Benjamin v. Meyer

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit

TENTH CIRCUIT June 17, 2014

Elisabeth A. Shumaker
Clerk of Court

LEAH BENJAMIN,

Petitioner - Appellant,

v. No. 14-8010
(D.C. No. 2:13-CV-00114-SWS)
PHIL MEYER, Warden, Wyoming (D. Wyo.)
Department of Corrections Women's
Center; ROBERT LAMPERT, Director,
Wyoming Department of Corrections;
PETER K. MICHAEL, Wyoming
Attorney General,

Respondents - Appellees.

ORDER DENYING CERTIFICATE OF APPEALABILITY*

Before HARTZ, McKAY, and MATHESON, Circuit Judges.

Leah Benjamin was convicted of second degree murder in Wyoming state court

for killing her abusive husband, Donald Benjamin. She seeks a certificate of

appealability (“COA”) to appeal the district court’s order denying her petition for a writ

of habeas corpus under 28 U.S.C. § 2254. See 28 U.S.C. § 2253(c)(1) (requiring a COA

*This order is not binding precedent, except under the doctrines of law of the case,
res judicata, and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
to appeal the denial of a habeas petition). Exercising jurisdiction under 28 U.S.C. § 1291,

we deny a COA and dismiss this matter.

I. BACKGROUND

A. Factual Background

Mr. and Ms. Benjamin married in 1999. They separated in 2005 and later

attempted to reconcile, but Mr. Benjamin filed for divorce in February 2009. On May 3,

2009, Ms. Benjamin shot and killed Mr. Benjamin at her home in Buffalo, Wyoming.

She had called and texted him throughout the day to tell him their daughter was waiting

to spend time with him, even though the daughter was not at home. When Mr. Benjamin

called to say he was on his way, Ms. Benjamin told him not to come because their

daughter did not want to see him. Mr. Benjamin came anyway. After they argued for

about an hour, Ms. Benjamin shot her husband. Her 18-year-old son found her with Mr.

Benjamin’s body. She convinced him to leave town with his sister. Ms. Benjamin

cleaned up the scene, attended a movie, and eventually turned herself in to the police

early the next morning—16 hours after the shooting.

B. Procedural Background

1. State Court Trial

Wyoming charged Ms. Benjamin with first-degree murder. During jury selection,

a potential juror, Karen Blaney, acknowledged she was married to Dr. Timothy Blaney, a

prosecution expert witness, and she had taught Mr. Benjamin’s daughter in school. When

asked whether she could be impartial if her husband testified, she said she often disagrees

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with her husband and is an independent thinker. Neither the Government nor Ms.

Benjamin objected to Ms. Blaney’s serving on the jury. At the end of jury selection, the

trial court asked counsel about Ms. Blaney’s relationship to Dr. Blaney. Ms. Benjamin’s

counsel confirmed his decision to not object, explaining he “kind of like[d] her.” Appx.

at 195.1 Ms. Blaney was empaneled on the jury.

At trial, Ms. Benjamin testified she shot her husband in self-defense. She stated

he slammed her into a shower door, shattering the glass. She ran out of the bathroom and

grabbed a gun. She remembered shooting him once when he lunged for the gun. The

defense’s expert witness testified Ms. Benjamin suffered from post-traumatic stress

disorder, particularly battered woman syndrome (“BWS”). Dr. Blaney did not testify.

Several witnesses testified about Mr. and Ms. Benjamin’s abusive relationship.

Forensic evidence disputed Ms. Benjamin’s account of the events. A bullet had

shattered the shower door, Mr. Benjamin had no gun powder on his hands consistent with

reaching for the gun, and he sustained three gunshot wounds.

During a jury instruction conference near the end of trial, Ms. Benjamin’s counsel

asked the court to remove Ms. Blaney from the jury for bias. Although Dr. Blaney had

not testified, he had communicated with the prosecution in open court during trial and

had appeared to be helping them. According to Ms. Benjamin’s counsel, during the

Government’s cross-examination of the defense’s BWS expert, Dr. Blaney “rushed up to

1
This conversation was off the record and not transcribed, but the trial court
recounted it when Ms. Benjamin later asked the trial court to remove Ms. Blaney from
the jury. See Appx. at 194.

