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Porter v. Zook

United States Court of Appeals, Fourth Circuit

August 3, 2018

THOMAS ALEXANDER PORTER, Petitioner - Appellant,
DAVID ZOOK, Warden, Sussex I State Prison, Respondent - Appellee.

          Argued: January 23, 2018

          Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. James R. Spencer, Senior District Judge. (3:12-cv-00550-JRS)


          Robert Edward Lee, Jr., VIRGINIA CAPITAL REPRESENTATION RESOURCE CENTER, Charlottesville, Virginia, for Appellant.

          Matthew P. Dullaghan, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellee.

         ON BRIEF:

          Dawn M. Davison, VIRGINIA CAPITAL REPRESENTATION RESOURCE CENTER, Charlottesville, Virginia; Trey R. Kelleter, VANDEVENTER BLACK, LLP, Norfolk, Virginia, for Appellant.

          Mark R. Herring, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellee.

          Before THACKER and HARRIS, Circuit Judges, SHEDD, Senior Circuit Judge.


         This death penalty case is before us for the second time. In 2007 Thomas Alexander Porter ("Appellant") was convicted in Virginia state court of capital murder for killing a Norfolk law enforcement officer, Stanley Reaves. He was sentenced to death.

         After he pursued direct and collateral review in state court, Appellant filed the operative 28 U.S.C. § 2254 petition in the district court, raising a host of challenges to his conviction and sentence. Chief among them was a claim that one of the jurors was biased against him. Specifically, when asked at voir dire whether any jurors had relatives in law enforcement, the juror did not disclose that his brother was a law enforcement officer in the jurisdiction adjacent to Norfolk.

         The district court dismissed the § 2254 petition. See Porter v. Davis, No. 3:12-cv-550, 2014 WL 4182677, at *52 (E.D. Va. Aug. 21, 2014) ("Porter I"). Appellant filed a plenary appeal of that dismissal, and we dismissed the appeal and remanded for further consideration of Appellant's actual bias claim, which the district court failed to address in the first instance. See Porter v. Zook, 803 F.3d 694 (4th Cir. 2015) ("Porter II"). On remand, the district court dismissed Appellant's actual bias claim as a matter of law without holding an evidentiary hearing. See Porter v. Zook, No. 3:12-cv-550, 2016 WL 1688765, at *1 (E.D. Va. Apr. 25, 2016) ("Porter III"). We now consider an appeal of that decision and the dismissal of his other claims.

         Although we affirm on the majority of Appellant's claims, we are constrained to remand once again on the juror bias issue. In dismissing the actual bias claim, the district court failed to recognize the applicability of Supreme Court precedent requiring a hearing in these circumstances; erected inappropriate legal barriers and faulted Appellant for not overcoming them; and ignored "judicially-recognized factors" in determining whether a hearing is necessary. United States v. Henry, 673 F.3d 285, 291 (4th Cir. 2012). We likewise conclude that the district court erred in Porter I by dismissing Appellant's separate but related juror bias claim brought pursuant to McDonough Power Equipment, Inc. v. Greenwood, 464 U.S. 548 (1984).

         We therefore affirm in part, vacate in part, and remand with instructions that the district court allow discovery and hold an evidentiary hearing on Appellant's two separate juror bias claims.



         In Virginia state court on March 7, 2007, Appellant was convicted of using a firearm in the commission of a felony, grand larceny of a firearm, and capital murder for killing a law enforcement officer in order to interfere with the performance of his official duties.[1] The following facts were adduced at Appellant's trial:

