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Porter v. Muniz

United States District Court, N.D. California

July 17, 2017



          THELTON E. HENDERSON United States District Judge.

         Anthony W. Porter (“Porter” or “Petitioner”), a California state prisoner, filed a pro se habeas corpus petition pursuant to 28 U.S.C. § 2254. After the Court denied Petitioner's request for appointment of counsel, it ordered Respondent to show cause why a writ of habeas corpus should not be granted. ECF No. 4. Respondent filed a timely answer, followed by a supplemental brief addressing the merits of the petition. ECF Nos. 10, 19. Petitioner retained counsel and filed a traverse. ECF No. 36. After review of the briefs and the extensive record in this case, the Court hereby GRANTS IN PART Petitioner's writ for habeas corpus. The Court holds that Petitioner did not received constitutionally adequate counsel when he entered into a sentencing agreement in 2010 and that the agreement was not entered into knowingly. The rest of Petitioner's claims lack merit or are procedurally barred.


         On March 26, 2004, Petitioner Anthony Porter was visiting Monterey County to attend the funeral of a friend, Albert Johnson. Porter was eighteen years old at the time and was going to college in San Diego. Albert Johnson had been shot and killed in a drive-by shooting six days prior, and there was evidence that his death was gang-related.

         Porter attended the funeral and a series of gatherings in Johnson's honor. The evidence shows that he got progressively more intoxicated as the day went on. Even though his blood alcohol level was never tested after his arrest, a toxicologist testified that it must have been in the range of severe intoxication. Porter testified that he left the last gathering that night after throwing up by a dumpster. He started walking to his grandmother's house when Travis Williams, who was older than Porter, offered him a ride. Porter claims he did not know Williams prior to the funeral. Williams drove Porter to Fort Ord, where the two men smoked marijuana laced with PCP, and then to Monterey. Porter threw up again, felt sick during the ride, and allegedly asked multiple times to be taken to his grandmother's house.

         Williams then drove the car past the house of DeShawn Lee, who was a suspect in the killing of Albert Johnson and was in jail. Williams made a U-turn and returned to Lee's house where Kimber Lee-Roman, Latoya Choates, and Adrianne Jenkins were smoking on the porch. Porter testified that Williams told him to “get out and start talking shit” and Porter “did as he said.” Ex. 2, 9 RT 2108.[2] The evidence showed that Williams was driving the car and Porter was sitting on the frame of the passenger's side window when shots were fired from the car into Lee's house. The bullets hit the house but missed the women. No one was injured.

         The jury heard conflicting testimony from prosecution witnesses about whether shots were fired from the driver's side of the car, nearest the porch, or from the passenger side of the car. Lee-Roman and Jenkins testified that they saw an arm coming out on the driver's side of the car and heard gun shots seconds later. They ran inside for cover. Choates heard shots fired but was not able to identify the source of the gunfire. The only witness who claimed to have seen the gun was Eugenio Ramos, who was fixing a flat tire on his car about four houses away and around the corner on San Lucas Street. The victims' house was located on 1246 Sonoma Avenue in Seaside, California. Ramos testified at trial that he looked up from his car when he heard tires squeal and saw the passenger, who was sitting on the frame of an open window with his hands on top of the car, shoot a gun over the top of the vehicle. Ramos called 911 and told dispatcher the following: “white female shoot the gun. he was driving, he's wearing like a blue sweater.”[3] Ex. 1, Vol. 2, 2 CT 534. At trial, he testified that he had seen “two guys” and that he meant “male” when he told the dispatcher “female.” Ex. 2, Vol. 4, 4 RT 839-840.

         Officer Jacqueline Maroney testified that at 11:00 pm she heard gunshots and proceeded to pursue the suspect vehicle until it crashed. Both suspects fled and were subsequently apprehended. They were both black men. She identified Porter as the passenger. A handgun was found in the area where another pursuing officer had observed the passenger's hand come out of the car and make a throwing motion. The gun's location was consistent with having been thrown out by the passenger, and Porter admitted throwing the gun out of the car. Police retrieved live rounds of ammunition from Williams' pockets that were similar to the ammunition recovered from the gun. The jury heard testimony that the gun was registered in Richmond, where Williams was from.