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the prosecutor’s table” in a way that “would have given the jury the impression that he

had a passionate view opposite of what was being said . . . .” Appx. at 194. Ms.

Benjamin argued Ms. Blaney’s spousal relationship with Dr. Blaney made her biased.

The trial court determined Ms. Benjamin had waived this objection when she did not

object to Ms. Blaney during jury selection and her counsel had said he “kind of like[d]

her.” Appx. at 194-95. The district court did not hold a hearing, and Ms. Blaney

remained on the jury.

After the eight-day trial, the jury acquitted Ms. Benjamin of first-degree murder

but found her guilty of second-degree murder (a lesser-included offense) for killing her

husband. The court sentenced her to 20-30 years in prison.

2. State Court Direct Appeal

In her appeal to the Wyoming Supreme Court, Ms. Benjamin argued the trial court

erred in (1) refusing to dismiss Ms. Blaney; (2) rejecting Ms. Benjamin’s proposed jury

instructions; and (3) denying Ms. Benjamin’s post-trial motion for acquittal. She also

argued (4) the State engaged in prosecutorial misconduct.2 The Wyoming Supreme

Court affirmed her conviction. See Benjamin v. State, 264 P.3d 1 (Wyo. 2011).

3. State Court Post-Conviction Proceedings

Ms. Benjamin petitioned for post-conviction relief in the state district court. She

argued (1) prosecutorial misconduct, (2) ineffective assistance of trial counsel, and

2
She did not argue ineffective assistance on direct appeal, as Wyoming state law
generally requires. See Schreibvogel v. State, 269 P.3d 1098, 1102 (Wyo. 2012).

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(3) ineffective assistance of appellate counsel in failing to bring an ineffective of trial

counsel claim on direct appeal. The state district court denied relief, and the Wyoming

Supreme Court summarily affirmed.

4. Federal Habeas Proceedings

Ms. Benjamin then filed a federal habeas petition with the United States District

Court for the District of Wyoming under 28 U.S.C. § 2254. She argued the Wyoming

decisions were contrary to or unreasonable applications of clearly established U.S.

Supreme Court law on the following issues: (1) the trial court’s failure to remove Juror

Blaney; (2) prosecutorial misconduct; and (3) ineffective assistance of appellate counsel

for failing to raise on direct appeal that trial counsel was ineffective for (a) not objecting

to Juror Blaney and (b) deficiently presenting Ms. Benjamin’s BWS defense.3 The

district court denied habeas relief and a COA.

****

We present additional procedural history in our discussion of the two issues for

which Ms. Benjamin seeks COA.

II. DISCUSSION

Ms. Benjamin seeks a COA and relief on the merits on the following Sixth

Amendment issues: (A) the trial court erred in refusing to remove Juror Blaney and in

3
Although Ms. Benjamin presented her claims in her habeas petition as ineffective
assistance of trial counsel claims, she acknowledged and argued in the petition that these
claims are not procedurally barred because appellate counsel was ineffective. Appx. at
77-79.

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declining to hold a hearing regarding her bias; and (B) trial counsel rendered ineffective

assistance in (1) not striking Juror Blaney and (2) inadequately presenting Ms.

Benjamin’s BWS defense.

A COA is a jurisdictional prerequisite to appeal a district court’s denial of a

§ 2254 habeas petition. See Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003). When a

state court has decided the petitioner’s claim on the merits, we “look to the District

Court’s application of [the Antiterrorism and Effective Death Penalty Act of 1996

(“AEDPA”)] to petitioner’s constitutional claims and ask whether that resolution was

debatable among jurists of reason.” Miller–El, 537 U.S. at 366. AEDPA provides that

federal courts cannot grant habeas relief unless the state court’s decision “was contrary

to, or involved an unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States,” 28 U.S.C. § 2254(d)(1), or “was

based on an unreasonable determination of the facts in light of the evidence presented in

the State court proceeding,” id. § 2254(d)(2). “[S]tate-court findings of fact are to be

accorded the presumption of correctness.” See Wainwright v. Witt, 469 U.S. 412, 428

(1985). This presumption may be rebutted only “by clear and convincing evidence.” 28

U.S.C. § 2254(e)(1).

