Bork v. Neven

• Decision Date: 27 February 2020
• Docket Number: Case No.: 2:16-cv-01235-APG-VCF
• Parties: MONIQUE BORK, Petitioner v. DWIGHT NEVEN, et al., Respondents.
• Court: U.S. District Court — District of Nevada

MONIQUE BORK, Petitioner v. DWIGHT NEVEN, et al., Respondents.

Case No.: 2:16-cv-01235-APG-VCF

UNITED STATES DISTRICT COURT DISTRICT OF NEVADA

February 27, 2020

Order

Monique Bork, a Nevada prisoner, filed a petition for writ of habeas corpus under 28 U.S.C. § 2254. I deny Bork's habeas petition, deny her a certificate of appealability, and direct the Clerk of the Court to enter judgment accordingly.

I. BACKGROUND

Bork's convictions are the result of events that occurred in Clark County, Nevada on or about August 20, 2006. ECF No. 18-6 at 2. Bork left her two-month old son, the victim in this case, in the care of her then boyfriend, Edward Thompson, Jr., who was under the influence of methamphetamine. ECF No. 18-7 at 8-9. Thompson shook the victim causing irreversible injuries. Id. Bork later admitted to not seeking immediate medical attention for the victim and to helping Thompson cover up the abuse. Id. Due to the shaking, the victim was legally blind, had Cerebral Palsy, required nutrition through a Gastrostomy Tube, and suffered from numerous other medical problems. ECF No. 23 at 7. The victim died as a result of his injuries in 2011. Id.

Bork was charged with murder and child abuse/neglect resulting in the substantial bodily harm of her son. ECF No. 18-6 at 2-3. Bork pleaded guilty to child abuse/neglect resulting in substantial bodily harm in return for the murder charge being dismissed and for her testimony against Thompson. ECF No. 18-7 at 3-4, 8; ECF No. 18-8. Bork was sentenced to 96 to 240 months in the Nevada Department of Corrections. ECF No. 20-3 at 3. Bork appealed, and the Nevada Supreme Court affirmed the judgment of conviction on January 22, 2015. ECF No. 20-14. Remittitur issued on February 17, 2015. ECF No. 20-15.

Bork filed a state habeas corpus petition on May 5, 2015. ECF No. 20-17. The state district court denied the petition on September 1, 2015. ECF No. 21-2. Bork appealed, and the Nevada Court of Appeals affirmed on February 17, 2016. ECF No. 21-11. Remittitur issued on March 14, 2016. ECF No. 21-12.

Bork dispatched her federal habeas corpus petition on or about May 23, 2016. ECF No. 1-1. On February 28, 2017, Bork filed a counseled amended petition. ECF No. 17. The respondents moved to dismiss the petition on May 26, 2017. ECF No. 27. I granted the motion in part and denied the motion in part. ECF No. 43 at 6. Specifically, I dismissed Ground One, Part Three with prejudice as procedurally defaulted to the extent that Bork alleged that her plea was not voluntary, knowing, and intelligent due to prosecutorial misconduct; deferred consideration of whether Bork can demonstrate cause and prejudice under Martinez v. Ryan, 566 U.S. 1 (2012), to overcome the procedural default of the remainder of Ground One, Part Three; and dismissed Ground Two, Part Two with prejudice as procedurally defaulted and abandoned. Id. The respondents answered the remaining grounds in Bork's petition on May 8, 2018. ECF No. 50. Bork replied on September 24, 2018. ECF No. 55.

In Bork's remaining grounds for relief, she alleges the following violations of her federal constitutional rights:

1. She entered a plea that was not voluntary, knowing, or intelligent:

1.1 She was coerced to plea by her trial counsel and prosecutors.

1.2 She did not understand the elements of the offense.

1.3 The ineffective assistance of her trial counsel made her plea unconstitutional.

2. The prosecution engaged in prosecutorial misconduct by coercing her into pleading.

3. She was denied the effective assistance of counsel:

3.1 Her trial counsel failed to conduct necessary pre-trial litigation by failing to conduct a full preliminary hearing and failing to move to dismiss the child abuse charges based on a statute of limitations defense.

3.2 Her trial counsel failed to investigate.

3.3 Her trial counsel coerced her into pleading.

3.4 Her trial counsel failed to object at sentencing.

4. The state district court erred in allowing a non-victim to speak in the voice of the deceased child.

5. Her sentence was cruel and unusual.

6. The state district court judge highlighted the sentence she imposed on Bork on her Facebook page in support of her re-election.