         Detective July Stradan interrogated Porter at 2:10 am after the shooting. She testified that she smelled alcohol but did not notice any slurring of the speech, even though the transcript of the interrogation contains dozens of sections marked as “unintelligible.” Ex. 1, Vol. 2, 2 CT 563. Porter consistently denied firing the shots even as the detective probed and claimed that the police had a video of the shooting.

         Gunshot residue (“GSR”) samples were taken from the suspects' hands and their clothing following their arrest. Prior to trial, prosecution's expert Steven Dowell tested the samples taken from the backs of the hands of each suspect and found no gunshot residue on either. The palm samples were not analyzed, nor was the clothing from either suspect. At trial, Porter's attorney entered into a stipulation that “no gunshot residue was found on either person.” Ex. 2, Vol. 6, 6 RT 1303. Dowell testified that Porter could have been the shooter even though no gunshot residue was found on him.

         On January 24, 2005, a Monterey County jury found Porter guilty of two counts of attempted willful, deliberate and premeditated murder (Cal. Penal Code §§ 187(a), 664) (counts one and two), shooting at an inhabited dwelling (Id. § 246) (count three), two counts of assault with a semiautomatic firearm (Id. § 245(b)) (counts four and five), person other than registered owner carrying loaded firearm (Id. § 12031(a)(2)(F)) (count six), and shooting from a motor vehicle (Id. § 12034(c)) (count seven). The jury found true a gang enhancement allegation (Id. § 186.22(b)(1)) as to each charged offense, a sentence enhancement allegation for personally and intentionally discharging a firearm (Id. § 12022.53(c)) with regard to the attempted murder counts, and a sentencing enhancement allegation for personal use of a firearm (Id. § 12022.5(a)) on the two assault counts.


         On April 22, 2005, Porter moved for a new trial and sought dismissal of the charges pursuant to Penal Code § 1181(6). Judge Wendy C. Duffy of Monterey County Superior Court, who had presided over the trial, denied the motion as to the charged offenses but granted it as to the gang enhancement and premeditation and deliberation allegations. With respect to the deliberation allegations, she stressed the “uncontroverted evidence of the defendant's extreme intoxication” and stated that the court “cannot find that there was sufficient evidence that [Porter] had the ability to weigh the decision to kill or not kill the people on the porch.” Ex. 2, 14 RT 3309-3310. Regarding the gang enhancements, she noted the evidence that the Albert Johnson may have been a member of the “Krazy Ass Pimps” (“KAP”) and that at the funeral Porter was given a t-shirt made by Johnson's female friends with Johnson's photo and the words “Krazy Ass Pimps.” She explained that there was evidence KAP was a gang in 1994 but there was no evidence of “any cohesive gang activity after the year 2000.” Id. at 3310. She also stated that Porter may have been friends with identified gang members when he was 14 years old or younger, presumably because of where he grew up, but that there was no evidence that “he was ever involved with any [gang members] in participating in any crime.” Id. at 3313. Lastly, she found no “credible evidence that the shooting would have benefited the gang, the KAP gang.” Id. at 3314.

         On May 6, 2005, after ordering a new trial on the gang enhancement and deliberation allegations, Judge Duffy sentenced Porter to 25 years on the remaining counts: the lower term of 5 years for attempted murder and an additional 20 years for the enhancement regarding personal discharge of a firearm (Cal. Penal Code § 12022.53(c)). On December 28, 2005, co-suspect Travis Williams, who was charged in a separate indictment, pled no contest to one count of attempted murder (Id. §§ 664, 187(a)). He admitted discharging a firearm (Id. § 12022.53(c)) and participating in a gang (Id. § 186.22(b)(1).

         On July 8, 2006, Porter filed a notice of appeal for the convictions that were not reversed by the trial court. On August 14, 2006, he filed a petition for writ of habeas corpus in the Court of Appeal, Sixth Appellate District, alleging two grounds for relief: (1) incompetence of counsel for failure to raise objections to the prosecution gang evidence in an Evidence Code § 492 hearing and at trial; and (2) new evidence discovered of factual innocence, specifically an admission by Williams made to his cellmate Bruce Collins that Williams fired the shots, not Porter. The Court of Appeal ordered the habeas petition to be considered with the appeal. Ex. 4. On December 14, 2006, the Court of Appeal affirmed the convictions in full and summarily denied Porter's writ petition. People v. Porter, No. H029031, 2006 WL 3649273 (Cal.Ct.App. Dec. 14, 2006). Porter subsequently filed a petition for review from the appeal and a petition for review from the habeas denial in the California Supreme Court, which the high court summarily denied on March 14, 2007. Exs. 9, 10.

