                        NONPRECEDENTIAL DISPOSITION
                To be cited only in accordance with Fed. R. App. P. 32.1




                United States Court of Appeals
                                 For the Seventh Circuit
                                 Chicago, Illinois 60604

                                Argued September 9, 2015
                                Decided October 15, 2015

                                          Before

                     RICHARD A. POSNER, Circuit Judge

                     DANIEL A. MANION, Circuit Judge

                     DAVID F. HAMILTON, Circuit Judge

No. 15-1084

MARK M. BENSON,                                  Appeal from the United States District
   Petitioner-Appellant,                         Court for the Eastern District of
                                                 Wisconsin.

       v.                                        No. 14 C 249

TIMOTHY DOUMA, Warden,                           William C. Griesbach,
    Respondent-Appellee.                         Chief Judge.



                                        ORDER

       Mark Benson petitions for habeas corpus relief from his state court sentence. He
claims that the sentencing court relied on inaccurate information in a toxicology report
and that he received ineffective assistance of counsel because his attorney did not object
to or correct the allegedly inaccurate information in the report. Because the district court
was correct to find that Benson was not prejudiced by either the procedural default of his
due process claim, or his counsel’s performance, we affirm the judgment of the district
court.
No. 15-1084                                                                         Page 2

                                      I. Background

        Mark Benson plowed his vehicle into the rear of Jennifer Bukosky’s stopped car at
full speed, without touching his brakes. He killed Bukosky, her unborn child, and her
ten-year-old daughter, injured her son, and seriously injured her daughter’s friend.
Benson was an orthopedic surgeon who had three prior convictions for obtaining
prescription drugs by fraud and three convictions for driving while intoxicated. At the
time of the crash, Benson was driving on a revoked license. He was due to report for a
75-day sentence in county jail for his last conviction and was only free to arrange his
affairs. He was expressly told not to drive.

        Benson pleaded no contest to three counts of homicide, one count of causing great
bodily harm, and one count of causing injury. The intoxicated use of a motor vehicle was
an element of each crime. At the time of the crash, Benson had several prescription drugs
in his system. He admitted to taking Xanax (an anti-anxiety medication), Ambien (a
sleep aid), and Percocet (a painkiller) prior to the crash.

       At sentencing, Benson submitted a report from his pharmacology expert, Dr.
Francis Gengo. At issue in this case is the information in the report concerning Ambien,
otherwise known by the generic name zolpidem. In the report, Dr. Gengo discussed the
level of zolpidem in Benson’s blood after the crash:

              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.

Dist. Doc. 11-5 at 24. Benson admitted to taking a large dose of Ambien in the morning
before the crash. Yet, he claimed that the level in his blood was a result of him taking a
dose directly after the accident to prevent a panic attack.
No. 15-1084                                                                            Page 3

        The sentencing court found that Benson’s intoxication was an aggravating factor.
It stated that it did not rely on the state’s expert reports because they provided only
general statements. The court said that only Dr. Gengo’s report had any real information
about the degree of intoxication. It ruled out the other medications as being major
contributors and said that the Ambien was “the culprit” because the “medication was
present at much higher than therapeutic levels.” Supp. App. at 164, 165. However,
despite these statements, the court immediately acknowledged that “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 165. The court said, “All in all, no one can, I can’t,
no expert has told me, any way to quantify the degree of Mr. Benson’s impairment at the
time of the collision.” Id. It acknowledged that witnesses had said that Benson did not
seem “wasted,” but “[t]hat doesn’t mean he wasn’t impaired.” Id. at 165–66. The
sentencing court then considered “other factors … to try and address the level of
inability to properly control his vehicle.” Id. The court considered his hands-free phone,
and his history of back pain and health problems. After considering the other factors it
said, “So this certainly is a serious level of being under the influence, of being
incapacitated.” Id. But this was not enough information “to conclude that it was highly
aggravated,” such as cases where persons “hit the road after … they take multiple
dose[s] of opiate, medicine, and otherwise.” Id. After noting that speed was not a factor,
the court settled on what it considered to be the true aggravating factor:

                     But, the aggravating factor here is that he didn’t brake,
              not at all, not a little bit. And the car that he hit was stopped,
              had been stopped at a red light, hadn’t gotten going yet, and
              it was right in front of him. … And a stopped car, in broad
              daylight, at an intersection where there is a red and green
              stop and go light, is something you have to notice. You
              should notice. You always notice. It is highly aggravating
              that he would plow into that vehicle in this manner.