At approximately 3:30 p.m. on October 28, 2005, Porter and Reginald Copeland traveled in Porter's Jeep to the Park Place apartment complex located at 2715 DeBree Avenue in the City of Norfolk to inquire about purchasing marijuana. Porter was carrying a concealed, nine-millimeter Jennings semiautomatic pistol. The two men entered the apartment of Valorie Arrington, where several people were present, including Valorie and her daughters, Latoria and Latifa . . . .
Once inside, Porter began arguing with the women, brandishing his gun, and threatening that he might shoot one of them if provoked. Copeland left the residence, but Porter remained behind, locking the door so Copeland could not reenter. After being locked out of Valorie's apartment, Copeland walked away from the apartment complex and happened upon three uniformed police officers a block away, including Norfolk Police Officer Stanley Reaves. Copeland reported Porter's behavior to Officer Reaves and directed him to Valorie's apartment.
Officer Reaves drove his police cruiser to the front curb of the apartment building, parked the car, and walked across the grass towards the sidewalk leading from the street to the apartment door. As Officer Reaves approached the apartment, Porter left Valorie's apartment and began walking away. Officer Reaves confronted Porter, grabbed Porter's left arm, and instructed him to take his hands out of his pockets. Porter then drew his concealed weapon from his pocket and fired three times, killing Officer Reaves. Porter took Officer Reaves' service pistol and then fled in his Jeep.
Several eyewitnesses, along with Porter, testified at trial and provided various descriptions of the events leading up to and immediately following Officer Reaves' death. . . .
Copeland testified that he and Porter entered Valorie's apartment because she was Copeland's friend and because he had smoked marijuana with her before. . . . [A]t some point in the conversation Porter began arguing with one of the women.
Copeland "didn't know what to do" but left the apartment and "ran down [to the next block] and told [Officer Reaves, ']Look, there is a man up in the house with some girls, and he shouldn't be in there.'" Copeland described the apartment building to Officer Reaves, and Officer Reaves drove his patrol car to the building with Copeland "running behind" the vehicle. Officer Reaves arrived at the building before Copeland, and as Copeland approached he saw "Officer Reaves in the car and Porter was coming out [of] the building." Copeland identified Porter to Officer Reaves, and Officer Reaves instructed Copeland to stay back and then approached Porter. Moments later, Porter and Officer Reaves disappeared from Copeland's viewpoint behind a parked van, but Copeland "heard gunshots and started running," and he "ran and told the [other] officers what happened."
. . .
Simone Coleman testified that she was walking on the sidewalk near the apartment complex when she saw Officer Reaves' patrol car arrive. Coleman watched as Officer Reaves stepped out of his patrol car, and she saw Porter walking across the grass from the apartment, coming to "within a few feet" of her. She testified that Porter's hands were "[i]n his pockets" as Coleman passed by, and she "was looking back" to watch the confrontation between Officer Reaves and Porter. Coleman heard Officer Reaves instruct Porter to "take his hands out of his pockets," and then Officer Reaves "grabbed Mr. Porter's left arm." Coleman testified that Officer Reaves "didn't have a gun out," and that Porter, in response to Officer Reaves grabbing his arm, pulled a gun out of his pocket, pointed the gun at Officer Reaves' head, and pulled the trigger. Coleman watched Officer Reaves collapse to the ground, and she testified that Porter then shot Officer Reaves two more times. Coleman identified Porter in court as the man who killed Officer Reaves.
Selethia Anderson, who lived across the street from the apartment complex, was sitting on her front porch when she saw Officer Reaves arrive. Anderson testified that she watched Officer Reaves exit his vehicle and walk towards Porter as Porter was leaving the apartment complex. She described how Officer Reaves confronted Porter and "used his right hand to grab [Porter's] left hand," and then Porter immediately reached into his hoodie pocket with his right hand, pulled out a gun, and shot Officer Reaves in the head. Anderson testified that after Officer Reaves fell, Porter shot him twice more "between the back of the head and neck." According to Anderson, Porter knelt over Officer Reaves' body after the shooting, and when Porter left the scene, he was carrying a "bigger gun" than the one he had used to shoot Officer Reaves. Anderson identified Porter in court as the man who shot Officer Reaves.
