Argued: January 23, 2018
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)
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.
M. Davison, VIRGINIA CAPITAL REPRESENTATION RESOURCE CENTER,
Charlottesville, Virginia; Trey R. Kelleter, VANDEVENTER
BLACK, LLP, Norfolk, Virginia, for Appellant.
R. Herring, Attorney General, OFFICE OF THE ATTORNEY GENERAL
OF VIRGINIA, Richmond, Virginia, for Appellee.
THACKER and HARRIS, Circuit Judges, SHEDD, Senior Circuit
THACKER, CIRCUIT JUDGE
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.
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
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
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).
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
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. 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
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
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
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
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
. . .
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
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
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?
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
A. Yes, sir.
Q. All right. And you took aim -- therefore, you took aim at
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,
A. Yes, sir.
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?
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?
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 (quoting Va. Code Ann. §
19.2-264.2). Appellant received terms of imprisonment
totaling 22 years on the remaining convictions.
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.
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
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
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
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
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