Thomas Porter v. Keith Davi

Filing

PUBLISHED AUTHORED OPINION filed. Originating case number: 3:12-cv-00550-JRS. [999681469]. [14-5]

Appeal: 14-5

Doc: 58

Filed: 10/20/2015

Pg: 1 of 12

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-5

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

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)

Argued:

September 16, 2015

Decided:

October 20, 2015

Before SHEDD, THACKER, and HARRIS, Circuit Judges.

Dismissed and remanded by published opinion. Judge Harris wrote
the opinion, in which Judge Shedd and Judge Thacker joined.

ARGUED:
Dawn Michele Davison, 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: Robert
Lee, Lindsey Layer, VIRGINIA CAPITAL REPRESENTATION RESOURCE
CENTER, Charlottesville, Virginia; Brian K. French, NIXON
PEABODY, LLP, Boston, Massachusetts; Trey Kelleter, VANDEVENTER
BLACK, LLP, Norfolk, Virginia, for Appellant. Mark R. Herring,
Attorney General of Virginia, OFFICE OF THE ATTORNEY GENERAL OF
VIRGINIA, Richmond, Virginia, for Appellee.

Appeal: 14-5

Doc: 58

Filed: 10/20/2015

Pg: 2 of 12

PAMELA HARRIS, Circuit Judge:
Thomas Alexander Porter appeals from a district court order
dismissing his petition for a writ of habeas corpus under 28
U.S.C. § 2254.

Among the multiple claims Porter presented to

the district court was one alleging that a juror in his case was
“actually biased,” in violation of his right to trial by an
impartial
(1982).
its

jury.

See

Smith

v.

Phillips,

455

U.S.

209,

215

Because the district court did not resolve that claim,

decision

jurisdiction.

was

not

a

final

order

over

which

we

have

Accordingly, we must dismiss Porter’s appeal and

remand for adjudication of Porter’s actual bias claim.

I.
In

2005,

Porter

shot

and

Reaves in Norfolk, Virginia.
Porter

and

another

acquaintance,

along

killed

police

to

automatic
apartment.

the

man

were

at

with

her

two

scene

pistol

and

after

Stanley

On the afternoon of the murder,
the

apartment

daughters

members, attempting to purchase marijuana.
called

officer

Porter

threatened

began
to

and

of

a

female

other

family

Officer Reaves was
to

shoot

brandish
the

women

a

semi-

in

the

When Officer Reaves confronted Porter just outside

the apartment, Porter drew his pistol, then concealed on his

2

Appeal: 14-5

Doc: 58

Filed: 10/20/2015

Pg: 3 of 12

person, and shot Officer Reaves three times.

Porter then took

Officer Reaves’s pistol and fled. 1
After a month-long manhunt led to his capture, Porter was
indicted in the Circuit Court of the City of Norfolk on multiple
charges.
the

The most serious was a charge of capital murder, for

intentional

killing

of

a

police

officer

in

interfere with the performance of his official duties.

order

to

See Va.

Code § 18.2-31.6.
As was to be expected, Officer Reaves’s senseless killing
provoked

widespread

mourning

surrounding communities.

and

outrage

in

Norfolk

and

the

The killing also generated extensive

media coverage, both during the manhunt for Porter and after his
apprehension and indictment.

Citing concerns about the ability

to empanel an impartial jury in Norfolk, Porter filed a motion
for a change of venue, to which the Commonwealth consented.

The

Norfolk court granted the motion and transferred Porter’s trial
to the Circuit Court of the County of Arlington.
Porter ultimately was convicted of three counts, including
capital murder.

At the sentencing phase, the jury found the

1

The facts surrounding Porter’s crime and the extensive
proceedings related to this case are detailed in the decision of
the Supreme Court of Virginia affirming Porter’s conviction and
sentence, Porter v. Commonwealth, 661 S.E.2d 415 (Va. 2008), as
well as the decision of the district court dismissing Porter’s
petition for federal habeas relief, Porter v. Davis, No. 3:12CV-550-JRS, 2014 WL 4182677 (E.D. Va. Aug. 21, 2014).
3

Appeal: 14-5

Doc: 58

Filed: 10/20/2015

Pg: 4 of 12

aggravating factor of future dangerousness, see Va. Code § 19.2264.2, and sentenced Porter to death for capital murder.
appealed

his

capital

conviction

and

death

Supreme Court of Virginia affirmed both.

sentence,

Porter
and

the

Porter then filed a

petition for state habeas post-conviction relief in the Supreme
Court of Virginia, which dismissed the petition.
After

the

conclusion

of

state

court

proceedings,

Porter

filed the federal habeas petition that is the subject of this
appeal, seeking relief under 28 U.S.C. § 2254 and raising close
to

twenty

different

claims.

