Benson v. Braun

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
Barry Lee Benson, )
)
Petitioner, ) ORDER
)
vs. )
) Case No. 1-17-cv-244
Colby Braun, )
)
Respondent. )
______________________________________________________________________________
Before the court is an Amended Petition under 28 U.S.C. § 2254 for a Writ of Habeas Corpus
by a Person in State Custody filed by petitioner, Barry Lee Benson. (Doc. No. 9). Also before the
court is a Motion to Dismiss by respondent, Colby Braun (“the State”). (Doc. No. 13).
I. BACKGROUND
A. Trial
On May 11, 2012, the State charged Benson by way of complaint with Continuous Sexual
Abuse of a Child, a class AA felony. (Doc. No. 14-1). A jury found him guilty. (Doc. No. 14-2).
He was sentenced to life imprisonment without the possibility of parole. (Doc. No. 14-2).
B. Direct Appeal
On May 31, 2013, Benson appealed that conviction. (Doc. No. 14-1). In that appeal, Benson
argued the district court erred in denying his motion for acquittal due to insufficient evidence and
the court abused its discretion in allowing the State to present testimony over his objection. The
North Dakota Supreme Court summarily affirmed Benson’s conviction. State v. Benson, 2014 ND
43, 844 N.W.2d 362. The court issued its mandate on April 2, 2014. (Doc. No. 14-1).
C. State Postconviction Proceedings
Benson filed an application for postconviction relief, dated May 15, 2014, with the state
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district court on May 20, 2014. (Doc. Nos. 14-1, 14-5). The state district court construed Benson’s
application as raising three separate claims: (1) ineffective assistance of counsel for failing to object
to certain testimony presented at trial; (2) lack of communication with counsel for counsel’s alleged
failure to provide Benson with various court records; and (3) denial of a right by state officials for
allegedly not allowing Benson access to law books or access to his court records.
Without an evidentiary hearing, the state district court summarily dismissed Benson’s
application on June 11, 2015. The court concluded Benson’s second and third claims suffered from
a complete lack of factual grounding and dismissed those claims as such. The court further
concluded no ineffective assistance of counsel occurred because, even if counsel had acted as Benson
insisted, his trial’s outcome would not have changed. Benson appealed that decision on August 10,
2015. The North Dakota Supreme Court summarily affirmed. Benson v. State, 2016 ND 22, 876
N.W.2d 485. The court issued its mandate on March 14, 2016.
Thereafter, Benson filed a second application for postconviction relief on December 28,
2016. (Doc. No. 14-9). The state district court denied this application on September 26, 2017,
concluding the second application was untimely under N.D.C.C. § 29-32.1-01(2) and barred by res
judicata. (Doc. No. 14-10). Benson did not appeal that denial. (Doc. No. 14-9).
D. Federal Habeas Petition
Benson next filed his § 2254 petition with this court on November 9, 2017. (Doc. No. 2).
Following the court’s direction, (Doc. No. 6), Benson amended his § 2254 petition. (Doc. No. 9).
This amended petition contains five grounds for habeas relief, some of which are rather muddled.
The court construes Benson’s claims for relief as follows. First, Benson claims his trial counsel was
ineffective because counsel did not properly flesh out inconsistencies in testimony presented by the
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States’s witnesses at trial. Second, Benson claims his trial counsel was ineffective for not properly
impeaching one of the State’s witnesses, T.K. Third, Benson claims his trial counsel was ineffective
for not adopting the trial strategy Benson thought appropriate. Fourth, Benson claims his trial
counsel was ineffective for not properly impeaching one of the State’s witnesses, K.S. Fifth, Benson
claims the State engaged in misconduct tantamount to a Brady violation.
II. DISCUSSION
A. Timeliness Under 28 U.S.C. § 2244(d)(1)
The State argues Benson’s petition is untimely and should be dismissed. Under 28 U.S.C.
§ 2244(d)(1), a petitioner has one year to seek habeas relief, which runs from the latest of:
(A) the date on which the judgment became final by the conclusion of direct review
or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action
in violation of the Constitution or laws of the United States is removed, if the
applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the
Supreme Court, if the right has been newly recognized by the Supreme Court and
made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could
have been discovered through the exercise of due diligence.