                      The seriousness here, trying to take into account all of
              these, is above intermediate. It is aggravated to a degree for
              the various factors I have mentioned. To put it in the
              vernacular, it is a shocking and frightening collision with
              permanent consequences.
No. 15-1084                                                                          Page 4

Id. at 167–68. The state court sentenced Benson to 30 years of confinement with 35 years
of extended supervision.

       Benson moved for post-conviction relief, specifically for resentencing, on the
grounds that 1) the sentencing court relied on inaccurate information in Dr. Gengo’s
report in violation of his due process rights, and 2) he was provided ineffective
assistance of counsel when his counsel failed to object to or correct the inaccurate
Ambien-related information in Dr. Gengo’s report. Benson submitted an affidavit from
Dr. Gengo in which Dr. Gengo asserted that upon reexamination of his report he
“discovered a lack of clarity” regarding whether the level of Ambien in Benson’s blood
was much higher than the therapeutic level. Id. at 141. According to Dr. Gengo, the
report could be “misinterpreted” to “give the impression that Dr. Benson took a dose of
Ambien well in excess of [the proper amount].” Id. Dr. Gengo stated that he meant to say
that the level of Ambien in Benson’s blood was greater than the level would have been
had Benson taken a dose the night before, but within the therapeutic range had Benson
taken a dose shortly before or after the accident. Dr. Gengo concluded that: “I cannot say
whether zolpidem may have caused him significant cognitive impairment at the time of
the crash.” Id. Benson also submitted an affidavit from his attorney who stated that he
thought something was wrong with the report but neglected to say anything. Id. at 138.

        The same state judge who sentenced Benson denied his post-conviction motion
for resentencing. He ruled that he had not relied upon Dr. Gengo’s report. Instead, he
had relied upon the finding that Benson was intoxicated by virtue of his no-contest pleas
to “multiple offenses of homicide by intoxicated use of a vehicle” and “the facts and
circumstances of rear ending somebody without hitting the brakes when they’re right in
front of you in clear view.” Id. at 124, 127. The state judge also ruled that Dr. Gengo’s
report did not contain inaccurate information, but that, as Dr. Gengo stated, the “original
report could have been misunderstood, or could have left a false impression.” Id. at 128.
According to the state judge, at sentencing he was aware of the report’s deficiency and
so “explicitly sa[id] it didn’t have a particular factual understanding of what happened
as far as the effect of the drugs on the defendant’s system at the time.” Id. at 128–29. The
state judge also ruled that Benson’s counsel’s performance was not deficient because his
counsel could not have realized the report’s potential to be misunderstood, just as Dr.
Gengo did not at first realize it. Furthermore, the state judge ruled that Benson’s
counsel’s alleged deficient performance had no impact on the proceeding because it
would not have turned out differently had his counsel clarified the report’s potential for
misunderstanding. The court did not rely on the information, but upon “how he
No. 15-1084                                                                            Page 5

committed the crash, and the fact that he had been found intoxicated as defined by the
statute, which he was convicted of repeatedly.” Id. at 130.

       Benson appealed the denial of his post-conviction motion, but the Wisconsin
Court of Appeals held that Benson forfeited his due process claim since he submitted the
report himself and failed to correct or object to the Ambien-related information. State v.
Benson, 822 N.W.2d 484, 488 (Wis. Ct. App. 2012). It also held that his ineffective
assistance of counsel claim failed because Benson was not prejudiced by his counsel’s
submission of the report, and failure to correct or clarify the report. Id. at 491.