Valorie testified that she was in her apartment that afternoon when Copeland arrived with Porter. According to Valorie, the two men "came for some marijuana" but the women did not have any, and asked the men to leave. Copeland agreed to leave, but Porter stayed inside, locked the door and kept Copeland outside. Valorie testified that she felt scared because Porter had "locked us in our own house." Valorie asked Porter why his hands were in his sweatshirt pocket, and Porter responded by pulling out his gun and asking, "[s]o are you going to give me the bag of weed or what?" Valorie testified that she uttered a prayer, and when Porter realized she was a Muslim, he told the women that they were "lucky" and he put away the gun. When Porter realized a police car had arrived, he left the apartment and ran "like some horses going down the stairs." Moments later, Valorie heard gunshots.
Latoria's testimony confirmed that Porter entered Valorie's apartment along with Copeland, and that Copeland left the apartment but Porter remained inside, locking the door. Latoria testified that Porter threatened that he would "get to clapping" if any of the women made a sudden move, and she explained that "clapping" was a term for "shooting." She testified that she looked out the window, noticed Officer Reaves arrive in his patrol car, and asked, "Why is Reggie [Copeland] talking to the police officer?" Latoria testified that Porter then immediately exited the apartment, and she watched through the window as Officer Reaves approached Porter, grabbed Porter's arm, and then Porter "reach[ed] into his right pocket and he pull[ed] out his gun and he shot him." Latoria testified that Officer Reaves did not have a weapon drawn when Porter shot him.
. . .
After killing Officer Reaves, Porter traveled to New York City where he was apprehended one month later in White Plains, New York. The murder weapon was found in his possession at the time of his arrest. Officer Reaves' gun was eventually located in Yonkers, New York.
The autopsy report revealed that Officer Reaves suffered three close-range wounds to his head: one to the forehead, one to the left back of the head, and a flesh wound near the right ear. "The cause of death was two separate close range gunshot wounds to the head."
Porter did not dispute that he shot Officer Reaves, but his version of the events differed from that of the eyewitnesses. Porter testified in his own defense that he drove to Valorie's apartment with Copeland "[t]o get a bag of marijuana" because Copeland was his "means of getting marijuana." Porter parked the vehicle outside the apartment, and he "grabbed the gun out of the glove compartment box" before leaving the vehicle "[b]ecause the area . . . is a bad area." Porter testified that he gave Copeland $10 to purchase marijuana, and that he waited outside while Copeland went inside to make the purchase.
Porter testified that after a few minutes had passed, Copeland emerged from an upstairs apartment and invited him inside. Porter confirmed that Copeland left the apartment, but Porter denied locking the door and keeping Copeland outside. Porter also denied brandishing his gun inside the apartment or making a statement about shooting any of the women. Porter claimed that he left the apartment when he learned from the women that Copeland had not paid them for marijuana, and he denied that any of the women knew about Officer Reaves' arrival because "[w]asn't nobody even looking out the window."
Porter testified that he left the apartment and was walking to his vehicle "when Officer Reaves stepped in front of me and grabbed me." Porter and his counsel then had the following exchange:
Q. Did anything else happen when he did that?
A. Yes. I seen him pulling his gun.
Q. What do you mean, you saw him pulling his gun?
A. Well, when he grabbed me with his left arm on my left arm, we were still standing face to face. I seen him pulling his gun. That's when I put my hands up in the air and backed up, looking at him, like, "What [are] you doing?"
Q. You just described that you put your hands up in the air?
A. Yes.
Q. And at that point, what happened?
A. Well, I got my hands in the air when he finally gets the gun out and point it at me. I take my hands down and pull my gun and started shooting.
Q. Why did you do that, Mr. Porter?
A. Because I was scared. I thought he was going to kill me because he looked angry at the time, so I was just worried for my safety.
Porter testified on direct examination that he could not remember how many times he pulled the trigger, but after he shot Officer Reaves, he bent down, picked up Officer Reaves' gun and ran. Porter explained that he left the scene because he "was scared" because he realized he "just killed an officer."
Porter testified repeatedly on cross-examination that he "never wanted to kill anybody" but he also admitted that he "pulled out the gun" and "shot [Officer Reaves] in the forehead." Porter and opposing counsel had this exchange on cross-examination:
Q. You meant to hit Stanley Reaves with a bullet, didn't you?
A. Yes, sir.
Q. All right. And you took aim -- therefore, you took aim at him, correct?
A. Yes, sir.
Q. You took aim at a part of his body, correct?
A. Yes, sir.
Q. And the part of his body that you took aim at and then before pulling the trigger from less than six inches away was directly into his forehead, correct?
A. Yes, sir.
. . . .
Q. And you agree that you knew you were aiming at his head, correct?
A. Yes, sir.

