Benish v. Houston
MEMORANDUM AND ORDER - IT IS THEREFORE ORDERED that: Petitioner Benish's Petition (filing no. 1 ) is dismissed with prejudice. A separate judgment will be entered in accordance with this Memorandum and Order. Ordered by Judge Joseph F. Bataillon. (Copy mailed to pro se party)(TCL )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
RICHARD L. BENISH,
This matter is before the court on Petitioner Richard L. Benish’s (“Benish” or
“Petitioner”) Petition for Writ of Habeas Corpus (“Petition”). (Filing No. 1.)
Liberally construing the allegations of Benish’s Petition, Benish argues that he is
entitled to writ of habeas corpus based on the following claims:
Petitioner was denied a speedy trial in violation of the Sixth
and Fourteenth Amendments because the prosecution failed
to prosecute him in a reasonable amount of time.
Petitioner was denied due process of law in violation of the
Fourteenth Amendment because the trial court lacked
subject matter jurisdiction over him.
Petitioner’s trial counsel failed to argue that a motion for
discovery was moot.
Petitioner was denied due process of law and effective
assistance of counsel in violation of the Sixth and
Fourteenth Amendments because appellate counsel failed
to (1) properly raise Petitioner’s claims, (2) preserve and
protect Petitioner’s rights, and (3) raise the issue of
Petitioner was denied due process of law in violation of the
Fourteenth Amendment because the prosecution was
(Filing No. 6 at CM/ECF pp. 1-2.) For the reasons set forth below, Benish’s Petition
is dismissed with prejudice.
Benish’s Conviction and Direct Appeal
On June 1, 2007, a jury found Benish guilty of being an accessory to a felony.
(Filing No. 9-3, Attach. 3, at CM/ECF p. 106.) Thereafter, the court determined
Benish was a habitual criminal. (Filing No. 9-4, Attach. 4, at CM/ECF p. 4.) The
Nebraska Court of Appeals reported the lengthy factual and procedural background
underlying Benish’s conviction in State v. Benish, No. A-07-860 (Neb. Ct. App. Oct.
28, 2008), and the court will not repeat it here. (Opinion available at Filing No. 9-3,
Attach. 3, at CM/ECF pp. 1-11.) Benish timely appealed his conviction and sentence
to the Nebraska Court of Appeals, raising only one claim he now raises in his Petition.
The Nebraska Court of Appeals affirmed Benish’s conviction and sentence in a
detailed opinion. (Id.) Thereafter, Benish sought further relief from the Nebraska
Supreme Court in a petition for further review, which the Nebraska Supreme Court
denied. (Filing No. 9-7, Attach. 7, at CM/ECF p. 9.)
Benish’s Post-Conviction Motion and Appeal
Benish filed a pro se motion for post-conviction relief (“post-conviction
motion”) in the Douglas County District Court on December 21, 2009. (Filing No.
9-5, Attach. 5, at CM/ECF pp. 20-45.) Benish raised some of the claims he now raises
in his Petition in his post-conviction motion. The Douglas County District Court
denied Benish’s post-conviction motion on July 20, 2010. (Filing No. 9-6, Attach. 6,
at CM/ECF pp. 24-27.) Benish timely appealed the denial to the Nebraska Court of
Appeals, which also denied relief. (Filing No. 9-7, Attach. 7, at CM/ECF p. 12.)
Thereafter, Benish sought further relief from the Nebraska Supreme Court in a petition
for further review, which the Nebraska Supreme Court denied. (Id.)
Benish’s Petition for Writ of Habeas Corpus
On July 19, 2011, Benish timely filed his Petition in this court. (Filing No. 1.)
Thereafter, he filed a Brief in support of his Petition. (Filing No. 16.) In response to
Benish’s Petition, Respondent filed an Answer, a Brief, and State Court Records.
(Filing Nos. 9, 10, and 11.) In light of these filings, the court deems this matter fully
In order for the court to address the merits of any one of Benish’s claims, he
must have exhausted the remedies available to him in the Nebraska state courts. See
28 U.S.C. § 2254(b)(1). As set forth below, Benish failed to exhaust his claims in the
Nebraska state courts and, because the claims are now barred from presentation in the
Nebraska state courts, they are procedurally defaulted.
