Benson v. Douma

MARK M. BENSON, Petitioner, v. TIMOTHY DOUMA, Warden, New Lisbon Correctional Institution, Respondent.

Case No. 14-CV-249

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN

December 17, 2014

DECISION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS

Petitioner Mark M. Benson was sentenced in state court to thirty years confinement followed by thirty-five years extended supervision after pleading no contest to three counts of homicide, including one count relating to an unborn child, and other related crimes arising out of a deadly motor-vehicle collision he caused by driving while impaired by prescription drugs. He filed this petition for a writ of habeas corpus under 28 U.S.C. § 2254, claiming he is entitled to be re-sentenced because his sentence was based on inaccurate information and because he received ineffective assistance of counsel. For the reasons below, his petition will be denied.

I. BACKGROUND

At approximately 3:30 p.m. on April 25, 2008, Mark Benson's Cadillac Escalade crashed into the rear of Jennifer Bukosky's Honda Accord while the Accord was stopped at a traffic signal in Oconomowoc, Wisconsin. Bukosky, her unborn child and her ten-year-old daughter were killed. Bukosky's twelve-year old son was also injured in the crash and her daughter's friend suffered greatbodily harm. Benson, an orthopedic surgeon, was driving on a revoked driver's license. He had three prior convictions for obtaining prescription drugs by fraud and three convictions for operating while intoxicated at the time of the collision. In fact, only two days before the collision Benson had been sentenced for his third conviction for operating under the influence. He was ordered to serve a 75-day sentence in the county jail and his driver's license was revoked for 30 months. The sentence was stayed to allow Benson to arrange his affairs before reporting to jail, but Benson was expressly told by the sentencing court that he could not drive.

Although Benson's blood did not contain alcohol or illegal drugs at the time of the crash, it contained several prescription medications. Benson had prescriptions filled for Xanax, an anxiety medication, and Ambien, a sleep-aid, on the morning of the crash. The label on the Xanax bottle warned that the drug may cause drowsiness and that the user should use care when operating a car. The instructions stated to take up to three tablets per day. (ECF No. 9-9 at 14.) The label on the Ambien warned that it may cause drowsiness or dizziness and impair the ability to drive. The instructions stated to take one tablet by mouth at bedtime as needed for sleep. (Id.)

Benson admitted taking Xanax, Ambien and the pain medication Percocet prior to the crash. His statements to police as to how much of these drugs he had consumed were inconsistent, but according to one account, he took one Percocet and four or five each of Xanax and Ambien before 10:00 a.m. that day. (Id. at 13.) In a letter to the court Benson wrote that he had taken the Percocet as prescribed on the evening of April 24 and early morning hours of April 25. He wrote that he took the Ambien and Xanax on the morning of April 25, but admitted he was not taking them as prescribed. (ECF No. 11-5 at 10.) Apparently, Benson underwent an MRI at 10:00 a.m. on April 25 and was taking the Xanax and Ambien to ease anxiety about the procedure. Benson also statedin his letter to the court that he took an unspecified amount of Ambien and Xanax shortly after the collision to fight off a panic attack. (Id. at 11.) Analysis of a blood sample drawn from Benson at 4:30 p.m. on April 25, 2008, approximately one hour after the crash, showed Benson's blood contained 22.1 micrograms per liter (mcg/L) of oxycodone (the generic name for Percocet), 16 mcg/L of alprazolam (Xanax) and 253.9 mcg/L of zolpidem (Ambien).

Benson ultimately entered a plea of no contest to five crimes, including three counts of homicide, one count of causing great bodily harm, and one count of causing injury, all by intoxicated use of a motor vehicle. Benson did not dispute that he was impaired to some degree at the time of the collision, but he stated in his sentencing memorandum that it was difficult to determine the degree of impairment. Benson noted the police officers who interacted with him after the collision had different assessments of his level of impairment. The officer that administered field tests at about 6:30 p.m. concluded Benson was under the influence of one or more central nervous system depressants. Several other officers who had contact with Benson, however, described him as shaken-up by the incident, but alert and very direct. In support of Benson's sentencing argument that the degree of impairment at the time of the collision was low, Benson noted that some of the Ambien and Xanax found in his system was consumed after the collision.

