Porter v. Horel

Filing 11

ORDER DISMISSING AS MOOT Petition for a Writ of Habeas Corpus. Signed by Judge Thelton E. Henderson on 10/27/09. (Attachments: # 1 Certificate of Service)(rbe, COURT STAFF) (Filed on 10/28/2009)

1 2 3 4 5 6 7 8 9 10 United United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Petitioner, a state prisoner incarcerated at Pelican Bay State Prison in Crescent City, California, has filed a pro se First Amended Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2254 challenging a judgment of conviction from Monterey County Superior Court. The First Amended Petition was filed after the Court v. ROBERT HOREL, Warden, Respondent. / ANTHONY PORTER, Petitioner, ORDER DISMISSING AS MOOT PETITION FOR A WRIT OF HABEAS CORPUS No. C-08-1496 TEH (PR) IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

dismissed the initial Petition with leave to amend because it contained both exhausted and unexhausted claims. See Doc. #4. In

the First Amended Petition, Petitioner removed the unexhausted claim and elected to proceed with the following two claims: (1) he was

denied his Sixth Amendment right to the effective assistance of counsel based on trial counsel's failure to litigate the relevancy

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and admissibility of evidence that Petitioner was involved in a gang; and (2) newly discovered evidence shows that he is actually innocent of the crimes of which he was convicted. Id. The Court

ordered Respondent to show cause why a writ of habeas corpus should not be granted as to Petitioner's ineffective assistance of counsel claim, but dismissed his actual innocence claim because "there is no clearly-established Supreme Court authority recognizing that a freestanding claim of actual innocence is cognizable on federal habeas review [such that] relief cannot be granted on this claim. U.S.C. § 2254(d)." Doc. #6 at 3. See 28

Respondent has filed an Answer Doc. ##7, 9 & 10.

and Petitioner has filed a Traverse.

For the reasons that follow, the Petition for a Writ of Habeas Corpus is DISMISSED as moot.

I Petitioner was convicted by jury in Monterey County Superior Court of attempted murder, shooting at an inhabited dwelling, assault with a semiautomatic firearm and shooting from a motor vehicle. enhancements: The jury also found true the following sentencing that the attempted murders were committed willfully,

deliberately and with premeditation; that all of the offenses were committed for the benefit of a criminal street gang; and that Petitioner personally used a firearm during the commission of the attempted murders and assaults. Following his convictions, Petitioner sought a new trial under Penal Code section 1181(6), arguing there was insufficient evidence to prove he acted with premeditation and deliberation, with 2

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intent to kill or for the benefit of a street gang.

The trial court

granted a new trial on the gang enhancements and the allegation of premeditation and deliberation. At sentencing, the court remarked

that the People could request a date for a new trial on the premeditation allegation and gang enhancements, and, if a jury later found them to be true, Petitioner could be resentenced, a proposal to which Petitioner's counsel agreed. The court then imposed a See Porter v.

total term of imprisonment of twenty-five years. Superior Court, 47 Cal. 4th 125, 130-31 (2009).

Petitioner then filed a demurrer and a motion to dismiss in the trial court, claiming that a second trial on the sentencing enhancements would violate double jeopardy. The trial court

rejected that argument, but the court of appeal disagreed, concluding that retrial of the sentencing enhancements would violate the double jeopardy clause. The court of appeal issued a peremptory

writ of mandate directing the trial court to dismiss the enhancements. The California Supreme Court granted review to decide

whether double jeopardy principles permitted retrial of the sentencing enhancements, and, in July 2009, reversed. 47 Cal. 4th at 131-32. See Porter,

The California Supreme Court remanded the

case to the court of appeal for entry of an order lifting the stay of proceedings and denying the petition for writ of mandate. 140. While Petitioner was litigating the double jeopardy issue, he also appealed the judgment of the trial court. The California Id. at

Court of Appeal affirmed the judgment in an unpublished opinion. People v. Porter, No. H029031, 2006 WL 3649273 (Cal. Ct. App. Dec. 3

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14, 2006).

The court also denied habeas relief on the same day in a In March 2007, the California Supreme Court denied

separate order. review.

II Article III, § 2 of the Constitution requires the existence of a case or controversy through all stages of federal judicial proceedings. This means that, throughout the litigation,

the plaintiff or petitioner "must have suffered, or be threatened with, an actual injury traceable to the defendant and likely to be redressed by a favorable judicial decision." Bank Corp., 494 U.S. 472, 477 (1990). Lewis v. Continental

An incarcerated prisoner's

challenge to the validity of his conviction satisfies the case-or-controversy requirement, because the incarceration constitutes a concrete injury, caused by the conviction, which is redressable by the invalidation of the conviction. Kemna, 523 U.S. 1, 7 (1998). Here, Petitioner claims his trial counsel was ineffective for failing to challenge on relevancy grounds evidence that was admitted to prove the gang enhancements, which the jury found true. Doc. #5. Respondent answers that Petitioner has failed to prove Spencer v.

that trial counsel was ineffective under both prongs of Strickland v. Washington, 466 U.S. 668, 688 (1984). Doc. #7-1 at 9-11.

The Court cannot reach the merits of Petitioner's claim, however, because the true findings on the gang enhancements were vacated by the trial court when Petitioner was sentenced and were not reinstated at the time Petitioner filed the instant Petition. 4

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As a result, there is no case or controversy for this Court to hear. Spencer, 523 U.S. at 7.

The First Amended Petition for a Writ of Habeas Corpus is DISMISSED as moot. The Clerk is directed to terminate any pending

motions as moot and close the file.

IT IS SO ORDERED.

DATED

10/27/09 THELTON E. HENDERSON United States District Judge

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