United States District Court, D. North Dakota
Charles S. Miller, Jr., Magistrate Judge United States
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).
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).
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).
State Postconviction Proceedings
filed an application for postconviction relief, dated May 15,
2014, with the state 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.
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.
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).
Federal Habeas Petition
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 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