permission to renovate the property for multifamily use. Within one hundred twenty (120) days of the date of the Board's final decision, Goldstein shall rehabilitate, sell or demolish the property. (emphasis added)

Finally, Paragraph 14 provides that "any amendments or alterations to this Agreement must be in writing and signed by both parties. The parties shall agree to reasonable amendments or alterations requested by the Receiver." The remaining paragraphs of the Agreement are irrelevant to the present case.

At the time Goldstein and the City entered into the Agreement, Goldstein's son Steven retained an interest in some of the vacant properties. To facilitate Goldstein's compliance with the terms of the Agreement, Steven executed an "irrevocable durable power of attorney" in favor of Goldstein. This document gives Goldstein the power to transfer Steven's interest in any vacant property, or any financing resulting from the sale of such property, to the Receiver pursuant to the terms of the Agreement.

B. Goldstein's Failure To Comply With the Conditions of His Probation

On May 20, 1992, the City sent a letter to Judge Del Pesco stating that Goldstein had not sold, rehabilitated, or demolished many of the properties designated by the Agreement, including 1300 West, 1401 W. 6th, and 707 Washington. Counsel argued that these properties should be turned over to the Receiver pursuant to the Agreement. In addition, counsel requested Judge Del Pesco to rule whether or not 719 Church and 2701 Washington fell within the terms of the Agreement.

On May 26, 1992, Goldstein sent a letter to Judge Del Pesco in response to the City's May 20, 1992 letter. As to 1300 West, he stated that he had filed an application with the Zoning Board of Adjustment on May 4, 1992, in accordance with the Agreement. He also stated that at an April 4, 1992 office conference, the court had granted him a three-week extension to rehabilitate or sell 1401 W. 6th and 707 Washington. Goldstein argued that the Agreement did not cover 2701 Washington and that even if it did, this property had only "minor deficiencies" as of May 26, 1992. Finally, he argued that 719 Church was and had been occupied and thus should not be on the list of properties designated by the Agreement. Apparently, Judge Del Pesco decided during a meeting with the parties that the Agreement did cover 719 Church and 2701 Washington.

On June 6, 1992, Judge Del Pesco held a hearing concerning the possible sale of 719 Church. At the hearing, Judge Del Pesco stated that Goldstein could sell the property subject to one caveat: "However, I don't want any purchase money mortgages. When I see a purchase mortgage with a three hundred dollar down payment and the balance a purchase money mortgage, that does not make me a very happy person. That is a sham."

On June 12, 1992, the City sent another letter to Judge Del Pesco. This letter observed that Goldstein's three-week extension to renovate or sell 1401 W. 6th and 707 Washington had expired without any action by Goldstein. The City requested Judge Del Pesco to schedule a status conference. On June 26, 1992, Judge Del Pesco held a status hearing on the issues raised by the City. During the status hearing, Goldstein apparently represented that an individual named Michael Kazer had negotiated a contract to purchase 1401 W. 6th. Later that day, Goldstein sent a letter to Judge Del Pesco confirming this representation. He attached contracts for the sale of properties from Kazer to himself in exchange for 1401 W. 6th and other properties.

On July 6, 1992, Judge Del Pesco issued an order stating her holdings from the June 26, 1992 status conference. Specifically, the July 6, 1992 order states, in relevant part:

2. Louis Goldstein, his family and agents are barred from taking any further action with regard to 1401 West 6th Street....

3. Louis Goldstein, his family and agents are barred from taking any further action with regard to 707 Washington Street. No additional contract, written or oral, or any modifications to the contract presented to the Court which is sold pursuant to the purchase money mortgage currently held by the Goldsteins on the property, is permitted.

....

5. The application for a variance of the property located at 1300 West Street is scheduled for a hearing before the City Zoning Board of Adjustment on July 8, 1992.

6. Louis Goldstein has until Tuesday, July 7, 1992 to clean ... 2701 Washington Street and 719 Church Street. Goldstein has until Monday, July 27, 1992, at 5:00 p.m. to secure a purchaser for 719 Church Street and to present a signed sales contract without a purchase money mortgage....

7. If Goldstein properly maintains the property at 2701 Washington Street, he may sell the property ... so long as the sale is executed by September 15, 1992. (emphasis added)

State v. Goldstein, Cr.A.Nos. N89-04-0710A, 0712A (Del.Super.Ct. July 6, 1992).

On July 29, 1992, the City once again wrote to Judge Del Pesco expressing concern about Goldstein's compliance with his probation. In particular, the City stated that Steven Goldstein had rescheduled the application for a zoning variance at 1300 West...