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Porter v. Biter

United States District Court, N.D. California

April 7, 2017

JEREMY PORTER, Petitioner,
MARTIN BITER, Respondent.


          WILLIAM H. ORRICK United States District Judge.


         Petitioner Jeremy Nelson Porter seeks federal habeas relief from his state convictions on claims that (1) defense counsel rendered ineffective assistance; (2) the trial court failed to reduce his sentence; and (3) his due process right to a fair trial was violated when the jury saw him in shackles and prison clothing. None of these claims has merit. Accordingly, the petition for habeas relief is DENIED.


         In 2010, Porter shot Irma Flores to death in his car and then deposited her corpse on the sidewalk. The State Appellate Opinion describes what happened:

On the night of March 25-26, 2010, Flores and her cousins, Christina and Stephanie, and their friends, Sandra, Anna, and Carla, were returning from a club in Bay Point to their Richmond homes in a van driven by Christina. They left the club around 1:30 a.m. on March 26 . . . .
While they were stopped at a stoplight in Richmond at approximately 2:00 a.m., a Buick driven by Porter pulled up to the right side of Christina's van. Porter and his passenger began talking to Flores and the other women in the van. Christina drove away, but Porter followed. Christina drove around the block, thought she had lost Porter, and then stopped at Sandra's house, where Sandra, Anna, and Flores got out. Flores told her friends she did not want to return to her own apartment because her boyfriend [with whom she had a ‘sketchy' and ‘rough' relationship] was there.
As Christina was driving away from Sandra's house, Porter pulled up to the house in the Buick. Sandra and Anna went into the house; Flores walked over to Porter's car and began talking with him. Flores later came into the house and asked Sandra to dial Porter's cell phone number because he had misplaced his phone. Sandra used her sister's cell phone to call Porter, and this number was later found stored in Porter's phone. After Porter found his phone, Sandra went back inside, and Flores stayed outside with Porter.
Flores later came inside again and talked to Sandra. Flores was crying and said her boyfriend was going to hit her because she had gone out. Sandra offered to let Flores sleep at her house, but Flores went back outside. Sandra went outside and saw Flores and Porter hugging and kissing. Flores told Sandra that she was going to leave with Porter. After failing to convince Flores to stay with her, Sandra went inside. Sandra heard the doors of the Buick close and the engine start.
Later that morning, around 7:00 a.m., a substitute teacher on her way to school discovered Flores's body on a sidewalk. Flores had been shot twice in the face, once in the forehead and once on the right side of her nose.
Richmond Police Officer Steve Harris, an expert in crime scene investigations, examined the scene that morning. Based on the blood spatter on the curb and on Flores's clothing, the broken car glass found at the scene, and the positioning of Flores's body, Harris concluded Flores was shot while sitting inside a car at that location and was then dragged outside. Harris located a bullet about six feet from Flores's body. The flattened tip of the bullet was consistent with hitting a glass window.
At the time of Flores's death in March 2010, Porter was in a dating relationship with Taquoise Newberry. Newberry testified pursuant to a use immunity agreement. Newberry stated she and Porter purchased a Tec-9 firearm a few weeks before Flores was killed.
Newberry testified that, around 4:30 a.m. on March 26, 2010, the morning Flores was killed, Porter called Newberry and said repeatedly, ‘I'm sorry, I'm sorry, I fucked up.' Porter drove to the motel in Oakland where he and Newberry were staying. Newberry saw that the passenger side window of Porter's Buick was gone and there was blood all over the car. Porter told Newberry he was in the car that night with a woman he had met (Flores), who did not want to get out of the car because she was afraid of her boyfriend. Porter said he was not worried about her boyfriend because he had a gun, which he showed to Flores. Porter told Newberry the gun did not have the clip in, and he pointed the gun at Flores and pulled the trigger. Porter said there must have been a round in the chamber, because he fired one bullet into Flores's face or head. Porter said the shooting was an accident. Porter told Newberry he took Flores's body out of the car and laid it on the ground.
[Porter then discarded the gun, a Tec-9 firearm which Newberry and Porter had purchased a few weeks before Flores was killed. The pair later retrieved the gun. Newberry wiped the gun with bleach to remove any fingerprints and then Porter sold the gun.] . . . .
Newberry threw Porter's bloody clothes in a dumpster. In the Buick, she covered up the front seat and other bloody areas with sheets and T-shirts. Newberry later attempted to clean the car with bleach and other cleaning products.
Newberry wanted to burn the Buick, but Porter decided to scrap it instead. A few days after Flores was killed, Porter paid Maji Mosley, an automotive recycler, to scrap the car. Mosley towed the car to Schnitzer Steel in Oakland to be destroyed.
[The police retrieved the car after Newberry informed the police, through an anonymous telephone call, that the car was about to be destroyed. She had called police because in the days after the killing, Porter had become more aggressive, drank more, and tried to jump off a balcony.] . . . .
[An examination of the car yielded the following.] The front passenger side window was missing, and there was a bullet hole above the passenger side sun visor. There was blood on the center console and on the right front door panel, which had been removed. Harris also found a traffic ticket and other paperwork in Porter's name, as well as a spent nine-millimeter shell casing.
DNA testing of blood found inside Porter's car revealed a DNA profile matching Flores's profile. A bullet fragment found at the scene also had Flores's DNA on it.
In early April 2010, Newberry made additional calls to the Richmond Police Department and provided more information, including identifying Porter as a suspect. Newberry told the police Porter had told her he shot Flores accidentally; Porter felt bad about what had happened and had nightmares about it; but he would not come forward because he did not think anyone would believe the shooting was an accident.

(Ans., Ex. 6 (State Appellate Opinion, People v. Porter, No. A135565, 2014 WL 4080020 (Cal.Ct.App. Aug 19, 2014) (unpublished)) at 2-5.)

         In 2012, a California Superior Court, County of Contra Costa jury found Porter guilty of second degree murder and being a felon in possession of a firearm.[1] The trial court found true a firearm sentencing enhancement. Based on his present and prior convictions, Porter was sentenced to 60 years to life in state prison. His efforts to overturn his conviction in state court were unsuccessful. This federal habeas petition followed.


         Under the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), this Court may entertain a petition for writ of habeas corpus “in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). The petition may not be granted with respect to any claim that was adjudicated on the merits in state court unless the state court's 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).

         “Under the ‘contrary to' clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the] Court has on a set of materially ...

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