Monique Bork v. Jerry Howell ( 2021 )

FILED
NOT FOR PUBLICATION
SEP 7 2021
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MONIQUE BORK, No. 20-15461
Petitioner-Appellant, D.C. No.
2:16-cv-01235-APG-VCF
v.
JERRY HOWELL, Warden; ATTORNEY MEMORANDUM*
GENERAL FOR THE STATE OF
NEVADA; DWIGHT NEVEN, Warden,
Respondents-Appellees.
Appeal from the United States District Court
for the District of Nevada
Andrew P. Gordon, District Judge, Presiding
Argued and Submitted August 30, 2021
San Francisco, California
Before: SCHROEDER, RAWLINSON, and BYBEE, Circuit Judges.
Nevada state prisoner Monique Bork appeals the district court’s 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
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
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 state’s 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
Bork’s 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 counsel’s performance was deficient or prejudicial. See 28 U.S.C. § 2254(d);
Harrington v. Richter, 562 U.S. 86, 105 (2011).
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Bork also claims counsel should have refused the plea and asserted a defense
that Bork’s 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 Bork’s statements. There was other evidence
the state could have introduced and that counsel could have reasonably anticipated,
including Bork’s knowledge of Thompson’s 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 court’s judgment denying the petition is AFFIRMED.
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