Porter v. Davis
Filing
251
MEMORANDUM OPINION (Denying Petition After Second Remand). Signed by District Judge Henry E. Hudson on 8/14/2020. (Copies distributed as directed) (smej, )
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IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division
THOMAS ALEXANDER PORTER,
Petitioner,
Civil Action No. 3:12CV550-HEH
IVAN GILMORE,
Respondent.
MEMORANDUM OPINION
(Denying Petition After Second Remand)
Thomas Alexander Porter filed this petition for habeas corpus under 28 U.S.C.
§ 2254("2254 Petition," EOF No. 22), challenging his capital murder conviction and
death sentence for the 2005 killing of a Norfolk police officer.' The matter is before the
Court on the second remand by the United States Court of Appeals for the Fourth Circuit,
and Amended Claim I. ^ (ECF No. 221.) For the reasons stated below. Amended Claim I
will be dismissed and the § 2254 Petition will be denied.
I. PROCEDURAL HISTORY
A.
First Remand
On October 9, 2012, Porter filed his § 2254 Petition challenging his capital murder
conviction and death sentence for the 2005 shooting of a Norfolk police officer. By
Memorandum Opinion and Order entered on August 21, 2014, the Court granted
'The Court has amended the caption to reflect Porter's current custodian.
^ On the second remand, this case was reassigned to the undersigned because the judge who
previously handled the case retired.
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Respondent's Motion to Dismiss the § 2254 Petition, See Porter v. Davis,
No. 3:12CV550-JRS,2014 WL 4182677, at *1 (E.D. Va. Aug. 21, 2014). On October
16, 2014, the Court denied Porter's Rule 59(e) Motion. See Porter v. Davis, No.
3:12CV550-JRS,2014 WL 5317863, at *1 (E.D. Va. Oct. 16, 2014). Porter appealed.
On October 20, 2015, the United States Court of Appeals for the Fourth Circuit
dismissed Porter's appeal and remanded the matter back to this Court. See Porter v.
Zook, 803 F.3d 694,695 (4th Cir. 2015){""Porter F). The Fourth Circuit observed that,
"[a]mong 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
jury." Id. (citing Smith v. Phillips, 455 U.S. 209, 215 (1982)). The Fourth Circuit noted
that, "[bjecause the district court did not resolve [the actual bias] claim, its decision was
not a final order over which we have Jurisdiction" and remanded the matter to this Court.
Id.
Thereafter, by Memorandum Order entered on October 29, 2015, the Court
directed the parties to submit further briefing that set forth all of the facts, law, and
argument with respect to the actual bias claim. (ECF No. 88.) By Memorandum Opinion
and Order entered on April 25, 2016, the Court found:
(1) that Porter exhausted his actual bias claim by fairly presenting the same
to the Supreme Court of Virginia;(2) that the Supreme Court of Virginia
decided the merits of the actual bias claim;"* and,(3) that under either the
The juror's name is Bruce Treakle.
■* The Court explained: "As reflected below, it is fairly apparent simply by reviewing the
procedural history that Porter raised the actual bias claim before the Supreme Court of Virginia
and that the Supreme Court of Virginia resolved the merits of the claim when it rejected a
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deferential standard set forth in 28 U.S.C. § 2254(d)(l)-(2), or a de novo
standard of review, the actual bias claim lacks merit and may be dismissed
without conducting an evidentiary hearing.
Por/ez-v. ZooA:, No. 3:12CV550, 2016 WL 1688765, at* 1 (E.D. Va. Apr. 25,2016). By
Memorandum Opinion and Final Order entered on September 22, 2016, the Court denied
Porter's Rule 59(e) Motion. Porter v. Zook, No. 3:12CV550,2016 WL 5338508, at *1
(E.D. Va. Sept. 22, 2016.) Porter again appealed.
B.
Second Remand
On January 23, 2018, the Fourth Circuit affirmed in part, vacated in part, and
remanded the matter back to this Court with instructions. See Porter v. Zook, 898 F.3d
408,414(4th Cir. 2018)(^''Porter IF). This time, the Fourth Circuit observed that.
After he pursued a 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 ofthe 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. 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. On remand, the district court
dismissed Appellant's actual bias claim as a matter of law without holding
an evidentiary hearing. We now consider that decision and the dismissal of
his other claims.
Although we affirm 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 circumstanees; erected
inappropriate legal barriers and faulted Appellant for not overcoming them;
and ignored "judicially-recognized factors" in determining whether a hearing
separate ineffective assistance of counsel claim." Porter v. Zook, No. 3:12CV550, 2016 WL
1688765, at *1 n.3(E.D. Va. Apr. 25, 2016).
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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(1944).
Id. (internal citations to this case omitted).
The Fourth Circuit also determined that Porter's actual bias claim "was not heard
'on the merits'" by the state court, and "[a]s such, this court and the district court are not
bound by the deference afforded in § 2254(d), but rather, may conduct our review ofthe
actual bias issue de novo." Id. at 425 (citation omitted)). With respect to the
McDonough claim, the Fourth Circuit found that because the state "court addressed this
issue on the merits ... we review under the deferential AEDPA standard." Id. at 430.
However,"[ejven under this deferential standard, the state habeas court unreasonably
applied clearly established federal law" when it concluded that, because Juror Bruce P.
Treakle ("Juror Treakle") indicated that he had a nephew in law enforcement, he "did not
fail to 'honestly' answer the relevant voir dire question." Id. at 430-31. Therefore, the
Fourth Circuit,"afrirm[ed] in part, vacate[d] in part, and remand[ed] with instructions
that the district court allow discovery and hold an evidentiary hearing on Appellant's two
separate juror bias claims." Id. at 414.
C.
Proceedings After Second Remand
By Order entered on November 13, 2018,the Court and the parties agreed that the
close of discovery would be April 5, 2019, and that the evidentiary hearing would be held
on May 1, 2019. (ECF No. 119.) On January 14, 2019, the parties entered into a Joint
Order Regarding Discovery, in which the parties agreed to issue a broad subpoenas duces
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tecum to Juror Treakle, the juror who indicated that he had a brother in law enforcement,
Pernell R. Treakle, the brother who worked for the Chesapeake Sheriff's Office, and the
Chesapeake Sheriffs Office. (ECF No. 122.) On March 15, 2019, the Court heard
arguments on a Motion for Discovery filed by Porter pertaining to items of discovery
removed from the January 14, 2019 Joint Discovery Order. During the hearing,"the
parties agreed to meet and to narrow the broad scope of Petitioner's discovery requests
without the Court's intervention." (ECF No. 138, at 1.) Accordingly, by Order entered
on March 19, 2019,"based upon the parties' Joint representation, the Court DENIE[D]
Petitioner's Motion as MOOT,and the Court [would] await the submission of a joint
discovery order that resolves the matter." {Id.) The Court further explained that, "[i]n
the event the parties are unable to successfully narrow the scope of the requested
discovery. Petitioner may refile his Motion for the Court's reconsideration." {Id.) On
March 22, 2019, the Court granted Porter's request to issue an additional subpoena duces
tecum to the City of Chesapeake. (ECF No. 141.)
At the request ofthe parties, on April 4, 2019, the Court issued a second
Scheduling Order that extended the close of discovery to July 3, 2019, and moved the
evidentiary hearing to August 8, 2019. (ECF No. 144.) On May 6, 2019, the Court
granted the parties' Third Joint Order Regarding Discovery allowing Porter to obtain
documents from the Chesapeake Sheriffs Office, the Norfolk Police Department, and the
Chesapeake Police Department. (ECF No. 147.) On May 23, 2019, Porter filed a Motion
for Discovery seeking criminal records from the Alexandria and Arlington County police
departments, and the Virginia Department of State Police, for a second brother of Juror
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Treakle, Ronald Treakle. (ECF No. 153.) Also, on May 23, 2019, the Court granted the
parties' Joint Order for Deposition of Juror Treakle. (ECF No. 155.) On July 1, 2019,
Porter conducted a lengthy deposition of Juror Treakle. (ECF No. 240-1.)
On June 18, 2019, the Court conducted a hearing on the Motion for Discovery of
the criminal records of Ronald Treakle. "[BJased on the arguments of counsel and for
good cause shown, the Court GRANT[ED] petitioner Thomas Alexander Porter leave to
conduct discovery" with respect to the subpoena duces tecum to the Alexandria and
Arlington police departments, and to the Virginia Department of State Police. (ECF No.
165, at 1.) On August 2, 2019, and at the request ofthe parties, the Court issued a third
Scheduling Order extending the date for the close of discovery until October 11, 2019,
allowing Porter the opportunity to file a motion amend Count I, and continuing the
evidentiary hearing until February 12,2020. (ECF No. 188.)
By Order entered on September 10, 2019, the Court granted Petitioner's Motion
for Leave to Conduct Depositions of Calvin Treakle, a third brother of Juror Treakle, and
his sister, Cheryl Treakle Ball, Ronald Treakle, and to re-depose Juror Treakle. (ECF
No. 195.) The second deposition of Juror Treakle was supposed to be limited to asking
about the criminal histories of his family members. {Id.-, see also ECF No. 191.)
However, Porter again repeatedly asked questions specifically pertaining to his brother
Pemell's employment with the Chesapeake Sheriffs Office. (ECF No. 240-2.)
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D.
Amended Petition
On October 18, 2019, Porter filed a Motion to Amend Claim I(EOF No. 200),
which the Warden opposed. (EOF No. 210.) In granting the Motion to Amend Claim I,
over the Warden's opposition, the Court explained as follows:
The United States Court of Appeals for the Fourth Circuit has twice
remanded this case to the district court. In its first opinion, the Fourth Circuit
instructed the district court to consider Petitioner's claim ofactual juror bias,
upon finding that this Court did not resolve that claim. In its second opinion,
the Fourth Circuit found "the district court erred in dismissing the actual bias
claims... without discovery and a hearing, and it also erred... by dismissing
the McDonough claims without a hearing," and it remanded "so that
[Petitioner], once and for all, may be able to investigate his bias claims."
Following the Fourth Circuit's remand in Porter II, this Court set an
evidentiary hearing for Petitioner's Juror bias claims, which is presently
scheduled for February 12, 2020. In the August 2, 2019 Scheduling Order,
this Court extended the date for close of discovery to October 11, 2019, and
gave Petitioner until October 18, 2019, to file his motion to amend Count I
of the Amended Petition.
In his Motion, Petitioner seeks to amend Claim I based on new
evidence uncovered through discovery that allegedly provides factual
support for his juror bias claims, specifically that Juror Bruce Treakle failed
to provide honest answers to not one (as initially claimed) but three voir dire
questions. The Warden argues that Petitioner's Motion, and new sub-claims
presented,exceed the parameters ofthe instructions from the Fourth Circuit's
opinion remanding this action, and that the proposed amendments are futile
because they are procedurally defaulted and barred by the statute of
limitations.
This Court agrees with Petitioner that his proposed amendments to
Claim I are within the scope of the Fourth Circuit's mandate—instructing
this Court to provide Petitioner with the opportunity of discovery and an
evidentiary hearing. In Porter /, with respect to the actual bias claim at issue,
the Fourth Circuit stated that "the district court may consider any argument
or defense properly raised by [Petitioner] or the Warden, and may conduct
an evidentiary hearing or any other proceedings it deems necessary to resolve
the claim." In Porter II, the Fourth Circuit foreshadowed that Petitioner may
discover additional factual support through discovery to bolster his juror bias
claims when it remanded this action to this Court to conduct an evidentiary
hearing.
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Similarly, this Court rejects the Warden's arguments that the proposed
amendments are futile....
As discussed, the Fourth Circuit has made clear that Petitioner should
be given the opportunity to bolster Claim I. Furthermore, the Court finds
that Petitioner does not seek to add new claims but only to amend his existing
juror bias claims. . . . The Court finds that Petitioner is only seeking to
supplement this broad allegation of juror misconduct with the additional
information that he has now been able to obtain through recent discovery, an
opportunity he was previously not afforded....
Accordingly, upon finding that Petitioner's requested amendments are
both within the scope of the Fourth Circuit's mandate and his existing juror
bias claims, and because he has only recently been afforded the opportunity
to obtain this information through court-ordered discovery, this Court rejects
the Warden's arguments that these amendments would be futile....
(ECF No. 214, at 1-4 (internal citations omitted)(footnotes omitted).) The Court granted
the Motion to Amend and ordered Amended Claim I filed. {Id. at 5.) Amended Claim I
is summarized as follows:
Claim I:
"Porter's rights to a fair trial by an impartial jury and to be tried based only
on evidence presented were violated by the participation of a biased juror
who failed to disclose material information in response to three voir dire
questions." (ECF No. 221, at 6(emphasis in original)). Porter argues that
he is entitled to relief:
(a) under McDonough v. Power Equip., Inc. v. Greenwood, 464 U.S. 548
(1984)"because of Juror Treakle's misconduct and;"
(b)"separately, because Juror Treakle was biased against Porter." {Id.f
On February 12, 2020, the Court held an evidentiary hearing on Amended Claim I.
At the beginning of the hearing, the Warden renewed its objection to the alleged
expansion of the claim beyond the Fourth Circuit's remand to include evidence that Juror
^ As the Fourth Circuit recognized, Porter did not raise a claim of implied bias in his federal
petition, see Porter II, 898 F.3d at 420 n.5. In Amended Claim I, Porter only raises a claim of
actual bias. (ECF No. 221, at 30-40.)
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Treakle failed to disclose material information with regard to two additional voir dire
questions. In allowing this evidence, the Court explained:
In reading over the remand order very, very carefully, as well as the
comments by Judge Shedd, it seems to be my mandate here is to conduct an
evidentiary hearing and to rule upon all related issues. I don't think the
Fourth Circuit wants this case back a third or fourth time.
So to the extent that it's arguably within the scope of the evidentiary
hearing that I'm conducting, and in any way touches on any of the issues,
I'm going to allow it to come in because I want to bring finality to this case
for everybody involved.
(ECF No. 243, at 6.) The Court heard testimony from the following individuals: (1)
Pernell Treakle;(2)Eric J. Lautenschlager, an alternate juror from Porter's trial;(3)
Calvin Treakle; and (4)Juror Treakle by two videotaped depositions.^ At the conclusion
of the hearing, the Court permitted the parties to file post-hearing briefs. The matter is
now ripe for disposition.
II.
FACTUAL AND PROCEDURAL BACKGROUND REGARDING THE
BIAS CLAIMS
Porter was charged and ultimately convicted of the capital murder of Stanley
Reaves, a Norfolk Police Officer. See Porter v. Commonwealth, 661 S.E.2d 415, 419-24
(Va. 2008). Porter moved for a change of venue from the Circuit Court for the City of
^ The Court only learned that Juror Treakle would not be appearing in person through Porter's
counsel on February 7, 2020. (ECF No. 236.) The Court was never asked by counsel to compel
Juror Treakle's attendance, nor could it. Under Federal Rule of Civil Procedure 45, Juror
Treakle was beyond the Court's subpoena power to command him to attend a hearing because he
lived more than 100 miles away and not in the Commonwealth of Virginia. Therefore, under
Federal Rule of Civil Procedure 32, Juror Treakle was considered an unavailable witness and the
use of the deposition during the hearing was permitted.
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Norfolk to the Circuit Court for the County of Arlington,' which was granted. Id. at 423.
Accordingly, Porter's trial was transferred to the Circuit Court for the County of
Arlington ("Circuit Court"). Id.
A.
Pertinent Voir Dire
1.
Voir Dire with Respect to Law Enforcement Officers
The Court initially divided the venire into two groups. Juror Treakle was the
afternoon group. At the beginning of voir dire, the Circuit Court informed the venire that
Porter was charged with the capital murder of a Norfolk police officer. (State Habeas
Record ("SH") 1197, 1201.) Juror Treakle and the rest of the venire assured the Circuit
Court that they were not aware of any bias or prejudice against the Commonwealth or the
accused. (SH 1202.) The prosecutor informed the venire,"I want to ask you a few
questions, and most of these questions, if the answers is in the affirmative, you are going
to let me know, raise your hand so 1 can chart your name and put down who is answering
affirmatively." (SH 1204.)
The Fourth Circuit noted that:
As was to be expected, Officer Reaves's senseless killing provoked
widespread mourning and outrage in Norfolk and the surrounding communities.
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 impartialjury in Norfolk,Porter filed a motion for a change ofvenue,
to which the Commonwealth consented.
Porter I, 803 F.3d at 696.
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Defense counsel subsequently asked the venire:
Have you, any member of your family or close personal friend worked for or
with any law enforcement organization, either as an employee or on a
volunteer basis?
....
...[I]s anyone here, or a member of your close personal family,
worked in law enforcement in any capacity as a volunteer or an employee?
(SH 1224-25.) Counsel did not ask the venire to identify the jurisdiction where the
family member or friend worked although the jurors volunteered that information. A
number ofjurors raised their hands and then the following exchange occurred:
MR. MIGLIOZZI: I'm going to start in the back row. Mr. Treakle.
MR. TREAKLE: My nephew is an Arlington County police officer.
MR. MIGLIOZZI: Your nephew?
MR. TREAKLE: Yes.
MR. MIGLIOZZI: In this county here?
MR. TREAKLE: Yes.
MR. MIGLIOZZI: Do you think, with that being the case, that that would
impair your ability to sit on this jury and render a fair and impartial verdict
in this case?
MR.TREAKLE: No.
(SH 1225-26.)
As reflected in the exchange below, the attorneys trying the case and who were
most familiar with the facts were content with a general reassurance from the venire
person that any relationship he or she had with law enforcement officials would not
impair his or her ability to render a fair and impartial verdict:
MS. VU: My godmother works for the Department of Defense. Godmother.
II
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MR. MIGLIOZZI: Department of Defense. Okay. Your godmother?
Ms. VU: Yes.
MR. MIGLIOZZI: As a law enforeement official?
MS. VU: No. Financial.
MR. MIGLIOZZI: Mr. Dodge.
MR. DODGE: My father-in-law is a retired former United ~ Assistant United
States Attorney in the Southern District of California. And I have two close
personal friends who are corrections officers for the State of Connecticut.
MR. MIGLIOZZI: Is that in the penitentiary side?
MR.DODGE: Medium-grade state prison.
MR. MIGLIOZZI: That being the case, do you feel that your association with
those persons you mentioned will in any way affect your ability to sit on a jury
involving a case that the judge has already explained to you, the facts in this case,
in rendering a fair and impartial judgment?
MR. DODGE: No, not at all.
MR. MIGLIOZZI: Yes. Sir. Mr. Weinberg.
MR WEINBERG: My wife is with the Office of General Counsel with the
Federal Communications Commission, and she works on fraud cases involving
funding that flows through the FCC.
Additionally, my former employment, I worked in the Congress, and we
had some advisory responsibilities over some law enforcement activities in the
Department of State and Inspectors General, things like that.
MR. MIGLIOZZI: So you were in a supervisory capacity role?
MR. WEINBERG: Well, in the sense that we had oversight. I did oversight work
for the bank security people, for example.
MR. MIGLIOZZI: Any of those situations — do you believe that any of those
situations would in any way impair your ability to sit on this particular case and
render a fair and impartial judgment?
MR. WEINBERG: No, sir.
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MR. MIGLIOZZI: Thank you. All right. Mr. Sharp.
MR.SHARP: My uncle is a retired NYPD officer.
MR. MIGLIOZZI: Okay. Knowing that, and that this involves the alleged
shooting of a police officer, would you have any ~ do you believe that
those facts and that relationship would impair your ability to sit and render
a fair and impartial verdict in this case?
MR. SHARP: No.
MR. MIGLIOZZI: Mr. Hurley.
MR. HURLEY: I was a consultant to the U.S. Department of Housing &
Urban Development, and part of my job was to develop security plans for
public housing projects. And I was in charge of the law enforcement and in
charge of keeping the places safe.
MR. MIGLIOZZI: Okay. Same question as everyone else. Do you think
that that would impair your ability to sit in a case such as this?
MR. HURLEY: No.
MR. MIGLIOZZI: Thank you. Mr. Delaney.
MR.DELANEY: My cousin is a prison guard in Erie, Pennsylvania, but it
doesn't impair my ability.
MR. MIGLIOZZI: And I will go down the front row. Mr. Zacate.
MR.ZACATE: Yes. My cousin is a Metropolitan police officer, D.C.
MR. MIGLIOZZI: Same question to you. Do you think that would affect
your ability to sit -MR.ZACATE: No.
