Benjamin v. State of Nevada

Filing 27

ORDER that the Amended Petition for Writ of Habeas Corpus (ECF No. 17 ) is denied; Petitioner is denied a certificate of appealability; Clerk directed to enter judgment. Signed by Judge Miranda M. Du on 6/18/2018. (Copies have been distributed pursuant to the NEF - LH)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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ROBIN LEE BENJAMIN,

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Petitioner,

ORDER

v.

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Case No. 3:16-cv-00024-MMD-VPC

STATE OF NEVADA, et al.,

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Respondents.

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I.

INTRODUCTION

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This action is a pro se petition for a writ of habeas corpus by Robin Lee Benjamin,

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who, on March 11, 2011, after a jury trial, was convicted of the crime of exploitation of an

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older or vulnerable person. The action is before the Court with respect to the merits of the

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one remaining claim in Benjamin’s habeas petition. The Court will deny the petition.

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II.

BACKGROUND

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In its order, on Benjamin’s direct appeal, affirming Benjamin’s conviction, the

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Nevada Supreme Court described the crime, as revealed by the evidence at trial, as

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follows:

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In 1993, Kelly Six befriended the victim while they were living in a
mobile-home park. As time passed, the victim inherited a large sum of
money and purchased a home. In 2008, the victim was hospitalized for
dementia and Six obtained a power-of-attorney over her affairs. After
officials inspected the victim’s residence and deemed it uninhabitable, Six
decided to sell the residence. She sought out . . . Robin Lee Benjamin – a
real estate broker – to sell the distressed property. Six and Benjamin met
and discussed the methods and advantages of moving assets out of the
victim’s name. Benjamin agreed to buy the property, took title, and issued

notes payable to the victim. Benjamin then transferred the home to a nonprofit business which she owned – creating the appearance of an
unencumbered title. Benjamin also incorporated Wildlife Images for Six.
Several weeks later, Six wrote a $170,000 check to Benjamin from the
victim’s account. Benjamin endorsed the check and deposited it into Six’s
Wildlife Images account.

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(Order of Affirmance, Exhibit 89 at 1 (ECF No. 12-13 at 2).)

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On March 24, 2010, Benjamin was charged in an indictment, in Nevada's Second

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Judicial District Court, with the crime of exploitation of an older or vulnerable person. (See

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Indictment, Exhibit 4 (ECF No. 9-4).) Benjamin was arraigned on April 29, 2010, and she

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pled not guilty. (See Reporter's Transcript, April 29, 2010, Exhibit 14 (ECF No. 9-14).)

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Benjamin was tried before a jury in December of 2010. (See Trial Transcripts, Exhibits

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31, 32, 33, 34, 36, 38, 40, 43, 46, 55 (ECF Nos. 10-5, 10-6, 10-7, 10-8, 10-10, 10-12, 10-

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14, 10-17, 10-20, 11-4).) The jury rendered its verdict on December 16, 2010, finding

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Benjamin guilty. (See Verdict, Exhibit 57 (ECF No. 11-6).) Benjamin was sentenced on

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March 10, 2011. (See Transcript of Sentencing, Exhibit 63 (ECF No. 11-12).) She was

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sentenced to ten years in prison, with parole eligibility after two years. (See id. at 37 (ECF

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No. 11-12 at 38); Judgment of Conviction, Exhibit 64 (ECF No. 11-13).) Her sentence

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also includes payment of $675.00 in fees, and $181,864.00 in restitution, the restitution

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to be paid jointly and severally by Benjamin and her co-defendant. (See Judgment of

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Conviction, Exhibit 64 (ECF No. 11-13).)

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Benjamin appealed. (See Notice of Appeal, Exhibit 69 (ECF No. 11-18); Fast Track

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Statement, Exhibit 81 (ECF No. 12-5).) The Nevada Supreme Court affirmed the

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judgment of conviction on February 9, 2012. (See Order of Affirmance, Exhibit 89 (ECF

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No. 12-13).) The Nevada Supreme Court denied rehearing on July 31, 2012. (See Order

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Denying Rehearing, Exhibit 96 (ECF No. 12-20).)

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On May 20, 2013, Benjamin filed, in the state district court, a motion for

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modification of her sentence. (See Motion for Modification of Sentence, Exhibit 104 (ECF

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No. 13-3).) The state district court denied that motion on July 9, 2013. (See Order Denying

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Motion for Modification of Sentence, Exhibit 109 (ECF No. 13-8).)

