Kostich v. McCollum
| Decision Date | 05 January 2015 |
| Docket Number | Case No. 12-CV-0065-CVE-PJC |
| Parties | WALTER EDWARD KOSTICH, JR., Petitioner, v. TRACY MCCOLLUM, Warden, Respondent. |
| Court | U.S. District Court — Northern District of Oklahoma |
Before the Court is the 28 U.S.C. § 2254 habeas corpus petition (Dkt. # 1) filed by Petitioner, Walter Edward Kostich Jr., a state prisoner appearing pro se. Petitioner also separately filed several exhibits in support of his petition (Dkt. ## 2, 28). Respondent filed a response to the petition (Dkt. # 12), and provided the state court record necessary for resolution of Petitioner's claims (Dkt. # 13). Petitioner filed a reply (Dkt. # 27). Petitioner has also filed a motion for a "due process hearing," and a brief in support. (Dkt. ## 50, 51). In that motion, Petitioner argues that this Court's denial of his previous "motion for bail release or bail hearing on the merits" (Dkt. # 42) was a "vague and capricious unreasionable [sic] application of clearly established fed[eral] law." See Dkt. # 51 at 1. Petitioner again requests a "due process [bail] hearing on the merits." Id. For the reasons discussed below, the petition for writ of habeas corpus shall be denied. Therefore, Petitioner's motion for a hearing on bail release is declared moot.
On January 12, 2005, between 2:00 and 2:30 a.m., Petitioner set fire to the home of Corbin and Katherine Gilstrap. See Dkt # 28-2 at 64; Dkt. # 13-11, O.R. Vol. II at 307-10. At the time of the fire, multiple people were present in the home, including Corbin and Katherine Gilstrap, their small child, and Katherine's mother. See Dkt. # 13-8, Tr. Sent. Hr'g at 5-6; Dkt. # 13-11, O.R. Vol.II at 307. The Gilstraps were able to escape the home without substantial physical injury; however, their home was seriously damaged. See Dkt. # 13-8, Tr. Sent. Hr'g at 35. A surveillance video camera captured images of Petitioner placing the incendiary device, a container of gasoline with a fuse attached, on the front doorstep of the Gilstrap home and lighting the fuse. See Dkt. # 13-11, O.R. Vol. II at 308. Petitioner's actions resulted from a disagreement relating to Mr. Gilstrap's repair of, or alleged failure to repair, Petitioner's personal computer(s). See Dkt. # 28-2 at 64; Dkt. # 13-11, O.R. Vol. II at 308-10.
A federal indictment, filed February 8, 2005 in the United States District Court for the Northern District of Oklahoma, Case Number 05-CR-00013-TCK, charged Petitioner with Unlawful Possession of a Destructive Device (Count One) and Unlawful Manufacture of an Unregistered Destructive Device (Count Two).1 See Dkt. # 28 at 7-8. Petitioner pled guilty to Count Two and was convicted of Count One at jury trial. See id. at 15. On September 30, 2005, the federal district judge sentenced Petitioner to a term of sixty-three (63) months imprisonment on both Count One and Count Two, with the sentences to run concurrently. See id. at 15-16.
On February 3, 2005, the state of Oklahoma charged Petitioner with Arson - First Degree in Tulsa County District Court, Case Number CF-2005-0514. See id. at 20-21. The case was subsequently dismissed, by request of the State, on March 17, 2005. See id. at 25. On March 16, 2007, approximately eighteen (18) months after Petitioner's federal sentencing, the state ofOklahoma recharged the Petitioner with Arson - First Degree in Tulsa County District Court, Case Number CF-2007-1480. See id. at 44-47.
On April 2, 2009, Petitioner entered a blind plea of guilty in CF-2007-1480 to the sole charge of Arson - First Degree. See Dkt. # 13-7, Tr. Blind Plea Hr'g at 3. On June 30, 2009, based on the plea, the trial judge sentenced Petitioner to twenty (20) years imprisonment. See Dkt. # 13-8, Tr. Sent. Hr'g at 53. The judge ordered that Petitioner be credited with time served, including time served in federal custody on related charges, and that his sentence in CF-2007-1480 run concurrently with the remainder of his federal sentence in 05-CR-00013-TCK. Id. During the plea and sentencing proceedings, Petitioner was represented by attorney Ashley Webb. See Dkt. # 13-7, Tr. Blind Plea Hr'g; Dkt. # 13-8, Tr. Sent. Hr'g.
