Porter v. Davis

Filing 52

MEMORANDUM OPINION. Signed by District Judge James R. Spencer on 5/2/13. (kyou, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division

THOMAS ALEXANDER PORTER,

Petitioner,

v.

EDDIE L. PEARSON,
Warden, Sussex I State Prison

Respondent.

Civil Action No. 3:12BCVB550‐JRS

MEMORANDUM OPINION
THIS MATTER is before the Court on Petitioner Thomas Alexander Porter’s Motion
for Leave to Supplement his Petition with Additional Substantial Claims Related to
Ineffective Assistance of Trial Counsel pursuant to Fed. R. Civ. P. 15(a)(2)(ECF No. 44).
Porter seeks relief under 28 U.S.C. § 2544 from his capital murder conviction and death
sentence for the 2005 shooting death of a Norfolk police officer. Porter seeks to amend his
§ 2544 Petition and the Warden opposes the Motion. For the reasons provided below, the
Court GRANTS IN PART and DENIES IN PART the Motion.
I.

FACTUAL AND PROCEDURAL BACKGROUND
The following is a brief summary of the procedural history and facts, as determined

by the Supreme Court of Virginia, relevant to the present Motion. See Porter v.
Commonwealth (Porter I), 661 S.E.2d 415 (Va. 2008). On the afternoon of October 28, 2005,
Porter and another man, Reginald Copeland, traveled to a Norfolk apartment complex to
inquire about purchasing marijuana. They entered the apartment of Copeland’s
acquaintance Valorie Arrington, where her two daughters, two cousins, sister, and niece

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were also present. Porter eventually began arguing with the women over the marijuana
and brandished a semi‐automatic pistol concealed on his person. Copeland exited the
apartment, with Porter locking the door behind him, and left the complex. After walking a
few blocks, Copeland came across three uniformed police officers, including Norfolk Police
Officer Stanley Reaves, and reported Porter’s behavior. Officer Reaves then drove to the
complex, with Copeland following on foot. After Officer Reaves exited his vehicle and
approached the building, he encountered Porter on the sidewalk in front of the complex.
Officer Reaves confronted Porter by grabbing his left arm, and instructed Porter to take his
hands out of his pockets. Porter drew the pistol concealed in his pocket and shot Officer
Reaves three times, killing him. Porter then took Officer Reaves’ service revolver and fled.
At trial, the prosecution argued that Porter was guilty of capital murder because he
intentionally killed Officer Reaves in order to interfere with the performance of his official
duties. Specifically, the prosecution argued that Porter, who was already a convicted felon
and knew that he could be sent back to jail if found in possession of a firearm, shot Officer
Reaves to prevent Reaves from arresting him for being a felon carrying a firearm. Porter
did not deny shooting Officer Reaves, but claimed that he did so because Officer Reaves
pulled his service revolver on him, causing Porter to fear for his life and safety. One issue
emphasized at trial was at what point Porter knew that there was a police officer outside
the complex whom he might encounter, and thus, when he could have formed the intent to
interfere with a police officer engaged in his official duties. Valorie Arrington’s daughter
Latoria testified that before Porter left the apartment, she stated aloud that she could see
Copeland and Officer Reaves talking outside through the apartment window. Valorie
testified that when Porter left, he ran out of the apartment and down the building stairs

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quickly. Valorie’s sister, Monika Arrington, and her cousins, Monica Dickens and April
Phillips, testified corroborating Valorie and Latoria’s accounts.
The Commonwealth sought the death penalty based on Porter’s future
dangerousness,1 namely the probability that he would commit acts of violence constituting
a continuing serious threat to society. Porter argued in closing arguments that, in
considering his future dangerousness, the term ‘society’ meant prison society since Porter
would spend the rest of his life incarcerated without parole if not sentenced to death.
Porter I, 661 S.E.2d at 442. The Commonwealth objected, and the trial court instructed the
jury that: “Society is everything. Everybody, anywhere, anyplace, anytime.” (SH Appx.
4169.) See Porter I, 661 S.E.2d at 442. Porter’s counsel then continued that the jury should
focus on the fact that society incorporates persons within the penitentiary system, and
after the Commonwealth again objected, the trial court instructed that: “Virginia law is very
clear. Society is everyone, everywhere. You are not required to simply consider what may
happen in a penitentiary. You are required to consider society. It’s a definitional word. It’s
not that complex to start with. It means everybody, everywhere, any place, any time. It’s
pretty simple.” (SH Appx. 4172.) Trial counsel did not object at the time, but orally moved
for a mistrial at the end of closing argument based on these instructions, which the trial
court denied. Porter also moved for the appointment of a risk assessment expert to rebut
the evidence of his future dangerousness, but this motion was denied.
On March 7, 2007, Porter was convicted by a jury in the Circuit Court for Arlington
County of the capital murder of Officer Reaves, use of a firearm in the commission of a
1 See Va. Code Ann. § 19.2‐264.2 (“[A] sentence of death shall not be imposed unless the