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On August 16, 2013, Benjamin filed, in the state district court, a petition for writ of

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habeas corpus. (See Petition for Writ of Habeas Corpus, Exhibit 110 (ECF No. 13-9).)

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The state district court appointed counsel to represent Benjamin in that action. (See Order

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Granting Motion, Exhibit 116 (ECF No. 13-15); Recommendation and Order for

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Appointment of Counsel, Exhibit 117 (ECF No. 13-16).) With counsel, Benjamin elected

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not to supplement her petition. (See Notice to Court of No Supplement, Exhibit 119 (ECF

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No. 13-18).) The state district court held an evidentiary hearing on May 27, 2015. (See

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Transcript of Proceedings, May 27, 2015, Exhibit 133 (ECF No. 14-7).) On June 4, 2015,

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the state district court entered a written order, denying Benjamin's state habeas petition.

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(See Findings of Fact, Conclusions of Law and Judgment Denying Petition, Exhibit 135

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(ECF No. 14-9).) Benjamin appealed. (See Notice of Appeal, Exhibit 136 (ECF No. 14-

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10); Fast Track Statement, Exhibit 141 (ECF No. 14-15).) The Nevada Court of Appeals

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affirmed on November 19, 2015. (See Order of Affirmance, Exhibit 144 (ECF No. 14-18).)

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This Court received Benjamin's federal habeas petition, initiating this action, on

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January 21, 2016. (ECF No. 1.) Benjamin's petition asserted fourteen grounds for relief.

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Respondents filed a motion to dismiss on March 16, 2016. (ECF No. 8.) Benjamin
opposed that motion. (ECF No. 19.)

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In response to the motion to dismiss, Benjamin also filed an amended petition for

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writ of habeas corpus. (ECF No. 17.) The amended petition was identical to Benjamin’s

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original petition, with respect to the grounds for relief asserted; it only cured defects

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regarding the named respondents. Respondents moved to strike the amended petition.

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(ECF No. 18.)

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On October 3, 2016, the Court denied Respondents’ motion to strike Benjamin’s

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amended petition, and granted in part, and denied in part, the motion to dismiss. (ECF

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No. 21.) The Court dismissed the claims in Grounds 1-8 and 11, to the extent they were

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based on alleged violations of Benjamin’s rights under the Nevada Constitution. The

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Court found Benjamin's remaining claims in Grounds 1 and 3-14 to be unexhausted. With

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respect to those unexhausted claims, the Court required Benjamin to make an election:
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to either abandon those claims and proceed with this action with regard to her remaining

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claim, in Ground 2, or file a motion for a stay, requesting that this case be stayed while

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she exhausts her unexhausted claims in state court.

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On December 19, 2016, Benjamin filed a notice (ECF No. 23) stating her election

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to abandon her unexhausted claims and proceed with her exhausted claim. On December

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21, 2016, the Court accepted Benjamin’s abandonment of her unexhausted claims, and

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dismissed those claims. (ECF No. 24.)

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Respondents filed their answer, responding to Ground 2 of Benjamin’s amended

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petition, on March 21, 2017. (ECF No. 25.) Benjamin filed a reply on May 24, 2017. (ECF

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No. 26.)

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III.

DISCUSSION

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A.

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28 U.S.C. § 2254(d) sets forth the standard of review applicable in this case under

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Standard of Review

the Antiterrorism and Effective Death Penalty Act (“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).

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A state court decision is contrary to clearly established Supreme Court precedent,

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within the meaning of 28 U.S.C. § 2254, “if the state court applies a rule that contradicts

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the governing law set forth in [the Supreme Court’s] cases” or “if the state court confronts

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a set of facts that are materially indistinguishable from a decision of [the Supreme Court]

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and nevertheless arrives at a result different from [the Supreme Court’s] precedent.”

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Lockyer v. Andrade, 538 U.S. 63, 73 (2003) (quoting Williams v. Taylor, 529 U.S. 362,

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405-06 (2000), and citing Bell v. Cone, 535 U.S. 685, 694 (2002)).
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A state court decision is an unreasonable application of clearly established

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Supreme Court precedent, within the meaning of 28 U.S.C. § 2254(d), “if the state court

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identifies the correct governing legal principle from [the Supreme Court’s] decisions but

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unreasonably applies that principle to the facts of the prisoner’s case.” Lockyer, 538 U.S.

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at 75 (quoting Williams, 529 U.S. at 413). The “unreasonable application” clause requires

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the state court decision to be more than incorrect or erroneous; the state court’s

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application of clearly established law must be objectively unreasonable. Id. (quoting

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Williams, 529 U.S. at 409).

