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Porter v. United States

December 23, 2008

HOWARD THOMAS PORTER, PLAINTIFF,
v.
UNITED STATES OF AMERICA, DEFENDANT.



The opinion of the court was delivered by: Sifton, Senior Judge.

MEMORANDUM OPINION & ORDER

On October 16, 2003, Howard Thomas Porter ("Petitioner") was convicted by a jury on three counts of transporting and shipping child pornography in interstate commerce by computer, in violation of 18 U.S.C. § 2252A(a)(1) and seven counts of possession of child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B). On May 26, 2004, I sentenced petitioner to 4 years imprisonment on each count to be served concurrently and 3 years supervised release on each count to be served concurrently. On November 1, 2006, following a Second Circuit appeal and remand, petitioner was sentenced again to the same period of imprisonment and supervised release. Presently before this Court is defendant's pro se petition to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255, for: (1) unfair trial; and (2) ineffective assistance of counsel.*fn1 For the reasons set forth below, the petition is denied.

BACKGROUND

The following facts are drawn from the parties' submissions and the record of the prior proceedings before the undersigned.

Between October 7, 2002 and December 2002, an undercover detective from the Wichita, Kansas Police Department, posing as the mother of a four-year-old daughter in Wichita, entered a chat room believed to be frequented by individuals interested in exchanging child pornography or engaging in sexual activities with children. Petitioner made initial contact with the detective, and several chat sessions ensued in which petitioner discussed the possibility of engaging in sexual activity with the four-year-old daughter. Petitioner also sent the detective e-mail messages with attached images of child pornography. Law enforcement officers obtained a warrant to arrest petitioner and search his home, which was executed on January 9, 2003. Among the evidence seized were computer materials containing images of child pornography and ten photographs of children, including petitioner's son. Petitioner was arraigned on January 9, 2003, and signed an unsecured bond in the amount of $150,000 in which he agreed to the conditions of pretrial release set by Magistrate Judge Azrack.

On January 30, 2003, petitioner was indicted on three counts of transporting child pornography through interstate commerce. The indictment was superseded by a fourteen-count indictment on April 23, 2003, charging petitioner with three counts of transporting and shipping child pornography in interstate commerce by computer in violation of 18 U.S.C. Sections 2252A(a)(1), 2252A(b)(1), and 3551 et seq., and eleven counts of possession of child pornography in violation of 18 U.S.C. Sections 2252A(a)(5)(B), 2252A(b)(2), and 3551 et seq.

Trial by jury commenced on October 7, 2003, and on the government's motion, one count of possession of child pornography was dismissed. On October 16, 2003, the jury acquitted petitioner on three counts of possession, found petitioner guilty on the remaining seven counts of possession, and found petitioner guilty on all three counts of transportation.

Petitioner appealed his conviction and sentence to the Second Circuit. On June 5, 2006, the Second Circuit affirmed the conviction but remanded to the undersigned for sentencing, pursuant to United States v. Fagans, 406 F.3d 138 (2d Cir. 2005). United States v. Porter, 184 Fed. Appx. 112, 115 (2d Cir. 2005). On November 1, 2006, petitioner was resentenced to 4 years imprisonment and 3 years supervised release. Petitioner appealed the November 1, 2006 sentence to the Second Circuit. On July 20, 2007, the Second Circuit affirmed the November 1, 2006 sentence. United States v. Porter, 239 Fed.Appx. 664 (2d Cir. 2007). This petition for a writ of habeas corpus followed on April 8, 2008.

DISCUSSION

A petitioner moving for a writ of habeas corpus under 28 U.S.C. Section 2255 in only entitled to relief "for constitutional error, a lack of jurisdiction in the sentencing court, or an error of law or fact that constitutes a fundamental defect which inherently results in complete miscarriage of justice." Graziano v. United States, 83 F.3d 587, 590 (2d Cir. 1996) (internal quotation marks and citations omitted). In this case, petitioner claims two of his constitutional rights have been violated: (1) his Sixth Amendment right to a fair trial and (2) his Sixth Amendment right to adequate counsel.

Unfair Trial

The Sixth Amendment to the United States Constitution guarantees the right to a fair trial.*fn2 Petitioner argues that he was deprived of a fair trial because: (1) the Government did not meet its discovery burdens with respect to an internet instant messenger conversation, (2) the trial judge's conduct was biased and prejudicial, and (3) the prosecution made improper remarks during opening and closing statements causing petitioner's trial to be fundamentally unfair.

1. Procedural Bar

Petitioner is procedurally barred from asserting his unfair trial claims on habeas review. Petitioner claims that the government denied him discovery of the procedures used for creating a transcript of instant messenger conversations with an undercover detective and that, because he was denied this discovery, petitioner was unable to "pursue an alternate trial strategy" involving challenging the admissibility of the transcript. However, petitioner raised and the Second Circuit considered on appeal the argument that the government did not meet its discovery obligations, as well as the argument that the transcripts were inadmissible. Porter, 184 Fed.Appx. at 115. "[A] [s]section 2255 petition cannot be used to relitigate questions which were raised and considered on direct appeal . . . Reconsideration is permitted only where there has been an intervening change in the law and the new law would have exonerated a defendant had it been in force before the conviction was affirmed on direct ...


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