7. There were cumulative errors.

ECF No. 17.

II. STANDARD OF REVIEW

The standard of review generally applicable in habeas corpus cases under the Antiterrorism and Effective Death Penalty Act ("AEDPA") is as follows:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim -

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that 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). A state court decision is contrary to clearly established Supreme Court precedent, within the meaning of 28 U.S.C. § 2254, "if the state court applies a rule that contradicts the governing law set forth in [the Supreme Court's] cases" or "if the state courtconfronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court." Lockyer v. Andrade, 538 U.S. 63, 73 (2003) (quoting Williams v. Taylor, 529 U.S. 362, 405-06 (2000), and citing Bell v. Cone, 535 U.S. 685, 694 (2002)). A state court decision is an unreasonable application of clearly established Supreme Court precedent within the meaning of 28 U.S.C. § 2254(d) "if the state court identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 75 (quoting Williams, 529 U.S. at 413). "The 'unreasonable application' clause requires the state court decision to be more than incorrect or erroneous. The state court's application of clearly established law must be objectively unreasonable." Id. (quoting Williams, 529 U.S. at 409-10) (internal citation omitted).

"A state court's determination that a claim lacks merit precludes federal habeas relief so long as 'fairminded jurists could disagree' on the correctness of the state court's decision." Harrington v. Richter, 562 U.S. 86, 101 (2011) (citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). The Supreme Court has stated "that even a strong case for relief does not mean the state court's contrary conclusion was unreasonable." Id. at 102 (citing Lockyer, 538 U.S. at 75); see also Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (describing the standard as a "difficult to meet" and "highly deferential standard for evaluating state-court rulings, which demands that state-court decisions be given the benefit of the doubt" (internal quotation marks and citations omitted)).

III. DISCUSSION

A. Ground One

In Ground One, which includes three subparts, Bork asserts that her federal constitutional rights were violated because her plea was not voluntary, knowing, or intelligent. ECF No. 17 at30. The federal constitutional guarantee of due process of law requires that a guilty plea be knowing, intelligent, and voluntary. See Brady v. United States, 397 U.S. 742, 748 (1970); Boykin v. Alabama, 395 U.S. 238, 242 (1969); United States v. Delgado-Ramos, 635 F.3d 1237, 1239 (9th Cir. 2011). "The voluntariness of [a petitioner's] plea can be determined only by considering all of the relevant circumstances surrounding it." Brady, 397 U.S. at 749. Addressing the "standard as to the voluntariness of guilty pleas," the Supreme Court has stated:

(A) plea of guilty entered by one fully aware of the direct consequences, including the actual value of any commitments made to him by the court, prosecutor, or his own counsel, must stand unless induced by threats (or promises to discontinue improper harassment), misrepresentation (including unfulfilled or unfulfillable promises), or perhaps by promises that are by their nature improper as having no proper relationship to the prosecutor's business (e.g. bribes).

Brady, 397 U.S. at 755 (quoting Shelton v. United States, 246 F.2d 571, 572 n.2 (5th Cir. 1957), rev'd on other grounds, 356 U.S. 26 (1958)); see also North Carolina v. Alford, 400 U.S. 25, 31 (1970) (noting that the longstanding "test for determining the validity of guilty pleas" is "whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant"); United States v. Doe, 155 F.3d 1070, 1074 (9th Cir. 1998) ("A waiver is voluntary if, under the totality of the circumstances, [it] was the product of a free and deliberate choice rather than coercion or improper inducement."). Although a plea may not be produced "by mental coercion overbearing the will of the defendant," a guilty plea made following "the post-indictment accumulation of evidence [that] convince[s] the defendant and his counsel that a trial is not worth the agony and expense to the defendant and his family" is not "improperly compelled." Brady, 397 U.S. at 750 (reasoning that "mental coercion" is only found if the defendant "did not or could not, with the help of counsel, rationally weigh the advantages of going to trial against the advantages of pleading guilty"). Accordingly, a guilty plea is notrendered invalid when it has been "motivated by the defendant's desire to accept the certainty or probability of a lesser penalty rather than face a wider range of possibilities extending from acquittal to conviction and a higher penalty authorized by law for the crime charged." Id. at 750.

In Blackledge v. Allison, the Supreme Court addressed the evidentiary weight of the record of a plea proceeding when the plea is subsequently subject to a collateral challenge. 431 U.S. 63 (1977). While noting that "the barrier of the plea . . . proceeding record . . ....