MR. MIGLIOZZI: --on this jury?
MR.ZACATE: No.
MR. MIGLIOZZI: All right. Any more hands?
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(SH 1226-29.) None of the jurors who answered in the affirmative were struck for cause
on this basis. (Feb. 26, 2007 Tr. 196-203, 215-23, 245-58, 268, 281, 299, 313-14.)
2.
Voir Dire with Respect to Victims of Violent Crimes and Arrests
or Prosecutions
The prosecutor also asked the venire the following:
MR.DOYLE: [M]y next question is whether you, any member of your immediate
family or close friends has ever been the victim of a violent crime?
(SH 1205.) A number ofjurors raised their hands. The following exchange occurred:
MR.DOYLE: Mr. Weinberg.
MR. WEINBERG: "Violent" is a --
THE COURT: If you're comfortable explaining in open court, you can just go
ahead and explain it. If it's something you would like to do it privately, we can do
it privately. Would you like to do it privately?
MR WEINBERG: I'd like to.
THE COURT: If that's the case, then we'll make an asterisk and come back to
that later. Okay?
MR.DOYLE: Anyone else?
(No response.)
MR.DOYLE: I'll ask a few follow-up questions to that in a moment.
(SH 1205-06.) One juror asked,"What is a'violent crime?"' (SH 1206.) The
prosecutor explained, and several jurors volunteered answers:
MR.DOYLE: Crime against a person. In other words, an assault or a robbery. It
could be a homicide.
MR. DELANEY: Mugging? My brother was mugged.
MR.DOYLE: You're Mr. Delaney?
14
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MR. DELANEY: Yup.
MR. DOYLE: Your brother was robbed?
MR. DELANEY: He was mugged.
MR. DOYLE: Mugged. How long ago did that happen?
MR. DELANEY: Seven years or so.
MR. DOYLE: Was someone arrested for the crime?
MR. DELANEY: No.
MR. DOYLE: Would the fact that your brother was mugged affect your ability to
sit as a juror and be fair and impartial in this case?
MR. DELANEY: No.
MR. HURLEY: I was robbed once.
MR. DOYLE: How long ago did that occur?
MR. HURLEY: Several years.
MR. DOYLE: I want to ask you the same sort of question. Was anyone arrested?
MR. HURLEY: No.
MR. DOYLE: Would the fact that that happened to you, would that affect your
ability to be fair and impartial juror for both sides?
MR HURLEY: No.
MR. DOYLE: Anyone else?
THE JURORS: (Shaking heads.)
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(SH 1206-07.) Juror Treakle did not respond to this question. However, none ofthe
jurors who answered in the affirmative were struck for cause on this basis. (Feb. 26,
2007 Tr. 179-81, 215-23, 245-58, 268, 281, 299, 313-14.)
The prosecutor next asked the venire about family members with arrests and
prosecutions:
MR.DOYLE: Have you or any family member of your immediate family or close
friend ever been arrested or prosecuted for the alleged commission of a criminal
offense?
THE JURORS: (Shaking heads.)
(SH 1207.) After the prosecutor moved on to the next question, one juror noted that her
father had been arrested, but not convicted, in Colorado six years prior. (SH 1208.)
Anotherjuror indicated that her brother had been arrested and charged with "criminal
crimes recently," in Buffalo, New York. (SH 1208.) A third juror, volunteered that her
"brother has an addiction," and a fourth. Juror Hurley, noted that he "was arrested once
when he was 17" at a "prom picnic." (SH 1208.) After inquiring ofthe prosecutor
whether "we [were] talking about criminal like violent crimes or" any crime and the
prosecutor answered,"[a]ny crime," a fifth juror volunteered that he was arrested for
"provid[ing] alcohol to minors" more than twelve years prior. (SH 1210.) Finally, a
sixth juror volunteered that he "had a DWI about two years ago." (SH 1210.) Each juror
who was asked about impartiality indicated that these incidents would not affect their
ability to sit and be fair to both sides. (SH 1207-10.)® Juror Treakle also did not answer
® Juror Hurley was not asked whether he could remain fair and impartial despite being arrested at
a prom picnic. (SH 1209-10.)
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this question. Once again, none ofthe jurors who answered in the affirmative were
struck for cause on this basis. (Feb. 26, 2007 Tr. 181-84, 215-23, 245-58, 268, 281,
299,313-14.)
3.
General Assurances About Impartiality
Additional voir dire provided assurance that the jurors, including Juror Treakle,
could remain impartial in deciding the appropriate punishment despite the fact the case
involved the capital murder of a police officer. Specifically, the Circuit Court broke the
venire down into groups of four persons to pose specific questions about their abilities to
fairly decide a capital case. During that questioning. Juror Treakle repeatedly assured the
Circuit Court that he could remain impartial and follow the Circuit Court's instructions,
even though the case involved the capital murder of a police officer. (SH 1285-94.) For
example, the Circuit Court reminded Juror Treakle that the case involved the capital
murder of a police officer(SH 1285), and defense counsel asked,"If you should convict
the defendant, Mr. Porter, of capital murder, could you follow the Court's instructions
and consider voting for a sentence of less than the death penalty?" (SH 1292.) Juror
Treakle responded,"Yes." (SH 1292.) Thereafter, defense counsel asked:
If after you have already found that Mr. Porter is guilty beyond a
reasonable doubt of the willful, deliberate and premeditated killing of a
police officer, you were then presented with evidence in aggravation that
there was a probability that Mr. Porter would commit criminal acts of
violence that would constitute a serious threat to society, could you follow
your instructions and consider voting against the death penalty and in favor
of a life sentence without parole?
(SH 1293.) Juror Treakle responded in the affirmative. (SH 1293-94.) Juror Treakle
and the three other venire persons were also asked,"[D]o any of the four of you know of
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any reason why you could not or would not be able to fairly and impartially determine the
facts of the case or abide by the instructions of the Court on the sentencing issues?" (SH
1290.) All four jurors responded in the negative. (SH 1290.)
B.
Porter's Allegations Pertaining to the Trial
Porter offers the following summary oftrial as the basis for his claims:
Officer Reaves and his family lived in Chesapeake, where Pemell
Treakle served as a deputy sheriff. Just after Officer Reaves's shooting, law
enforcement from around the Tidewater area participated in the manhunt for
Porter. Hundreds of officers from over a dozen law enforcement agencies,
including the Chesapeake Police Pipe and Drum Corps, attended Officer
Reaves's funeral, while other watched live television broadcasts. Officer
Reaves's wife thanked the Chesapeake Police Department for its support
following her husband's death.
Officer Reaves's death was felt throughout the community, especially
in Chesapeake where the city was still mourning the loss of Michael Saffran,
a Chesapeake Police Officer killed in the line ofduty just three weeks before
Officer Reaves. Soon after Officer Reaves was killed, the Police Emerald
Society of Tidewater hosted a joint fundraiser for the Reaves and Saffran
families.
About six months later. Officer Reaves and Saffran were
remembered at Peace Officers Memorial Day services in Norfolk and
Chesapeake. An honor guard of law enforcement officers from the Norfolk
and Chesapeake Police Departments and Chesapeake Sheriffs Office
attended the memorial in Chesapeake. A local newspaper published photos
of the memorial services, including one of a law enforcement officer
comforting Officer Reaves's daughter and another showing a Chesapeake
Sheriffs Office deputy escorting Officer Saffran's widow.
At trial, the prosecution depicted Porter as a serial criminal who
threatened people with weapons, trafficked in drugs, and assaulted women,
law enforcement officers, and other inmates. Many law enforcement officers
testified at Porter's trial about violent encounters with Porter....
Prosecutors presented testimony from Officer Reaves's widow,Treva
Reaves, and his sister, Christa Blackwell. Each woman testified about the
devastating effect Officer Reaves's death had on their family. Treva Reaves
was the prosecution's first witness. As the Fourth Circuit observed on
appeal, "[h]er testimony set the tone for the entire trial." .. . She told the
jury,"My husband had a very honorable job, and I was so proud to be able
to say that I was married to a police officer."
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During closing argument,the prosecutor told thejury,"[T]his is a case
about service. October 28, 2005, was the last day that Stanley Reaves put
that name tag on, put that badge on his chest and walked out on the streets of
Norfolk ... to put himself between citizens and danger." The prosecutor
urged Jurors to sentence Porter to death because he posed a "future danger to
anyone else who may encounter him in any similar fashion whatsoever
as... Reaves did." The prosecutor reminded jurors about "the deputy
sheriffs who were assaulted" by Porter, the correctional officer who was
"dragged through the meal slot, and slammed against . . . [Porter's cell]
door," and other acts of violence and resistance that Porter allegedly
committed against law enforcement officers....
(ECF No. 221, at 8-10(internal citations omitted)(alterations in original)(third and fourth
omission in original)).
C.
State Habeas Investigation
Following Porter's conviction and direct appeal, members of Porter's state habeas
team interviewed individuals who were members of Porter's jury. (SH 6214;see also
ECF No. 221, at 10.) On May 30, 2009, Maryl Sattler and Dawn Davison spoke to Juror
Treakle. (SH 6214.) During the state habeas proceedings. Porter submitted an affidavit
from Sattler memorializing her conversation with Juror Treakle:
Ms. Davison ... explained to Mr. Treakle that we were there
representing Thomas Porter, and that we were interviewing jurors as part of
our review of the entire case. Mr. Treakle indicated that he understood and
was willing to speak with us. He explained that he had to pick up his wife at
3:00 p.m., so he would only be available for a few minutes.
Ms. Davison asked Mr. Treakle which of the witnesses made the
greatest impression on him during the trial. Without hesitation, Mr. Treakle
replied that he found the officer's wife (Treva Reaves)to be a very powerful
witness. He indicated that he found her testimony moving and very
emotional for him because his brother is a sheriffs officer in Norfolk.^ We
' reflected below. Juror Treakle's brother, Pemell Treakle, actually worked for the Sheriffs
As
Office in Chesapeake, Virginia. From his deposition testimony, it is not clear whether Juror
Treakle simply misspoke or whether he simply did not know the exact identity of his brother's
employer.
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were very surprised by this statement because we had read his voir dire prior
to the interview and Mr. Treakle had never said anything about this brother.
When Ms. Davison asked for clarification, Mr. Treakle repeated that his
brother works for the sheriffs department "down in Norfolk." Mr. Treakle
said sitting through Mrs. Reaves's testimony had been difficult for him. He
expressed sympathy for law enforcement officers, and emphasized that they
put their lives on the line every day for the community.
We only spoke with Mr. Treakle for a short while. At approximately
2:45 p.m., Mr. Treakle said that he wished he could speak with us longer, but
he did not want to be late to pick his wife up from work at 3:00 p.m. We
thanked him for his time and left his home.
("Sattler Affidavit," SH 6215 (punctuation and spacing corrected)(paragraph numbers
omitted).)
On June 18, 2009, Ms. Davison also obtained an affidavit from Juror Treakle's
brother, Pernell Treakle. (SH 5491.) Pernell stated that he is a Deputy Sheriff with the
Chesapeake Sheriffs Office in Chesapeake, Virginia and had been employed in that
position for the past nine years. (SH 5491.)
D.
Facts Discovered Pertaining to Voir Dire After Second Remand and
Pertinent Testimony
After the Court permitted expansive discovery. Porter discovered that Juror
Treakle had additional family members in law enforcement beyond his brother and
nephew, and that. Juror Treakle had neglected to disclose that he had family members
who had committed criminal acts or had been the victim of a violent crime. Thus, Porter
contends that Juror Treakle was not a fair and impartial juror because he concealed
material information with respect to three voir dire questions.
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1.
Family Background
Juror Treakle currently lives in Burlington, North Carolina where he has lived
since November 2014. (Joint Stipulation of Facts("JSF") 1, ECF No. 238.) Juror
Treakle lived in Arlington, Virginia for about thirty years until 2013. (Jd.) Juror
Treakle's brother, Calvin, lived on the same street as Juror Treakle from 1989 to 1996,
and at times, their other brother Ronald, lived with Calvin. {Id. at 3.) Juror Treakle
would often host cookouts or family would drop by. (ECF No. 240-1, at 66-68; ECF
No. 243, at 80.)
2.
Family in Law Enforcement
Discovery revealed that Juror Treakle actually had five family members who were
or had been in law enforcement.
a.
Kevin Treakle
Kevin Treakle, Calvin's son, lives in Arlington and was employed as an Arlington
County police officer for about eighteen years. (JSF 5.) Juror Treakle knew that Kevin
was an Arlington County police offieer, and revealed this information during voir dire.
(SH 1225-26; ECF No. 240-1, at 113.) The reason that Juror Treakle only mentioned his
nephew, Kevin, was a police officer during voir dire was "[b]eeause [he saw] Kevin
almost every day ...[and] beeause we are close, and I didn't think about nobody else."
(ECF No. 240-1, at 94.)
b.
Pernell Treakle
Pernell Treakle has worked as a deputy sheriff for the Chesapeake Sheriffs Office
since July 10, 2000. (JSF 4.) Pernell worked in the jail as a booking deputy and then as a
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transportation deputy, and he now works as a courtroom security officer. (ECF No. 243,
at 18-19.) Juror Treakle knew that Pernell had worked in the jail at some point, but was
generally not aware of Pemell's responsibilities in his role as a deputy sheriff. (ECF No.
240-1, at 14.) Indeed, Juror Treakle initially disclosed that his brother was employed in
Norfolk not Chesapeake. (SH 6215.) Juror Treakle and Pernell did not talk about
Pemell's work as a deputy sheriff. (ECF No. 243, at 23, 54, 56.) In recent years, Juror
Treakle and Pernell would call one another every two weeks, but Juror Treakle had only
visited Pemell's house once or twice in twenty years. (ECF No. 240-1, at 106-07; ECF
No. 243, at 15.) When Juror Treakle lived in Arlington, at the time of Porter's trial, Juror
Treakle and Pemell spoke on the phone about once every three months. (ECF No. 243, at
15.)
Pernell joined the Honor Guard in 2004. The Honor Guard would attend
memorial services for fallen officers. (ECF No. 243, at 25-26.) Pemell attended a
memorial service for an Officer Saffran, a Chesapeake officer, which only included
Chesapeake police officers. (ECF No. 243, at 26-28.) Pemell did not recall attending
any memorial services for any fallen officers from the Norfolk Police Department. (ECF
No. 243, at 28.) Pemell had no recollection of the shooting death of Norfolk Police
Officer Stanley Reaves, and therefore could not have talked about it with Juror Treakle.
(ECF No. 243, at 29, 50.) Pemell did not discuss Officer Saffran's death with his brother
either. (ECF No. 243, at 50.)
Juror Treakle told Pemell that he had been summoned for jury duty. (ECF
No. 243, at 46^7,54.) Pernell told Juror Treakle that "if he told the jury committee that
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he had a brother that was a police officer he might not get selected to serve on it." (ECF
No. 243, at 46-47; see ECF No. 243, at 54-55.)'° Juror Treakle did not know what case
he would serve on or if he would even be selected as a juror at that point. When asked
whether Juror Treakle told him "anything about the case that he was going to" serve on,
Pemell interrupted counsel for the Warden and stated; "Absolutely not." (ECF No. 243,
at 55.) Pernell did not talk with Juror Treakle "at all" while he was serving on the jury
and did not discuss the trial with him after its conclusion. (ECF No. 243, at 55.) Juror
Treakle did not talk with family about the case once the trial had started. (ECF No. 2401, at 96, 129.) The Court finds that Juror Treakle and Pernell did not discuss the Porter
case at any time.
Juror Treakle steadfastly thought that he mentioned that his brother Pemell was a
deputy sheriff in Chesapeake during voir dire. (ECF No. 240-1, at 50, 82, 122; ECF
No. 240-2, at 73, 98-99, 106.) Juror Treakle indicated that he "might have made -- made
a mistake by being nervous and forgot to mention his name. That could be possible," but
that he was not sure what happened. (ECF No. 240-1, at 82; see ECF No. 240-2, at 73.)
Juror Treakle "knew [Pernell] was a police officer"(ECF No. 240-1, at 82), and he did
not intentionally omit mention of Pemell. (ECF No. 240-2, at 99.) Rather, Juror
Treakle's nondisclosure of his brother was inadvertent. Juror Treakle did not "remember
thinking about [his] brother, Pernell, when [he] was sitting in the courtroom." (ECF No.
240-1, at 86; see ECF No. 240-1, at 123.) Pernell's employment as a sheriffs deputy
Contrary to Pernell's testimony, Juror Treakle indicated that he only told his wife that he had
been called for jury duty. (ECF No. 240-1, at 96.)
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would not "have impair[e]d [Juror Treakle's] ability to ... render a fair and impartial"
verdict. (ECF No. 240-1, at 122; see ECF No. 240-2, at 100-01.)
c.
Juror Treakle's Cousins
Juror Treakle's cousin, Herbert Gibbons, Sr., who is the husband of Juror
Treakle's cousin, Percetia, was employed as a police officer with the Philadelphia Police
Department. (JSF 5.) Juror Treakle's first cousin once removed, Herbert Gibbons, Jr.
was likewise a police officer with the Philadelphia Police Department. (Jd.) Juror
Treakle knew he had a "distant cousin," in law enforcement, but that he "[didn't] stay in
contact with them, not at all." (ECF No. 240-1, at 50-51.) Juror Treakle knew that
"Herbert Gibson" worked for the Philadelphia Police Department, and that he had a "first
cousin [who] worked for the FBI" whose name he was not sure of because "I get them
sisters mixed up all -- because I don't ~ don't associate with them all that much." (ECF
No. 240-1, at 51.) Juror Treakle had known that both Herbert Gibbons, Sr. and his son
were on the police force in Philadelphia "[e]ver since [he] was a kid." (ECF No. 240-1,
at 56-57.)
Finally, Juror Treakle's first cousin, Catherine Treakle, worked for the Federal
Bureau of Investigation for at least thirty years in an administrative capacity, rather than
as an agent. (ECF No. 240-1, at 51, 60-6\;see also ECF No. 243, at41, 52.) Juror
Treakle initially thought this cousin's name was Carolyn, but then after counsel's
prompting, identified that it was Catherine who worked for the FBI because he "heard
that she retired, so [he] figure[d she worked there] 30 years." (ECF No. 240-1, at 51, 60-
61.) At the time of Porter's trial, Juror Treakle knew that these family members worked
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in law enforcement. Juror Treakle only saw or spoke to these cousins "every three or
four years" at large family funerals. (ECF No. 240-1, at 109-10.) Pemell Treakle also
had limited contact with these cousins. (ECF No. 243, at 52-53.) Juror Treakle did not
think about these cousins "at all" during trial(ECF No. 240-1, at 85, 111, 123; ECF No.
240-2, at 74-75,99-100),"because [they]... don't have that close [of a] relationship."
(ECF No. 240-1, at 86.) Juror Treakle indicated that "[i]f 1 had thought about it, I would
definitely mention it, but 1 just --1 didn't --1 didn't do it on purpose. I just didn't think
about them at all." (ECF No. 240-2, at 74-75;
ECF No. 240-1, at 85-86, 100.)
Hearing the other jurors' responses to this question did not jog Juror Treakle's memory
that he had forgotten to mention his brother or his cousins. (ECF No. 240-1, at 83-85.)
The additional cousins in law enforcement did not affect Juror Treakle's ability to sit on
the jury and render a fair and impartial judgment. (ECF No. 204-2, at 101-03.) Juror
Treakle did not intentionally conceal that he had cousins in law enforcement to secure a
place on the jury as he just did not think of them during voir dire.
d.
Eric Lautenschlager's Affidavit and Testimony
During the state habeas proceedings, Lautenschlager provided an affidavit to
Porter's counsel stating that after the jury had been empaneled, but before deliberations, a
juror mentioned that he had a brother in law enforcement. {See ECF No. 243, at 59.)
Lautenschlager was selected as an alternate juror on the Porter trial. (ECF No. 243, at
62.) Counsel for Porter contacted Lautenschlager, and Lautenschlager signed an affidavit
from them in 2009 that stated that "[s]ometime after we were sworn in as jurors . . .[he]
was surprised to learn that some jurors had close family members who were law
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enforcement officers or themselves had training in the mental health field." (ECF No.
243, at 65.) Lautenschlager "recalled] being shocked when one of the jurors said he had
a brother who was a law enforcement officer." (ECF No. 243, at 65.) Lautenschlager did
not recall which juror made this statement and he did not identify the juror in his 2009
affidavit. (ECF No. 243, at 68;see SH 5231.)
