Honie v. Crowther
Filing
133
MEMORANDUM DECISION AND ORDER-granting 124 Motion to Amend/Correct Case Management Schedule and amends the case management schedule by eliminating items 14-22. ECF No. 54 at 3-5. The court will now proceed to consider and rule on t he petition. If the court finds that Honie has satisfied 2254(d) as to any of his claims, the parties will be permitted to file additional motions for discovery, expansion of the record, and an evidentiary hearing. See Order for additional details. Signed by Judge Julie A. Robinson on 7/19/18. (jmr)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH,CENTRAL DIVISION
TABERON DAVE HONIE,
Petitioner,
MEMORANDUM DECISION
AND ORDER
v.
Case No. 2:07-CV-628 JAR
LARRY BENZON, Warden, Utah State
Prison,
Judge Julie A. Robinson
Respondent.
Respondent, Larry Benzon, has moved the court to amend the current case management
schedule (ECF No. 54, 55) by eliminating the time for motions for discovery, expansion of the
record, and an evidentiary hearing. Respondent argues that the briefing on Honie’s federal
habeas petition is complete, and the only remaining claims for this court to address are
exhausted. Because the Supreme Court in Cullen v. Pinholster, 563 U.S. 170, 181-85 (2011),
held that review of exhausted claims must be limited to the state court record, Respondent argues
that Honie is barred from developing new evidence in this court. Mr. Honie, on the other hand,
argues that the case management schedule should not be amended because Respondent waived
the chance to do so by stipulating to the case management order in 2015. Honie also asserts that
he is entitled to develop further evidence in support of his claims for the following reasons: (1)
Pinholster does not prevent the development of evidence in federal court in support of habeas
claims in all circumstances, (2) the state post-conviction court refused to provide him with
funding to pursue his ineffective assistance claim, and (3) this court may consider the prejudice
element of his ineffective assistance claim de novo. For the following reasons, the court grants
Respondent’s motion to amend.
I.
PROCEDURAL BACKGROUND
In 2015, Honie filed a petition for federal habeas relief, raising 14 claims for relief. ECF
No. 47. Concurrent with the petition, he filed a motion to expand the record with 32 exhibits not
considered by the State court. ECF No. 48. The parties then stipulated to a case management
schedule. ECF No. 54, 55. Respondent opposed Honie’s petition and his record-expansion
motion. ECF No. 70, 72. Honie later filed a second motion to expand the record with 7
additional exhibits, which Respondent opposed. ECF No. 75, 87. After briefing on the petition
and expansion motions concluded, this court denied without prejudice the record-expansion
motions. ECF No. 105. The court also ruled on the procedural status of the claims in Honie’s
petition, finding that claims 1, 2, 3, 4, 5, 6, 7, and 12 were exhausted in State court, and claims 8,
9, 10, 11, and 13 were not exhausted. ECF No. 103 at 1-2.
Honie then moved for a stay and abeyance under Rhines v. Weber, 544 U.S. 269 (2005),
so that he could return to State court to exhaust claims 8, 9, and 11. ECF No. 107. The court
denied the Rhines motion, concluding that claims 8, 9, and 11 were not potentially meritorious.
ECF No. 120 at 1, 10-16. Honie then filed an amended petition, formally withdrawing claims 8,
9, 10, 11, 13 and 14. ECF No. 121. Respondent filed a response to additional arguments raised
in the amended petition. ECF No. 122. Honie replied. ECF No. 123.
Under the current case-management schedule, Honie has over a year from the filing of
his reply to file a motion for discovery and any additional motions for expansion of the record.
ECF No. 54 at 3. Respondent argues that the items remaining on the case management schedule
after Honie’s most recent reply are unnecessary and will only delay judgment on the petition for
delay’s sake.
2
II.
ANALYSIS
A. Respondent has not waived its argument that Pinholster bars evidentiary
development.
Honie notes that even though Pinholster was decided in 2011, long before Respondent
stipulated to the case management order in 2015, Respondent is only now objecting to any kind
of record expansion and discovery based on Pinholster. Honie argues that Respondent should
have raised his objections in 2015, instead of agreeing to evidentiary development in the case
management schedule. Because Respondent did not do so, Honie asserts that Respondent has
waived any argument that Pinholster bars evidentiary development in this case. The court
disagrees.
