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Benson v. Budge

United States District Court, D. Nevada

March 30, 2015

MICHAEL BUDGE, et al., Respondents.


GLORIA M. NAVARRO, Chief District Judge.

Before the court for a decision on the merits is an application for a writ of habeas corpus filed by Fredrick J. Benson, a Nevada prisoner. ECF No. 14.


On February 29, 2000, the State of Nevada filed a criminal complaint in the Justice Court of the Las Vegas Township, Clark County, Nevada, charging Benson with conspiracy to commit robbery, robbery with use of a deadly weapon, and murder with use of a deadly weapon. On June 28, 2000, Benson waived his right to a preliminary hearing, with counsel advising the court that they had negotiated a plea agreement. On July 6, 2000, the State filed a notice of intent to seek the death penalty against Benson.

On July 18, 2000, Benson filed a pro se motion for the appointment of new counsel based on an assertion that counsel had failed to conduct any investigation in aid of mitigating his sentence. At his arraignment on July 27, 2000, Benson entered a plea of not guilty and rescinded his motion to discharge counsel.

On October 4, 2000, Benson filed another pro se motion to dismiss counsel, this time alleging that counsel had not been investigating his case, that counsel had not spoken to him since July 31, 2000, and that he had not seen the discovery from the State. The court conducted a hearing on the motion and denied relief on the basis that the trial was not scheduled until the following May, and there was sufficient time for counsel to complete the investigation and meet with Benson. Nonetheless, the Clark County Public Defender's office subsequently removed the counsel assigned to Benson (Stephen Immerman) and substituted two other attorneys (Drew Christensen and Willard Ewing).

At a calendar call on May 11, 2001, counsel requested and obtained a continuance of the trial to January 2002. The defense then filed a several pre-trial motions, including a suppression motion relative to a statement Benson gave to police in February 2000, two discovery motions, a motion in limine, two motions to inspect and test evidence, a motion for a jury questionnaire, a motion to dismiss the notice of intent to seek the death penalty, a motion to exclude victim impact evidence, and a motion to declare the Nevada death penalty unconstitutional.

On April 29, 2002, the state district court held an evidentiary hearing with respect to the motion to suppress and, at the conclusion of the hearing, denied the motion. The following day Benson entered a guilty plea to first degree murder in exchange for a life sentence without the possibility of parole. At the plea canvass, Benson admitted to killing Henry Zegler by shooting him with a shotgun while in the course of taking money from him.

On June 26, 2002, counsel Christensen advised the state district court that Benson wanted to withdraw his guilty plea. The court appointed special counsel, Betsy Allen, who assisted Benson with filing a motion to withdraw on July 31, 2002. As grounds, Benson claimed that counsel had failed to advise him that, by pleading guilty, he waived his right to test, via an appeal, the validity of the evidence the State would have presented against him.

After a hearing on August 28, 2002, the court denied the motion. Benson then filed a pro se motion to dismiss counsel (requesting that Allen be appointed to represent him), a "writ of mandate" (alleging that, immediately after entering his guilty plea, he explained to counsel he did not understand that he was waiving his right to a direct appeal), and a motion titled "Interlocutory Review Pursuant to 28 U.S.C.A. 1292 (B) and Rule 5(A) of the Nevada Rules of Appellate Procedure - Motion to Suppress - Motion to withdraw guilty plea." On October 11, 2002, the court denied the motions (except for the motion to appoint Allen) and entered a judgment of conviction.

Benson appealed. On appeal, Benson argued that his guilty plea was invalid and that he had received ineffective assistance of counsel. On January 28, 2004, the Nevada Supreme Court affirmed the judgment of conviction. On November 16, 2004, Benson filed a petition for postconviction relief in the state district court, raising several claims of ineffective assistance of counsel. That petition was denied on February 18, 2005. Benson appealed. On June 16, 2005, the Nevada Supreme Court entered an order affirming the decision of the lower court.

On August 15, 2005, this court received Benson's petition for writ of habeas corpus. On January 17, 2006, the court granted Benson's motions to proceed in forma pauperis and appoint counsel, and directed the clerk file the petition. On December 13, 2007, Benson filed an amended petition.

On February 2, 2009, this court granted Benson a stay and administratively closed this federal habeas action so Benson could file a state habeas petition to exhaust certain grounds in his amended federal petition. On January 13, 2012, Benson moved to reopen the instant proceedings. Respondents filed a motion to dismiss, alleging that some of the grounds in the amended petition were procedurally defaulted.

On February 7, 2013, this court denied the motion with respect to the respondents' procedural default arguments on Grounds Two(b)(1) and 3(a), but granted the motion with respect to the procedural default arguments on Grounds One(a), (b), (c), (d) and (e).

Respondents filed an answer to the remaining claims on March 26, 2013. Benson filed his reply on July 10, 2013.


This action is governed by the Antiterrorism and Effective Death Penalty Act (AEDPA). 28 U.S.C. § 2254(d) sets forth the standard of review under AEDPA:

28 U.S.C. § 2254(d) sets forth the standard of review under AEDPA:
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 with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim -
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d).

A decision of a state court is "contrary to" clearly established federal law if the state court arrives at a conclusion opposite that reached by the Supreme Court on a question of law or if the state court decides a case differently than the Supreme Court has on a set of materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405-06 (2000). An "unreasonable application" occurs when "a state-court decision unreasonably applies the law of [the Supreme Court] to the facts of a prisoner's case." Id. at 409. "[A] federal habeas court may not "issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly." Id. at 411. "A state court's determination that a claim lacks merit precludes federal habeas relief so long as fairminded jurists could disagree' on the correctness of the state court's decision." Harrington v. Richter, 131 S.Ct. 770, 786 (2011) (citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)).

For any habeas claim that has not been adjudicated on the merits by the state court, the federal court reviews the claim de novo without the deference usually accorded state courts under 28 U.S.C. § 2254(d)(1). Chaker v. Crogan, 428 F.3d 1215, 1221 (9th Cir. 2005); Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002). See also James v. Schriro, 659 F.3d 855, 876 (9th Cir. 2011) (noting that federal court review is de novo where a state court does not reach the merits, but instead denies relief based on a procedural bar later held inadequate to foreclose federal habeas review). The Court in Lockyer v. Andrade, 538 U.S. 63 (2003), rejected a Ninth Circuit mandate for habeas courts to review habeas claims by conducting a de novo review prior to applying the "contrary to or unreasonable application of" limitations of 28 U.S.C. § 2254(d)(1). Lockyer, 538 U.S. at 71. In doing so, however, the Court did not preclude such an approach. "AEDPA does not require ...

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