3.
Family Members with Arrests or Criminal Prosecutions or
Victims of Violent Crimes
Juror Treakle has four members of his family who have been arrested or
criminally prosecuted. First, in 2001, Calvin Treakle was prosecuted in federal court for
making false claims for overtime payments while working for the Department of
Defense. (JSF 5.) Calvin pled guilty and was sentenced to six months of home
confinement and three years of probation, (/c/.) Calvin testified that he told Juror Treakle
about his home confinement and probation back in 2001. (ECF No. 243, at 96-97.)
Ronald Treakle was often in trouble with the law and was arrested approximately
sixteen times between 1983 to 2006, in Arlington and Alexandria. (JSF 5.) Two of
Ronald's arrests involved physical assaults on his brother Calvin, when the two lived
together in Arlington. {Id.) On November 30, 1989, Ronald was arrested for malicious
wounding after threatening Calvin with a knife and punching him in the face. {Id.) On
February 21, 1996, Ronald was arrested for punching Calvin in the face multiple times.
{Id. at 5-6.) These events occurred when Calvin and Juror Treakle lived on the same
street in Arlington.
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Juror Treakle's niece, Ylindo, was sentenced to six years of incarceration, with
five years suspended, and six years of probation for one count of cocaine distribution in
1997, in Arlington. {Id. at 6.) At the time of Juror Treakle's deposition. Juror Treakle
indicated that Ronald lived with Ylindo. (ECF No. 240-1, at 15-16.) Juror Treakle was
not close with Ylindo, and he estimated that the two were in contact around once every
two months. (ECF No. 240-1, at 98-99.) Juror Treakle agreed that he was not "keeping
up with her day-to-day life" and would have learned information about her from other
family members. (ECF No. 240-1, at 99, 101.) Juror Treakle was aware that Ylindo had
been arrested but was not aware ofthe crime or whether she had served time in jail.
(ECF No. 240-1, at 42-46, 119.) Juror Treakle was vaguely aware that Ylindo had been
on probation and would have likely heard it through his sister, Cheryl, Ylindo's aunt.
(ECF No. 240-1, at 47-48.) Pemell was not aware that Ylindo had been arrested. (ECF
No. 243, at 37.)
Prior to the Porter trial. Juror Treakle's son had been charged with drug offenses
when he was a juvenile. The drug offenses were handled in juvenile court, and Juror
Treakle recalled that his son served some time in jail, and was placed on probation. (ECF
No. 240-1, at 19-20, 49.) Pemell also knew that Juror Treakle's son had been arrested.
(ECF No. 243, at 36.) Juror Treakle knew that his brother, Calvin, had been arrested or
prosecuted for billing for unworked overtime when he worked for the government, but
did not think he "did any time" but "was just put on probation." (ECF No. 240-1, at 2123.) Juror Treakle was not sure about the year that occurred because "[he] wasn't paying
much ~ get in detail with that at all ...," but he agreed it could have been in 1999. (ECF
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No. 240-1, at 26-27.) Juror Treakle knew that Calvin was on probation during that time.
(EOF No. 240-1, at 29.) Juror Treakle remembered when Calvin lost his job because
Calvin initially told him "he retired early." (ECF No. 240-1, at 117.) Later, Calvin told
Juror Treakle that he was on probation and on home confinement, but that they "didn't
discuss it no more." (ECF No. 240-1, at 30-31, 115-16, 118.) Pemell Treakle only
learned about Calvin's conviction within the last year. (ECF No. 243, at 30, 51.)
Juror Treakle also knew that his brother Ronald had been arrested or prosecuted
for criminal activity, and spent time in jail, but he did not know the details about the
offenses or when they may have occurred. (ECF No. 240-1, at 30-32, 40.) Juror Treakle
would hear about Ronald through other family members, but he did not learn of Ronald's
activities through Ronald or his own personal observation. (ECF No. 240-1, at 32, 40,
103-04.) Juror Treakle stated he had no recollection of Ronald's arrests because he
"didn't keep up with his activities at all." (ECF No. 240-1, at 34-35.) Juror Treakle
indicated that when he was around twenty-five years old, Ronald "started getting in a
whole lot of trouble. That's when we separate[d] a little bit." (ECF No. 240-1, at 10203.) Juror Treakle was only in contact with Ronald when he would stop by Juror
Treakle's occasionally. (ECF No. 240-1, at 104.)
Juror Treakle heard that Ronald attacked Calvin. (ECF No. 240-2, at 9.) Juror
Treakle "[did not] think it was assault. I think it was just a big disagreement." (ECF No.
240-2, at 10.) Ronald "didn't remember anything about the incident...[he]just knew
they had ... confronted each other," either from Calvin himself or another family
member. (ECF No. 240-2, at 9-10, 81-82.) Juror Treakle was not familiar with the
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details of the incident in 1989, but he believed that Calvin may have told him that Ronald
punched him in the face." (ECF No. 240-2, at 16, 19; see ECF No. 240-2, at 83-86,
88.) Juror Treakle learned days later that Calvin had called the police. (ECF No. 240-2,
at 82.) Juror Treakle never called this an assault, although counsel repeatedly referred to
it as such in his questioning. Juror Treakle did not know whether the incident led to
Ronald's arrest because he "was being arrested quite a few times." (ECF No. 240-2, at
19; see ECF No. 240-2, at 82.) Similarly, Juror Treakle did not know specifically about
the second incident in 1986, but he believed "[i]t could have happened." (ECF No. 2402, at 24-25;see ECF No. 240-2, at 86, 88.) Juror Treakle was not a witness to either of
the confrontations between Calvin and Ronald. (ECF No. 240-2, at 83.) Pemell Treakle
also generally knew that Ronald had been arrested and knew about an "altercation"
between Calvin and Ronald, but he was not aware that Ronald had been arrested for the
altercation. (ECF No. 243, at 31-32.) Pemell explained that Ronald developed mental
health issues while he was serving in the military. (ECF No. 243, at 33-34.) The record
fails to establish conclusively whether Juror Treakle was subjectively aware that his
brother was a victim of a violent crime.
Juror Treakle did not know the specifics about any of Ronald's arrests, and he
explained that, to his knowledge, no one in his family would have bailed Ronald out of
jail. (ECF No. 240-2, at 33, 37-38,42^5,50-52, 55, 58-59, 89-91.) He explained that
"Ronnie did drugs. He did a little bit of everything, and ~ and we just tried to talk to
"The incident report reflected that Calvin sustained an eye injury from a punch to the right eye.
(ECF No. 240-2, at 15.)
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him. He just wouldn't listen to us at all.... we just left him alone because you didn't
want to see him getting upset." (ECF No. 240-2, at 30.) Juror Treakle did not keep up
with Ronald's arrests and tried to distance himself from Ronald because he had a family
(ECF No. 240-2, at 65, 77); however, the specific arrests did not "surprise" him (ECF
No. 240-2, at 43), and he was not "curious about why [his] brother had been arrested ...
[bjecause he always got in trouble." (ECF No. 240-2, at 110.)
Juror Treakle did not volunteer that he had family members who had committed
crimes during voir dire because he did not think about his family at that time, and "[i]t
just slipped [his] mind because we don't talk about their -- their criminal history or their
personal problems," (ECF No. 240-1, at 89; see ECF No. 240-1, at 90-91; ECF
No. 240-2, at 67-69.) Juror Treakle did not mention his son because he "was just a
juvenile, so [he]... didn't think about" it. (ECF No. 240-1, at 89; see ECF No. 240-2,
at 69-70.) With respect to his brother Ronald, Juror Treakle "just blocked Ronnie out of
my mind, you know, for -- long before this jury" (ECF No. 240-2, at 69), and he "didn't
think about Ronnie at all." (ECF No. 240-2, at 91.) Juror Treakle did not intentionally
or deliberately fail to provide information pertaining to family members who had been
arrested or prosecuted for crimes or had been victims of violent crimes during voir dire.
(ECF No. 240-2, at 72, 92.) During voir dire, Juror Treakle "didn't think about nothing
containing my family at all. I know I had never been in trouble. That's all. 1 was just
concerned about myself." (ECF No. 240-2, at 91.) Juror Treakle admitted that he did
not think very hard about this voir dire question(ECF No. 240-2, at 70, 72), and with
respect to the other jurors' answers, he "probably heard what they were saying, but 1 just
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didn't comprehend ... what they were saying." (ECF No. 240-1, at 93.) Juror Treakle
assured counsel that if he had thought about and volunteered the incidents between his
brothers, or the crimes Ronald had committed, this would have in no way affected his
ability to sit on the jury and be fair and impartial. (ECF No. 240-2, at 93-97.)
Moreover, Juror Treakle's parents were killed in a car accident by a drunk driver
in 1977, when he was 17. (JSF 3; ECF No. 240-1, at 63-64.) Juror Treakle's aunt told
him about the accident, but he did not know ifthe driver had been prosecuted. (ECF No.
240-1, at 63-64.) Juror Treakle did not disclose this during voir dire. Through Juror
Treakle's responses to counsel's limited questioning, and based on his demeanor, the
record reflects that Juror Treakle did not view his parents as being a victim of a violent
crime. Thus, Juror Treakle did not knowingly omit this incident during voir dire.
With respect to the various voir dire questions, his failure to disclose information
"wasn't deliberate at all." (ECF No. 240-2, at 104.) Juror Treakle agreed that he had not
thought very hard about the answers to each of his questions. (ECF No. 240-2, at 104.)
4.
Juror Treakle's Testimony About Post-Trial Interview
Juror Treakle recalled Ms. Sattler and Ms. Davidson coming to his home in 2009.
(ECF No. 240-1, at 69-71.) Juror Treakle remembered telling them that he found
Officer Reaves's wife to be a very powerful witness. (ECF No. 240-1, at 73.) Juror
Treakle indicated that he "might have" or "probably did say that," about his statement
that "he found her testimony moving and very emotional for him because his brother's a
sheriffs officer in Norfolk." (ECF No. 240-1, 74.) Juror Treakle may have gotten the
jurisdiction where Pemell was employed incorrect "[b]ecause we don't talk about the
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jobs, you know, so I didn't know whatjurisdiction he worked at at that time." (ECF
No. 240-1, at 74.) Juror Treakle agreed that he told them that sitting through Ms.
Reaves's testimony was difficult for him, and "that he expressed sympathy for law
enforcement officers and emphasized that they put their lives on the line every day for the
community." (ECF No. 240-1, at 75.)
III. ANALYSIS OF THE ACTUAL BIAS CLAIM
A.
The Fourth Circuit's Opinion
In its remand of the actual bias claim, the Fourth Circuit found fault in this Court's
conclusions in several respects. As a preliminary matter, the court explained as follows:
A court is not, however,"obliged to hold an evidentiary hearing any time that
a defendant alleges juror bias." Billings v. Polk, 441 F.3d 238, 245 (4th Cir.
2006). But in determining a hearing was not warranted here, the district court
failed to recognize the applicability of a significant bias decision, Williams
V. Taylor, 529 U.S. 420(2000)....
This case falls squarely within the confines of Williams. Juror Treakle
remained silent regarding the fact that his brother was a law enforcement
officer, in the neighboringjurisdiction no less. In addition. Juror Treakle told
counsel after the verdict that he felt"sympathy for law enforcement officers"
and found Mrs. Reaves's testimony "moving" and "very emotional" because
of the fact that he has a brother who worked as a law enforcement officer.
J.A. 1719. Mrs. Reaves was the state's first witness. Her testimony set the
tone for the entire trial. Moreover, the jury venire was told that the victim
was a law enforcement officer and that the case originated in Norfolk. To
withhold information that one's brother was an officer in the adjacent
jurisdiction certainly "suggest[s] . .. an unwillingness to be forthcoming"
and at the very least, "disclose[s] the need for an evidentiary hearing." The
district court failed to recognize the applicability of Williams and therefore
erred in dismissing Appellant's actual bias claim without a hearing.
Porter II, 898 F.3d at 426 (alterations in original)(first omission added)(parallel
citations omitted). With respect to the substantive determination that Porter failed to
establish that Juror Treakle was actually biased, the Fourth Circuit found that:
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The district court also erred by erecting legal hurdles out of whole cloth and
then faulting Appellant for not overcoming them: (1) it placed an
insurmountable burden on counsel conducting voir dire;(2)it held Appellant
to an evidentiary standard that is both unwarranted and scarcely possible
without the chance for discovery; and (3) it made assumptions adverse to
Appellant about Juror Treakle's answers without the benefit of Juror
Treakle's in-court testimony.
First, the district court stated, "[CJounsel ... did not ask Treakle ...
to identify every member of his family who had a connection to law
enforcement" and "did not engage in any searching scrutiny of how each
individual law enforcement relationship may play out with respect to the
particular evidence to be introduced." Porter III, 2016 WL 1688765, at * 11
(emphasis supplied). And it categorized counsel's voir dire as seeking
merely "a general assurance ... that [one's] connection to law enforcement
personnel would not impair his or her ability to remain impartial." Id.
This analysis is erroneous. Counsel specifically asked,"Ha[s]... any
member of your family . . . worked for any law enforcement organization"
as "an employee"? Id. at 2. We have held that if a juror is asked a specific
question which encompasses two answers, a juror "fail[s] to answer honestly
a material question on voir dire" if he only mentions one of them. Conaway
V. Polk,453 F.3d 567,585(4th Cir. 2006). Moreover,the district court places
a burden on trial counsel uncontemplated by the Supreme Court or this
court—that counsel must keep asking questions until the juror gives a
complete answer, without knowing whether the answer is complete. Indeed,
counsel had no opportunity to ask whether Juror Treakle could be impartial
even though his brother was an officer in the jurisdiction adjacent to the
scene ofthe crime. In other words, defense counsel had no chance to "engage
in any searching scrutiny" of Juror Treakle's relationship with his brother
because he did not know about it. Porter III, 2016 WL 1688765, at *11.
Counsel is entitled to expect that when venire panel members take an oath to
answer truthfully all questions put to them in voir dire, they will indeed tell
the whole truth.
Third, at the motion to dismiss stage, a district court must "accept a
petitioner's well-pleaded allegations as true, and . . . draw all reasonable
inferences therefrom in the petitioner's favor." Conaway, 453 F.3d at 582.
However, here the district court ignored this standard and made assumptions
adverse to Appellant about Juror Treakle's answers at voir dire. For
example, the district court called Juror Treakle "honest" (twice) and
"forthright." Porter III, 2016 WL 1688765, at *12-13. He found that Juror
Treakle "did not intentionally conceal the fact that he had a brother who was
a deputy sheriff." Id. at * 12. These determinations are not only contrary to
the legal standard, but should be properly made after an evidentiary hearing.
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See Teleguz v. Zook, 806 F.3d 803, 811 (4th Cir. 2015)(explaining earlier
remand was appropriate for the district court to make credibility
determinations at"an evidentiary hearing"). The district court assumed Juror
Treakle did not purposely lie based on the cold record as opposed to the
efficacy of a live hearing. It reasoned,"[AppellantJ's suggestion that [Juror]
Treakle volunteered information about his nephew, who was a police officer,
but not about his brother, who was a deputy sheriff, for fear of losing his
place on the jury suggests a cageyness that is refuted by the record." Porter
III, 2016 WL 1688765, at *11. But the "record" to which the district court
refers is woefully undeveloped and incomplete. Appellant has not had a
chance to develop the record and prove that Juror Treakle, rather than
somehow simply forgetting his brother, purposely omitted or concealed his
relationship.
The dissent's logic suffers from the same fatal flaw. It states,"There
is no evidence in the record that Treakle was aware of the community's
feelings or that he had ever spoken to his brother about the case," and
"Pemell's affidavit does not suggest any communication between the
brothers." Post at 447 n.4. But Appellant was never given a chance to ask
Juror Treakle or his brother these crucial questions. Thus, "the dissent
ignores a critical component underlying the Supreme Court's concern in
cases involving juror bias—that without a hearing, a criminal defendant is
deprived of the opportunity to uncover facts that could prove a Sixth
Amendment violation. Barnes v. Joyner, 751 F.3d 229, 250(4th Cir. 2014).
Porter II, 898 F.3d at 426-28 (alterations in original)(third omission added). Porter has
now "had a chance to develop the record and prove that Juror Treakle, rather than
somehow simply forgetting his brother, purposely omitted or concealed his relationship"
and has been "given a chance to ask Juror Treakle [and] his brother these crucial
questions." Id. at 428. As explained below, after discovery and the receiving of
evidence. Porter fails to establish that Juror Treakle was actually biased.
B.
The Distinction between Extrinsic and Intrinsic Influences on Jurors
"[T]he Sixth Amendment, made applicable to state criminal proceedings through
the Fourteenth, affords an accused the right to trial by an impartial jury." Conaway v.
Polk, 453 F.3d 567, 582(4th Cir. 2006)(citations omitted). "If'even one [partial]juror
34
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is empaneled' and the death penalty is imposed,'the State is disentitled to execute the
sentence.'" Jones v. Cooper, 311 F.3d 306, 310(4th Cir 2002)(citing Morgan v. Illinois,
504 U.S. 719, 727 (1992)). The Supreme Court has held "that the remedy for allegations
ofjuror partiality is a hearing in which the defendant has the opportunity to prove actual
bias." Smith v. Phillips, 455 U.S. 209,215 (1982). While Smith does
not stand for the proposition that any time evidence ofjuror bias comes to
light, due process requires the trial court to question thejurors alleged to have
bias. Smith states that this "may" be the proper course, and that a hearing "is
sufficient" to satisfy due process. Smith leaves open the door as to whether
a hearing is always required and what else may be "sufficient" to alleviate
any due process concerns.
Tracey v. Palmateer, 341 F.3d 1037, 1044(9th Cir. 2003)(citation omitted). "In
deciphering what due process requires,[the courts] distinguish[] between an extraneous
contact that may have affected a jury's ability to remain fair and impartial and an intrinsic
influence from a juror's pre-existing bias." United States v. McClinton, 135 F.3d 1178,
1186(7th Cir. 1998).'^ "The distinction between internal and external jury influences is
critical because, unlike external influences, which ''necessitate a thoroughjudicial
inquiry, no such obligation is imposed with regard to an internal jury influence.'" Barnes
V. Joyner, 751 F.3d 229, 245-46 (4th Cir. 2014)(quoting Wolfe v. Johnson, 565 F.3d 140,
161 (4th Cir. 2009)).
Thus, when substantial extraneous contacts may have affected a jury's ability to be
fair, due process mandates a hearing. McClinton, 135 F.3d at 1186 (citing Willardv.
Courts use the terms external contaets and external influences interchangeably.
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Pearson, 823 F.2d 1141, 1148 (7lh Cir. 1987));
Hurst v. Joyner, 757 F.3d 389, 398-
400(4th Cir. 2014)(alteration in original)(remanding for an evidentiary hearing, when,
during trial for a capital defendant,juror "asked her father where she 'could look in the
Bible for help and guidance in making [her] decision for between life and death'" and he
directed her to an "'eye for an eye' verse, which she consulted in private the night before
returning the verdict"); Barnes, 751 F.3d at 244(holding that "a defendant is entitled to a
hearing when he or she presents a credible allegation of communications or contact
between a third party and a juror concerning the matter pending before the jury"). The
foregoing rule favoring post-trial hearings "applies only to prejudicial extraneous
contacts, not to preexisting juror bias." United States v. Senate,654 F.3d 753, 780(7th
Cir. 2011)(citing McClinton, 135 F.3d at 1186; Artis v. Hitachi Zosen Clearing Inc., 967
F.2d 1132, 1141 (7th Cir. 1992)); Robinson v. Polk,438 F.3d 350, 363-64(4th Cir. 2006)
(emphasizing the importance of distinguishing between internal and external influences
upon a jury)
Stockton v. Virginia, 852 F.2d 740, 744(4th Cir. 1988)(distinguishing
between "juror impairment or predisposition" and the more serious danger of an
"extraneous communication").''' "A post-verdict inquiry into intrinsic juror influences is
almost never justified." Senate,654 F.3d at 780 (citing Fed. R. Evid. 606(b); Tanner v.
In Rotinson, the Fourth Circuit concluded that no evidentiary hearing was warranted when one
juror read passages from the Bible to other jurors because the Bible was not deemed to be an
external influence. 438 F.3d at 363-64.
Examples of extrinsic influences include,"an attempt to bribe a juror, a juror's application for
a job in the district attorney's office, and newspaper articles and media attention." Williams v.