When Respondent stipulated to the case management order, Honie’s petition still
contained unexhausted claims that were not subject to the relitigation bar. There remained the
possibility that he could obtain a Rhines stay or pursue evidentiary development in support of a
cause and prejudice argument on the unexhausted and procedurally defaulted claims. However,
in 2017 the court denied Honie’s request for a Rhines stay (ECF No. 120), and shortly thereafter
Honie withdrew all of his unexhausted claims (ECF No. 121). The petition now contains only
exhausted claims that this court determined were adjudicated on the merits in state court, so now
is an appropriate time for Respondent to present its Pinholster argument.
B. Honie’s arguments misconstrue § 2254(d) and Pinholster
This court has ruled that all of the claims now before it “were denied on the merits by the
Utah Supreme Court.” ECF No. 103 at 1. Claims adjudicated on the merits in State court are
subject to the relitigation bar imposed by § 2254(d). See Harrington v. Richter, 562 U.S. 86, 98
(2011) (“By its terms § 2254(d) bars relitigation of any claim ‘adjudicated on the merits’ in state
court, subject only to the exceptions in §§ 2254(d)(1) and (2).”)
3
Section 2254(d) “stops short of imposing a complete bar on federal court relitigation of
claims already rejected in state proceedings.” Richter, 562 U.S. at 102. This is because of the
“familiar” principle that federal habeas review of State convictions “frustrates both the States’
sovereign power to punish offenders and their good-faith attempts to honor constitutional rights.”
Id. at 103 (quotation and citation omitted). Federal habeas review “disturbs the State’s significant
interest in repose of concluded litigation, denies society the right to punish some admitted
offenders, and intrudes on state sovereignty to a degree matched by few exercises of federal
judicial authority.” Id. (quotation and citation omitted).
Out of deference to State courts’ decisions and consistent with the above policies,
Congress and the Supreme Court have limited federal habeas review of 2254(d) claims to the
record that was before the State court. According to the Supreme Court in Pinholster, “review
under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the
claim on the merits.” 563 U.S. 170, 181 (2011). Any evidence not before those courts is
inadmissible in this habeas proceeding. See Ryan v. Gonzales, 133 S.Ct. 696, 708 (2013). This
rule also applies to requests for discovery and record expansion. Linzy v. Faulk, 602 Fed.Appx.
701, 704 n. 7(10th Cir. 2015) (unpublished) (rejected certificate of appealability to challenge
denial of motion to expand the record; to the extent it “sought to place new evidence before the
federal court that was not part of the state court record,” it was “properly denied under Cullen v.
Pinholster”); see also Champ v. Zavaras, 431 Fed.Appx. 641, 655 (10th Cir. 2011) (unpublished)
(“Although Cullen dealt with new evidence that the district court admitted in the context of an
evidentiary hearing, this newly articulated rule applies with equal force to any expansion of the
record under Habeas Rule 7”). Because these procedures are designed to get extra-record
evidence before the federal habeas court, they are subject to Pinholster’s bar.
4
Honie argues that because the Court in Pinholster did not address federal litigation under
§ 2254(d)(2), or fact development under § 2254(e), he may still be entitled to factual
development in federal court. However, the plain language of § 2254(d)(2) refutes Honie’s
contention that extra-record evidence can be considered against the state court’s factual
determinations. That section expressly states that review of the state court’s factual
determinations must be viewed “in light of the evidence in the State court proceeding.” As a
result courts have held that Pinholster’s “logic applies even more clearly to § 2254(d)(2), which
contains an explicit textual restriction to evaluate the state court ruling only ‘in light of the
evidence in the State court proceeding.’” Landers v. Warden, Atty. Gen. of Ala., 776 F.3d 1288,
1295 (11th Cir. 2015) (observing that “every circuit court to consider this issue has held that the
Pinholster restriction applies to § 2254(d)(2) claims, as well).
Honie also argues that the Court in Pinholster did not determine when and under what
circumstances a federal habeas court may conduct an evidentiary hearing under § 2254(e). The
Court explained that its holding did not render § 2254(e) superfluous and that “§ 2254(e)(2)
continues to have force where § 2254(d)(1) does not bar federal habeas relief.” 563 U.S. at 185.