        After the Wisconsin Supreme Court denied review, Benson petitioned the district
court for a writ of habeas corpus under the Antiterrorism and Effective Death Penalty
Act of 1996 (AEDPA), 28 U.S.C. § 2254. The district court relied on our decision in
Promotor v. Pollard, 628 F.3d 878 (7th Cir. 2010), to conclude that Benson had procedurally
defaulted on his due process claim. Specifically, it held that the Wisconsin Court of
Appeals’ holding that Benson had forfeited his claim by failing to object was an adequate
and independent state law ground precluding relief. To overcome his procedural
default, Benson argued that he showed both cause and prejudice in accordance with
Coleman v. Thompson, 501 U.S. 722, 750 (1991). The district court found that Benson
showed cause because if counsel could not be faulted for failing to see the problems with
the report then neither should Benson. Nevertheless, the district court found that Benson
failed to show prejudice because he could not show that the sentencing court relied on
the information when it imposed his sentence. For this same reason, the district court
also found that Benson could not show the prejudice required under Strickland v.
Washington, 466 U.S. 668 (1984), for his ineffective assistance of counsel claim. Benson
appeals.

                                        II. Analysis

       When reviewing a district court’s judgment on habeas corpus relief, we review its
legal conclusions de novo and its findings of fact for clear error. Promotor, 628 F.3d at 885.
Furthermore, the AEDPA provides that habeas corpus relief may only be granted if the
state court decision, on the merits, was 1) “contrary to, or involved an unreasonable
application of clearly established Federal law, as determined by the Supreme Court of
the United States,” or 2) “was based on an unreasonable determination of the facts in
light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d). This
deferential standard applies “when a state court makes the basis for its decision clear,”
and “only to those issues the state court explicitly addressed.” Quintana v. Chandler, 723
No. 15-1084                                                                                        Page 6

F.3d 849, 853 (7th Cir. 2013). If the state court did not address the merits of an issue, we
review it de novo. Atkins v. Zenk, 667 F.3d 939, 944 (7th Cir. 2012) (quoting Harrington v.
Richter, 562 U.S. 86, 105 (2011)).

        A. Benson procedurally defaulted on his due process claim.

        The Wisconsin Court of Appeals held that Benson forfeited his due process claim
by failing to correct or object to the Ambien-related information at sentencing. Benson,
822 N.W.2d at 488. The district court found that Wisconsin’s
forfeiture-by-failure-to-object rule was an adequate and independent state law ground
on which to find that Benson had procedurally defaulted his due process claim. See
Promotor, 628 F.3d at 885. A state law ground is independent if it was actually relied
upon and adequate if “it is a firmly established and regularly followed state practice at
the time it is applied.” Smith v. McKee, 598 F.3d 374, 382 (7th Cir. 2010). Benson argues
that the district court erred in finding that the rule was an adequate and independent
state law ground because the rule was improperly applied to him. According to Benson,
Wisconsin’s forfeiture-by-failure-to-object rule does not apply to a person like him who
could not have known to object.1 In other words, Benson argues that the rule is not
adequate because the improper manner in which it was applied to him was not firmly
established and regularly followed. For this argument, he relies on State v. Thompson, 818
N.W.2d 904 (Wis. 2012).

       Benson’s reliance on Thompson is misplaced. In Thompson, the Wisconsin Supreme
Court addressed the rule under Wis. Stat. § 971.31 that an objection to the sufficiency of a
complaint must be made before trial or the preliminary examination or be deemed
waived. Although the state argued that the defendant forfeited his claim by failing to
comply with § 971.31, the court declined to extend the rule to the defendant. First, the
word “waiver” in § 971.31 implied an understanding of the possible objection, but the
situation presented to the court was one “in which the entire courtroom was operating
under a mistaken understanding of the law” so that “the defendant and his counsel were
given misleading information” regarding the applicability of a 25-year mandatory