Bagley, 380 F.3d 932,945(6th Cir. 2004)(citation omitted).
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United States, 483 U.S. 107, 117-20(1987); Arreola v. Choudry, 533 F.3d 601, 606(7th
Cir. 2008)); see Marquez v. City ofAlbuquerque, 399 F.3d 1216, 1223(10th Cir. 2005)
(internal quotation marks omitted)(citation omitted)("A juror's personal
experience ... does not constitute extraneous prejudicial information.").'^ Rather, the
proper "tool for examining an intrinsic influence like juror bias ... is ... voir dire."
McClinton, 135 F.3d at 1186 (citations omitted). Nevertheless,"[f]or voir dire to
function,jurors must answer questions truthfully." Dyer v. Calderon, 151 F.3d 970,973
(9th Cir. 1998). A court in assessing potential bias "must be tolerant, as jurors may
forget incidents long buried in their minds, misunderstand a question or bend the truth a
bit to avoid embarrassment." Id.
C.
Rule 606(b)
Rule 606(b)(1)provides, in pertinent part:
During an inquir)' into the validity of a verdict ... a juror may not testily
about... the effect of anything on that juror's or another juror's vote; or
anyjuror's mental processes concerning the verdict or indictment. The
court may not receive a juror's affidavit or evidence of a juror's statement
on these matters.
Fed. R. Evid. 606(b)(1)(emphasis added). There are three exceptions to this rule: "[a]
juror may testify about whether: (A)extraneous prejudicial information was improperly
"Throughout the proceedings. Porter has consistently failed to distinguish between a claim of
juror partiality based on external contacts and a claim ofjuror partiality based on intrinsic bias.
See, e.g., Barnes, 751 F.3d at 249-53 (remanding habeas matter to conduct an evidentiary
hearing with respect to claim that juror called her pastor following closing argument to diseuss
attomey's arguments that quoted the Bible regarding the propriety of the death penalty); Billings
V. Polk, 441 F.3d 238, 245-46 (4th Cir. 2006)(dismissing elaim pertaining to an intrinsic
influence without conducting a hearing). The Fourth Circuit also failed to distinguish between
extrinsic and intrinsic bias in its remand.
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brought to the jury's attention;(B)an outside influence was improperly brought to bear
on any juror; or(C)a mistake was made in entering the verdict on the verdict form."
Fed. R. Evid. 606(b)(2). This rule embodies the recognition that "the proper functioning
of the jury system requires that the courts protect jurors from being 'harassed and beset
by the defeated party in an effort to secure from them evidence of facts which might
establish misconduct sufficient to aside a verdict.'" United States v. Moten, 582 F.2d
654,664(2d Cir. 1978)(quoting McDonald v. Pless, 238 U.S. 264, 267(1915)); jce
Fullwood V. Lee, 290 F.3d 663,679-80(4th Cir. 2002)(citations omitted)(observing that
Rule 606(b) is designed "to protect the finality and integrity of verdicts and to guard
against the harassment ofjurors").
In its remand, the Fourth Circuit explained as follows with respect to Rule 606(b):
The Supreme Court has held,"Rule 606(b) applies to juror testimony
during a proceeding in which a party seeks to secure a new trial on the ground
that a juror lied during voir dire." Warger v. Shauers, 135 S. Ct. 521, 525
(2014). However, the Court also recognized,"[I]fjurors lie in voir dire in a
way that conceals bias,juror impartiality is adequately assured by the parties'
ability ... to employ nonjuror evidence even after the verdict is rendered."
Id. at 529. The Sattler Affidavit, as well as other nonjuror evidence,['^] is
being offered here in order to demonstrate actual bias.
['^] Juror Treakle's brother submitted an affidavit explaining that he was a law
enforcement officer in Chesapeake at the time of the murder. See J.A. 1721. Other
evidence demonstrates that the victim in this case, Officer Reaves, and his family
lived in the Chesapeake area, see id. at 1861; Chesapeake was mourning the death
of another officer, Michael Saffran, similarly killed in the line of duty, see id. at
1858 (local police detective, who attended both Officer Saffran's and Officer
Reaves's funerals, stating, "Once you hear an officer has been killed everyone
knows and the ripples run through every law enforcement agency[.]"); some
Chesapeake law enforcement officers participated in the manhunt for Appellant
when he fled after killing Officer Reaves, see id. at 1652, 1851-52; and after her
husband's death, Mrs. Reaves wrote a letter in the Virginia Pilot, the local
newspaper stating,"We wish to acknowledge with heartfelt thanks the ... support
38
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Additionally, after discovery, should Juror Treakle be called to testify
in an evidentiary hearing. Appellant ought to be able to ask questions
regarding external prejudicial information or "whether any outside influence
was improperly brought to bear," Barnes, 751 F.3d at 257 (quoting Tanner
V. United States, 483 U.S. 107, 117 (1987))—for example, pressure from
Appellant's family or from members of the Chesapeake police. Thus,
although Rule 606(b) may prevent certain testimony from being solicited in
an evidentiary hearing, it would not preclude Appellant or other jurors from
testifying altogether.
Porter II, 898 F.3d at 428-29 (footnote number altered from original)(parallel cites
omitted).
D.
No Extrinsic Bias
"It is clearly established ... that an external influence affecting a jury's
deliberations violates a defendant's right to an impartial jury." Barnes, 751 F.3d at 240
(citations omitted). An external influence, is "any private communication, contact, or
tampering directly or indirectly, with a juror during a trial about the matter pending
before the jury,[and] is for obvious reasons, deemed presumptively prejudicial."
Remmer v. United States, 347 U.S. 227, 229(1954). In order "to be entitled to the ...
presumption [of prejudice] and a ... hearing, a 'defendant must first establish both that
an unauthorized contact was made and that it was ofsuch a character as to reasonably
draw into question the integrity ofthe verdict." Barnes, 751 F. 3d at 244 (citations
omitted); see also United States v. Cheek, 94 F.3d 136, 141 (4th Cir. 1996)("The party
who is attacking the verdict bears the burden of introducing competent evidence that the
during the sudden loss of Officer Stanley C. Reaves. We are so appreciative of the
Norfolk and Chesapeake Police Departments ... id. at 1861.
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extrajudicial communications or contacts 'were more than innocuous interventions.'")."
In this case, Porter's claim of extrinsic bias falters at the outset because he fails to
establish that "an unauthorized contact was made." Barnes, 751 F.3d at 244(citations
omitted).
Contrary to the Fourth Circuit and Porter's suggestion, after discovery and the
taking of evidence, where Porter was "able to ask questions regarding external prejudicial
information or 'whether any outside influence was improperly brought to bear,"' Porter
II, 898 F.3d at 429 (citation omitted). Porter has failed to establish any evidence of
external influence on Juror Treakle. Rather, the evidence conclusively demonstrates that
Juror Treakle was not influenced by any extrinsic source, and Porter's allegations are
"In granting an evidentiary hearing, the Fourth Circuit explained: "Appellant ought to be able
to ask questions regarding extemal prejudicial information or 'whether any outside influence was
improperly brought to bear,' Barnes, 751 P.3d at 257." Porter II, 898 F.3d at 429. Thus, the
Fourth Circuit determined that Porter was entitled to a hearing on extrinsic bias without either
prong of the test set forth in Barnes being met. Porter established neither that an unauthorized
contact was made nor that its character could reasonably draw into question the integrity of the
verdict, a showing required for a hearing. Generally, once a petitioner has demonstrated both
elements, he is entitled to the presumption of prejudice and a hearing. Barnes, 751 F.3d at 241;
see also id. at 251 (explaining that if Petitioner's allegations raise[d] a genuine concern on juror
impartiality... due process therefore require[s the Court] to remedy this allegation by ordering a
hearing in which [Petitioner] would ... enjoy[] a presumption of prejudice"). Once prejudice is
presumed,"[t]he burden then shifts to the prevailing party to prove that there exists no
'reasonable possibility that the jury's verdict was influenced by an improper communication.'"
Cheek, 94 F.3d at 141 (citations omitted);see Remmer,347 U.S. at 229.
In the instant case, Porter failed to "present[] a credible allegation of communications or
contact between a third party and a juror concerning the matter pending before the jury," that
would "entitle[ him] to an evidentiary hearing." Barnes, 751 F.3d at 242. Thus, he failed to
make a "threshold showing that improper extemal influences came to bear on the decisionmaking process of a juror." See id. at 243 n.l2 (citing United States v. Sandalis, 14 F. App'x
287,289(4th Cir. 2001)). Nevertheless, the Fourth Circuit determined he was entitled to a
hearing. As discussed above. Porter is not entitled to a presumption of prejudice here, as he has
failed to demonstrate "an unauthorized contact was made." Barnes, 751 F. 3d at 244.
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nothing more than unvalidated conjecture and speculation. Porter's theory fails at each
link of the chain. He argues that Officer Reaves's death was highly publicized in
Hampton Roads, that Pernell Treakle was a sheriffs deputy in a neighboring city and,
that Pernell Treakle clearly must have known about an officer's death in an adjacent city
first, simply because he was in law enforcement, second, because he was in the Honor
Guard and the Honor Guard attended funerals for law enforcement, and third, because the
death was so highly publicized Pernell must have heard about it. Next, Porter alleges that
Juror Treakle must have spoken with his brother Pernell about the subject of Porter's
trial, and because Pernell clearly knew of the murder of Officer Reaves, he certainly
conveyed information about this to Juror Treakle while Juror Treakle was serving on the
jury. As the evidence clearly establishes, not a single element of this theory holds true.
First, Porter offers no evidence that Juror Treakle heard or saw anything about
Porter's crimes prior to the trial. During voir dire. Juror Treakle indicated that he had not
heard anything about Porter's case. (SH 1202.) Nothing in the record calls into question
this sworn assurance. Second, Porter did not hear anything about the case from his
brother, Pernell. Pernell Treakle did attend the memorial service of Officer Saffran, a
Chesapeake police officer, but he did not discuss this officer's death or any memorial
service for the officer with Juror Treakle. Pernell did not recall anything about Officer
Reaves's death. Therefore, Pernell could not have discussed Officer Reaves's death with
Juror Treakle. Moreover, Pernell and Juror Treakle did not discuss Pemell's duties as a
deputy sheriff or his work generally. Indeed, the Sattler Affidavit reflects that Juror
Treakle was not even sure in which jurisdiction Pernell worked. Although Juror Treakle
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mentioned to Pemell that he had been called for jury duty, that was prior to the start of
the trial and before Juror Treakle knew the nature of the case. Juror Treakle and Pemell
did not speak to one another after the trial began, and they did not discuss the Porter case
at any time.
Quite simply, this is not an instance where there is clear evidence of a third-party
contact with a juror, thus necessitating a determination by the Court as to whether it was
prejudicial. See Barnes, 751 F.3d at 239(seated juror asked for religious guidance from a
third-party about the morality of imposing the death penalty and relaying this advice to
the rest of the jury); Stockton, 852 F.2d at 743(where an individual approached jurors at
a restaurant and told them "they ought to fry the son of a bitch"); Hurst, 757 F.3d at 398-
400(where a juror asked her father for a Bible verse and was read the verse about an "eye
for an eye"); Fullwood, 290 F.3d at 676 (juror's husband "'was strongly pro-death
penalty' and [she]... told other jurors that her husband 'was constantly telling [her]
during the trial and during deliberations that she should convict [Fullwood] and sentence
him to death.'"(alterations in original)). Rather, Porter puts forth no evidence that Juror
Treakle had unauthorized third-party communications with his brother or anyone else
about the matter pending before the jury, and the Court concludes there was none. Thus,
Porter fails to demonstrate that Juror Treakle was actually biased because of an external
contact.'®
Porter fails to argue and there is no evidence in the record that Juror Treakle had an external
contact with Kevin Treakle or his cousins in law enforcement. With respect to Juror Treakle's
failure to provide honest answers to the voir dire questions pertaining to his family committing
crimes or being a victim of violent crimes, Porter fails to explain, and the Court fails to discem,
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E.
Porter's Claim Involves Potential Intrinsic Bias
Porter contends that Juror Treakle withheld material information in response to
three voir dire questions. First, Porter contends that Juror Treakle omitted material
information about four additional family members in law enforcement. With respect to
the failure to offer that his brother was also a law enforcement officer, the Court
previously concluded as follows:
Porter contends that Bruce Treakle's affinity for his brother "impacted
Treakle's perception of the evidence and his ultimate decisions to convict
and sentence Porter to death." (Porter Reply 2, ECF No. 96.) As the
evidentiary cornerstone of this claim. Porter relies upon Bruce Treakle's
post-verdict comments that, inter alia, "he found the officer's wife (Treva
Reaves) to be a very powerful witness," (SH 6215), and Treakle's
explanation that he found Treva Reaves's "testimony moving and very
emotional for him because his brother is a sheriffs officer in Norfolk." (SH
6215.) However, as explained more fully below, none of the above
statements may be used to establish Juror Treakle's purported bias. See Fed.
R. Evid. 606(b). "[T]he 'firmly established' general rule is that juror
testimony may not be used to impeach ajury verdict.... The only exception
to this rule is for external influence...." Robinson, 438 F.3d at 365
(citations omitted). Indeed, as explained below. Porter's pursuit of this
evidence from Bruce Treakle frustrates the very purpose of Federal Rule of
Evidence 606(b).
Porter v. Zook, No. 3:12CV550,2016 WL 1688765, at *10(E.D. Va. Apr. 25, 2016).
Similarly, Porter's contention that Juror Treakle omitted material information in response
to the voir dire questions about family members who had been arrested or convicted of
crimes or had been victims of violent crimes, again involves potential intrinsic bias.
how Juror Treakle could be actually biased because ofsome external contact. Moreover,
"[jjurors' personal experiences do not constitute extraneous information; it is unavoidable they
will bring such innate experiences into the jury room." Warger v. Shauers,574 U.S. 40, 44
(2014)(citation omitted).
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F.
Establishing Intrinsic Bias after the Verdict
Whether a juror was actually biased is a factual question.'^ See Gonzales v.
Thomas,99 F.3d 978, 986(10th Cir. 1996)(citation omitted). "Actual bias" is "the
existence of a state of mind that leads to an inference that the person will not act with
entire impartiality." United States v. Torres, 128 F.3d 38,43(2d Cir. 1997)(citing
United States v. Wood, 299 U.S. 123, 133 (1936)). "To establish actual bias after a trial,
a party must prove that a juror was not 'capable and willing to decide the case solely on
the evidence before [him].'" United States v. Sampson, 820 F. Supp. 2d 151, 163(D.
Mass. 2011)(alteration in original)(quoting McDonoiigh Power Equip., Inc v.
Greenwood,464 U.S. 548, 554(1984)). "Determining whether a juror is biased or has
prejudged a case is difficult, partly because the juror may have an interest in concealing
his own bias and partly because the juror may be unaware of it." Smith,455 U.S. at 22122(1982)(O'Connor, J., concurring). Intrinsic bias "include[s] the general body of
experiences thatjurors are understood to bring with them to the jury room." Warger v.
Shauers, 574 U.S. 40, 51 (2014)(citing Tanner, 483 U.S. at 117-19). "[A]juror is not
impartial if his experiences, opinions, predispositions, biases, prejudices, interests, or
"
"The bias of a prospective juror may be actual or implied, that is, it may be bias in fact or bias
conclusively presumed as a matter of law." Fitzgerald v. Greene, 150 F.3d 357, 365 (4th Cir.
1998)(quoting United States v. Wood,299 U.S. 123, 133 (1936)). As discussed previously.
Porter has not raised a claim of implied bias, nor would such a claim be viable in this case.
Implied bias "is limited in application to those extreme situations where the relationship between
a prospective juror and some aspect of the litigation is such that it is highly unlikely that the
average person could remain impartial under the circumstances." Person v. Miller, 854 F.2d
656,664(4th Cir. 1988). Juror Treakle's family in law enforcement, family who were arrested
for crimes dissimilar to Porter's, and family who were victims of violent crimes, are not
exceptional. See infra Part IV.B.
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relationships 'would prevent or substantially impair the performance of his duties as a
juror in accordance with his instructions under oath." Sampson, 820 F. Supp. 2d at 162
(quoting Wainwright v. Witt, 469 U.S. 412,424(1985)). Juror bias can come to light "by
express admission or by proof of specific facts showing such a close connection in the
circumstances at hand that bias must be presumed." United States v. Scott, 854 F.2d 697,
699(5th Cir. 1988)(citation omitted). One may demonstrate that a juror was intrinsically
biased by a combination of, inter alia: (1)the juror's admissions of bias on voir dire;(2)
a juror's inaccurate or incomplete answers on voir dire;(3) non-juror evidence of bias;
and (4)an examination of the juror's actions during the trial. See, e.g., United States v.
Lawhorne, 29 F. Supp. 2d 292, 312(E.D. Va. 1998). A postconviction hearing into
potential bias "permits counsel to probe the juror's memory, his reasons for acting as he
did, and his understanding of the consequences of his actions," and "also permits the trial
judge to observe the juror's demeanor under cross-examination and to evaluate his
answers in light of the particular circumstances ofthe case." Smith, 455 U.S. at 209, 222
(O'Connor, J., concurring).
G.
Analysis of Actual Bias Claim
1.
Family In Law Enforcement
The record fails to demonstrate that Juror Treakle "deliberately omitted material
information in response to questions asked on voir dire.'' Billings v. Polk, 441 F.3d 238,
246 n.4 (4th Cir. 2006)(citations omitted). Defense counsel asked whether,"anyone
here, or a member of your close personal family, worked in law enforcement in any
capacity as a volunteer or an employee?" (SH 1225.) Juror Treakle readily volunteered
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that he had a nephew who was a police officer in Arlington County, where the trial was
being conducted. (SH 1225.) Juror Treakle further assured defense counsel such a
circumstance would not impair his ability to sit and render a fair and impartial verdict.
(SH 1225-26.)
Porter faults Juror Treakle for failing also to volunteer that he had another relative,
a brother who worked in law enforcement for the Chesapeake Sheriffs Office, and three
additional cousins who work in law enforcement. As a preliminary matter, trial counsel
did not ask Juror Treakle, who was the first member of the venire to respond to the
question, to identify every member of his family who had a connection to law
enforcement. Furthermore, counsel did not ask Juror Treakle if he had additional family
members in law enforcement. As the Court previously noted,"a juror's failure to
elaborate on a response that is factually correct but less than comprehensive" is not
necessarily indicative of deceit where no follow-up question is asked. Porter I, 803 F.3d
at 697 (citing Billings, 441 F.3d at 245; Fitzgerald v. Greene, 150 F.3d 357, 363-64(4th
Cir. 1998)). Nevertheless, the Fourth Circuit suggests that it was incumbent upon Juror
Treakle to have volunteered all of his additional family members in law enforcement, and
by not doing so, he may have "purposely omitted or concealed his relationship." Porter
II, 898 F.3d at 428. Porter fails to establish that Juror Treakle was intentionally
dishonest.
With respect to Juror Treakle's cousins, a father and a son who served on the
police force in Philadelphia, and another cousin who worked for the FBI, Juror Treakle
was not close with these cousins, rarely saw them, and he did not think of these cousins
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"at all" during voir dire or trial. Juror Treakle did not intentionally conceal that he had
cousins in law enforcement to secure a place on the jury as he just did not think of them
during voir dire or trial.
Juror Treakle also did not intentionally conceal his brother Pernell's employment
in law enforcement to secure a place on Porter's jury. First, Juror Treakle readily
admitted that he had a close family relative in law enforcement. Second, Juror Treakle
freely admitted to Porter's habeas counsel that his brother Pemell worked in law
enforcement.^" Third, Juror Treakle steadfastly believed that he had mentioned or
thought he had mentioned his brother during voir dire. Juror Treakle's nondisclosure of
his brother was inadvertent. See United States v. Fulks, 454 F.3d 410,432(4th Cir.
2006)(finding no actual bias when juror "honestly believed" that she had disclosed her
husband's murder injury questionnaire but inadvertently did not). Porter's suggestion
that Juror Treakle volunteered information about his nephew, who was a police officer,
but not about his brother, who was a deputy sheriff, for fear oflosing his place on the jury
is not supported by the record. Juror Treakle's circumstances are thus distinguishable
from those instances where the record indicated that a juror purposely concealed
information about his or her relationship to law enforcement officials, the prosecutor, or
prosecution witnesses, in order to secure a place on the jury. See Conaway,453 F.3d at
Porter indicates that Juror Treakle was the juror who admitted to an alternate juror, Eric
Lautenschlager, that he had a brother in law enforcement. (ECF No. 221, at 32(citing SH
5231).) To the extent this can be considered here, this too reinforces the notion that Juror
Treakle was not attempting to conceal his relationship with a brother in law enforcement.