Requirement of Exhaustion
As set forth in 28 U.S.C. § 2254(b)(1):
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 unless it appears that–
the applicant has exhausted the remedies available in
the courts of the State; or
there is an absence of available State
corrective process; or
circumstances exist that render such process
ineffective to protect the rights of the
28 U.S.C. § 2254(b)(1).
The United States Supreme Court has explained the habeas exhaustion
requirement as follows:
Because the exhaustion doctrine is designed to give the state courts a full
and fair opportunity to resolve federal constitutional claims before those
claims are presented to the federal courts . . . state prisoners must give
the state courts one full opportunity to resolve any constitutional issues
by invoking one complete round of the State’s established appellate
O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). A state prisoner must therefore
fairly present the substance of each federal constitutional claim to the state courts
before seeking federal habeas relief. Id. at 844. In Nebraska, “one complete round”
ordinarily means that each § 2254 claim must have been presented in an appeal to the
Nebraska Court of Appeals, and then in a petition for further review to the Nebraska
Supreme Court if the Court of Appeals rules against the petitioner. See Akins v.
Kenney, 410 F.3d 451, 454-55 (8th Cir. 2005). Further, in order to fairly present a
federal constitutional claim to the state courts, the petitioner must “refer to a specific
federal constitutional right, a particular constitutional provision, a federal
constitutional case, or a state case raising a pertinent federal constitutional issue.
Presenting a claim that is merely similar to the federal habeas claim is not sufficient
to satisfy the fairly presented requirement.” Cox v. Burger, 398 F.3d 1025, 1031 (8th
Cir.), cert. denied, 546 U.S. 844 (2005) (internal quotation marks and citations
Moreover, where “no state court remedy is available for the unexhausted
claim—that is, if resort to the state courts would be futile—then the exhaustion
requirement in § 2254(b) is satisfied, but the failure to exhaust ‘provides an
independent and adequate state-law ground for the conviction and sentence, and thus
prevents federal habeas corpus review of the defaulted claim, unless the petitioner can
demonstrate cause and prejudice for the default.’” Armstrong v. Iowa, 418 F.3d 924,
926 (8th Cir. 2005) (quoting Gray v. Netherland, 518 U.S. 152, 162 (1996)). Stated
another way, if a claim has not been presented to the Nebraska appellate courts and
is now barred from presentation, the claim is procedurally defaulted, not unexhausted.
Akins, 410 F.3d at 456 n. 1.
Under Nebraska law, “[a]n appellate court will not entertain a successive
motion for postconviction relief unless the motion affirmatively shows on its face that
the basis relied upon for relief was not available at the time the movant filed the prior
motion.” State v. Ortiz, 670 N.W.2d 788, 792 (Neb. 2003). Additionally, “[a] motion
for postconviction relief cannot be used to secure review of issues which were or
could have been litigated on direct appeal.” Hall v. State, 646 N.W.2d 572, 579 (Neb.
2002). In such circumstances, where a Nebraska state court rejects a claim on state
procedural grounds, and issues a “‘plain statement’ that it is rejecting petitioner’s
federal claim on state procedural grounds,” a federal habeas court is precluded from
“reaching the merits of the claim.” Shaddy v. Clarke, 890 F.2d 1016, 1018 (8th Cir.
1989); see also Greer v. Minnesota, 493 F.3d 952, 957 (8th Cir. 2007) (reiterating that
“when a state court declined to address a prisoner’s federal claims because the
prisoner had failed to meet a state procedural requirement,” federal habeas is barred
because “[i]n such instances, the state prisoner forfeits his right to present his federal
claim through a federal habeas corpus petition”) (quotations omitted). However, the
state court procedural decision must “rest on independent and adequate state
procedural grounds.” Barnett v. Roper, 541 F.3d 804, 808 (8th Cir. 2008) (quotation
omitted). “A state procedural rule is adequate only if it is a firmly established and
regularly followed state practice.” Id. (quotation omitted).
In Claim One, Benish argues that his constitutional right to a speedy trial was
violated. Benish did not fairly present Claim One to the Nebraska state courts.