On July 10, 2009, Petitioner filed a motion to withdraw his guilty plea.2 See Dkt. # 13-11, O.R. Vol. II at 324-37, 328-30. On September 28, 2009, a hearing was held on Petitioner's motion to withdraw his plea. See Dkt. # 13-9, Tr. Mot. Withdraw Plea Hr'g. The district court denied the motion. Id. at 49. Petitioner was represented by attorney Brian Martin at the hearing on the motion to withdraw his plea. Id. at 1.
Represented by attorney Ricki J. Walterscheid, Petitioner filed a petition for writ of certiorari in the Oklahoma Court of Criminal Appeals (OCCA). See Dkt. # 12-1. He raised the following sole proposition of error:
Proposition I: The plea of Mr. Kostich was not intelligently, knowingly, and voluntarily entered, as such the District Court abused its discretion in disallowing him to withdraw the plea.
Id. at 6. In an unpublished opinion, filed June 18, 2010, in Case No. C-2009-892, the OCCA denied the petition for writ of certiorari. See Dkt. # 12-2.
On August 23, 2011, Petitioner filed an application for post-conviction relief. See Dkt. # 28 at 75. Petitioner raised four (4) propositions, as follows:
(Dkt. # 2 at 28). The trial court denied the application. Id. at 26-35. On January 27, 2012, in Case No. PC-2011-1076, the OCCA affirmed the trial court's denial of post-conviction relief (Dkt. # 12-3).
On February 14, 2012, Petitioner commenced this federal action by filing his pro se petition for writ of habeas corpus (Dkt. # 1). Petitioner raises six (6) grounds of error, as follows:
(Dkt. # 1). Respondent argues that the OCCA's adjudication of Grounds I and II was not unreasonable or contrary to federal law, that Grounds III-V are procedurally barred, and that Ground VI is a matter of state law not cognizable on federal habeas review. See Dkt. # 12.
As a preliminary matter, the Court must determine whether Petitioner meets the exhaustion requirement of 28 U.S.C. § 2254(b). See Rose v. Lundy, 455 U.S. 509, 510 (1982). Petitioner raised Grounds I-V on either certiorari or post-conviction appeal and he has exhausted state remedies as to those claims. However, Petitioner has not raised Ground VI in the state courts and that claim is unexhausted. In light of the procedural posture of this case, it would be futile to require Petitioner to return to state court to exhaust Ground VI. Thus, there is an absence of available State corrective process for that claim, see 28 U.S.C. § 2254(b)(1)(B), and it is not barred by the exhaustion requirement. In part D below, the claim raised in Ground VI is denied on the merits under 28 U.S.C. § 2254(b)(2).
The Court also finds that Petitioner is not entitled to an evidentiary hearing. See Williams v. Taylor, 529 U.S. 420 (2000).
The Antiterrorism and Effective Death Penalty Act (AEDPA) provides the standard to be applied by federal courts reviewing constitutional claims brought by prisoners challenging state convictions. Under the AEDPA, when a state court has adjudicated a claim, a petitioner may obtain federal habeas relief only if the state court decision "was contrary to, or involved an unreasonableapplication of, clearly established Federal law, as determined by the Supreme Court of the United States" or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." See 28 U.S.C. § 2254(d); Williams v. Taylor, 529 U.S. 362, 386 (2000); Neill v. Gibson, 278 F.3d 1044, 1050-51 (10th Cir. 2001). "Clearly established Federal law for purposes of § 2254(d)(1) includes only the holdings, as opposed to the dicta, of [the Supreme Court's] decisions." White v. Woodall, 134 S. Ct. 1697, 1702 (2014) (citations omitted).
When a state court applies the correct federal law to deny relief, a federal habeas court may consider only whether the state court applied the federal law in an objectively reasonable manner. See Bell v. Cone, 535 U.S. 685, 699 (2002); Hooper v. Mullin, 314 F.3d 1162, 1169 (10th Cir. 2002). An unreasonable application by the state courts is "not merely wrong; even 'clear error' will not suffice." White, 134 S. Ct. at 1702 (citing Lockyer v. Andrade, 538 U.S. 63, 75-76 (2003)). The petitioner "'must show that the state court's ruling . . . was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.'" Id. (quoting Harrington v. Richter, 562 U.S. 86, 131 S. Ct. 770, 786-87 (2011)); see also Metrish v. Lancaster, 133 S. Ct. 1781, 1787 (2013).
"When a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or...
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