         In the meantime, on January 5, 2006, Porter moved for dismissal of the unresolved enhancements alleging a double jeopardy violation pursuant to California Penal Code § 1016(4)(5). Judge Russell D. Scott of Monterey County Superior Court denied his motion. Porter filed a writ of mandate on February 16, 2006 (Ex. 11), and the Court of Appeal reversed the trial court's ruling that retrial would constitute double jeopardy (Ex. 12). On March 18, 2008, while the prosecution's petition for review was pending in the California Supreme Court, Porter filed a habeas petition in this Court. Pet. in Porter v. Horel, No. 08-1496-TEH. On July 23, 2009, the high court reversed the Court of Appeal and returned the matter to the Monterey County Superior Court for partial retrial. Porter v. Super. Ct. of Monterey Cty., 47 Cal.4th 125 (2009). On October 29, 2009, this Court dismissed the habeas petition as moot because the enhancements were not reinstated at the time the petition was filed and thus there was no case or controversy. The Court had previously dismissed the free-standing actual innocence claim as not cognizable on federal habeas corpus. Dkt. in Porter v. Horel, No. 08-1496-TEH, ECF No. 6.

         Monterey County Public Defender James Eager was appointed to represent Porter on the retrial of the deliberation allegations and gang enhancements. After a number of continuances, retrial was set to begin on September 27, 2010. In preparation for retrial, Porter's counsel received permission to retest the original gunshot residue swabs taken from Porter and Williams after their arrests. On September 7, 2010, forensic expert Celia Hartnett's laboratory determined that samples from Williams' hands had particles consistent with gunshot residue on them. Ex. 16, 1 CT 218. On September 9, 2010, unaware that any of the results were available, Porter entered into a resentencing agreement. Ex. 16 at 94-97. He agreed to be resentenced to an additional nine years in state prison on the underlying convictions in exchange for the prosecution's dismissal of the premeditation and deliberation allegations and gang enhancements. Ex. 17, 2 RT 304-307. Petitioner agreed to serve a total term of thirty-four years and further “give up all rights regarding both state and federal writs and appeals.” Resentencing Agreement; Ex. 16 at 95.

         Resentencing was initially set for October 7, 2010, but was continued at the trial court's request to October 14, 2010. Ex. 16, 1 CT 127.

         On October 4, 2010, unbeknownst to Porter and his attorney, Harnett's laboratory found particles consistent with gunshot residue on the cuffs of Williams' shirt. Ex. 16, 1 CT 218. On October 13, 2010, the night before the resentencing hearing, Porter's attorney learned for the first time that Williams' hands and clothing were positive for gunshot residue, contradicting the prosecution's evidence at trial and supporting the version of events that Porter had given all along-that he was not the shooter. Ex. 17, 3 RT 603, 605. On October 14, 2010, Porter's counsel informed the trial court of the new evidence and asked to have the sentencing hearing continued. On October 18, 2010, Harnett's laboratory completed the analysis of the samples collected from Porter's hands and reported that the results were negative. Ex. 16, 1 CT 218.

         On November 3, 2010, Petitioner moved to withdraw from the resentencing agreement based in part on California Penal Code § 1018. Ex. 16, 1 CT 191. While the motion to withdraw was pending, Porter filed a habeas petition in the same trial court. Porter alleged trial counsel was ineffective for failing to test the GSR evidence and entering into a stipulation that no GSR was present on Williams or Porter, for failing to interview Ramos and confront him with the 911 tape, as well as that counsel at the agreement stage was ineffective and that the agreement was not entered into knowingly and voluntarily. On September 9, 2011, after denying Porter's motion to withdraw from the agreement, the court resentenced Porter to a term of thirty-four years. Ex. 16, 2 CT 378-81. On November 21, 2011, Porter appealed the judgment and imposition of his sentence. The trial court denied Porter's habeas petition on November 21, 2012 (In re Anthony Porter, No. HC 7331 (Super. Ct. of Monterey Cty., Nov. 21, 2012)), and Porter filed a petition in the Court of Appeal (Exs. 18, 19).