Benish raised Claim One in his brief to the Nebraska Court of Appeals on direct
appeal. (Filing No. 9-4, Attach. 4, at CM/ECF p. 35.) However, the Nebraska Court
of Appeals refused to consider the claim because it had already determined in a prior
order issued in the same case that Benish had waived the claim. (Filing No. 9-3,
Attach. 3, at CM/ECF p. 3.) In the prior order—issued on appeal from the trial court’s
denial of Benish’s motion to discharge—the Nebraska Court of Appeals held that:
Benish has waived any constitutional speedy trial claim. An
appellate court does not review questions concerning a defendant’s
constitutional right to a speedy trial when those questions are not raised
in both the trial court and the appellate court. State v. Karch[, 639
N.W.2d 118 (Neb. 2002)]. There is nothing in the record to indicate that
Benish raised the issue of his constitutional right to speedy trial to the
trial court. Benish made his second motion to discharge orally, and the
record shows that his argument in support of discharge was based solely
on his statutory right to speedy trial. The alleged violation of Benish’s
constitutional right to speedy trial was not addressed by counsel or the
trial court at the hearing on the second motion to discharge. Thus,
Benish did not preserve a constitutional claim, and we do not consider
any such claim.
(Filing No. 9-2, Attach. 2, at CM/ECF p. 9.) The Nebraska Supreme Court denied
Benish further review of the issue. (Filing No. 9-7, Attach. 7, at CM/ECF p. 9.)
The Nebraska Court of Appeals issued a plain statement that it was declining
to address Benish’s federal claim because he had failed to raise the issue of his
constitutional right to a speedy trial in the trial court. Benish failed to follow
applicable state procedural rules and therefore failed to fairly present Claim One in
the Nebraska state courts. He is now barred from raising the claim in a future post6
conviction motion because the issue was addressed on direct appeal. See Hall, 646
N.W.2d at 579. For these reasons, Claim One is procedurally defaulted.
Claims Two, Three, and Five
In Claims Two, Three, and Five, Benish raises several due process arguments
that he never raised in the Nebraska State Courts. These due process claims were not
assigned as error or argued in any of his briefs to the Nebraska Court of Appeals or
the Nebraska Supreme Court. As set forth above, a state prisoner must “fairly
present” the substance of each federal constitutional claim to the state courts before
seeking federal habeas relief. O’Sullivan, 526 U.S. at 844. Benish did not raise these
claims to the Nebraska State Courts and he is procedurally barred from raising them
in what would be a successive motion for post-conviction relief. See Ortiz, 670
N.W.2d at 792. Accordingly, Claims Two, Three, and Five are procedurally
In Claim Four, Benish argues that his appellate counsel was ineffective.
Because Benish’s trial and appellate counsel were different, Benish’s first opportunity
to raise Claim Four was in his post-conviction motion. While Benish arguably raised
parts of Claim Four in his post-conviction motion to the Douglas County District
Court (see Filing No. 9-5, Attach. 5, at CM/ECF pp. 22-29), it is clear that he did not
raise any part of Claim Four on appeal to the Nebraska Court of Appeals (see Filing
No. 9-6, Attach. 6, at CM/ECF pp. 51-73) or in his petition for further review to the
Nebraska Supreme Court (see id. at CM/ECF pp. 76-93). As set forth above, Benish
must have presented this claim in “one complete round” in the Nebraska state courts
in order to meet the requirements of 28 U.S.C. § 2254(b)(1). See O’Sullivan, 526 U.S.
at 845. He failed to do so. Moreover, Benish is procedurally barred from raising the
claim in a successive motion for post-conviction relief. See Hall, 646 N.W.2d at 579.
As such, Claim Four is procedurally defaulted.
Cause and Prejudice
To excuse a procedural default, a petitioner must demonstrate either cause for
the default and actual prejudice as a result of the alleged violation of federal law, or,
in rare cases, that failure to consider the claim will result in a fundamental miscarriage
of justice. Coleman v. Thompson, 501 U.S. 722, 750 (1991). Benish has not argued
that the court’s failure to consider his procedurally-defaulted claims will result in a
fundamental miscarriage of justice. Regardless, in order for Benish to invoke the
fundamental-miscarriage-of-justice exception, he would have to “present new
evidence that affirmatively demonstrates that he is innocent of the crime for which he
was convicted.” Abdi v. Hatch, 450 F.3d 334, 338 (8th Cir. 2006). Benish has not
done so. In addition, Benish has not argued cause for the default of his claims. As
such, Benish’s claims are dismissed because they are procedurally defaulted and
Benish has not shown cause to excuse the procedural default.
IT IS THEREFORE ORDERED that: Petitioner Benish’s Petition (filing no. 1)
is dismissed with prejudice. A separate judgment will be entered in accordance with
this Memorandum and Order.
DATED this 22nd day of February, 2012.
BY THE COURT:
s/ Joseph F. Bataillon
United States District Judge
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