BORK v. HOWELL (2021)

United States Court of Appeals, Ninth Circuit.2021-09-07No. No. 20-15461

Summary · law.co

Holding. The district court's denial of Bork's habeas corpus petition challenging her guilty plea conviction is affirmed because she failed to demonstrate either deficient performance or prejudice from counsel's decisions regarding the statute of limitations defense or the plea recommendation.

Monique Bork, a Nevada state prisoner, sought federal habeas relief under 28 U.S.C. § 2254, challenging her conviction by guilty plea to child abuse and neglect. She received a certificate of appealability on two ineffective assistance of counsel claims and appealed the district court's denial of her petition. The federal appeals court examined whether her trial counsel performed deficiently by failing to pursue a statute of limitations dismissal and by not refusing a plea offer based on a theory that her statements were not admissible as confessions. On the first claim, the court found that Bork presented no evidence about what counsel advised and that any statute of limitations defense faced serious obstacles because Nevada law allows tolling when crimes are committed secretly. On the second claim, the court concluded that counsel's recommendation to accept the plea was reasonable given other evidence the state could have presented at trial, such as evidence of Bork's knowledge of her boyfriend's drug use and her delayed response in seeking medical care for the injured child.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether counsel was ineffective for failing to move to dismiss charges on statute of limitations grounds
Whether counsel was ineffective for recommending acceptance of a guilty plea rather than asserting a defense based on the admissibility of statements
Application of Nevada's tolling provision for crimes committed in a secret manner

Procedural posture

A federal appellate court reviewed a district court's denial of a § 2254 habeas petition filed by a Nevada state prisoner challenging her guilty plea conviction.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

MEMORANDUM *

Nevada state prisoner Monique Bork appeals the district courts denial of her 28 U.S.C. § 2254 habeas corpus petition challenging her conviction by guilty plea and her sentence of 96–240 months. Bork pleaded guilty to abuse and child neglect after her child died from incapacitating injuries suffered at the hands of her then boyfriend, Edward Thompson, and which she did not report. Bork pleaded guilty to this lesser charge in exchange for the states dismissing a charge of murder.

This court granted a certificate of appealability on two claims of ineffective assistance of counsel. We now affirm.

Bork first claims counsel should have moved to dismiss the charges on statute of limitations grounds. Nevada tolls the statute of limitations for felonies “committed in a secret manner” until “discovery of the offense.” Nev. Rev. Stat. § 171.095(1)(a). Although Bork contends her counsel did not examine the statute of limitations issue before advising her to plead guilty to child abuse, Bork has not produced any evidence of what her trial counsel advised or why. And even if Borks counsel had pursued a statute of limitations defense, there was little guarantee of success. As the state court of appeals concluded, had counsel moved to dismiss on statute of limitations grounds, “the [s]tate would have been able to present evidence she committed the offense in a secretive manner that tolled the statute of limitations.” The state court reasonably determined that Bork failed to show counsels performance was deficient or prejudicial. See 28 U.S.C. § 2254(d); Harrington v. Richter, 562 U.S. 86, 105, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011).

Bork also claims counsel should have refused the plea and asserted a defense that Borks statements did not amount to an admission to the crime charged. This argument appears to assume, erroneously, that the only evidence the state would be able to introduce at trial consisted of Borks statements. There was other evidence the state could have introduced and that counsel could have reasonably anticipated, including Borks knowledge of Thompsons drug usage and her delay in seeking medical care. It was reasonable for counsel to recommend accepting a plea at an early stage in order to present a more favorable record at sentencing.

The district courts judgment denying the petition is AFFIRMED.