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The Supreme Court has instructed that “[a] state court’s determination that a claim

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lacks merit precludes federal habeas relief so long as ‘fairminded jurists could disagree’

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on the correctness of the state court’s decision.” Harrington v. Richter, 562 U.S. 86, 101

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(2011) (citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). The Supreme Court

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has stated “that even a strong case for relief does not mean the state court’s contrary

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conclusion was unreasonable.” Id. at 102 (citing Lockyer, 538 U.S. at 75); see also Cullen

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v. Pinholster, 563 U.S. 170, 181 (2011) (internal quotation marks and citations omitted)

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(describing standard as “a difficult to meet” and “highly deferential standard for evaluating

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state-court rulings, which demands that state-court decisions be given the benefit of the

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doubt”).

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B.

Ground 2

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In Ground 2 of her amended habeas petition, Benjamin claims that her

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constitutional rights were violated as a result of ineffective assistance of her trial counsel,

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because her trial counsel failed to ensure that she could adequately hear the trial

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proceedings. (Amended Petition for Writ of Habeas Corpus at 6-8 (ECF No. 17 at 6-8).

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Benjamin asserted this claim in her state habeas action. (See Petition for Writ of

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Habeas Corpus (Post Conviction), Exhibit 110 at 5-8 (ECF No. 13-9 at 6-9).) The state

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district court held an evidentiary hearing, at which this claim was the primary focus. (See

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Transcript of Proceedings, May 27, 2015, Exhibit 133 (ECF No. 14-7).) The state district

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court denied Benjamin’s petition (see Findings of Fact, Conclusions of Law and Judgment
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Denying Petition, Exhibit 135 (ECF No. 14-9)). The state district court’s order included the

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following findings:

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Turning to the primary claim, the court was aware during the trial that
petitioner had impaired hearing. Thus, she was provided with amplification
devices during the trial. The post-conviction hearing included an audiologist
who testified that long after the trial had ended the petitioner’s hearing aids
were examined. The doctor testified that one tube was occluded and the
other was split and so both would not have been effective. There are two
problems with that testimony. First, the examination was long after the trial
and second, the petitioner did not have to rely on her hearing aids as the
court provided amplification devices that entailed headphones.

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The court also finds that petitioner has not met her burden of proving
that she actually had problems hearing the testimony. Although she testified
to some vague problems, Carl Hylin [Benjamin’s trial counsel] testified to
the contrary that she was a very active participant in the trial and that their
discussions of the testimony revealed that she had indeed heard the
proceedings. The court finds that testimony was credible.

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One who would assert a claim of ineffective assistance of counsel
bears the burden of proving, by a preponderance of the evidence, that the
specific decisions or omissions of counsel fell below an objective standard
of reasonableness and that but for the failings of counsel a different result
was reasonably probable. Strickland v. Washington, 466 U.S. 668, 104
S.Ct. 2052 (1984); Means v. State, 120 Nev. 1001, 103 P.3d 25 (2004).
There is a presumption that counsel fully discharged his or [her] duties.
Means v. State, supra. The court finds that petitioner has failed to prove that
counsel had a duty to ask the court to suspend the proceedings and find a
different accommodation. The court also finds that petitioner did indeed
participate in the trial in a meaningful way.

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This court, and counsel, made reasonable accommodations and the
defendant was able to participate in the trial in a meaningful way. In fact,
the evidence does not persuade this court that Benjamin missed a single
word of the testimony. Benjamin’s claim to the contrary was both vague and
incredible. Accordingly, the court finds that petitioner has failed to show that
her hearing impairment or the claim of ineffective assistance [of] counsel
should lead to relief from her conviction.

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(Findings of Fact, Conclusions of Law and Judgment Denying Petition, Exhibit 135 at 2-

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3 (ECF No. 14-9 at 3-4).) Benjamin appealed from the denial of her state habeas petition,

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and raised this claim of ineffective assistance of trial counsel on appeal. (See Fast Track

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Statement, Exhibit 141 at 7-11 (ECF No. 14-15 at 8-12).) The Nevada Court of Appeals

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affirmed, ruling as follows:

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Appellant Robin Benjamin claims the district court erred by denying
her ineffective-assistance-of-counsel claim. Specifically, she claimed trial
counsel were ineffective for failing to ensure that she could hear during the
trial. To prove ineffective assistance of counsel, a petitioner must
demonstrate that counsel’s performance was deficient in that it fell below
an objective standard of reasonableness, and resulting prejudice such that
there is a reasonable probability that, but for counsel’s errors, the outcome
of the proceedings would have been different. Strickland v. Washington,
466 U.S. 668, 687-88 (1984); Warden v. Lyons, 100 Nev. 430, 432-33, 683
P.2d 504, 505 (1984) (adopting the test in Strickland). Both components of
the inquiry must be shown, Strickland, 466 U.S. at 697, and the petitioner
must demonstrate the underlying facts by a preponderance of the evidence,
Means v. State, 120 Nev. 1001, 1012, 103 P.3d 25, 33 (2004). We give
deference to the district court’s factual findings if supported by substantial
evidence and not clearly erroneous but review the court’s application of the
law to those facts de novo. Lader v. Warden, 121 Nev. 682, 686, 120 P.3d
1164, 166 (2005).
Benjamin fails to demonstrate trial counsel were deficient or resulting
prejudice. The district court held an evidentiary hearing on this issue.
Benjamin testified she could not hear well even with the amplification device
provided to her by the district court. Trial counsel testified Benjamin was a
very active participant in her defense, discussed the evidence presented
during trial, and appeared to understand the proceedings. The district court
found trial counsel to be credible, and we conclude substantial evidence
supports the decision of the district court.
Further, we conclude Benjamin fails to demonstrate prejudice
because she fails to demonstrate a reasonable probability of a different
outcome at trial had trial counsel done more to ensure she could hear the
proceedings. Benjamin fails to allege specific facts that, if true, would entitle
her to relief regarding how the outcome of the trial would have been different
had she been able to hear better. See Hargrove v. State, 100 Nev. 498,
502-03, 686 P.2d 222, 225 (1984). Therefore, the district court did not err in
denying this claim . . . .
(Order of Affirmance, Exhibit 144 at 1-2 (ECF No. 14-18 at 2-3).)

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In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court propounded

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a two prong test for claims of ineffective assistance of counsel: the petitioner must

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demonstrate (1) that the defense attorney’s representation “fell below an objective

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standard of reasonableness,” and (2) that the attorney’s deficient performance prejudiced

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the defendant such that “there is a reasonable probability that, but for counsel’s

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unprofessional errors, the result of the proceeding would have been different.” Strickland,

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466 U.S. at 688, 694. A court considering a claim of ineffective assistance of counsel

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must apply a “strong presumption” that counsel’s representation was within the “wide

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range” of reasonable professional assistance. Id. at 689. The petitioner’s burden is to
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show “that counsel made errors so serious that counsel was not functioning as the

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‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. at 687. To establish

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prejudice under Strickland, it is not enough for the habeas petitioner “to show that the

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errors had some conceivable effect on the outcome of the proceeding.” Id. at 693.

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Where a state court has adjudicated a claim of ineffective assistance of counsel

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under Strickland, establishing that the decision was unreasonable under the AEDPA is

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especially difficult. See Harrington, 562 U.S. at 104-05. In Harrington, the Supreme Court

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instructed:

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The standards created by Strickland and § 2254(d) are both highly
deferential, [Strickland, 466 U.S. at 689]; Lindh v. Murphy, 521 U.S. 320,
333, n.7, 117 S. Ct. 2059, 138 L. Ed. 2d 481 (1997), and when the two apply
in tandem, review is “doubly” so, [Knowles v. Mirzayance, 556 U.S. 111,
123 (2009)]. The Strickland standard is a general one, so the range of
reasonable applications is substantial. 556 U.S. at 123, 129 S. Ct. at 1420.
Federal habeas courts must guard against the danger of equating
unreasonableness under Strickland with unreasonableness under §
2254(d). When § 2254(d) applies, the question is not whether counsel’s
actions were reasonable. The question is whether there is any reasonable
argument that counsel satisfied Strickland’s deferential standard.

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Harrington, 562 U.S. at 105; see also Cheney v. Washington, 614 F.3d 987, 994-95 (9th

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Cir. 2010) (acknowledging double deference required for state court adjudications of

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Strickland claims).

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The Nevada courts’ resolution of this claim was reasonable. The evidence at the

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evidentiary hearing in state court indicated that Benjamin did have hearing loss, and wore

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hearing aids, and that her hearing aids may not have been working properly at her trial.