The

Warden

of

Sussex

I

State

Prison, where Porter is incarcerated, moved to dismiss.

The

district court granted the Warden’s motion and entered an order
dismissing Porter’s petition.

The court also issued Porter a

certificate of appealability, and this timely appeal followed.

II.
A.
The

parties

jurisdiction.

to

this

appeal

have

not

questioned

our

But before we consider the merits of an appeal,

we have an independent “obligation to verify the existence of
appellate jurisdiction.”

Palmer v. City Nat’l Bank, of W. Va.,

498

Cir.

F.3d

236,

240

(4th

2007).

And

that

jurisdiction

generally is limited to appeals from “final decisions of the
district courts,” 28 U.S.C. § 1291 — decisions that “end[] the
4

Appeal: 14-5

Doc: 58

Filed: 10/20/2015

Pg: 5 of 12

litigation on the merits and leave[] nothing for the court to do
but execute the judgment.”

Miller v. Simmons, 814 F.2d 962, 964

(4th Cir. 1987) (quoting Coopers & Lybrand v. Livesay, 437 U.S.
463, 467 (1978)).
“Ordinarily, a district court order is not ‘final’ until it
has resolved all claims as to all parties.”

Fox v. Baltimore

City Police Dep’t, 201 F.3d 526, 530 (4th Cir. 2000) (emphasis
added).
form.

In making that assessment, we look to substance, not
Regardless of the label given a district court decision,

if it appears from the record that the district court has not
adjudicated all of the issues in a case, then there is no final
order.

See Witherspoon v. White, 111 F.3d 399, 402 (5th Cir.

1997); C.H. ex rel. Hardwick v. Heyward, 404 F. App’x 765, 768
(4th Cir. 2010) (unpublished) (“[A] district court mislabeling a
non-final

judgment

‘final’

does

not

make

it

so.”

(quoting

Stillman v. Travelers Ins. Co., 88 F.3d 911, 914 (11th Cir.
1996))).
The same rule applies in habeas cases.

See Prellwitz v.

Sisto, 657 F.3d 1035, 1038 (9th Cir. 2011) (dismissing habeas
appeal for lack of jurisdiction where district court failed to
adjudicate all claims); United States v. Blakely, 101 F. App’x
905, 905–06 (4th Cir. 2004) (unpublished) (same).

And just as

the label attached to a district court order does not end our
inquiry

into

finality,

the

issuance
5

of

a

certificate

of

Appeal: 14-5

Doc: 58

Filed: 10/20/2015

Pg: 6 of 12

appealability cannot by itself establish that the district court
actually has resolved every claim between the parties.
In short, even if a district court believes it has disposed
of

an

court

entire
in

case,

fact

has

we

lack

failed

appellate

to

enter

jurisdiction

judgment

on

where

all

the

claims.

Witherspoon, 111 F.3d at 402; Hardwick, 404 F. App’x at 767–68.
That is what has happened here.

Because the district court did

not rule on Porter’s claim of actual juror bias, we must dismiss
this appeal for want of jurisdiction.
B.
Among the myriad issues raised in Porter’s § 2254 petition
are two related but distinct claims, each alleging a violation
of

the

right

to

trial

by

an

impartial

jury.

Though

their

factual predicates differ slightly, both rest at least in part
on the failure of one of Porter’s jurors, Bruce Treakle, to
disclose at voir dire that he had a brother who, like the victim
in

this

case,

was

a

law-enforcement

officer,

serving

in

a

jurisdiction immediately adjacent to Norfolk, Virginia.
During voir dire, Porter’s attorney asked potential jurors
whether they or members of their “close personal family” had
“worked in law enforcement in any capacity as a volunteer or an
employee.”

Treakle

raised

his

hand,

and

when

called

on,

explained that his nephew was a police officer in Arlington,
Virginia, where the trial was being held.
6

Porter’s attorney

Appeal: 14-5

Doc: 58

Filed: 10/20/2015

Pg: 7 of 12

asked Treakle whether this relationship would affect his ability
to be fair and impartial, and Treakle responded that it would
not.

