United States District Court, D. Nevada
P. Gordon, United States District Judge
habeas matter under 28 U.S.C. § 2254 comes before the
Court on respondents' motion (ECF No. 27) to dismiss. In
the motion to dismiss, as subsequently limited in the reply,
respondents seek dismissal on the basis that Grounds 1.3 and
2.2 are unexhausted.
Monique Bork challenges her 2014 Nevada state conviction,
pursuant to a guilty plea, of child abuse and neglect with
substantial bodily harm. She is serving a sentence of 240
months with eligibility for consideration for parole after a
minimum 96 months. (ECF No. 20-3; Exhibit 26.) Petitioner
challenged her conviction on both direct appeal and in a
timely state post-conviction petition. She was not appointed
counsel during the state post-conviction proceedings.
28 U.S.C. § 2254(b)(1)(A), a habeas petitioner first
must exhaust state court remedies on a claim before
presenting that claim to the federal courts. To satisfy this
exhaustion requirement, the claim must have been fairly
presented to the state courts completely through to the
highest state court level of review available. E.g.,
Peterson v. Lampert, 319 F.3d 1153, 1156 (9th Cir.
2003)(en banc); Vang v. Nevada, 329 F.3d
1069, 1075 (9th Cir. 2003). In the state courts, the
petitioner must refer to the specific federal constitutional
guarantee upon which she relies and must also state the facts
that entitle her to relief on that federal claim. E.g.,
Shumway v. Payne, 223 F.3d 983, 987 (9th Cir. 2000).
That is, fair presentation requires that the petitioner
present the state courts with both the operative facts and
the federal legal theory upon which the claim is based.
E.g., Castillo v. McFadden, 399 F.3d 993, 999 (9th
Cir. 2005). The exhaustion requirement insures that the state
courts, as a matter of federal-state comity, will have the
first opportunity to pass upon and correct alleged violations
of federal constitutional guarantees. See, e.g., Coleman
v. Thompson, 501 U.S. 722, 731 (1991).
Rose v. Lundy, 455 U.S. 509 (1982), and following
cases, a mixed petition presenting unexhausted claims must be
dismissed unless the petitioner dismisses the unexhausted
claims and/or seeks other appropriate relief, such as a stay
to return to the state courts to exhaust the claims.
1 presents a claim that petitioner was denied due process in
violation of the Fifth and Fourteenth Amendments because her
plea was not voluntary, knowing, and intelligent. (ECF No.
17, at 30-26.)
Ground 1.1, petitioner alleges that she was coerced into
entering the plea by the prosecutors and her counsel with
threats that she would be convicted of murder and face a
potential life sentence.
Ground 1.2, petitioner alleges that she did not understand
the elements of the offense to which she pled.
Ground 1.3, the challenged subpart, Bork alleges that
ineffective assistance of her counsel combined with
prosecutorial misconduct combined to make her plea
unconstitutional. She alleges in particular that the
prosecutors knew or should have known that they could not
obtain a conviction in light of her proffer statement. She
alleges that prosecutors leveraged her fear of a life
sentence in order to obtain a conviction by a plea that the
State could not have obt ained i n a tr i al. With regard to
her own counsel, she alleges that counsel failed to realize
that her proffer, preliminary hearing testimony (against
another defendant), and trial testimony did not establish the
crime to which she entered a plea.
conceded in the first amended petition that Ground 1.3 is
unexhausted. (ECF No. 17, at 36, line 11.) In response to the
motion to dismiss, petitioner contends that Ground 1.3 is
technically exhausted by procedural default because the
claims now would be procedurally barred in the state courts
and “she cannot overcome the default in state
court.” (ECF No. 37, at 2, lines 9-16.) She further
maintains, however, that she nonetheless can overcome the
procedural default of the claims in in federal court under
Martinez v. Ryan, 566 U.S. 1 (2012), which the
Nevada state courts do not follow, because she did not have
counsel in the post-conviction proceedings in the state
district court. (Id., at 3-7.) Respondents, in
turn, contend that M ...