         On May 22, 2013, the Sixth District Court of Appeal affirmed the judgment and dismissed his appeal, finding that Porter had waived his appellate rights. People v. Porter, No. H037619, 2013 WL 2284949 (Cal.Ct.App. May 22, 2013). It also summarily denied the habeas petition. Ex. 21. On August 28, 2013, the Supreme Court summarily denied his petition for review from the direct appeal and his state habeas corpus petition. Exs. 24, 25. On November 12, 2014, Porter filed the present petition in federal court pro se. ECF No. 1.


         This Court may entertain a petition for a writ of habeas corpus “on 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). Under the Antiterrorism and Effective Death Penalty Act (“AEDPA”), habeas relief may not be granted “with respect to any claim that was adjudicated on the merits in State court proceedings” unless the state decision was: (1) “contrary to, or involved an unreasonable application, of clearly established Federal law, as determined by the Supreme Court of the United States, ” or (2) “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). This AEDPA standard is applied to the “state court's ‘last reasoned decision' on the claim.” Edwards v. LaMarque, 475 F.3d 1121, 1126 (9th Cir. 2007) (en banc) (quoting Ylst v. Nunnemaker, 501 U.S. 797, 803-04 (1991)).

         A state court decision is “contrary to” Supreme Court authority 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 Supreme] Court has on a set of materially undistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 413 (2000). A state court decision is an “unreasonable application of” Supreme Court authority if “the state court identifies the correct governing legal principle from [the Supreme] Court's decision but unreasonably applies that principle to the facts of the prisoner's case.” Id. For the federal court to grant habeas relief, the state court's application of Supreme Court authority must be “objectively unreasonable, ” not merely incorrect or erroneous. Riley v. Payne, 352 F.3d 1313, 1323 (9th Cir. 2003) (citing Lockyer v. Andrade, 538 U.S. 63 (2003)). In reviewing the reasonableness of a state court's decision to which Section 2254(d)(1) applies, a district court must rely on the record that was before the state court and presume correct determinations of factual issues made by the state court. See Cullen v. Pinholster, 131 S.Ct. 1388, 1398 (2011).


         Porter seeks habeas corpus relief on five grounds: (1) Ineffective assistance of trial counsel, Thomas S. Worthington, for his failure to investigate gunshot residue, to interview Ramos in Spanish and impeach him with a recording of his 911 call, to present evidence that Porter was weak on his left side, and to present evidence of Porter's alcohol blackouts; (2) Brady violation for the prosecution's presentation of false evidence regarding gunshot residue found on Williams; (3) Violation of the Fourteenth Amendment prohibition against double jeopardy for Porter's retrial on the deliberation allegations and gang enhancements; (4) Ineffective assistance of counsel at the agreement stage, James Eager, for his failure to inform Porter of available exculpatory evidence before advising Porter to enter into the resentencing agreement; and (5) Due process violation of the Fifth and Fourteenth Amendments for enforcing a resentencing agreement that was not entered into knowingly and voluntarily.

         Because Porter entered into an agreement with the prosecution on September 9, 2010 that included a waiver of his rights to file a federal habeas petition, the Court must first determine whether that waiver is valid. It is undisputed that even after entering into an agreement that waives the right to pursue habeas corpus relief, a prisoner may assert an ineffective assistance of counsel claim regarding the advice he received regarding the agreement, as well as a claim challenging the voluntariness of the agreement itself. See Washington v. Lambert, 422 F.3d 864, 871 (9th Cir. 2005).

         The Court therefore begins by reviewing Porter's claims pertaining to the 2010 resentencing agreement. For the reasons stated below, the Court concludes that Porter has met the demanding burden of demonstrating that the California Court of Appeal was objectively unreasonable in denying Porter's ineffective assistance of counsel and voluntariness claims. Granting habeas relief on Porter's last two claims invalidates the agreement and the waiver contained therein. As a result, the Court has jurisdiction to review the remainder of Porter's claims, which the Court denies after a careful review of the record.[4]

         I. Ineffective Assistance of Counsel at the Agreement Stage

         Porter claims that public defender James Eager was ineffective for failing to investigate, discover, and inform Porter of favorable evidence before persuading him to enter into a resentencing agreement, which increased Porter's sentence by nine ...

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