A. Juror Blaney

Ms. Benjamin argues the trial court’s refusal to remove Juror Blaney was contrary

to or an unreasonable application of federal law.

1. Additional Procedural History

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 After completion of the prosecution’s and defendant’s cases, Ms. Benjamin moved

to remove Ms. Blaney from the jury. The trial court refused because Ms. Benjamin had

waived her right to object during jury selection. The trial court reminded counsel that it

raised the issue at the end of jury selection, and Ms. Benjamin’s counsel stated he “kind

of like[d] her.” Appx. at 194. The trial court mentioned it would “probably have

granted” a motion to strike for cause during jury selection if anyone had objected. Id. at

195. The court “would have been more concerned had [D]r. Blaney actually testified,”

but determined there “is not a statutory or defined issue for cause [because Ms. Blaney]

specifically articulated [Dr. Blaney’s testifying] would not be a problem for her.” Id. at

194-95. Ms. Benjamin’s counsel did not request a hearing to determine whether Ms.

Blaney had actual bias.

On direct appeal, the Wyoming Supreme Court affirmed, agreeing that Ms.

Benjamin waived her right to object to Ms. Blaney’s service on the jury. As to whether

changed circumstances—Dr. Blaney’s not testifying but instead “react[ing] visibly during

the cross examination” of the defense’s expert witness—were enough to overcome Ms.

Benjamin’s waiver, the court held the trial court reasonably concluded the circumstances

had not materially changed because “Dr. Blaney’s actions during trial had less negative

impact than if he had testified to his disagreement with the defense expert . . . .”

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Benjamin, 264 P.3d at 10. The trial court therefore did not abuse its discretion in denying

Ms. Benjamin’s request to remove Ms. Blaney from the jury.4

In her federal habeas petition, Ms. Benjamin argued Ms. Blaney’s presence on the

jury violated her Sixth Amendment right to an impartial jury. She contended (1) Ms.

Blaney was impliedly biased because of her relationship with Dr. Blaney, and (2) the trial

court failed sua sponte to grant a hearing on actual bias. The federal district court

determined Ms. Benjamin failed to show the Wyoming Supreme Court’s decision on this

issue violated clearly established federal law or was based on an unreasonable

determination of fact.

2. Analysis

We deny COA because reasonable jurists would not debate the district court’s

application of AEDPA in this case.

First, Ms. Benjamin cites no clearly established Supreme Court law contrary to the

Wyoming Supreme Court’s conclusion that she waived any implicit bias objection. Nor

does she cite any clearly established Supreme Court law that Ms. Blaney was implicitly

biased.

Second, Ms. Benjamin again cites no clearly established law supporting her

position that the trial “court had an independent duty to take corrective action to preserve

Ms. Benjamin’s rights to due process and a fair trial” by sua sponte holding a hearing on

4
Ms. Benjamin did not raise this issue on state post-conviction review.

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Ms. Blaney’s actual bias. Aplt. Br. at 27-28.5 Instead, Ms. Benjamin relies on cases that

concerned previously undisclosed juror information regarding potential relationship bias.

See Smith v. Phillips, 455 U.S. 209, 215 (1982) (holding a hearing was warranted when

information came to light that a juror applied for a job with the prosecutor’s office after

the defendant had been convicted); Remmer v. United States, 347 U.S. 227, 229 (1954)

(holding that information of possible juror bribery coming to light after the jury returned

its verdict warranted a hearing). In Ms. Benjamin’s case, however, Ms. Blaney’s spousal

relationship with Dr. Blaney was disclosed early in the jury selection process.

Third, Ms. Benjamin argues Ms. Blaney’s answers to questions about actual bias

could have changed because Dr. Blaney’s role as a potential prosecution testifying expert

changed to his actual service as a non-testifying in-court expert consultant. The trial

court determined the circumstances had not changed enough to affect Ms. Blaney’s

impartiality. The Wyoming Supreme Court agreed. “[S]tate-court findings of fact are to

be accorded the presumption of correctness.” Wainwright, 469 U.S. at 428; see Patton v.

