United States District Court, D. Utah, Central Division
MEMORANDUM DECISION AND ORDER
ROBINSON UNITED STATES DISTRICT JUDGE
Julie A. Robinson 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
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.
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.
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.
Respondent has not waived its argument that
Pinholster bars evidentiary development.
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
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.
Honie's arguments misconstrue § 2254(d) and
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
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
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 ...