The Tenth Circuit, however, has expressly stated that, under Pinholster, “even if a federal-court
evidentiary hearing is not barred by § 2254(e)(2), the evidence so obtained is inadmissible in
reviewing a claim adjudicated on the merits in state court.” Black v. Workman, 682 F.3d 880,
895 (10th Cir. 2012). Under that holding, any evidence developed by Honie in an evidentiary
hearing or record expansion would be inadmissible for purposes of 2254(d) review. This makes
further briefing on these matters—as contemplated by the current schedule—pointless.
5
C. Honie is not entitled to factual development in federal court simply because the
state post-conviction court refused to provide him with funding.
Honie argues that he is entitled to factual development in federal court because the state
post-conviction court refused to provide him with funding to pursue his claim of ineffective
assistance of counsel for failure adequately to investigate mitigating evidence. However,
Pinholster does not limit its record restriction to claims developed with funding. Instead, it says
that “[i]f a claim has been adjudicated on the merits by a state court, a federal habeas petitioner
must overcome the limitation of § 2254(d)(1) on the record that was before that state court.”
Pinholster, 563 U.S. at 185.
The Tenth Circuit held that the deferential review standard in 2254(d)(1) applies even
when the state does not provide funds to develop the factual record in state post-conviction
review. Gardner v. Galetka, 568 F.3d 862, 878 (10th Cir. 2009). Also, the post-conviction court
denied Honie funding to develop further mitigation evidence because, even with more
mitigation, he could not establish as a matter of law that trial counsel’s mitigation case was
deficient. Honie v. State, 342 P.3d 182, 202-03 (Utah 2014).
D. This court may not consider the prejudice element of Honie’s ineffective
assistance claim de novo with extra-record evidence.
Honie argues that because the Utah Supreme Court denied his ineffective assistance of
counsel claim on the ground of deficient performance and did not address prejudice, this court
may consider evidence not in the state court record because it considers prejudice de novo.
Under Strickland v. Washington, however, Honie was required to prove both deficient
performance and prejudice in order to establish ineffective assistance of counsel. 466 U.S. 668,
697 (1984). Because he had to prove both, the state post-conviction and supreme courts were
permitted to dispose of the claim on lack of deficient performance alone. Honie’s failure to
6
prove that trial counsel’s mitigation case was deficient obviated the need for further funding on
the prejudice element and ended the inquiry in state court. Honie is now limited to the state
court record in proving whether the state court’s decision violated § 2254(d). See Harrington v.
Richter, 562 U.S. 86, 98 (2011) (requiring presumption that state court adjudicated both elements
of Strickland “whether or not the state court reveals which of the elements in a multipart claim it
found insufficient, for § 2254(d) applies when a ‘claim,’ not a component of one, has been
adjudicated”).
The court notes that if, based on the state court record, Honie is able to satisfy either
subsection 2254(d)(1) or 2254(d)(2) he may potentially be entitled to evidentiary development.
See Pinholster, 563 U.S. at 205 (Breyer, J., concurring in part and dissenting in part) (explaining
that evidentiary development under section 2254(e) may be appropriate only after satisfying
2254(d)); Brian Means, Federal habeas Manual § 3:64 (2017). But to do this, he must show,
based on the state court record, that the state court’s ruling was either: (1) contrary to, or
involved an unreasonable application of, clearly established Federal law, or (2) based on an
unreasonable determination of the facts in light of the evidence presented in the state court. If
Honie fails to meet one of these requirements on his exhausted state claims, his petition must be
denied. Only if he satisfies one of the two subsections will he potentially be entitled to
evidentiary development. This court must first make a 2254(d) determination before deciding
whether to allow him to proceed with evidentiary development. A ruling that Honie has failed to
overcome § 2254(d)’s limitations would entirely eliminate the possibility of further evidentiary
development.
7
III.
CONCLUSION
For the above reasons, the court hereby GRANTS Respondent’s Motion to Amend Case
Management Schedule (ECF No. 124) and amends the case management schedule by eliminating
items 14-22. ECF No. 54 at 3-5. The court will now proceed to consider and rule on the petition.
If the court finds that Honie has satisfied § 2254(d) as to any of his claims, the parties will be
permitted to file additional motions for discovery, expansion of the record, and an evidentiary
hearing.
SO ORDERED this 19th day of July, 2018.
BY THE COURT:
s/ Julie A. Robinson
Judge Julie Robinson
United States District Judge
8
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?