Yount, 467 U.S. 1025, 1038 (1984) (holding that a trial judge’s finding that a particular

venire member was not biased and therefore was properly seated was a finding of fact

subject to a presumption of correctness). Ms. Benjamin has failed to rebut this factual

5
She also argues the Wyoming Supreme Court did not address this issue. To the
extent she contends her claim was not adjudicated on the merits, her argument fails.
Although the Wyoming Supreme Court did not explicitly address whether the trial court
should have sua sponte held a hearing on actual bias, “[w]hen a state court rejects a
federal claim without expressly addressing that claim, a federal habeas court must
presume that the federal claim was adjudicated on the merits . . . .” Johnson v. Williams,
133 S. Ct. 1088, 1096 (2013), reh’g denied, 133 S. Ct. 1858 (2013).

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determination’s “presumption of correctness by clear and convincing evidence.” 28

U.S.C. § 2254(e)(1).

Fourth, even if Ms. Benjamin had set forth clearly established Supreme Court law

regarding a right to an impartial jury, she has not shown how the Wyoming Supreme

Court’s decision was an unreasonable application of the law.

B. Ineffective Assistance of Trial Counsel

Ms. Benjamin argues her trial counsel was ineffective for failing to object to Juror

Blaney and for deficiently presenting a BWS defense. Ms. Benjamin did not raise this

issue on direct appeal. See Benjamin, 264 P.3d at 4-5. Wyoming law requires defendants

to bring ineffective assistance of trial counsel claims on direct appeal. See Wyo. Stat.

Ann § 7-14-103(a)(i); Harlow v. State, 105 P.3d 1049, 1068 (Wyo. 2005).6 On post-

conviction review, a petitioner can show appellate counsel was ineffective in failing to

raise a claim of ineffective assistance of trial counsel. See Wyo. Stat. Ann § 7-14-

103(b)(ii). Such a claim functions as a “portal” for review of an otherwise-barred claim

of ineffective assistance at trial. Schreibvogel v. State, 269 P.3d 1098, 1102 (Wyo.

2012).

6
The Wyoming Supreme Court has recognized an exception to this requirement
when counsel at trial and on direct appeal are the same. See Keats v. State, 115 P.3d
1110, 1117 (Wyo. 2005) (“[I]f the same attorney is used both at trial and on appeal then
there is not a ‘waiver’ of a claim of ineffective assistance of trial counsel because there
has not truly been an opportunity to previously present those claims.”). This exception
does not apply here because trial counsel did not represent Ms. Benjamin on direct
appeal.

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 In her state and federal collateral relief proceedings, Ms. Benjamin attempted to

use this “portal” exception. She argued in both proceedings that her appellate counsel

was ineffective for failing to argue her trial counsel was ineffective. The state court

determined she could not establish ineffective assistance of appellate counsel because she

could not establish ineffective assistance of trial counsel. The federal district court

determined the state court’s decision withstood AEDPA deference because trial counsel’s

performance was not deficient.

In her request for COA, Ms. Benjamin argues ineffective assistance of trial

counsel but says nothing about ineffective assistance of appellate counsel. The district

court did not address a freestanding ineffective assistance of trial counsel claim, and we

do not address issues that were not addressed by the district court. See Hammon v. Ward,

466 F.3d 919, 926 n.8 (10th Cir. 2006) (“Petitioner did not raise this claim in his § 2254

habeas petition, and we therefore will not consider it on appeal.”).

Even if we were to construe her claim as ineffective assistance of appellate

counsel, Ms. Benjamin fails to argue why her appellate counsel was ineffective. “It is

well-settled that arguments inadequately briefed in the opening brief are waived.” United

States v. Cooper, 654 F.3d 1104, 1128 (10th Cir. 2011) (quotations omitted); see Bronson

v. Swensen, 500 F.3d 1099, 1104 (10th Cir. 2007) (“[W]e routinely have declined to

consider arguments that are not raised, or are inadequately presented, in an appellant's

opening brief.”). Ms. Benjamin has not raised or adequately presented her ineffective

assistance of appellant counsel claim, and we decline to consider it.

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 III. CONCLUSION

For the foregoing reasons, we deny Ms. Benjamin’s petition for a COA and

dismiss this matter.

ENTERED FOR THE COURT

Scott M. Matheson, Jr.
Circuit Judge

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