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Honie v. Benzon

United States District Court, D. Utah, Central Division

July 19, 2018

LARRY BENZON, Warden, Utah State Prison, Respondent.



         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 to amend.


         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.

         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).”)

         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 ...

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