The attorney moved on to other prospective jurors, and

Treakle

did

not

mention

any

additional

relatives

in

law

enforcement.
As
reflects

the

district

that

Treakle

court
has

explained,
a

second

however,

and

closer

the

record

relative,

a

brother, who also worked in law enforcement, as a deputy sheriff
in Chesapeake, Virginia, which borders Norfolk.

That fact came

to

when

light

only

after

Porter’s

direct

appeal,

Porter’s

counsel and a law student volunteer interviewed Porter’s jurors.
According to an affidavit submitted by the law student, Treakle
explained that the trial testimony of Officer Reaves’s widow had
been “moving and very emotional for him because his brother is a
sheriff’s officer in Norfolk.” 2

J.A. 2198.

After “express[ing]

sympathy for law enforcement officers” who “put their lives on
the line every day for the community,” Treakle declined to speak
further to Porter’s counsel.
With this as his core factual predicate, Porter raises two
separate claims regarding juror bias in his § 2254 petition.
One focuses exclusively on Treakle’s conduct during voir dire,

2

A subsequent affidavit from Treakle’s brother, Pernell,
clarified that Pernell Treakle actually was a deputy sheriff in
Chesapeake, Virginia, at all times relevant to this case.
7

Appeal: 14-5

Doc: 58

Filed: 10/20/2015

Pg: 8 of 12

and invokes McDonough Power Equipment, Inc. v. Greenwood, 464
U.S. 548 (1984).

McDonough, as we have explained, “set[s] forth

a particularized test for determining whether a new trial is
required

in

the

context

of

juror

deceit

during

voir

Jones v. Cooper, 311 F.3d 306, 310 (4th Cir. 2002).
test, the bar for juror misconduct is set high:

dire.”

Under that

Relief may be

granted only if a “juror fail[s] to answer honestly a material
question,” McDonough, 464 U.S. at 556, and a juror’s failure to
elaborate on a response that is factually correct but less than
comprehensive

may

question is asked.

not

meet

this

standard

where

no

follow-up

See, e.g., Billings v. Polk, 441 F.3d 238,

245 (4th Cir. 2006) (McDonough provides for relief “only where a
juror gives a dishonest response to a question actually posed,
not where a juror innocently fails to disclose information that
might have been elicited by questions counsel did not ask”);
Fitzgerald v. Greene, 150 F.3d 357, 363-64 (4th Cir. 1998) (no
McDonough

claim

where

juror

whose

granddaughter

had

been

molested answered that no member of his family had been “raped”
because

attorney

limited

question

to

follow-up question about molestation).

rape

and

did

not

ask

Applying that standard,

the district court dismissed Porter’s McDonough claim, finding
that

the

state

court

reasonably

held

that

Treakle

“did

not

volunteer false information” in a way that implicates McDonough

8

Appeal: 14-5

Doc: 58

when

he

Filed: 10/20/2015

failed

to

Pg: 9 of 12

advise

of

a

second

relative

in

law

enforcement.
Porter’s second claim is different:

Relying in part but

not entirely on what he alleges was Treakle’s dishonesty at voir
dire,

Porter

also

invokes

Smith

v.

Phillips,

455

U.S.

209

(1982), and claims that Treakle was not a fair and impartial
juror.

This claim of “actual bias” (sometimes called “bias in

fact”) is, as we have made clear, distinct from a McDonough
claim.

“The

McDonough

test

is

not

the

exclusive

test”

for

identifying bias, and while a McDonough claim requires a showing
of

juror

misconduct,

an

actual

bias

claim

may

succeed

“regardless of whether the juror was truthful or deceitful.”
Jones, 311 F.3d at 310; see also Fitzgerald, 150 F.3d at 364
(considering

McDonough

and

actual

bias

claims

independently).

And of special relevance here, one factor that may give rise to
distinct concerns about actual bias is a personal relationship
that

colors

a

juror’s

perspective

on

a

case,

see

Fields

v.

Woodford, 309 F.3d 1095, 1103-06 (9th Cir. 2002) (remanding for
hearing on actual bias where juror’s wife had been a victim of
violent crime and district court had relied only on McDonough in
rejecting bias claim) — including a relationship with a family
member in law enforcement, see United States v. Scott, 854 F.2d
697, 698–700 (5th Cir. 1988) (ordering new trial where juror’s
failure to disclose that his brother was a deputy sheriff raised
9

Appeal: 14-5

Doc: 58

“a

Filed: 10/20/2015

genuine

prospect

of

Pg: 10 of 12

actual

bias,”

regardless

of

whether

juror’s voir dire answers were dishonest under McDonough).
As is to be expected, the thrust of Porter’s actual bias
claim differs from that of his claim under McDonough.