The one-year period does not run during pendency of “a properly filed application for State
post-conviction or other collateral review with respect to the pertinent judgment or claim . . . .” 28
U.S.C. § 2244(d)(2). A tardy state post-conviction application does not constitute “a properly filed
application” within the meaning of § 2244(d)(2). Pace v. DiGuglielmo, 544 U.S. 408, 417 (2005)
(concluding, “[b]ecause the state court rejected petitioner's PCRA petition as untimely, it was not
‘properly filed,' and he is not entitled to statutory tolling under § 2244(d)(2).”); see also Allen v.
Siebert, 552 U.S. 3, 4-5 (2007) (concluding “[b]ecause Siebert's petition for state postconviction
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relief was rejected as untimely by the Alabama courts, it was not ‘properly filed' under § 2244(d)(2).
Accordingly, he was not entitled to tolling of AEDPA's 1–year statute of limitations.”).
After reviewing the record, the court agrees Benson’s habeas petition is untimely under §
2244(d)(1). As discussed above, Benson appealed his conviction, the North Dakota Supreme Court
affirmed that conviction, and the court issued its mandate on direct appeal on April 2, 2014. (Doc.
No. 14-1). Benson forwent an appeal of his conviction to the United States Supreme Court and
instead filed his application for postconviction relief on May 15, 2014. The state district court
denied that application, the North Dakota Supreme Court affirmed that denial, and the court issued
its mandate on March 14, 2016. Benson had 365 days to seek habeas relief as of that date. By the
time Benson filed his habeas petition on November 9, 2017, 613 days had passed, easily exceeding
the 365 days allowed under § 2244(d)(1). Benson’s current habeas petition is clearly untimely.
Benson’s second application for postconviction relief filed with the state courts on December
28, 2016, does not change this conclusion. Under § 2244(d)(2), only “a properly filed” application
for postconviction relief will stay the tolling of a petitioner’s time to seek habeas relief, and an
application for postconviction relief rejected by state courts as untimely is not “properly filed” within
the meaning of § 2244(d)(2). Pace, 544 U.S. at 417; Allen, 552 U.S. at 4-5. In an order dismissing
Benson’s second application for postconviction relief, the state district court, among other reasons,
concluded Benson’s application “was filed after the statute of limitations had run.” (Doc. No. 14-
10). Because the second application for postconviction relief was untimely under North Dakota law,
it did not stay the tolling of Benson’s time to seek habeas relief. Accordingly, Benson’s habeas
petition remains untimely notwithstanding his second application for postconviction relief.
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B. Equitable Tolling
Although not articulately expressed, Benson presents various arguments that the court
construes as an attempt to equitably toll § 2244(d)(1). The court may equitably toll a petitioner’s
time to seek habeas relief “when (1) extraordinary circumstances beyond a prisoner's control make
it impossible to file a petition on time, or (2) when conduct of the defendant has lulled the prisoner
into inaction.” Shoemate v. Norris, 390 F.3d 595, 597 (8th Cir. 2004). Benson agues three sets of
circumstances excuse his delay in bringing the current petition.
Benson begins by arguing equitable tolling should apply because his postconviction counsel
did not advise him about how his second application for postconviction relief, which the state court
later dismissed as untimely, would impact his ability to seek habeas relief. Even assuming Benson’s
court-appointed attorney was ineffective in this regard, ineffective assistance of counsel generally
is not an extraordinary circumstance triggering equitable tolling. See Beery v. Ault, 312 F.3d 948,
951 (8th Cir. 2002) (holding “[i]neffective of counsel generally does not warrant equitable tolling.”);
see also Lawrence v. Florida, 549 U.S. 327 (2007) (holding an attorney error in calculating a filing
deadline does not constitute an extraordinary circumstance for equitable tolling purposes). Putting
that issue aside, Benson has not alleged, much less proven to the court’s satisfaction, that any
ineffective assistance of postconviction counsel made it impossible for Benson to timely file his
habeas petition. Benson could have simply filed his habeas petition before he filed his second
application for postconviction relief, which would have rendered his petition timely and avoided any
ineffective assistance of postconviction counsel. Accordingly, equitable tolling is not available to
Benson because postconviction counsel’s conduct was not an extraordinary circumstances that made
it impossible for Benson to file his habeas petition in a timely fashion.