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588; Scott, 854 F.2d at 699-700; Williams v. Netherland, 181 F. Supp. 2d 604,608-10
(E.D. Va. 2002).^' Here, Juror Treakle's answer was not "misleading, disingenuously
technical, or otherwise indicative of an unwillingness to be forthcoming." Billings, 441
F.3d at 244 n.2; see also Williams, 181 F. Supp. 2d at 608-10. Thus, Porter fails to
demonstrate that Juror Treakle deliberately omitted material information.
The Conaway and Williams cases relied on heavily in Porter II are factually distinct from the
immediate case as they involved an intentional failure by a juror to disclose a relationship with
an individual involved in the case, and a resulting finding of implied, not actual, bias. In
Conaway, on remand, the district court determined that the juror was impartial due to implied
bias. Conaway v. Folk, No. 1:98CV1117,2008 WL 4790107, at *9(M.D.N.C. Oct. 24, 2008).
The evidence reflected that the juror had lied during voir dire in his response to whether he knew
any of the witnesses or if any family member had dealings with the District Attomey in order to
remain on the jury. Id. at *3. The juror indicated that he knew the sheriff, but did not indicate
that, one of the key witnesses, a co-defendant, whose testimony implicated Conaway and
exculpated himself, was his double first cousin. Id. at *1-2. During the evidentiary hearing, the
evidence demonstrated that the juror and the double first cousin were extremely close, "like
brothers," id. at *3, and the juror knew that the witness was the son of his cousin but failed to
reveal that during voir dire or during the trial, even after family members confronted him about
the inappropriateness of him serving on the jury because of his relationship to the witness. Id. at
*3-4. The district court determined that, because the juror knew he was related to the codefendant witness and he concealed that family relationship to remain on the jury,"[ujnder these
exceptional circumstances," bias was implied. Id. at *9-10.
In Williams, the jury forewoman failed to disclose during voir dire: 1) that her exhusband and father of her four children was a sheriff, and a witness for the Commonwealth who
testified about the homicide investigation; 2) that the prosecutor had previously represented her
in divorce proceedings from the witness; 3)that her family watched and read media coverage of
the criminal case and discussed it with her pretrial; and 4)that she knew the victim's brother.
181 F. Supp. 2d at 606-08. During the evidentiary hearing, the juror indicated that she did not
consider herself"related" to her ex-husband, id. at 608, she did not believe that the attorney "had
represented her since the divorce was uncontested," id. at 609, and, based on the judge's question
about whether "you" had read or heard any media reports on the case, she did not feel obligated
to tell the court that her family clearly had followed the coverage and discussed it with her. Id.
The district court found after hearing the juror's responses and observing her demeanor that the
juror was "intelligent" and "assertive" and her silence with respect to the related questions was
intentionally false and misleading and could not be categorized as an "honest mistake." Id. at
608-10,615. The district court found that the juror was not impartial under McDonough and
that the circumstances dictated a finding of implied bias. Id. at 616-17.
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However,"a showing that a juror was actually biased, regardless of whether the
juror was truthful or deceitful, can also entitle a defendant to a new trial." Jones, 311
F.3d at 310; see Conner v. Polk, 407 F.3d 198, 209(4th Cir. 2005)(Luttig, J. dissenting).
In remanding this case previously, the Fourth Circuit observed that, regardless of whether
Juror Treakle acted honestly on voir dire, another "factor that may give rise to distinct
concerns about actual bias is a personal relationship that colors a juror's perspective on a
case." Porter I, 803 F.3d at 698 (citing Fields v. Woodford, 309 F.3d 1095, 1103-06(9th
Cir. 2002); Scott, 854 F.2d at 698-700). During his testimony, counsel asked Juror
Treakle questions about his relationship with his brother and his cousins and whether the
fact that his brother was a sheriffs deputy in Chesapeake or his cousins were in law
enforcement would have affected his ability to sit on the jury and be fair and impartial.
Juror Treakle answered definitively each time that it would not. The Court observed his
demeanor during counsel's questioning, and finds Juror Treakle's repeated assurances
that he could be impartial despite his family in law enforcement entirely credible.
Juror Treakle stated during voir dire that the fact that he had a nephew in law
enforcement would not affect his ability to be fair and impartial. Juror Treakle's nephew
was someone who he was very close with and saw nearly every day. Counsel conducting
voir dire were satisfied by the response that Juror Treakle would be fair and impartial. In
contrast. Juror Treakle and his brother Pemell only spoke by phone every few months. It
is unclear why Porter believes that Juror Treakle's assurances that he could be fair and
impartial despite his nephew would not equally be extended to a brother with whom he
had more limited contact. Furthermore, the record establishes that the mere fact that
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Juror Treakle's brother was a sheriffs deputy in a neighboring city had no influence on
Juror Treakle's ability to be fair and impartial. See Fulks, 454 F.3d at 420(finding no
actual bias when juror confirmed in post-conviction hearing that her husband's murder,
that she failed to reveal in Juror questionnaire, had no influence on her deliberations in
death penalty case).
Before the Court is Juror Treakle's sworn assurance that he could remain impartial
despite the facts that the case involved the murder of a police officer and he had a close
relative who was a police officer, and his additional assurance that his brother's or his
cousins' employment does not change that answer. Porter insists that Juror Treakle's
assurance of impartiality has been called into question by his post-trial comments
indicating that he was particularly moved by the testimony of Officer Reaves's widow.
However,"[a]s is reflected in Federal Rule of Evidence 606(b), requests to impeach jury
verdicts pursuant to post-trial contact with jurors generally are disfavored." United States
V. Sandalis, 14 F. App'x 287, 289 (4th Cir. 2001)(footnote omitted)(citing United States
V. Gravely, 840 F.2d 1156, 1159(4th Cir. 1998)); see Robinson, 438 F.3d at 365
("According to at least a century of Supreme Courtjurisprudence ... the 'firmly
established' general rule is that juror testimony may not be used to impeach a verdict."
(citation omitted)). Thus,"when a party seeks to attack or support a verdict. Rule 606(b)
prohibits all inquiry into a juror's mental process in connection with the verdict."^^
22
The Court previously explained;
Porter insists that it is premature to require him to substantiate his actual bias claim
with any admissible evidence. (Porter Reply 1 (citation omitted).) Rather, he
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Cheek, 94 F.3d at 143 (citing Tanner, 483 U.S. at 117-22; Cosier v. Welborn, 175 F.3d
504, 510-11 (7th Cir. 1999)(barring under Rule 606(b) evidence discovered after trial
that juror only voted for death penalty when he could not persuade any other juror to vote
for lenience); Stockton, 852 F.2d at 743-44).^^ When Porter's counsel elicited Juror
Treakle's thoughts about his mental processes in connection to the verdict or the sentence
he personally decided upon, Porter was improperly "delving into" evidence barred by
Rule 606(b). See Cheek, 94 F.3d at 143 (citations omitted). Similarly, the Court is
barred under Rule 606(b) from considering the testimony from the alternate juror, Eric
contends that, at this stage,the disposition of his elalm is governed by the standards
applieable for a motion to dismiss and the Court must accept his "well-pleaded
allegations as true, and ... draw all reasonable Inferences in his favor." {Id.
(quoting Conaway, 453 F.3d at 582)). Porter's contention, while accurate, is
woefully incomplete.
Porter has failed to substantiate his claim with competent evidence that
tends to show Bruce Treakle was biased. The prohibition of Rule 606(b) extends
to the forecast of evidence in affidavits when assessing the necessity of an
evidentiary hearing. See Bacon v. Lee, 225 F.3d 470, 485 (4th Cir. 2000)
(concluding no evidentiary hearing was warranted regarding juror bias claim where
the forecasted evidence ofjuror bias pertained to raeialjokes allegedly made during
deliberations (citing Fed. R. Evid. 606(b); Tanner, 483 U.S. at 121; Cosier v.
Welborn, 175 F.3d 504, 510-11 (7th Cir. 1999))). In Cosier, the federal habeas
petitioner sought to impugn his state death sentence with an affidavit from a juror
regarding the juror's failure to follow the trial court's instructions. 175 F.3d at 510.
As the Seventh Circuit observed in rejecting a similar claim: "It would be
altogether inappropriate for a federal court to entertain the kind of evidence [the
petitioner] proffers just because this is a collateral attaek, when neither a federal
nor a state eourt allows a verdict to be challenged direetly using evidence of this
kind. His current effort to reconstruct the jury's deliberations is simply forbidden."
W. at 511.
Porter, 2016 WL 1688765, at *13.
In contrast, in both Conaway and Williams, the petitioners were able to substantiate the
allegations ofjuror bias with evidence or allegations of discoverable evidenee that did not run
afoul of the prohibitions of Rule 606(b).
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Lautenschlager, that he was shocked that members ofthe jury mentioned after they were
empaneled that they had family in law enforcement and that one juror indicated that he
had a brother in law enforcement. See Warger, 574 U.S. at 42("Rule 606(b) precludes a
party from seeking a new trial from using one juror's affidavit of what another juror said
in deliberations to demonstrate the other juror's dishonesty during voir dire")-. Tanner,
483 U.S. at 125-28 (finding juror testimony concerning drug and alcohol use by
members of the jury was not admissible in a post-verdict evidentiary hearing under Rule
606(b) but could be sought through non-juror evidence).^'' Rather,
the suitability of an individual for the responsibility ofjury service, of
course, is examined during voir dire. Moreover, during trial the jury is
observable by the court, by counsel, and by court personnel. Moreover,
jurors are observable by each other, and may report inappropriate juror
behavior to the court before they render a verdict.
Robinson, 438 F.3d at 362-63 (quoting Tanner, 483 U.S. at 127).^^ Simply put, "the
Sixth Amendment's guarantees do not require judicial consideration ofjuror allegations
regarding influences internal to the deliberation process." Id. at 363.
Even if the Court was not prohibited from considering Juror Treakle's post-verdict
mental impression ofthe trial evidence. Juror Treakle's innocuous statements fail to
demonstrate that he was biased. See Bacon v. Lee, 225 F.3d 470,485 (4th Cir. 2000)
(finding statements amongstjurors pertaining to race of defendant and his lover had no
Lautenschlager was permitted to testify,"as to 'whether extraneous prejudicial information
was improperly brought to the jury's attention or whether any outside influence was improperly
brought to bear upon any juror.'" Fullwood, 290 F.3d at 680 (citing Rule 606(b)). As already
discussed above, discovery and the evidentiary hearing did not bear out any such evidence.
Notably, Lautenschlager was not so shocked by this information that he felt compelled to bring
it to the Court's attention before the verdict was rendered.
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"substantial and injurious effect or influenee in determining the jury's verdict"(citation
omitted)). Juror Treakle merely indicated that he "found the officer's wife (Treva
Reaves)to be a very powerful witness" and that "he found her testimony moving and
very emotional for him because [of] his brother['s]" employment. (SH 6215.) Juror
Treakle also "expressed sympathy for law enforcement officers, and emphasized that they
put their lives on the line every day for the community." (SH 6215.)
"[Ijt is unavoidable" thatjurors will "will bring such innate [personal]
experiences into the jury room." Warger v. Shauers, 721 F.3d 606,611 (8th Cir. 2013);
see J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 149(1994)(O'Connor, J., concurring)
(citation omitted)("Jurors are not expected to come into the jury box and leave behind all
that their human experience has taught them."). In addition,"[ajthough bias in favor of
law enforcement officials [i]s inappropriate," "[a]juror's generally favorable impression
of law enforcement does not necessarily amount to bias any more than does a juror's
personal association with law enforcement." United States v. Umana,750 F.3d 320, 342
(4th Cir. 2014)(second alteration in original)(citing United States v. Lancaster, 96 F.3d
734, 743 (4th Cir. 1996); United States v. LaRouche, 896 F.2d 815, 830(4th Cir. 1990)).
Furthermore, the fact that Juror Treakle was moved by Mrs. Reaves's testimony because
he had a brother in law enforcement fails to establish that Juror Treakle disregarded his
oath to ultimately decide the case on the law and the evidence. See United States v.
Gumbs, 562 F. App'x 110, 115-16(3d Cir. 2014)(unpublished)(concluding that district
court did not err in failing to remove a juror who had cried when watching video of
defendant sexually abusing an eight-year old victim); Miller v. Webb, 385 F.3d 666,680
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(6th Cir. 2004)(Gibbons, J., dissenting)("Expressions of sympathy for a victim, without
more, do not demonstrate actual bias where the juror has assured the court that she may
decide the case fairly."); United States v. Jones, 716 F.3d 851, 857(4th Cir. 2013)
("Because jurors will have opinions from their life experiences, it would be impractical
for the Sixth Amendment to require that each juror's mind be a tabula rasa."). Rather, the
Warden called Mrs. Reaves to testify precisely because her testimony would be moving
to anyone regardless of whether they had family relationships with law enforcement
officers. Clearly, the Commonwealth was successful in that endeavor, but that is
insufficient to show that Juror Treakle was actually biased against Porter. See Porter II,
898 F.3d at 447(Shedd, J., concurring in part and dissenting in part).
Moreover, the voir dire here thoroughly explored whether the jurors, including
Juror Treakle, could follow the Circuit Court's instructions and remain impartial in
imposing a verdict, despite the fact that the case involved the capital murder of a police
officer. Scott v. Mitchell, 209 F.3d 854, 879(6th Cir. 2000)("Allegations ofjury bias
must be viewed with skepticism when the challenged influence occurred before the jurors
took their oath to be impartial."). In the post-conviction hearing, Juror Treakle
unequivocally stated that his additional family in law enforcement would not affect his
ability to be fair and impartial. See Fitzgerald, 150 F.3d at 365. Juror Treakle's
testimony is credible. Even after discovery and a hearing, there is simply no evidence
that Juror Treakle was anything less than truthful when he answered the questions about
whether he could remain impartial. The facts and circumstances here do not lead to an
inference that Juror Treakle was partial or failed to follow the Circuit Court's instructions
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10 decide the case on the law and evidence. Thus, Porter fails to establish that Juror
Treakle was actually biased based on his close family relationships with law enforcement
officers.
2.
Family Members With Arrests or Prosecutions
Porter also contends that Juror Treakle failed to provide material information with
respect to the voir dire question about family members with records of arrests or
prosecutions. Juror Treakle was silent when asked:"Have you or any family member of
your immediate family or close friend ever been arrested or prosecuted for the alleged
commission of a criminal offense?" Porter contends that Juror Treakle's silence was a
knowingly false response to a material question on voir dire.
As the evidentiary hearing established. Juror Treakle was aware at the time of
Porter's trial that his brother Ronald, his brother Calvin, his son, and his niece had been
arrested or charged with criminal activity. Juror Treakle knew that his brother had served
probation for his false overtime claims, but after Calvin told him about his conviction and
probation, they "didn't discuss it no more." (ECF No. 240-1, at 30.) Juror Treakle also
knew that his son had served jail time and probation for drug charges when he was a
juvenile. Juror Treakle knew generally that Ronald had been arrested and been in jail
periodically, and the same with his niece Ylindo, but Juror Treakle did not know the
details about their arrests, convictions, or incarcerations. Specifically, Juror Treakle
"didn't keep up with [Ronald's] activities at all," because "he couldn't keep up with
them." (ECF No. 240-1, at 35.)
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Although Juror Treakle's silence with respect to this question provided a false
assurance to counsel during voir dire that he did not have family members who had been
arrested or prosecuted, Juror Treakle's silence was not a knowingly false response. Juror
Treakle did not think about these family members during voir dire. During voir dire,
Juror Treakle "didn't think about nothing containing my family at all. I know I had never
been in trouble. That's all. I was just concerned about myself." (ECF No. 240-2, at 91.)
Juror Treakle did not intentionally or deliberately fail to provide information pertaining
to family members who had committed crimes or had been victims of violent crimes.
Juror Treakle did not think about his son because he was a Juvenile at the time of his
arrest and conviction. Juror Treakle did not knowingly conceal this information. Cf.
Conaway,453 F.3d at 588 (juror knowingly concealed familial relationship to a codefendant who was also a key prosecution witness); Scott, 854 F.2d at 699("A juror may
not conceal material facts disqualifying him simply because he sincerely believe[d] he
[could] be fair in spite of them."); Williams, 181 F. Supp. 2d at 608-10.
Even if the Court determined that Juror Treakle realized during voir dire that his
answer should be yes, but he stayed silent with respect to this question, and thus, his
silence was knowing. Porter still fails to demonstrate that Juror Treakle was impartial due
to his family's history of crime. "[Ejven an intentionally dishonest answer is not fatal, so
long as the falsehood does not bespeak a lack of impartiality." Dyer, 151 F.3d at 973.
Thus,"[i]n assessing a question of bias,[the Court] must examine [Juror Treakle's]
motives and the 'reasons that affect a juror's impartiality.'" Conner,407 F.3d at 206-07.
"[T]he motives for concealing information may vary, but only those reasons that affect a
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juror's impartiality can truly be said to affect the fairness of a trial." McDonough,464
U.S. at 556. "If[Porter] can prove that [Juror Treakle] deceived the court at voir dire, he
...[must also] prove that [he] did so because of partiality, rather than for some reason
that is irrelevant to the fairness of the trial." United States v. Tucker, 137 F.3d 1016,
1028(8th Cir. 1998). Porter fails to make this showing.
With respect to Juror Treakle's failure to provide material information about his
brothers', son's, and niece's arrests and prosecutions,"there is no evidence of motive,
much less evidence of motive tending to raise questions as to the juror's impartiality."
Jones, 311 F.3d at 313 (finding that juror who answered falsely to voir dire question
about whether she had relatives who had been convicted and provided other inconsistent
answers was not shown to be impartial); see United States v. Ross, 263 F.3d 844, 847(8th
Cir. 2001). But see Williams, 181 F. Supp. 2d at 610 (finding juror not a "fair and
impartial juror" despite no evidence of motive, when juror knowingly failed "to provide
complete and accurate responses to a number of questions during voir dire")}^ This is
not an instance where Juror Treakle failed to disclose his family's criminal history
As discussed previously, Williams is factually distinct from the situation here. In Williams, the
juror gave several deliberately false and misleading answers that impeded the voir dire process,
her explanations for her misrepresentations were questionable, and the prosecutor remained
silent. The juror did not reveal that she was previously married to a prosecution witness and he
was the father of her children, she failed to reveal that she had been represented by one of the
attorneys involved in the trial, she failed to reveal that her children and husband had read or
heard about the case from the media and discussed the media coverage with her, and she knew
the victim's brother. 181 F. Supp. 2d at 608-10. Those troubling allegations are not present in
this case for several reasons. For example, the record does not establish that Juror Treakle
knowingly or deliberately provided false answers to multiple questions. Juror Treakle had no
personal relationship with anyone involved in Porter's trial, and there is no evidence of external
influences here.
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because it involved a similar crime to Porter's, or because it invoked a powerful
emotional response that was "too painful for [him] to disclose or discuss." See Sampson,
820 F. Supp. 2d at 159(finding juror impartial when she intentionally and "repeatedly
lied" about her husband's physical abuse and daughter's drug use and subsequent
incarcerations because she "was deeply ashamed, and became distraught when required
to think about them" and her "decision to lie rather than reveal these events
demonstrate[d] the tremendous emotional impact that they had" on her). Juror Treakle
did not "consciously censor[] the information" due to a belief that "it was his place, and
not the place of the court or defense counsel, to determine whether his relations were a
bar to jury service in this case." Scott, 854 F.2d at 699;see Dyer, 151 F.3d at 981 (where
juror "did not claim to be forgetful" but "steadfastly maintained that she—not the court,
nor the defense nor the prosecutor—was the best and only judge of what information was
relevant," her lack of candor reflected an inability to render an impartial verdict); see
Williams, 181 F. Supp. 2d at 608-17. There is no evidence that Juror Treakle's silence
with respect to his family member's convictions was driven by his desire to serve on
Porter's jury. Rather, Juror Treakle did not think ofthese individuals during voir dire.