To show

actual bias, Porter relies not only on Treakle’s conduct at voir
dire, but also on the allegation that Treakle’s relationship
with

his

brother

actually

“impacted

his

perception

of

the

evidence and his participation in deciding Porter’s guilt and
punishment,” as reflected by Treakle’s admission that he was
especially

moved

by

the

testimony

of

Officer

Reaves’s

widow

because his brother was a sheriff’s officer from the same area
as Officer Reaves.

Porter also draws on the fact that his trial

was moved from Norfolk because of concerns about juror bias, and
on the allegation that Chesapeake law enforcement was especially
affected by the death of Officer Reaves (who lived with his
family in Chesapeake and was killed in next-door Norfolk) and
participated
Porter

in

argues,

the

extended

there

is

manhunt

enough

to

for

Porter.

support

a

All

finding

told,
that

“Treakle was actually biased against him,” or, at a minimum, to
entitle him to an evidentiary hearing on actual bias.

J.A. 3699

& n.3.
The Warden, for his part, defends against Porter’s actual
bias

claim

dismiss.

separately

and

on

the

merits

in

his

motion

to

Focusing on Treakle’s statements to Porter’s counsel,
10

Appeal: 14-5

Doc: 58

Filed: 10/20/2015

Pg: 11 of 12

as alleged in the law-student affidavit, the Warden argues that
bias in fact cannot be shown simply because Treakle responded
favorably

to

the

“obviously

moving”

testimony

of

Officer

Reaves’s widow.
Notwithstanding
dismissed

Porter’s

these
petition

arguments,
without

the

ruling

recognize Porter’s actual bias claim.

district
on

or

court

seeming

to

Instead, the portion of

the court’s opinion devoted to juror bias addresses only the
McDonough test for juror misconduct during voir dire, dismissing
Porter’s McDonough claim for the reasons discussed above.

It

does not acknowledge a distinct actual bias claim, and it never
passes on a central component of that claim: the law-student
affidavit

that

has

Treakle

drawing

a

connection

between

his

relationship with his brother and his response to certain trial
testimony. 3

3

The district court did observe that even if Treakle had
“failed to answer honestly a material question” under McDonough,
Porter would be unable to satisfy McDonough’s requirement that
an honest answer “would have provided a valid basis for a
challenge for cause,” 464 U.S. at 556, because he could not show
that the trial court would have dismissed Treakle for “actual or
implied bias.”
The court went on, however, to consider only
whether Porter’s allegations were sufficient to warrant an
imputation of bias under the “doctrine of implied bias,” without
any analysis of actual bias.
Whether or not consideration of
actual bias as a component of a McDonough claim suffices to
dispose
of
a
freestanding
actual
bias
claim,
no
such
consideration is apparent here.
11

Appeal: 14-5

Doc: 58

Filed: 10/20/2015

Pg: 12 of 12

Our point here is not to fault the district court; Porter’s
petition

contains

a

multitude

of

claims,

some

of

which

have

multiple subparts, and it is easy to see how one “variation[]”
of

a

juror

overlooked.

bias

claim,

Jones,

Porter

F.3d

at

310,

could

be

And we of course express no view as to the merits

of Porter’s actual bias claim.
with

311

that

the

But we are constrained to agree

district

court

did

not

adjudicate

his

actual bias claim.
Because

the

district

court

failed

to

rule

on

Porter’s

actual bias claim, it never issued a final decision on Porter’s
habeas

petition.

We

therefore

dismiss Porter’s appeal.

lack

jurisdiction

and

must

We remand the case to the district

court so that it can decide Porter’s actual bias claim.

On

remand, the district court may consider any argument or defense
properly raised by Porter or the Warden, and may conduct an
evidentiary hearing or any other proceedings it deems necessary
to resolve the claim.

III.
We dismiss Porter’s appeal and remand to the district court
for consideration of Porter’s actual bias claim.
opinion

regarding

the

district

court’s

dismissal

We express no
of

Porter’s

other claims.
DISMISSED AND REMANDED
12