         Porter also had this exchange on cross-examination:

Q. You admit that you . . . pulled your gun out?
A. Yes, sir.
Q. And that you shot him in the head?
A. Yes, sir.
Q. You admit that you stole his gun?
A. Yes, sir.
Q. So according to your version of events, you claim that Officer Reaves pulled his gun, correct?
A. Yes.
Q. And the only thing about the crime that's alleged you committed, the capital murder of Officer Stanley Reaves, using a gun to commit that murder and stealing Officer Reaves' gun, the only part of the crime that we're here that you're on trial for that you dispute, really, is the reason why you shot Officer Reaves; is that correct?
A. Yes.

Porter v. Commonwealth of Va., 661 S.E.2d 415, 419-23 (Va. 2008). On March 14, 2007, a jury assigned the death penalty after finding there was a probability that Appellant "would commit criminal acts of violence that would constitute a continuing serious threat to society." J.A. 1579[2] (quoting Va. Code Ann. § 19.2-264.2).[3] Appellant received terms of imprisonment totaling 22 years on the remaining convictions.

         The Virginia Supreme Court affirmed Appellant's conviction and death sentence on June 6, 2008, see Porter, 661 S.E.2d at 419, and the United States Supreme Court denied certiorari, see Porter v. Virginia, 556 U.S. 1189 (2009). Appellant then filed a state habeas petition on August 10, 2009, attacking his conviction on the following grounds: (1) juror bias; (2) the Commonwealth failed to disclose exculpatory information, in violation of Brady v. Maryland, 373 U.S. 83 (1963), and presented false testimony or allowed it to go uncorrected in violation of Napue v. Illinois, 360 U.S. 264 (1959), and Giglio v. United States, 405 U.S. 150 (1972); (3) trial counsel rendered ineffective assistance in numerous ways; and (4) the trial judge was biased against Appellant based on his former career as a prosecutor. See Porter v. Warden, 722 S.E.2d 534, 538-50 (Va. 2012). The Supreme Court of Virginia rejected his arguments and dismissed his habeas petition. See id. at 550.

         On July 30, 2012, the district court granted Appellant's motion for stay of execution and entered a briefing schedule, directing Appellant to file his federal habeas petition within 70 days. On October 9, 2012, Appellant filed a federal habeas petition and on May 10, 2013, he amended his petition to add defaulted claims pursuant to Martinez v. Ryan, 132 S.Ct. 1309 (2012) (2012) (holding that the ineffective assistance of initial post-conviction review counsel may establish cause for defaulting an ineffective assistance of trial counsel claim). See J.A. 2515-2618 ("Amended Petition"). The claims in the Amended Petition are as follows:

Claim I: Juror Misconduct Violated Porter's Right to an Impartial Jury and to Due Process
Claim II: The Prosecution Violated Brady Regarding Reaves's History of Unprofessional Conduct
Claim III: The Prosecution Violated Brady and Napue Regarding Selethia Anderson
Claim IV: Counsel Unreasonably Failed To Have Reaves's Holster Examined For Fingerprints
Claim V: Trial Counsel Unreasonably Failed to Call Powerful Exculpatory Testimony to the Jury's Attention in Closing
Claim VI: Counsel Unreasonably Failed to Obtain a Jury Instruction on First-Degree Murder
Claim VII: Trial Counsel Failed to Investigate Reaves's History of Unprofessional Conduct
Claim VIII: Counsel Failed to Conduct an Adequate Investigation into Porter's Chaotic and Abusive Childhood and Failed to Present the Evidence They Had Uncovered
Claim IX: Counsel Failed to Reasonably Investigate the Prosecution's Aggravating Evidence
Claim X: Counsel Failed to Investigate and Present Evidence of Porter's Correctional Experiences
Claim XI: The State Court Violated Porter's Rights Under the 8th and 14th Amendments by Denying Porter the Assistance of a Risk Assessment Expert
Defaulted Claims:
Claim XII: The Prosecution Withheld Material Evidence Impeaching a Penalty-Phase Witness
Claim XIII: Counsel Unreasonably Failed to Protect Porter's Constitutional Right to Testify
Claim XIV: Counsel Unreasonably Failed to Assert that His Proposed Risk Assessment Would Be of the Same Nature as that Contained in his Expert's Declaration
Claim XV: Counsel Unreasonably Failed to Object to Improper "Curative" Instructions and Comments by the Trial Court during his Closing that Denied Porter a Fair Sentencing
Claim XVI: Counsel Failed to Adequately Investigate the Shooting of Officer Reaves
Claim XVII: The Prosecution Withheld Material Evidence Impeaching a Guilt-Phase Witness

J.A. 2516-17.

         The Warden filed a motion to dismiss on June 3, 2013, and the district court granted the motion on August 21, 2014, but it also issued a certificate of appealability "regarding ...

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