Moreover, Juror Treakle assured post-conviction counsel during his testimony that the
fact that family members had been arrested or convicted would not have affected his
ability to serve on the jury and be fair and impartial. The Court observed Juror Treakle's
demeanor during counsel's questioning and finds him credible. In the circumstances
before the Court, there is simply no evidence that Juror Treakle had any improper motive,
much less any evidence raising questions about his impartiality based on his failure to
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honestly answer this question. Porter fails to put forth evidence that Treakle was
impartial or failed to follow the Circuit Court's instructions to decide the case on the law
and evidence due to family members who had been arrested or convicted of crimes.
Porter attempts to slant Juror Treakle's statements about his brother Ronald, as
establishing his weariness or exhaustion with someone who, like his brother, or like
Porter, has been in continuous trouble with the law throughout his life. Porter argues that
these statements reflect Juror Treakle's actual bias against Porter.^' However, nothing in
the record supports an inference that Juror Treakle's experiences with his brother would
cause Juror Treakle to be impartial. Instead, contrary to Porter's suggestion,"the fact
that the juror had relatives who were subject to arrest and jury trials does not give rise to
an inference that the juror was biased against the appellant; indeed, arguably the more
common-sense assumption with this background would be biased infavor of the
accused." Jones, 311 F.3d at 313; see also Ross, 263 F.3d at 847 (observing that where
juror "failed to disclose on her questionnaire and at voir dire the fact that she has been
accused of felonies and convicted of a number of misdemeanors ... if anything,... the
juror's previous brushes with that law would create a stronger opposite inference—one
that she might well be biased in favor of defendants in general"). Juror Treakle testified
that when Ronald started getting into trouble, Juror Treakle simply tried to distance
Counsel concludes that Juror Treakle was afraid of his brother Ronald. (ECF No. 221, at 18,
30.) Juror Treakle never stated this, nor should it be inferred. Instead, Juror Treakle "distanced
himself from [Ronald] because [he] didn't want no confrontation with him" and acknowledged
that "it was a ... legitimate possibility" that Ronald could have become violent "in those
situations." (ECF No. 240-2, at 77-78.) At most. Juror Treakle was wary of a confrontalion
with Ronald.
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himselffrom Ronald. Juror Treakle and Pernell also explained that Ronald had served in
the military and suffered from mental illness and history of drug use. Juror Treakle
indieated that he tried to talk to Ronald at times, but he also purposely tried not to upset
him. Thus, the evidenee that Porter points to could just as plausibly suggest an inference
of empathy for Porter, or even a bias in favor of Porter.
In sum. Porter fails to demonstrate that Treakle was impartial or failed to follow
the Circuit Court's instructions to decide the case on the law and evidenee. Thus, he fails
to establish that Juror Treakle was actually biased based on the fact that family members
had been arrested and convicted of crimes.
3.
Family Members Who Have Been a Victim of Violent Crime
Porter also contends that Juror Treakle failed to provide material information with
respect to the voir dire question about whether he or a family member had been a victim
of a violent crime. Juror Treakle was silent again when asked: "[M]y next question is
whether you, any member of your immediate family or close friends has even been the
victim of a violent crime?" (SH 1205.) Again, Porter contends that Juror Treakle's
silence was a knowingly false response to a material question on voir dire because Juror
Treakle's brother Ronald had been arrested twice for assaulting their brother Calvin, and
because Juror Treakle's parents were killed in a ear accident in 1977 by a driver alleged
to be drunk.
Standing alone,"[t]he fact that a juror or his relative has been the victim ofsome
crime, unrelated to the offense being tried ... is only minimally relevant to the question
of that juror's impartiality." United States v. Jones, 608 F.2d 1004, 1007(4th Cir. 1979).
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The record establishes that Juror Treakle's silence with respect to this question was a
"mistaken, though honest response." See McDonough,464 U.S. at 555.^^ Juror Treakle
indicated that he knew that his brother Calvin and Ronald had been involved in a "big
disagreement" or an altercation. Juror Treakle was not familiar with the details of the
incident, when it occurred, or the extent of any injury, but he believed that Calvin may
have told him that Ronald punched him in the face. Juror Treakle did not know about a
second assault, and he was not a witness to either of the incidents. Juror Treakle was
completely unaware ofthe details surrounding these incidents. Juror Treakle knew
Ronald had been arrested many times, but he did not realize that Ronald had been
arrested or prosecuted for a fight with his brother. Thus, the evidence does not
affirmatively reflect that Juror Treakle was subjectively aware that his brother Calvin had
been a victim of a violent crime. See United States v. Perkins, 748 F.2d 1519, 1531 (11th
Cir. 1984)(requiring court to determine whether juror "was aware ofthe fact that his
answers were false"). Therefore, Porter fails to establish that Juror Treakle knowingly
omitted the information about his brother Calvin being the victim of a violent crime.
However,the fact that his brother Calvin had been a victim of an assault at the
hands of his brother Ronald would not have affected Juror Treakle's ability to be fair and
impartial. To the extent that Juror Treakle should have realized that his brother Calvin
The Court recognizes that with respect to the McDonough analysis, the Fourth Circuit already
concluded for this Court that "not just straight lies, but also failures to disclose" satisfies
McDonough's first prong. See Porter II, 898 F.3d at 431. However, with respect to the actual
bias analysis, the Court finds that Juror Treakle did not knowingly omit information with respect
to this question.
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had been the victim of a crime, Porter fails to establish that it made him an impartial
juror. See Fulks, 454 F.3d at 420(no evidence of actual bias when juror left question
blank about whether she or a family member had ever been a victim of serious crime,
even though her husband had been murdered, due to her assurance that it had no
influence on her deliberations); Fitzgerald, 150 F.3d at 364(finding no actual bias where
juror whose granddaughter had been molested failed to answer affirmatively during voir
dire to question of whether a family member had been raped but mentioned it during
sentencing phase to push for life sentence). Rather, as discussed previously. Juror
Treakle knew that Ronald had brushes with the law, and it did not surprise Juror Treakle
to hear that Ronald assaulted Calvin. Porter fails to offer any evidence that Ronald's
assaults on his brother Calvin would call into question Juror Treakle's impartiality. As
such, the Court cannot draw an inference that Juror Treakle was actually biased against
Porter due to the assault on his brother.
Juror Treakle also testified that he knew at the time ofPorter's trial that his parents
had been killed in a car accident in 1977. Juror Treakle testified that his aunt told him
about the accident, and that he believed "that a drunk driver was speeding or racing
during that Christmas holiday back in 1977." (ECF No. 240-1, at 63-64.) Juror Treakle
did not know if the driver had been prosecuted. Counsel's questioning of Juror Treakle
reflected that his knowledge of the incident was limited, and that he did not view this as a
violent crime. Cf. Amirault v. Fair, 968 F.2d 1404, 1405-06(1st Cir. 1992)(no bias
when juror serving on a rape trial failed to identify that she had been raped forty years
earlier but had "blocked the memory of it). Thus, once again. Juror Treakle's failure to
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answer this question honestly was not intentional but was merely mistaken or a result of a
misunderstanding. See McDonough,464 U.S. at 555; Perkins, 748 F.2d at 1531. The
record reflects nothing more than an inadvertent failure to answer this question in the
affirmative. See Fulks, 454 F.3d at 433. The fact that Juror Treakle's parents were killed
by a drunk driver does not permit an inference that he was actually biased, and therefore,
was an impartial juror in Porter's case. Accordingly, Porter has failed to establish that
Juror Treakle was impartial due to actual bias.
H.
No Inference of Bias
Porter contends that "the Court may infer actual bias on the part of Juror Treakle
based on his concealment of material information in response to three unambiguous
questions." (ECF No. 221, at 32.) The Court recognizes that "[cjertain false statements
that 'might be harmless in isolation' may present a 'much more sinister picture' when
viewed as a whole." United States v. Stewart, 433 F.3d 273,304(2d Cir. 2006)(quoting
Green v. White, 232 F.3d 671,678 n.lO (9th Cir. 2000)). "[Rjepeated lies in voir dire
[may] imply that the juror concealed material facts in order to secure a spot on the
particular jury." Fields v. Brown, 503 F.3d 755, 770(9th Cir. 2007)(citation omitted);
see also Dyer, 151 F.3d at 982-84(finding implied hxZiS because "the magnitude of[the
juror's] lies and her remarkable display of insouciance—her expressed feeling that only
she would decide what matters—fatally undermines our confidence in her ability to
decide [the defendant's] fate"); Williams, 181 F. Supp. 2d at 617 (finding implied b\^s
because juror intentionally concealed information of"personal[] connect[ion] to several
parties in the case," and of her pretrial exposure to media coverage of case). Porter also
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contends that Juror's Treakle's dishonest answers on voir dire indicate that he was
unwilling or unable to apply the law as instructed by the court to the evidence presented
at trial.
However, the Court has determined that Juror Treakle did not repeatedly lie or
intentionally conceal material information in his voir dire to secure a spot on the jury.
Rather, with respect to two of the questions, Juror Treakle was not aware that his answers
were false. He truthfully answered that he had a family member in law enforcement and
steadfastly believed that he mentioned his brother. The record establishes that Juror
Treakle did not realize or understand that his answer should have been "yes" to the
question about family members who had been victims of violent crime. With respect to
the question about whether anyone in his family had been arrested or prosecuted. Juror
Treakle simply did not think of these individuals and had no motive to lie about the
answer to secure a seat on the jury. Thus, Juror Treakle did not engage in a "pattern of
lies, inappropriate behavior, and attempts to cover up his behavior" that would
"introduce[] 'destructive uncertainties' into the fact-finding process" where bias must be
presumed. Green, 232 F.3d at 676; see Dyer, 151 F.3d at 983-84("A juror .., who lies
materially and repeatedly in response to legitimate inquiries about her background
introduces destructive uncertainties into the process."); Williams, 181 F. Supp. 2d at 610.
Juror Treakle unequivocally stated that his additional family members in law
enforcement and his family members who had been arrested or convicted, or had been
victims of violent crimes, had no effect on his ability to be fair and partial. The Court
finds the facts and circumstances do not permit an inference that Juror Treakle was
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actually biased. In sum, nothing here suggests that Juror Treakle was not "capable and
willing to decide the case solely on the evidence before" him. Smith,455 U.S. at 217.
After an opportunity to conduct extensive discovery and hear from Juror Treakle and his
family. Porter has failed to point to any evidence that Juror Treakle was actually biased.
Accordingly, Amended Claim I is dismissed with respect to the claim of actual bias.
IV. ANALYSIS OF THE MCDONOUGH CLAIM
Porter asserts that he is also entitled to relief as to Juror Treakle's alleged
misconduct pursuant to the test articulated in McDonough Power Equip., Inc. v.
Greenwood,464 U.S. 548 (1984). The Supreme Court and the Fourth Circuit have
maintained that establishing a viable McDonough claim is a high standard. McDonough,
464 U.S. at 555-56; Porter I, 803 F.3d at 697("Under [the McDonough] test, the bar for
juror misconduct is set high ...
cf. Jones v. Cooper, 311 F.3d 306, 312(4th Cir.
2002)("The mere fact that the juror's relatives had a history of arrests and jury trials
certainly does not reach the high standard needed for the implication of bias."). In order
to prove a juror bias claim under McDonough,the petitioner must establish that(1)"a
juror failed to answer honestly a material question on voir dire," and (2)"a correct
response would have provided a valid basis for a challenge for cause." 464 U.S. at 556.
"Additionally, a litigant must show that the fairness of his trial was affected either by the
juror's 'motives for concealing the information' or the 'reasons that affect the juror's
impartiality.'" Conaway v. Polk, 453 F.3d 567, 585 (4th Cir. 2006)(quoting
McDonough,464 U.S. at 556). Importantly, the Supreme Court has admonished that
"[t]he motives for concealing information may vary, but only those reasons that affect a
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juror's impartiality can truly be said to affect the fairness of a trial." McDonough,464
U.S. at 556.
A. Whether Juror Treakle Was Dishonest During Voir Dire
As to the first element of a McDonough claim, the Fourth Circuit has maintained
that, "[ajlthough in McDonough the juror's incorrect voir dire response was an honest
mistake, the McDonough test has been applied equally to deliberate concealment and to
innocent non-disclosure." Conner v. Polk, 407 F.3d 198, 205(4th Cir. 2005)(citing
Jones, 311 F.3d at 310). Even still,''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."
Billings V. Polk, 441 F.3d 238, 245 (4th Cir. 2006)(citing McDonough,464 U.S. at 555);
see also City ofRichmond v. Madison Mgmt. Grp., Inc., 918 F.2d 438,459(4th Cir.
1990)("[Tjhe right to challenge a juror is waived by failure to object at the time the jury
is empaneled if the basis for objection might have been discovered during voir dire...."
(quoting Robinson v. Monsanto Co., 758 F.2d 331, 335 (8th Cir. 1985))).
1. Family Members in Law Enforcement
In its second remand of this matter, the Fourth Circuit held that the state habeas
court's determination that Juror Treakle did not fail to honestly answer the voir dire
question pertaining to family members in law enforcement was an unreasonable
application of McDonough. Porter II, 898 F.3d at 430-31. Unsurprisingly, the parties
interpret the Fourth Circuit's finding differently—Porter contends that the Fourth Circuit
definitively determined that he satisfied the first prong of the McDonough test as to this
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voir dire question, while the Warden maintains that the Fourth Circuit instead found that
the state habeas court unreasonably applied clearly established law based solely on the
allegations in Porter's Amended Petition. (ECF No. 246, at 13; EOF No. 249, at 19-20).
As the Warden deftly points out, the Fourth Circuit made this determination based
solely on the allegations presented in Porter's habeas petition—before the allegations
were explored and substantiated through discovery and an evidentiary hearing. And, in
making its determination, the Fourth Circuit relied on Conaway, in which the petitioner's
claim was also dismissed by the district court before he was afforded an evidentiary
hearing. See Porter II, 898 F.3d at 430-31; Conaway,453 F.3d at 585, 589-90. The
Fourth Circuit more specifically stated in Conaway that it was unreasonable for the state
habeas court to conclude that the petitioner's allegations were insufficient to satisfy his
McDonough claim, and it clarified that it "evaluate[d] the petition under the standards
governing motions to dismiss made pursuant to Rule 12(b)(6) of the Federal Rules of
Civil Procedure" and was "obliged to accept a petitioner's well-pleaded allegations as
true ...." Conaway,453 F.3d at 582, 585; see also Farabee v. Clarke,
F.3d
, 2020
WL 4197527, at *6 (4th Cir. July 22, 2020)("Where, as here, a district court dismisses a
petition without an evidentiary hearing or discovery, we 'evaluate its underlying
allegations pursuant to the principles of Federal Rule of Civil Procedure 12(b)(6).'"
(footnote omitted)(quoting Wolfe v. Johnson, 565 F.3d 140, 160(4th Cir. 2009))).
Given the Fourth Circuit's explicit reliance on Conaway in its most recent remand,
and the similarities in the procedural posture in the two cases, the Fourth Circuit's
determination in this matter may be appropriately interpreted as finding that Porter's
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allegations in his juror bias claims were sufficient to establish the first element ofthe
McDonough test, and it was thus unreasonable for the state habeas court to conclude
otherwise. This conclusion is only amplified by the Fourth Circuit's discussion of
Porter's actual bias claim in the same opinion. Porter II, 898 F.3d at 428 ("Third, at the
motion to dismiss stage, a district court must accept a petitioner's well-pleaded
allegations as true .... However, here, the district court ignored this standard and made
assumptions adverse to [Porter] about Juror Treakle's answers at voir dire. For example,
the district court called Juror Treakle honest (twice) and forthright.... These
determinations are not only contrary to the legal standard, but should be properly made
after an evidentiary hearing."(internal citations, quotations, and emphasis omitted)).
However, at this point—after extensive discovery and an all-day evidentiary
hearing—Porter was able to substantiate, via admissible evidence, that Juror Treakle
failed to disclose that several members of his family were employed by law enforcement
agencies. The Fourth Circuit has held that the McDonough test "applies equally to
deliberate concealment and to innocent non-disclosure," Jones, 311 F.3d at 310, and that,
in this case specifically,"Juror Treakle did not candidly answer counsel's question."
Porter II, 898 F.3d at 431. Accordingly, this Court, being bound by the Fourth Circuit's
determination, must find that Porter has "demonstrate[d] that [Juror Treakle] failed to
answer honestly a material question on voir dire."^^ See McDonough,464 U.S. at 556;
On remand. Porter was given copious opportunities to ferret out previously uncovered facts
and information to establish that he had a viable McDonough claim. However, while the Fourth
Circuit has already determined that "Juror Treakle did not candidly answer counsel's question,"
Porter II, 898 F.3d at 431, Juror Treakle repeatedly made clear—in two separate depositions—
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see also United States v. Fulks, No. CRIM 402-992-17, 2004 WL 5042206, at *4(D.S.C.
Dec. 23, 2004)("Albeit unintentionally,[the juror] failed to disclose her husband's
murder. Thus, the court concludes that [the juror] 'failed to answer honestly a question
on vo/r dire,' satisfying the first prong of McDonough."(quoting McDonough,464 U.S.
at 556)), aff'd, 454 F.3d 410(4th Cir. 2006); Williams v. Netherland, 181 F. Supp. 2d
604,613(E.D. Va. 2002)("Each question was obviously material because each sought to
identify potential sources of partiality or bias.").
that he did not intentionally fail to disclose his brother's employment as a law enforcement
officer. While using the transcript of the voir dire proceedings to refresh Juror Treakle's
recollection. Porter's counsel opined "there's no mention of your brother, Peraell Treakle,
having been disclosed in response," to which Juror Treakle responded,"1 thought 1 did, and 1
might have made ~ made a mistake by being nervous and forgot to mention his name. That
could be possible." (ECF No. 240-1, at 82.) He again reiterated,"I thought I did [mention him].
There was so much going on at that time going through my mind, I just ~ slipped my memory."
(ECF No. 240-1, at 87.) He testified he did not remember thinking of his brother while he was
in the courtroom. (ECF No. 240-1, at 87.) He further swore that he did not intentionally fail to
mention his brother when asked about familial relations to law enforcement. (ECF No. 240-1, at
121-22.) Even after previously being read the transcript. Juror Treakle maintained that he did
disclose his brother as being a member of law enforcement. (ECF No. 240-2, at 72-73.) He
again reiterated that he thought he disclosed his brother's employment, but his apparent failure to
do so was not intentional. (ECF No. 240-2, at 98-99.) He repeated at least once more that he
thought he told the court and the attorneys conducting voir dire about his brother. (ECF No.
240-2, at 105-06.)
While Juror Treakle acknowledges that he failed to completely answer the question
regarding familial ties to law enforcement, he repeatedly claimed that he thought he had
disclosed his brother's employment. The Fourth Circuit characterized this omission as "at best,
withholding critical information, and at worst, lying." Porter 11, 898 F.3d at 431. However,
after giving Porter wide latitude and much opportunity to discover the truth, the record shows
that Juror Treakle honestly thought he had disclosed his brother's career. Furthermore, Juror
Treakle maintained that he just did not think about his distant cousins during voir dire. (ECF No.
240-1, at 85, 111, 123; ECF No. 240-2, at 74-75,99-100.) Nevertheless, while this Court
would continue to find that Porter has not established that Juror Treakle "failed to answer
honestly a material question on voir dire," this Court remains bound by the Fourth Circuit's
determination that Porter has satisfied this element of McDonoitgh. See 464 U.S. at 556.
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2. Voir Dire with Respect to Criminal Activity
While the Fourth Circuit has not yet addressed Porter's Amended Claim I, which
now alleges that Juror Treakle failed to answer honestly the questions seeking
information about personal or familial arrests or prosecutions and violent crime victims,
it is clear from its recent remand that Porter has sufficiently satisfied his burden for the
first McDonough element as to these questions as well. Unlike with the question seeking
familial ties to law enforcement, Juror Treakle failed to provide any response to the
criminal activity questions at issue. And as Porter established at the evidentiary hearing.
Juror Treakle was aware that members of his family were victims of violent crimes and
had previously been arrested or prosecuted by the time of Porter's trial. While Juror
Treakle clearly did not know the extent of these incidents, and they largely occurred
several years prior to the date of the trial, these considerations pertain to the other aspects
of the McDonough analysis. At this stage of the analysis, the Fourth Circuit has simply
instructed this Court to determine whether or not Juror Treakle withheld material
information on voir dire. See Porter II, 898 F.3d at 431.