Among the many materials presented to the sentencing court was a report of defense expert Francis Gengo, a doctor of pharmacology. Dr. Gengo noted that Benson had "a history of alcohol abuse, a sleep disorder and has required significant amounts of narcotic analgesics and sedative hypnotics for years." (ECF No. 11-5 at 22.) Based on the analysis of the blood sample taken after the crash and standard clinical pharmacology pharmacokinetic texts, Dr. Gengo concluded that the concentrations of oxycodone and Xanax in Benson's blood indicated "therapeutic concentrations fora patient with substantial chronic pain rather than recreational concentrations." (Id. at 24.) Dr. Gengo also noted that the literature demonstrates that chronic use of these drugs at therapeutic concentrations "produces little or no impairment because of the acquisition of metabolic and behavioral tolerance." (Id.) Given Benson's history, the report suggested that his use of oxycodone and Xanax on the day of the crash did not cause significant impairment. The same was not true, however, with respect to Ambien.

Ambien is a brand name for zolpidem. Dr. Gengo's stated in his report that the therapeutic concentration of zolpidem was between 3 and 18 mcg/L. He noted that the level of zolpidem found in Benson's blood after the crash significantly exceeded this level:

The concentrations of zolpidem measured in Dr. Benson's blood shortly after the crash are much higher than those that would be expected if he had taken therapeutic doses of zolpidem at bedtime the night before. These concentrations of 253 ng/ml are much higher than therapeutic and zolpidem has a very short half life. This indicates that Dr. Benson consumed a daytime dose of zolpidem both before and possibly after the crash. I am not able to rule out that zolpidem could have produced significant cognitive impairment in Dr. Benson at the time of the crash.

(Id.)¹

The circuit court explicitly referenced Dr. Gengo's report in his sentencing comments about the level of Benson's impairment. The court first noted that it appeared from Dr. Gengo's report that neither the oxycodone nor Xanax were major factors in causing Benson's impairment, though they both could have contributed. (ECF No. 9-9 at 112.) Instead, the court noted that it appeared from the report that Ambien was "the culprit" since the blood test showed it was present at "much higher than therapeutic levels." (Id. at 112-13.) The court also noted that Dr. Gengo stated in his report that at this level Ambien could produce "significant cognitive impairment." (Id. at 113.) Atthe same time, the court acknowledged the fact that it was not clear what the level of zolpidem in Benson's blood was at the time of the crash: "Now there is some lack of perfect clarity as to when that therapeutic level was reached or the above therapeutic level, because it is reported that Mr. Benson took Ambien both before and after the time of the crash that killed people." (Id. at 113.) Ultimately, the court concluded that there was no way "to quantify the degree of Mr. Benson's impairment at the time of the collision. (Id.) Although the court concluded that Benson was at "a serious level of being under the influence, of being incapacitated," it did not have information from which to conclude that it was "highly aggravated." (Id. at 114.) At the end of a long sentencing hearing at which he heard from thirteen members of the victims' families, the court imposed consecutive bifurcated sentences that amounted to an aggregate sentence of thirty years initial confinement followed by thirty-five years extended supervision.

Benson moved for post-conviction relief on several grounds, including ineffective assistance of counsel and that his sentence was based on inaccurate information in violation of his right to due process of law. In support of his due process claim, Benson submitted an affidavit in which Dr. Gengo averred that after sentencing he had reviewed his report and "discovered a lack of clarity" on the issue of the amount of Ambien in Benson's system. (ECF No. 11-1 at 33.) Gengo averred that the statement in his report "could be misinterpreted." (Id.) More specifically, Dr. Gengo explained that the statement in his report that the therapeutic concentration of zolpidem was between 3 and 18 mcg/ml was based on the assumption that Dr. Benson had taken a therapeutic dose of 10 mg of Ambien at bedtime the night before. By contrast, the therapeutic level for 10 mg of Ambien taken 1.6 hours earlier, Dr. Gengo stated, was between 3 and 272 ng/ml. Thus, the level of zolpidem found in Benson's blood (253 ng/ml) was well within the therapeutic level, assuming Benson hadtaken 10 mg of Ambien within one and a half hours of the blood sample being drawn. In other words, the level of zolpidem in Dr. Benson's blood was consistent with his having taken 10 mg of Ambien after the crash. Under these circumstances, Dr. Gengo stated he could not say whether zolpidem caused Dr. Benson significant cognitive impairment at the time of the crash. (Id.) In support of his ineffective assistance of counsel...