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Benson v. Braun

United States District Court, D. North Dakota

March 28, 2018

Barry Lee Benson, Petitioner,
v.
Colby Braun, Respondent.

          ORDER

          Charles S. Miller, Jr., Magistrate Judge United States District Court

         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 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 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. ...


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