Despite not knowing the full extent of the following matters. Juror Treakle
admitted that he had been aware that his brother Ronald attacked his brother Calvin, his
parents had died as a result of a car crash caused by a drunk driver, and his brothers
Calvin and Ronald, his niece Ylindo, and his son had been arrested or prosecuted by the
time of Porter's trial. However, Juror Treakle failed to disclose this information during
voir dire. Accordingly, based on the Fourth Circuit's conclusions, this Court must find
that Porter has satisfied his burden as to the first element of his McDonough claim for
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these two criminal activity questions at issue.^® See United States v. Blackwell, 436 F.
App'x 192, 196(4th Cir. 2011)(unpublished).
Accordingly, for all three questions at issue, this Court's analysis must focus on
the second prong of Porter's McDonough claim—that is, whether a correct response on
Porter points to Juror Treakle's parents and his brother Calvin as victims of"violent crimes."
As adduced throughout the discovery process. Juror Treakle's parents were killed by a drunk
driver in 1977. Furthermore, Calvin was the victim of his brother Ronald's attacks on at least
two occasions. However,importantly. Juror Treakle repeatedly stated that while he was aware
of at least one confrontation between Calvin and Ronald, he was not aware of the facts of the
incident, when it occurred, whether anyone was arrested, or the extent of any injury. Indeed, he
initially maintained that he did not "think it was assault....just a big disagreement." (ECF No.
240-2, at 10.) Even counsel's attempts to refresh his recollection failed as Juror Treakle
maintained that he was unaware of the facts surrounding those incidents. (ECF No. 240-2, at 16,
24-25.)
Furthermore, it is not entirely clear that his parents' deaths, which were the result of a
collision with a drunk driver, would have been a readily apparent answer to Juror Treakle during
voir dire, and counsel for Porter failed to inquire during Juror Treakle's two depositions about
why Porter failed to answer this question during voir dire. See McDonough,464 U.S. at 849
("The varied responses to respondents' questions on voir dire testify to the fact that jurors are not
necessarily experts in English usage. Called as they are from all walks of life, many may be
uncertain as to the meaning of terms which are relatively easily understood by lawyers and
judges."). In fact, during Juror Treakle's deposition. Porter's habeas counsel answered his own
question about whether or not Juror Treakle's parents' deaths qualified as a violent crime. (ECF
No. 240-1 at 62-63.)
Accordingly, the record does not establish that Juror Treakle drew the conclusion that
anyone in his family was the victim of a violent crime. The record shows that, at most. Juror
Treakle may have known that Ronald punched Calvin in the face, and that he did not consider
either this incident or his parents' deaths to be the results of violent crimes. Indeed, during his
depositions. Juror Treakle never classified these incidents as violent crimes. Thus, like the
question seeking information on familial employment in law enforcement, this Court would not
independently find that Porter has satisfied the first element of McDonough as to the question
seeking information about jurors' familial or personal ties to victims of violent crimes.
However, not only does the Warden claim that "Juror Treakle admitted that he was aware that
his brother, Calvin, had been assaulted by one of their brothers, Ronald,"(ECF No. 249, at 10),
but in its last remand, the Fourth Circuit made clear that any failure to disclose information on
voir dire would satisfy the first element of McDonough,Porter 11, 898 F.3d 408 at 431.
Therefore, based on the Warden's concession and the Fourth Circuit's remand, the Court will
proceed under the assumption that the first element of McDonough is met as to the voir dire
question about family members who had been victims of violent crimes.
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voir dire would have provided Porter with a valid basis to challenge Juror Treakle for
cause. See McDonough,464 U.S. at 556.
B. Whether Correct Responses Would Have Provided a Valid Basis for a For
Cause Challenge
The Fourth Circuit has held that
[A] McDonough claim necessarily fails unless the court would have
committed reversible error—that is, abused its discretion—in failing to
dismiss [a juror] for cause. As our precedent makes clear, a failure to excuse
a prospective juror for cause constitutes an abuse of discretion in only two
situations:(1) where a per se rule of disqualification applies; and (2) where
the court "demonstrates a clear disregard for the actual bias" of the juror.
United States v. Fulks,454 F.3d 410,432(4th Cir. 2006)(quoting United States v.
Turner, 389 F.3d 111, 115 (4th Cir. 2004); see also Conaway,453 F.3d at 586("The bias
of a prospective juror may be actual or implied; that is, it may be bias in fact or bias
conclusively presumed as [a] matter of law."(alteration in original)(quoting United
States V. Wood,299 U.S. 123, 133 (1936))); Porter II, 898 F.3d at 443(Shedd, J.,
concurring in part and dissenting in part); Prieto v. Davis, No. 3:13cv849-HEH, 2014
WL 3867554, at *21-22(E.D. Va. Aug. 5, 2014). "The Supreme Court has long
recognized the constitutionally based principle that a prospective juror may be validly
challenged for cause if he cannot be impartial." Cona^vay,453 F.3d at 586; see also
Turner, 389 F.3d at 117("A juror is impartial only if he can lay aside his opinion and
render a verdict based on the evidence presented in court."(alteration marks omitted)
(quoting Par/ow v. Yount, 467 U.S. 1025, 1037 n.l2(1984))); Jones, 311 F.3d at 312
("[TJraditionally, a challenge for cause is granted only in the case of actual bias or
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implied bias (although a third category, inferred bias, might also be available)."(citation
omitted)).
By finding that Porter has failed to establish an actual bias claim, it is axiomatic
that Porter will be unable to establish that the trial court "demonstrate[d] a clear disregard
for the actual bias" of Juror Treakle. See Fulks,454 F.3d at 432. In Porter I, the Fourth
Circuit appeared to indicate that it was not settled "[w]hether or not consideration of
actual bias as a component of a McDonough claim suffices to dispose of a freestanding
actual bias claim ...." 803 F.3d at 699 n.3. However, on this second remand, and with
further enlightenment from the Fourth Circuit, this Court has done the analysis in the
reverse—finding first that Porter has failed to establish an actual bias claim, which in turn
implicates his McDonough claim—a method the Fourth Circuit has seemingly employed
in the past. See, e.g., Blackwell, 436 F. App'x at 196; Fulks,454 F.3d at 432.
Accordingly, to prevail on his McDonough claim. Porter must establish that a per se rule
of disqualification applies to the facts at issue in this matter. See Fulks,454 F.3d at 432
(quoting Turner, 389 F.3d at 115).
The Fourth Circuit has indicated that it is "loath to announce such per se rules" of
juror disqualification. Turner, 389 F.3d at 115. Indeed,"[p]er se rules of disqualification
interfere with the trial court's administration ofjury selection.... A list of per se
e.xclusions 'would burden the courts needlessly with a responsibility of endless
speculation on the presumptive bias of potential jurors.'" Id. (quoting United States v.
Brown,644 F.2d 101, 105 (2d Cir. 1981)). Accordingly, the Fourth Cireuit has limited
per se rules of disqualification, and the doctrine of implied bias,"to those extreme
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situations where the relationship between a prospective juror and some aspect of the
litigation is such that it is highly unlikely that the average person could remain impartial
in his deliberations under the circumstances." Person v. Miller, 854 F,2d 656,664(4th
Cir. 1988); see also Turner, 389 F.3d at 116("The burden on any litigant seeking to
disturb our settled practice of rejecting per se challenges is a heavy one."). Such extreme
examples may "include a revelation that the juror is an actual employee of the
prosecuting agency, that the juror is a close relative of one of the participants in the trial
or the criminal transaction, or that the juror was a witness or somehow involved in the
criminal transaction." Smith v. Phillips, 455 U.S. 209, 222(1982)(O'Connor, J.
concurring); see Person, 854 F.2d at 664 (citing Smith, 455 U.S. at 222).
As explained below, there is no per se rule of disqualification that applies to any
of the issues raised in Porter's Amended Claim I. Furthermore, the record in this case
supports the conclusion that, had Juror Treakle been completely forthcoming on voir dire,
he would not have been subject to a valid for cause challenge.^'
In Williams i'. Nelherland, a case upon which Porter relies, Judge Spencer specifically
analyzed how for cause challenges were executed during jury selection in determining whether
the juror at issue would have been struck for cause. 181 F. Supp. 2d at 615-16. Specifically,
Judge Spencer determined that:
During jury selection at Williams' trial, thirteen jurors were dismissed for
cause. One was dismissed because she had worked as a corrections officer six years
prior to the trial. A second juror was dismissed because he was prosecutor
Woodson's first cousin. A third juror was dismissed because he equivocated when
asked whether he would automatically impose the death penalty. Several were
dismissed due to exposure to pretrial information about the case. In contrast to
Stinnett, these jurors all revealed information to the Court and the parties.
Defense counsel testified that the trial court was liberal with challenges for
cause. Had the trial court and defense counsel known of Stinnett's ties to a law
enforcement witness, to the prosecutor, and of her exposure to information about
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1. Family Members in Law Enforcement
As this Court previously held,
The fact that a juror "once had a family member in law enforcement
is plainly not one ofthe 'extreme situation[s]' in which bias may be implied."
United States v. Brewer, No. 1:12CR1, 2012 WL 4757894, at *5 (N.D. W.
Va. Oct. 5, 2012), aff'd, 533 F. App'x 234 (4th Cir. 2013)(quoting Person
V. Miller, 854 F.2d 656, 664 (4th Cir. 1988)); see also United States v.
LaRouche, 896 F.2d 815, 830 (4th Cir. 1990). Further, it appears that
Porter's trial counsel and the trial court judge were convinced that Juror
Treakle would act impartially because of his familial affiliation with another
law enforcement officer. Porter now contends that Juror Treakle may have
been biased because the city of Chesapeake and its law enforcement
community were especially incited by the murder of Officer Reaves. Porter
avers that Treakle's relationship with his brother impacted his perception of
the evidence and his participation in deciding Porter's guilt and punishment.
It may be true that officers from the Chesapeake Sheriffs Office were more
involved in his case than officers in Arlington County. However, Porter
presents only circumstantial evidence of bias, and a showing of implied bias
is a very high bar.
"[T]he doctrine of implied bias is limited in application to those
extreme situations where the relationship between a prospective juror and
some aspect ofthe litigation is such that it is highly unlikely that the average
person could remain impartial in his deliberations under the circumstances."
Person,854 F.2d at 664(internal quotation marks and citations omitted)."As
examples of the 'exceptional' and 'extraordinary' situations that might
require a finding of implied bias. Justice O'Connor cited 'a revelation that
the juror is an actual employee of the prosecuting agency, that the juror is a
close relative of one ofthe participants in the trial or the criminal transaction.
the case, they would have had a valid basis for a for-cause challenge; moreover,
that challenge (if made) would certainly have been granted. Furthermore, the trial
court could have moved to exclude her on the Court's own motion.
Id. The Court, while it reaches a different conclusion, finds this analysis persuasive.
Notably, unlike in Williams, Porter's defense counsel did not testify at his evidentiary
hearing, and the parties do not argue that the trial judge in Porter's case was liberal with for
cause challenges. Indeed, the record supports the opposite conclusion. In particular, it appears
that defense counsel only moved to strike for cause those jurors who equivocated during voir
dire about whether they could impose less than the death penalty or weigh mitigating evidence.
(Feb. 26, 2007 Tr. 73,98-104, 120-23, 135-36, 153-54, 215-23,245-49, 268, 281,299, 313-
14.) Yet, the trial judge denied each motion. Tellingly, Juror Treakle was not one ofthose jurors
whom defense counsel sought to remove from the jury during voir dire.
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or that the juror was a witness or somehow involved in the criminal
transaction.'" Fitzgerald v. Greene, 150 F.3d 357,365(4th Cir. 1998)(citing
Smith, 455 U.S. at 222)(O'Connor, J., concurring). Porter's is not such an
egregious situation. There is no per se rule requiring the exclusion of a juror
whose close relative was a victim of a crime similar to that with which a
defendant is being tried,see United States v. Jones,608 F.2d 1004, 1008(4th
Cir. 1979), and "[ajbsent a specific showing of bias, a defendant accused of
murdering a police officer is not entitled to a jury free of policemen's
relatives," United States v. Caldwell, 543 F.2d 1333, 1347(D.C. Cir. 1974).
See also Jones, 608 F.2d at 1008. Absent the general connection of the
Chesapeake law enforcement officers to the victim, nothing indicates that
any of Juror Treakle's relatives had a particularly close connection to the
murder. On the information provided, the Court cannot hold that Porter has
shown that it was "highly unlikely that the average person could remain
impartial in his deliberations under the circumstances." Person, 854 F.2d at
664.
Porter v. Davis, 3:12CV550-JRS, 2014 WL 4182677, at * 11-12(E.D. Va. Aug. 21,
2014)(alterations in original)(emphasis added). The Fourth Circuit, on appeal, did not
independently determine whether Porter satisfied his burden as to this aspect ofthe test,
as it did with the first factor. Instead, the Fourth Circuit determined that
[It] also [could not] say as a matter of law that the McDonough claim should
be dismissed based on the second prong.... Because [it could not] surmise
which follow up questions (and answers) may have followed from Juror
Treakle's correct answer that his brother worked in law enforcement in
Chesapeake, [it could not] say as a matter of law that Appellant would not
have had a valid basis to challenge for cause. This is a matter that must be
further explored in an evidentiary hearing upon remand.
Por/er//, 898 F.3d at 431-32.
Despite the numerous briefs filed in this matter, and the all-day evidentiary
hearing this Court held. Porter has still failed to satisfy his burden as to the second
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element of the McDonough standard.^- Porter does not identify any law mandating for
cause challenges for jurors who have family members or ties to law enforcement. Cf.
Jones, 311 F.3d at 312. Furthermore, Juror Treakle credibly testified in his depositions
that if he had actually disclosed his brother's employment, as he thought he had done, it
would not have affected his ability to remain impartial. (ECF No. 240-1, at 122-23; ECF
No. 240-2, at 100-01.) He further assured counsel that he did not think about his cousins
or their employment at all, and their employment did not affect his ability to remain fair
or impartial. (ECF No. 204-2, at 74-75, 101-03.)
While Porter fails to cite legal authority supporting his argument that Juror Treakle
would have been excused for cause if Juror Treakle had correctly responded to this
question. Porter does cite in his reply brief Virginia Supreme Court Rule 3A:14, which
governs for cause challenges in Virginia. See Williams, 181 F. Supp. 2d at 615. Pursuant
to that rule, the trial court is required to determine whether any of the prospective jurors
(1) Is related by blood, adoption, or marriage to the accused or to a person
against whom the alleged offense was committed;
(2)Is an officer, director, agent or employee of the accused;
(3)Has any interest in the trial or the outcome of the case;
(4) Has acquired any information about the alleged offense or the accused
from the news media or other sources and, if so, whether such information
would affect his impartiality in the case;
(5) Has expressed or formed any opinion as to the guilt or innocence of the
accused;
(6) Has a bias or prejudice against the Commonwealth or the accused; or
While Porter does not clearly assert in his Amended Claim that he would have moved to strike
Juror Treakle for cause, he does maintain in his Post-Hearing Brief that, had Juror Treakle
answered fully to the questions posed on voir dire, he "would not have been permitted to serve
on Porter's jury and would have been subject to a valid for-cause challenge." (ECF No. 246, at
22; contra ECF No. 221, at 30("Had all of this information come to light before trial,[Juror
Treakle] would not have been permitted to serve on Porter's jury.").)
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(7) Has any reason to believe the juror might not give a fair and impartial
trial to the Commonwealth and the accused based solely on the law and the
evidence.
Va. Sup. Ct. R. 3A:14(a); see also Stevens v. Virginia, 826 S.E.2d 895,900(Va.
Ct. App. 2019); Cousins v. Virginia, 693 S.E.2d 283, 294(Va. Ct. App. 2010). It
is clear that none of these enumerated concerns are at issue in this matter.
Furthermore, in Virginia,"[pjer se presumptions of bias are not favored,"
Williams v. Virginia, 466 S.E.2d 754, 756(Va. Ct. App. 1996), and "[a] potential
juror should be struck for cause if he or she has any interest in the cause, or is
related to either party, or has expressed or formed any opinion, or is sensible of
any bias or prejudice," Holloman v. Virginia, 775 S.E.2d 434,443(Va. Ct. App.
2015)(internal quotation marks omitted)(quoting Mayfield v. Virginia, 722 S.E.2d
689, 693(Va. Ct. App. 2012)).
Both the Fourth Circuit and the Supreme Court of Virginia have specifically held
that there is no per se rule excluding jurors because oftheir associations with law
enforcement. See United States v. Umana, 750 F.3d 320, 342(4th Cir. 2014)
("A juror's
generally favorable impression of law enforcement does not necessarily amount to bias
any more than does a juror's personal association with law enforcement."); United States
V. LaRouche, 896 F.2d 815, 830(4th Cir. 1990)("[The districtjudge] refused to strike
'for cause' all employees of investigatory agencies, particularly when their association
was unrelated to an investigative function. [The district judge's] ruling is consistent with
case law that refuses to establish a per se rule excluding any person who had an
association with an investigatory agency."); Strickler v. Commonwealth,404 S.E.2d 227,
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234(Va. 1991)("If a prospective juror had no knowledge of the facts of the case and
demonstrates impartiality, he is not subject to a challenge for cause merely because he
has had an association with law enforcement personnel."); Bay v. Virginia, 729 S.E.2d
768, 773(Va. Ct. App. 2012)("There is no per se disqualification rule for a prospective
juror ...[who has] an association with a law enforcement officer."(citing Clozza v.
Virginia, 321 S.E.2d 273, 276(Va. 2003)); Williams, 466 S.E.2d at 756 (holding that the
trial court did not err in refusing to strike for cause a juror whose brother worked at the
same correctional facility as the victim and had heard about the incident at issue from her
brother)."
Tellingly, none of the members of the panel who answered affirmatively to this
question were struck for cause, including Juror Treakle who indicated that his nephew
was a police officer in Arlington County. As to the question specifically at issue, seven
other jurors on Juror Treakle's panel indicated that they themselves or their family or
their close personal friends were employed by law enforcement agencies. (SH 1224-29.)
Furthermore, three other jurors had already disclosed their employment with law
Notably, other courts throughout the country have held similarly. See, e.g.. United States v.
Beasley, 48 F.3d 262, 267 &, n.4 (7th Cir. 1995); United States v. Nururdin, 8 F.3d 1187, 1190
(7th Cir. 1993)
("We think a trial judge has discretion to find that a juror's mere relationship to a
law enforcement officer is insufficient to strike for cause."); Depree v. Thomas,946 F.2d 784,
788 n.4(11th Cir. 1991)("[The petitioner] also urges us to adopt a per se rule of disqualification,
in cases involving the murder of a police officer, for ex-police officers or persons related to
police officers.... We consider such a per se rule to be at odds with the United States Supreme
Court's instructions on how to evaluate the qualifications ofindividuals for jury service....
Accordingly, we decline [the petitioner's] invitation to formulate this prophylactic rule."(citing
Fatten V. Yount, 467 U.S. 1025 (1984))); United States v. Caldwell, 543 F.2d 1333, 1347(D.C.
Cir. 1974)("Absent a specific showing of bias, a defendant accused of murdering a police officer
is not entitled to a jury free of policemen's relatives.").
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enforcement to counsel's prior question seeking information as to whether any juror
belonged to organizations that supported law enforcement.(SH 1222-24.) Notably,
defense counsel failed to ask each ofthese jurors if they could remain impartial despite
their affiliations with law enforcement. (SH 1222-26.) However, he was apparently
satisfied by the jurors' responses who were asked if they could remain fair and impartial,
including Juror Treakle, as none of these jurors were moved to be struck for cause
because of their personal or familial employment with law enforcement. (Feb. 26, 2007
Tr. 196-203, 215-23, 245-58, 268, 281, 299, 313-14.)
Furthermore, Juror Smith—a member of the venire who was questioned in the
morning, and thus questioned separately from Juror Treakle—indicated that her father
was a police officer in Chicago, her brother was the former Chief of Police in Arlington,
and her son was a "former member ofthe Arlington Sheriffs Department and the police
department." (Feb. 26, 2007 Tr. 63.) Immediately following her response to the
question, defense counsel uttered "That's quite a history of law enforcement." (Feb. 26,
2007 Tr. 63.) Despite defense counsel's apparent amazement at Juror Smith's close
familial connections to law enforcement, defense counsel failed to move to strike Juror
Smith for cause on this basis. However, she was ultimately struck for cause on the
Commonwealth's motion because "she clearly stated she would be unable to consider the
death penalty as an appropriate punishment under any circumstances." (Feb. 26, 2007 Tr.
73, 120.)
