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Bork v. Gentry

United States District Court, D. Nevada

January 8, 2018

MONIQUE BORK, Petitioner,
JO GENTRY, et al., Respondents.


          Andrew P. Gordon, United States District Judge

         This 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, [1] respondents seek dismissal on the basis that Grounds 1.3 and 2.2 are unexhausted.


         Petitioner 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.


         Exhaustion Governing Law

         Under 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).

         Under 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.

         Ground 1.3

         Ground 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.)[2]

         In 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.

         In Ground 1.2, petitioner alleges that she did not understand the elements of the offense to which she pled.

         In 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.

         Petitioner 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.)[3] Respondents, in turn, contend that M ...

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