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(See Transcript of Proceedings, May 27, 2015, Exhibit 133 at 4-42 (ECF No. 14-7 at 5-

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43).) However, in her testimony at the evidentiary hearing, while she contended,

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generally, that her hearing impairment rendered her unable to participate fully in her trial,

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Benjamin did not articulate any specific manner in which her hearing impairment

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undermined her defense; that is, she did not specify any particular manner in which her

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hearing impairment may have affected the outcome of the trial. (See id. at 25-41 (ECF

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No. 14-7 at 26-42).) And, Benjamin’s trial counsel testified as follows at the evidentiary

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hearing:
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Q.

Did your client, Ms. Benjamin – did she participate in the trial?

A.

Yes, she was very active.

Q.

Did you have conversations?

A.

Often.

Q.

Were they cogent?

A.

Yes.

Q.

Did she appear to understand what was happening?

A.

Appeared to me she did.

Q.

Okay. Were her comments and were her questions relevant?

A.

Well, quite relevant. She would even write out questions.

Q.

Did she tell [you from] time to time she was having trouble hearing?

A.

There were conversations that she would occasionally have trouble
hearing. But, you know, I don’t remember any specific times or things
that she said that had to be repeated in court.

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But I do remember the issue came up several times.

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Q.

Okay. You are aware that a criminal defendant has a right to be able
to assist in her own defense?

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A.

Absolutely.

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Q.

Was Robin Benjamin able to do that?

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A.

Yes, she was. She was very active.

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Q.

And understand the nature of the charges?

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A.

Clearly understood the nature of the charges.

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Q.

Did she appear to understand the evidence against her?

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A.

She understood all of the evidence. As a matter of fact, she was
instrumental in developing the theory of the case with me.

Q.

What was that theory of the case?

A.

Well, the theory of the case was that she, essentially, was only trying
to help [the victim] because [the victim], in her infirmity, had rendered
her own . . . home uninhabitable.

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And Robin Benjamin was attempting to assist her in rehabilitating the
home so she could sell it.

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Q.

Okay. If you had seen signs that your client was not able to
meaningfully participate because of her hearing problems, what
would you have done about it?

A.

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Well, I would have asked the judge to suspend the proceedings until
we could get, you know, the defect fixed.

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But I – you know, although the issue came up, it was not a permanent
or even an overriding issue in our relationship. I sat next to her for
the entire trial, which I think was nearly two weeks long, and I
communicated with her effectively both in an outside of court.

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She would go to lunch with myself and Mr. Sullivan, and, you know,
I had ordinary conversations.

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Q.

She was able to discuss the evidence that had been presented
earlier that day?

A.

Absolutely.

Q.

As though she had heard it?

A.

Yes.

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(Id. at 43-45 (ECF No. 14-7 at 44-46); see also id. at 45-50 (similar testimony on cross

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and re-direct examination).)

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In light of the evidence at the evidentiary hearing, the Nevada Court of Appeals

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reasonably affirmed the denial of Benjamin’s claim that her trial counsel was ineffective

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for failing to ensure that she could adequately hear the trial proceedings. There is no

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showing by Benjamin that her trial counsel acted unreasonably with respect to her hearing

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impairment, and there is no showing that, had her trial counsel done anything different in

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that regard, there would have been a reasonable probability of a different outcome at trial.

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The Nevada Court of Appeal's ruling was not contrary to, or an unreasonable application

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of, Strickland or any other United States Supreme Court precedent, and was not based

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on an unreasonable determination of the facts in light of the evidence.
Accordingly, the Court will deny Benjamin’s petition for a writ of habeas corpus.

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IV.

CERTIFICATE OF APPEALABILITY
The standard for issuance of a certificate of appealability is governed by 28 U.S.C.

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§ 2253(c). The Supreme Court has interpreted section 2253(c) as follows:

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Where a district court has rejected the constitutional claims on the merits,
the showing required to satisfy § 2253(c) is straightforward: The petitioner
must demonstrate that reasonable jurists would find the district court’s
assessment of the constitutional claims debatable or wrong.

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Slack v. McDaniel, 529 U.S. 473, 484 (2000); see also James v. Giles, 221 F.3d 1074,

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1077-79 (9th Cir. 2000). Applying this standard, the Court finds that a certificate of

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appealability is unwarranted.

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V.

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CONCLUSION
It is therefore ordered that the Amended Petition for Writ of Habeas Corpus (ECF

No. 17) is denied.
It is further ordered that Petitioner is denied a certificate of appealability.

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It is further ordered that the Clerk of the Court is to enter judgment accordingly.

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DATED THIS 18th day of June 2018.

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MIRANDA M. DU,
UNITED STATES DISTRICT JUDGE

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