Juror Smith's scenario also establishes that numerous connections to law
enforcement did not warrant even a motion to strike for cause, thereby establishing that
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had Juror Treakle revealed that multiple members of his family, including his first cousin
once removed, were employed by a law enforcement agency, he would not have been
subject to a valid for cause challenge. Notably, Juror Smith was not the only member of
the panel who responded with multiple connections to law enforcement—and none of
these potential jurors were struck for cause because of their answers to this question. (SH
198-203.)
Finally, Porter makes much of the fact that Juror Treakle's brother is not only a
law enforcement officer, but is also employed by the City of Chesapeake—which borders
the jurisdiction in which Officer Reaves served. (ECF No. 246, at 21.) However, Porter
fails to establish that Juror Treakle would have been struck for cause based on the
proximity of his brother's employment to the jurisdiction where the crime occurred. In
fact, even if Juror Treakle revealed that his brother was a law enforcement officer, it is
not clear from the record that the fact he worked in Chesapeake—or Norfolk, as he more
likely would have indicated(SH 6215)—would have been revealed on voir dire. For
example, Mr. Dilworth—a member ofthe morning panel who was ultimately excused
after the parties exercised their peremptory challenges—indicated in response to this
question that he "had friends who are police officers or secret service agents, things like
that. I don't think that would affect me," to which defense counsel simply responded
"Okay. Thank you for answering that question." (Feb. 26, 2007 Tr. 62, 73, 335-38.)
Not only did this juror fail to indicate where his friends were employed as police officers,
but defense counsel failed to ask further questions to inquire about where these friends
were employed.
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Indeed, when this question was posed to Juror Treakle's panel, defense counsel
failed to ask the veniremen to respond with the location of their family members'
employment. (Feb. 26, 2007 Tr. 198-203.); cf. Billings v. Polk,441 F.3d 238, 245 (4th
Cir. 2006)CMcDonough 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."(citing
McDonough,464 U.S. at 555)). Furthermore, Juror Treakle did not discuss the Porter
case with his brother Pernell at any time, and Pernell had no recollection of ever knowing
of Officer Reaves's murder or discussing it with Juror Treakle. Thus, even if Juror
Treakle revealed that his brother was a law enforcement officer, it is not clear to this
Court that the fact that he worked in Chesapeake would ever have been revealed, or that
that revelation would have provided a valid basis to strike Juror Treakle for cause. See
generally Holloman, 775 S.E.2d 434(finding the trial court did not err in refusing to
strike for cause a juror who had personal experience as a police officer in the jurisdiction
where the case was being tried); cf. Ramos v. Virginia, 834 S.E.2d 499, 503(Va. Ct. App.
2019)("[J]urors need not be totally unaware ofthe facts and issues involved in the case .
..."(citation omitted)).
Accordingly, absent any factual or legal support establishing that a correct answer
to this question on voir dire would have provided Porter with a valid basis to strike Juror
Treakle for cause. Porter has failed to satisfy his burden under McDonough.
2. Family Members with Arrests or Prosecutions
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The Fourth Circuit has already determined that a juror's failure to honestly
respond to a voir dire question about familial arrests or prosecutions cannot form the
basis for a challenge for cause under McDonough. See Jones, 311 F.3d at 312-13. In
Jones, the Fourth Circuit reasoned that
[Ajppellant has proffered evidence only that thejuror responded inaccurately
when she stated that she had no relatives who had been arrested or subjected
to jury trials. It is far from clear that we look to state law to determine
whether a challenge for cause would have been granted, but regardless,
appellant cites no North Carolina statute or case allowing a challenge for
cause merely on the fact that the juror had relatives who had been arrested or
subject tojury trials. Indeed, none ofthejurors who answered "yes" to either
of these questions was dismissed for cause on that fact alone.
To the extent that the federal standards governing challenges for cause
are implicated, the category of challenges for cause is limited, and
traditionally, a challenge for cause is granted only in the case of actual bias
or implied bias (although a third category, inferred bias, might also be
available). The mere fact that the juror's relatives had a history of arrests
and jury trials certainly does not reach the high standard needed for the
implication of bias. And, the fact that the juror had relatives who were
subject to arrest and jury trials does not give rise to an inference that thejuror
was biased against the appellant; indeed, arguably, the more common-sense
assumption is that a juror with this background would be biased infavor of
the accused.
Id. (internal citations and quotations omitted). The Fourth Circuit concluded that the
petitioner failed to establish the second prong of McDonough, holding that "even truthful
answers to the questions on the questionnaire could not have formed the basis for a
challenge for cause." Id. at 313.
Thus, even if Juror Treakle had disclosed that his brothers, son, and niece had
been arrested, his responses would not have supported a valid basis for a challenge for
cause. See id. Indeed, like the claimant in Jones, Porter fails to cite any law supporting
his assertion that honest responses would have formed a valid basis to strike Juror
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Treakle, and Virginia law supports the opposite conclusion. See id. at 312; Va. Sup. Ct.
R. 3A:14(a); Ramos, 834 S.E.2d at 503 {""Per se rules of disqualification, which are based
on a presumption of bias or prejudice, are disfavored in Virginia."(internal quotation
marks omitted)(quoting McGann v. Virginia, 424 S.E.2d 706, 710(Va. Ct. App. 1992)));
cf. Bay, 729 S.E.2d at 773("[TJhere are limited instances where the status of a
prospective juror creates a per se disqualification....[T]he Supreme Court of Virginia
opined that per se disqualification applied when a venireman was a current client of
counsel,... or when a venireman's brother, a police officer, would testily as to the crime
scene .... The Supreme Court of Virginia has also found that a stockholder in a
company which is a party to the litigation would be automatically disqualified from
serving as a juror... as would a venireman who is related within the ninth degree to
affinity to the victim."(internal citations omitted)).
Again, the record in this case also supports the conclusion that if Juror Treakle had
candidly answered this question, he would not have been the subject of a for cause
challenge. In his afternoon panel, several other jurors provided an affirmative response
to this question. Specifically, Jurors Hurley, Delaney, and Lautenschlager ail indicated
that they had personally violated the law and had been arrested. (SH 1209-10.) Notably,
Porter readily admits that these jurors provided only "general descriptions" of these
crimes. (ECF No. 221, at 13 n.6.) Moreover, Juror Iden responded that her father had
been indicted for something, while Juror Pavela said her brother had been recently
arrested and eharged with "criminal crimes." (SH 1207-09.) Neither disclosed the exact
nature of those charges, and counsel appeared satisfied with Juror Pavela's response that
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her brother had an addiction when he asked ofthe general nature of the offenses. (SH
1207-09.) Again, Porter acknowledges that these "jurors did not specify the alleged
offense or provide more details." (ECF No. 221, at 13.) None ofthese jurors were struck
for cause based on their responses to these questions. (Feb. 26, 2007 Tr. 181-84, 21523, 245-58, 268, 281, 299, 313-14.) More significantly. Jurors Hurley, Delaney, and
Lautenschlager were eventually selected to serve on the jury with Juror Treakle. (SH
1361-64.)
Accordingly, this Court finds Porter has failed to establish that, had Juror Treakle
disclosed his family's history with arrests and prosecutions, he would have been subject
to a valid for cause challenge.
3. Family Members Who Have Been Victims of Violent Crime
As with the first two questions, the law, as it pertains to jurors with a familial
history of violent crime victimization, is quite clear—the fact, standing alone, does not
form a valid basis for a challenge for cause. In United States v. Jones, the Fourth Circuit
determined that:
The fact that a juror or his relative has been the victim of some crime,
unrelated to the offense being tried, is, we think, only minimally relevant to
the question of that juror's impartiality. Indeed, if the mere fact that a juror
or his relative had been the victim ofsome crime unrelated to that being tried
constituted grounds for discharge, it would become difficult, if not
impossible, to assemble a jury panel.
608 F.2d 1004, 1007(4th Cir. 1979). The Fourth Circuit then "decline[d] to establish a
[p]er se rule of disqualification where a juror is related to a victim of a similar crime."
Id. at 1008 (emphasis added). The Supreme Court of Virginia has also declined to create
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such a per se rule. Stockton v. Virginia, 402 S.E.2d 196, 200(Va. 1991)("Nor is a
prospective juror per se disqualified because a family member has been a victim of
violent crime."); see also Holloman, 775 S.E.2d at 443-44("Nor does a venireman's
previous experience as a victim of a crime similar to that being tried signify that he or she
cannot 'sit fairly and impartially in the case.'"(quoting Webb v. Virginia, 397 S.E.2d
539, 540(Va. 1990))).
While it is not clear that Juror Treakle recognized his parents and his brother as
victims of violent crimes, even if Juror Treakle should have disclosed this history, Juror
Treakle's parents and brother were undoubtedly victims of crimes unrelated to the
charges for which Porter was on trial, and there is no legal basis for which Porter could
have validly challenged Juror Treakle for cause if he had given a fully detailed response.
See Jones, 608 F.2d at 1007-08; Stockton, 402 S.E.2d at 200; Holloman, 775 S.E.2d at
443^4.
Not only is there no legal argument to support Porter's contention that Juror
Treakle would have been struck for cause had he disclosed that his family members were
victims of violent crimes, but yet again, his assertion is unsupported by the record. On
Juror Treakle's panel, three venireman answered affirmatively that either themselves or
their family members had been the victim of a violent crime, and one ofthe jurors chose
to privately disclose to the Circuit Court the nature of that offense. (Feb. 26,2007 Tr.
179-81,213-14.) Juror Delaney disclosed that his brother had been mugged seven years
earlier, and Juror Flurley indicated that he himself had been robbed several years prior to
the date of trial. (SH 1206-07.) Neither juror was struck for cause, and both sat on
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Porter's jury. (SH 1361-64; Feb. 26, 2007 Tr. 215-23, 268, 281.) Indeed, none of the
jurors who affirmatively answered this question were struck for cause because of their
response to this question. (Feb. 26, 2007 Tr. 179-81, 215-23,245-58, 268, 281, 299,
313-14.) Thus, even if Juror Treakle had recalled that his family members had been
victims of violent crimes and disclosed that information on voir dire, it is clear from both
the factual record and the applicable law that Juror Treakle would not have been validly
struck for cause.
Accordingly, given the contrary factual and legal support, it is clear that even if
Porter satisfied the first prong of McDonough as to this voir dire question. Porter would
not be entitled to relief under McDonough as he could not satisfy the second element of
that test.
C. Collective Impact of Juror Treakle's Failures to Disclose
Porter asks this Court to consider the totality of Juror Treakle's failed responses,
not just in isolation, as evidence of the viability of his McDonough claim. Porter
maintains that the cumulative effect of Juror Treakle's non-responses establishes a valid
basis for a challenge for cause.
However, again, Porter fails to cite any law to support his claim that Juror
Treakle's lack of candor on these three questions would have justified a for cause
challenge. And the factual record in this case presents the opposite conclusion. During
the questioning of the afternoon panel, of which Juror Treakle was a member,two
jurors—Jurors Delaney and Hurley—not only affirmatively answered all three questions
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at issue in this matter, but defense counsel failed to move to strike these jurors for cause,
and both individuals were ultimately selected to serve on Porter's jury.
Specifically, Juror Delaney told counsel that his brother was mugged about seven
years prior to the trial at issue, and that no one had been arrested for the offense. (SH
1206.) Despite this. Juror Delaney maintained that he could remain fair and impartial.
(SH 1206.) Juror Delaney then disclosed that he had personally been arrested for
providing alcohol to minors 12 years earlier, but he again maintained it would not affect
his ability to remain impartial. (SH 1210.) Finally, Juror Delaney stated that his cousin
was a prison guard in Erie, Pennsylvania, but again, that would not affect his ability as a
juror. (SH 1229.) Defense counsel did not move to strike Juror Delaney for cause, and
he ultimately sat on the empaneled jury that voted to convict Porter and sentence him to
death. (Feb. 26, 2007 Tr. 215-23, 268, 335-38.)
Similarly, during voir dire. Juror Hurley responded that he personally was robbed
several years prior to the trial, no one had been arrested, but he could remain fair and
impartial. (SH 1206-07.) He also disclosed that he was arrested when he was 17 at a
prom picnic. (SH 1209.) Finally, he revealed that he "was a consultant to the U.S.
Department of Housing & Urban Development, and part of[his]job was to develop
security plans for public housing projects. And [he] was in charge of the law
enforcement and in charge of keeping the places safe." (SH 1228-29.) Again, he
maintained that his employment would not impair his ability to serve as a juror in that
case. (SH 1229.)
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Thus, despite Porter's assertion that Juror Treakle would have been the subject of
a valid for cause challenge if he had been completely forthcoming on voir dire, the
evidence shows otherwise. Indeed, Juror Hurley was personally implicated by each
question—that is, he himself was in law enforcement, had been arrested, and had been
the victim of a violent crime. Yet, defense counsel did not even move to strike him for
cause. Instead, Porter was evidently satisfied during voir dire by Juror Hurley's
assurances that he could remain impartial—assurances that Juror Treakle similarly gave
during voir dire and maintained during his depositions. It is indeed hard to surmise how
an individual could be more impacted by familial association to law enforcement, arrests,
and crime victimization than an individual who personally endured them. Accordingly,
in the absence of any legal or factual support, this Court cannot find that Porter not only
would have moved to strike Juror Treakle for cause but could have successfully
distinguished Juror Treakle from the other jurors who were also implicated by the
questions at issue and were not struck for cause.
Confronted with a juror who had responded dishonestly to no fewer than ten
questions on voir dire, the First Circuit determined, in a case upon which Porter heavily
relies, that
When all is said and done, the existence vel non of a valid basis for a
challenge for cause is not a matter of labels. Any inquiry into potential bias
in the event of juror dishonesty must be both context specific and fact
specific. The outcome of this inquiry depends on whether a reasonable
judge, armed with the information that the dishonest juror failed to disclose
and the reason behind the juror's dishonesty, would conclude under the
totality of the circumstances that the juror lacked the capacity and the will to
decide the case based on the evidence (and that, therefore, a valid basis for
excusal for cause existed). The party seeking to upset the jury's verdict has
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the burden of showing the requisite level of bias by a preponderance of the
evidence.
A number of factors may be relevant in determining whether a juror
has both the capacity and the will to decide the case solely on the evidence.
This compendium may include(but is not limited to)thejuror's interpersonal
relationships; thejuror's ability to separate her emotions from her duties; the
similarity between the juror's experiences and important facts presented at
trial; the scope and severity of thejuror's dishonesty; and thejuror's motive
for lying. Although any one of these factors, taken in isolation, may be
insufficient to ground a finding ofa valid basis for a challenge for cause,their
cumulative effect must nonetheless be considered.
We conclude that if fully informed of[thejuror's] willingness to lie
repeatedly, her fragile emotional state, her past experiences with [her family
members], and the similarities between those experiences and the evidence
to be presented during the penalty-phase hearing, any reasonable judge
would have found that the cumulative effect of those factors demonstrated
bias (and, thus, a valid basis for excusal for cause)....
Sampson v. United States, 724 F.3d 150, 165-66, 168 (1st Cir. 2013)(internal citations
omitted). However, the facts of this case are drastically different. Juror Treakle
repeatedly admitted that he did not intentionally conceal his family history, but instead,
he just did not think about his family during voir dire. He also steadfastly assured
counsel during voir dire that he would remain fair and impartial throughout the trial, and
during the evidentiary hearing before this Court, he maintained that assurance. Unlike
the juror in Sampson, whose "demeanor while testifying evinced her emotional pain and
humiliation" regarding the experiences she withheld during voir dire. Juror Treakle was
calm and resolute in his answers—he just did not consider his family's history during
voir dire. Indeed, if Juror Treakle had been entirely forthcoming during voir dire, the
Court finds that, given his comprehensive answers and demeanor during the post-
conviction proceedings, nothing about his responses would have provided a valid basis to
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strike him for cause. And again, he had little to no personal knowledge surrounding the
majority of the events that Porter maintains should have been revealed during voir dire.
Accordingly, the Court finds that Porter has failed to establish that even the
cumulative effect of Juror Treakle's non-disclosures "would have provided a valid basis
for a challenge for cause." See McDonough,465 U.S. at 556.
D. Porter Has Failed to Establish that Juror Treakle's Non-Disclosures
Affected the Fairness of His Trial
Importantly, even if Porter could establish both prongs of the McDonough test,
that would not end this Court's inquiry. As both the Supreme Court and Fourth Circuit
have made clear,"[mjisstatements [during voir dire] are troubling, but do not, standing
alone, indicate juror bias. As the Supreme Court has instructed,'[t]he motives for
concealing information may vary, but only those reasons that affect a juror's impartiality
can truly be said to affect the fairness of a trial.'" Jones, 311 F.3d at 313(quoting
McDonough,464 U.S. at 556); see also Conaway,453 F.3d at 588("Even where, as here,
the two parts of the McDonough test have been satisfied, a juror's bias is only established
under McDonough if the juror's 'motives for concealing information' or the reasons that
affect [the]juror's impartiality can truly be said to affect the fairness of[the] trial.'"
(alterations in original)(quoting McDonough,464 U.S. at 556)).
Juror Treakle has made clear that he did not deliberately or intentionally conceal
any information during voir dire. He repeatedly stated that he thought he had disclosed
his brother's employment with the Chesapeake Sheriffs Office, and that he just did not
think about his other relatives or their employment, who he did not see or speak to often.
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He also repeatedly said he did not know the extent of his brother Ronald's criminal
history, and that while he knew Ronald had at least one confrontation with Calvin, he did
not know the facts of the disagreement or the extent of any violence. He also assured
counsel that he did not disclose his son's arrest because his son had been a minor at the
time. He otherwise stated that he just did not think very hard about the questions, or
think about his family during voir dire, only how the questions personally impacted him.
While Juror Treakle may not have been completely forthcoming, he made clear
during the two extensive depositions that his reasons for failing to disclose all ofthe
uncovered information were not improper—he just did not think about the full
implications of the questions. See Dyer v. Calderon, 151 F.3d 970,973 (9th Cir. 1998)
("[W]e must be tolerant, as jurors may forget incidents long buried in their minds,
misunderstand a question or bend the truth a bit to avoid embarrassment. The Supreme
Court has held that an honest yet mistaken answer to a voir dire question rarely amounts
to a constitutional violation; even an intentionally dishonest answer is not fatal, so long as
the falsehood does not bespeak a lack of impartiality."(citing McDonough,464 U.S. at
555-56)). His repeated, credible reassurances that he did not think about his family
reveals that his family's connections to law enforcement and crime could not have
affected his judgment during the trial. He further reassured counsel that, if he had
thought of his family, it would not have affected his ability to remain fair and impartial.
Porter also relies extensively on the Fourth Circuit's decision in Conaway, in
which the eourt held that the petitioner "alleged facts sufficient to establish that [the
juror] concealed crucial information in order to serve on [petitioner's]jury. Such
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dishonesty, of itself, is evidence of bias." See 453 F.3d at 588(internal citations and
quotations omitted). However, again, there is no evidence in this case that Juror Treakle
was intentionally dishonest or withheld information in order to serve on Porter's jury.
Rather, Juror Treakle consistently stated that he did not think about his other family
members, and thus, could not have intentionally withheld the information or have been
impacted by it during the trial. Thus, the Court finds that Porter has failed to establish
that Juror Treakle was not an impartial Juror. See Turner, 389 F.3d at 117("A juror is
impartial only if he can lay aside his opinion and render a verdict based on the evidence
presented in court."(alteration marks omitted)(quoting Patton,467 U.S. at 1037 n.l2)).
Accordingly, while this Court finds that Porter has failed to establish both aspects
of the McDonough test, even if he had, it is clear that Juror Treakle did not have any
improper motives by failing to be completely forthcoming during voir dire, and thus the
fairness of Porter's trial cannot be said to have been affected. Indeed, after having heard
Juror Treakle's comprehensive responses as to why he failed to provide certain
information during voir dire, and having obser\'ed his demeanor, the Court finds nothing
in these responses that would demonstrate that he was impartial or biased. Accordingly,
Porter has failed to establish that he is entitled to a new trial because of any dishonesty
exhibited by Juror Treakle. Therefore, Amended Claim I in its entirety must be
dismissed.
V. CONCLUSION
Porter's Amended Claim I lacks merit and will be dismissed. The § 2254 Petition
will be denied. A certificate of appealability will be denied.
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An appropriate Final Order will accompany this Memorandum Opinion.
/s/
Henry E. Hudson
Senior United States District Judge
Date: AuAmT
7.07,0
Richmond, VA
94
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