Kostich v. McCollum

624 F. App'x 618
Court of Appeals for the Tenth Circuit·Decided August 3, 2015·No. No. 15-5006·Published·Cited by 2 cases

Opinion

ORDER DENYING CERTIFICATE OF APPEALABILITY *

GREGORY A. PHILLIPS, Circuit Judge.

Pro se state prisoner Walter Edward Kostich requests a certificate of appeala-bility (COA) after the federal district court denied his application for relief under 28 U.S.C. § 2254. See 28 U.S.C. § 2253(c)(1)(A) (requiring COA to appeal denial of relief under § 2254). Because Kostich has failed to satisfy the standards for the issuance of a COA, we deny his request and dismiss this matter.

In January 2005, Kostich set fire to the Oklahoma residence of Corbin and Katherine Gilstrap while the couple was at home with their child and Katherine’s mother. • Although the occupants were able to escape without any serious physical injuries, the fire severely damaged the home. A surveillance video camera captured images of Kostich placing an incendiary device on the front step of the residence and lighting the fuse.

Kostich was charged in Oklahoma state court with first-degree arson. Several days later, he was also charged for offenses in the United States District Court for the Northern District of Oklahoma. The state dismissed its case and the federal case went forward. Eventually, Kostich pleaded guilty to unlawfully manufacturing an unregistered destructive device, and a jury later found him guilty of unlawfully possessing a destructive device. In September 2005, he was sentenced to concurrent terms of sixty-three months’ imprisonment on the two counts.

After Kostich’s federal trial and sentence, the state refiled its first-degree arson charge. In April 2009, Kostich en[620] tered a blind plea of guilty and received a twenty year sentence to run concurrently with the remainder of his federal sentence.

Shortly after the state sentence was handed down, Kostich, through new counsel, filed a motion to withdraw his guilty plea. The trial court held a hearing and denied the motion. A different attorney then filed an appeal (petition for writ of certiorari) in the Oklahoma Court of Criminal Appeals (OCCA), in which Kostich raised a single claim of error: “The plea of Mr. Kostich was not intelligently, knowingly, and voluntarily entered, [and] as such[,] the District Court abused its discretion in disallowing him to withdraw the plea.” Supp. R. Vol. 1 at 46 (capitalization altered). The OCCA ruled on the merits of the claim and denied the petition.

Next, Kostich filed a motion for post-conviction relief in the state trial court, raising four issues: (1) ineffective assistance of appellate counsel for failing to raise double jeopardy; (2) double jeopardy; (3) ineffective assistance of counsel for failing to raise double jeopardy at the preliminary hearing; and (4) ineffective assistance of trial counsel for failing to raise double jeopardy. The trial court denied the motion and Kostich filed a second appeal with the OCCA. In January 2012, the OCCA affirmed the trial court’s denial of post-conviction relief. The OCCA’s decision addressed the merits of Kostich’s claim that his appellate counsel was ineffective in failing to argue double jeopardy in the first appeal, and found that Kostich had waived the remaining claims.

In February 2012, Kostich filed an application for relief under § 2254 in federal district court, raising six issues: (1) his guilty plea was not knowing and voluntary; (2) ineffective assistance of appellate counsel for failing to raise double jeopardy in the first appeal; (3) double jeopardy; (4) ineffective assistance of counsel at the preliminary hearing for failing to raise double jeopardy in the trial court; (5) ineffective assistance of trial counsel for failing to raise double jeopardy in the trial court; and (6) alleged flaws in Oklahoma’s Post Conviction Procedure Act, which Kostich described as a legislative scheme that “is badly broken and failes (sic) the test of legislative intent,” R. Yol. 1 at 18, because “[t]he Courts of Oklahoma failed to live up to the legislative intent and grant [him] the relief he was entitled to by law,” id. at 19.1 The court denied the petition and a COA. It also denied Kostich’s motion to alter or amend the judgment.

The district court concluded Kostich’s claims failed for three reasons: (1) the OCCA’s determination that the guilty plea was knowing and voluntary was not an unreasonable application- of Supreme Court law, and it did not involve an unreasonable application of the facts in light of the evidence presented in state court; (2) the OCCA’s determination that trial counsel did not provide ineffective assistance of counsel in connection with the guilty plea was not an unreasonable application of Supreme Court law, and it did not involve an unreasonable application of the facts in light of the evidence presented in state court; and (3) the remaining claims were procedurally barred.

To obtain a COA, Kostich must make a “substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). When a state court has decided the petitioner’s claims on the merits, “[w]e look to the District Court’s application of AEDPA to petitioner’s constitution[621] al claims and ask whether that resolution was debatable among jurists of reason.” Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003).

When the district court dismisses a petition on procedural grounds, we will issue a COA only if the petitioner shows both (1) “that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right,” and (2) “that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). “Claims that are defaulted in state court on adequate and independent state procedural grounds will not be considered by a habeas court, unless the petitioner can demonstrate cause and prejudice or a fundamental miscarriage of justice.” Smith v. Workman, 550 F.3d 1258, 1274 (10th Cir.2008).

At the outset, we acknowledge our obligation to liberally construe Kostich’s pro se pleadings. But this rule of construction does not eliminate his obligation to make a substantial showing of the denial of a constitutional right, and to meet the above standards. Kostich’s application mostly recounts facts resolved against him, and sets forth general statements of law that are insufficient to merit issuance of a COA. Nonetheless, we have examined the district court’s comprehensive order, and we find no error.

Free access — add to your briefcase to read the full text and ask questions with AI

Kostich v. McCollum, 624 F. App'x 618 (10th Cir. 2015).

624 F. App'x 618 (Kostich v. McCollum) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related

Kostich v. McCollum
647 F. App'x 887 (Tenth Circuit, 2016)