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Benson next argues equitable tolling should apply because the state district court did not
similarly advise him his second application for postconviction relief would not stay his time to seek
habeas relief. This argument lacks merit because the state district court had no obligation to provide
Benson with legal advice as to the how the state postconviction proceeding process might impact his
ability to file a subsequent federal habeas petition. Moreover, just as with his ineffective assistance
of postconviction counsel claim, the state district court did not make it impossible for Benson to
timely file his habeas petition because Benson could have filed his habeas petition instead of his
second application for postconviction relief. Accordingly, equitable tolling is not available to
Benson because the state district court’s conduct was not an extraordinary circumstances that made
it impossible for Benson to file his habeas petition in a timely fashion.
Benson finally argues equitable tolling should apply because he has limited education and
learning disabilities. A petitioner’s limited education and/or learning disabilities do not generally
constitute extraordinary circumstances warranting equitable tolling. See Rasberry v. Garcia, 448
F.3d 1150, 1154 (9th Cir. 2006) (holding that “a pro se petitioner's lack of legal sophistication is not,
by itself, an extraordinary circumstance warranting equitable tolling . . . .”). Equitable tolling,
however, may be available where a petitioner is able to show prolonged serious mental problems
prevented the timely filing of a habeas petition. Collins v. Scurr, 230 F.3d 1362, 1362 (8th Cir.
2000) (citing Calderon v. United States Dist. Court, 163 F.3d 530, 541 (9th Cir.1998)). To this
point in both his state and federal proceedings, Benson has made multiple filings in which he has
presented cogent arguments accompanied by supporting case law. Though these arguments have
been unsuccessful, these filings evidence Benson does not suffer from a complete lack of education
or a mental condition so severe that either could be fairly characterized as extraordinary. Moreover,
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neither circumstance adequately explains why Benson could not have filed his habeas petition with
this court instead of filing his second application for postconviction relief. At bottom, that Benson
returned to state court with his second application for postconviction relief instead of coming to
federal court was a matter of choice and does not in any way indicate Benson’s lack of education of
learning disabilities made filing a habeas petition impossible. Accordingly, equitable tolling is not
available because neither Benson’s lack of education nor learning disabilities are extraordinary
circumstances that made it impossible for Benson to file his habeas petition in a timely fashion.
On the foregoing, the court concludes equitable tolling is inapplicable to this case. As such,
Benson remained subject to § 2244(d)(1)’s temporal requirements. Because more than 365 days
lapsed between the time Benson completed his direct and collateral attacks on his final criminal
judgment and the filing of his habeas petition with this court, Benson’s habeas petition must be
dismissed as untimely under § 2244(d)(1).
III. CERTIFICATE OF APPEALABILITY
Under 28 U.S.C. § 2253(c)(2), a certificate of appealability may issue only if the petitioner
has made a substantial showing of the denial of a constitutional right. When the court has rejected
a petitioner’s claim on the merits, the substantial showing required is that the “petitioner must
demonstrate that reasonable jurists would find the district court’s assessment of the constitutional
claims debatable or wrong.” Miller-El v. Cockrell, 537 U.S. 322, 338 (2003) (quoting Slack v.
McDaniel, 529 U.S. 473, 484 (2000)); see also, United States v. Lambros, 404 F.3d 1034, 1036-37
(8th Cir. 2005); Garrett v. United States, 211 F.3d 1075, 1076-77 (8th Cir. 2000). When the court
denies a petitioner’s claim on procedural grounds without reaching the merits, the petitioner must
demonstrate that reasonable jurists would find it debatable that a valid claim for the denial of
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constitutional rights has been stated and that reasonable jurists would find it debatable that the
district court was correct in its procedural ruling. Slack, 529 U.S. at 484.
Here, reasonable jurists would not find debatable the disposition of the claims, whether on
the merits or on procedural grounds. Consequently, a certificate of appealability will not be issued.
IV. CONCLUSION
1. The State’s motion to dismiss (Doc. No. 13) is GRANTED.
2. Benson’s § 2254 petition (Doc. No. 2) and amended petition (Doc. No. 9) are
DENIED WITH PREJUDICE.
3. A certificate of appealability is not issued.
Dated this 28th day of March, 2018.
/s/ Charles S. Miller, Jr.
Charles S. Miller, Jr., Magistrate Judge
United States District Court
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