1 To establish that his counsel could not have known to object, Benson points to the post-conviction court’s
ruling that an ordinary criminal defense lawyer should not be expected to spot the potentially misleading
but not inaccurate statement in Dr. Gengo’s report. Supp. App. at 130. He does not make this assertion
himself, however, because he submitted an affidavit from his counsel in support of his ineffective
assistance of counsel claim that contradicts the court’s finding. In the affidavit, Benson’s counsel stated
that he noticed that the therapeutic range for zolpidem listed in the report looked wrong to him, but he
failed to do anything about it. Id. at 138.
No. 15-1084                                                                            Page 7

minimum sentence. Thompson, 818 N.W.2d at 919. Second, the Wisconsin Supreme Court
also noted that § 971.31 may not, by its terms, apply to Thompson because he was “really
complaining about more than the ‘insufficiency of the complaint’ or ‘information,’ which
are specifically addressed in the statute.” Id. at 919. Whereas here, in holding that Benson
forfeited his due process claim, the Wisconsin Court of Appeals instead relied on its
firmly established and regularly followed practice that “[w]here the facts stated in a
presentence report are not challenged or disputed by the defendant at the time of
sentencing, the sentencing judge may appropriately consider them.” State v. Mosley, 547
N.W.2d 806, 810 (Wis. Ct. App. 1996). The district court, therefore, did not err by
concluding that Benson procedurally defaulted on his due process claim.

       B. Benson cannot show prejudice for either the procedural default of his due
       process claim or his ineffective assistance of counsel claim.

        Both Benson’s due process claim and his ineffective assistance of counsel claim
fail because he cannot show prejudice. To overcome the procedural default of his due
process claim, Benson must show cause and prejudice for the default or establish that the
failure to consider the defaulted claim will result in a fundamental miscarriage of justice.
See Promotor, 628 F.3d at 885. Benson does not argue a fundamental miscarriage of
justice, but attempts to show cause and prejudice. To show cause for his default, Benson
relies on his claim of ineffective assistance of counsel. See Richardson v. Lemke, 745 F.3d
258, 272 (7th Cir. 2014). To show prejudice for his default, he must show “that the
violation of [his] federal rights worked to his actual and substantial disadvantage,
infecting his entire trial with error of constitutional dimensions.” Promotor, 628 F.3d at
887 (internal quotation marks omitted). For his ineffective assistance of counsel claim,
Benson must show that his counsel’s performance was deficient and that the deficiency
prejudiced his defense. Strickland, 466 U.S. at 687. To show prejudice for his ineffective
assistance of counsel claim, Benson “must show that there is a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would have
been different.” Id. at 694.

        The issue of cause aside, because the sentencing judge did not rely on the
Ambien-related information in the report, Benson cannot show either that he was
prejudiced by his procedural default or that he was prejudiced by his counsel’s
performance. To establish that Benson was in fact impaired, the sentencing court relied
on his no-contest plea, which under Wisconsin law “constitutes an implied confession of
guilt for the purposes of the case to support a judgment of conviction and in that respect
is equivalent to a plea of guilty.” Lee v. Wisc. State Bd. of Dental Exam’rs, 139 N.W.2d 61, 63
No. 15-1084                                                                           Page 8

(Wis. 1966). Thus, by pleading no contest to three counts of homicide by intoxicated use
of a motor vehicle, Benson admitted to being materially impaired. See Wis. Stat.
§§ 940.09(1)(a), 939.22(42). To determine that Benson’s impairment was an aggravating
factor, the sentencing court clearly relied on the severity of Benson’s terrible driving,
“that he didn’t brake, not at all, not a little bit.” Supp. App. at 167. The sentencing judge
did not rely on Dr. Gengo’s report because “no expert [] told [him] any way to quantify
the degree of Mr. Benson’s impairment at the time of the collision.” Id. at 166. Put simply,
Benson cannot show that allegedly inaccurate information “worked to his actual and
substantial disadvantage, infecting his entire trial with error of constitutional
dimensions.” Promotor, 628 F.3d at 887 (internal quotation marks omitted). Neither can
he show “that there is a reasonable probability that, but for counsel’s [alleged]
unprofessional errors, the result of the proceeding would have been different.”
Strickland, 466 U.S. at 694.

                                      III. Conclusion

      Therefore, because the district court was correct to find that Benson was not
prejudiced by the procedural default of his due process claim, or his counsel’s
performance, the judgment of the district court is AFFIRMED.