court or jury shall (1) after consideration of the past criminal record of convictions of the
defendant, find that there is a probability that the defendant would commit criminal acts of
violence that would constitute a continuing serious threat to society”); see § 19.2‐264.4(C).
3

murder, and grand larceny of a firearm. On March 14, 2007, the jury found the future
dangerousness aggravating factor and sentenced Porter to death for the capital murder
conviction. The jury also sentenced Porter to a total of twenty‐two (22) years’
imprisonment for the non‐capital offenses. On July 16, 2007, the Circuit Court for the City of
Norfolk imposed Porter’s sentence and entered final judgment on July 18, 2007.
On August 13, 2007, Porter appealed his capital murder conviction and death
sentence to the Supreme Court of Virginia, which affirmed the judgment on June 6, 2008,
see Porter I. Porter then petitioned the United States Supreme Court for a writ of certiorari,
which was denied on April 20, 2009. On August 10, 2009, Porter filed a petition for state
habeas post‐conviction relief in the Supreme Court of Virginia, raising several claims of
ineffective assistance of trial counsel under Strickland v. Washington, 466 U.S. 668, 687
(1984), among other claims. The Warden moved to dismiss the state habeas petition, and
after the production of relevant work‐product from Porter’s trial counsel relating to the
ineffective assistance claims, and a supplemental motion to dismiss, the Supreme Court of
Virginia dismissed Porter’s petition on March 2, 2012. See Porter v. Warden of the Sussex I
State Prison (Porter II), 722 S.E.2d 534 (Va. 2012). The Court denied Porter’s petition for a
rehearing on April 28, 2011, and the trial court set Porter’s execution for August 2, 2012.
Porter filed a motion for a stay of the execution in this Court on July 27, 2012, and
the Court granted a stay of ninety (90) days on July 30, 2012. The Court also directed
Porter to file his Petition, not to exceed eighty (80) pages, within seventy (70) days. On July
31, 2012, by Porter’s Motion, the Court appointed two attorneys as counsel, one of whom
had also represented Porter in his state habeas proceedings. Porter moved for an extension
of time and of the page limit on September 20, 2012, and the Court denied both motions on

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September 25, 2012. On October 9, 2012, the date his Petition was due, Porter filed a
second motion for an extension of time until February 19, 2013, or alternatively, an
additional sixty (60) days to separately file his procedurally defaulted claims.
The Motion was filed by one of Porter’s appointed counsel individually seeking to
prepare claims that Porter’s state habeas counsel—Porter’s other appointed counsel in this
Court—provided ineffective assistance by failing to raise claims of ineffective assistance of
trial counsel in the state habeas proceedings, arguing that the default of the underlying
ineffective assistance claims was excused in light of the recently decided Martinez v. Ryan,
132 S.Ct. 1309 (2012)(holding that the ineffective assistance of initial post‐conviction
review counsel may establish cause for defaulting an ineffective assistance of trial counsel
claim). Porter timely filed his Petition on October 9, 2012, and the Court denied his second
motion for an extension of time as moot on October 10, 2012. The Warden moved to
dismiss the Petition on November 23, 2012, and the Motion to Dismiss is ripe for review.
On February 19, 2013, Porter filed the instant Motion to amend2 and asked for an
immediate ruling based on his calculation that the § 2254 statute of limitations was to
expire that day. Specifically, Porter seeks to amend four of his claims and also to add four
procedurally defaulted claims that he did not initially include in his Petition:

2 Although Porter moves for leave to “supplement” his Petition, this Motion may only be

considered as a Motion to Amend. Under Rule 15(a), a moving party may file an amended
complaint which “typically relates to matters that have taken place prior to the date of the
pleading that is being amended.” Reyazuddin v. Montgomery Cnty, No. DKC‐11‐0951, 2012
U.S. Dist. LEXIS 150093, at *7 (D.Md. Oct. 18, 2012)(citing Connectu LLC v. Zuckerberg, 522
F.3d 82, 90 (1st Cir. 2008)). However, a motion to supplement is governed by Rule 15(d),
which “permit[s] a party to serve a supplemental pleading setting out any transaction,
occurrence, or event that happened after the date of the pleading to be supplemented.” Fed.
R. Civ. P. 15(d). Since Porter’s claims all involve events occurring prior to the filing of his
Petition, the Motion will be treated as a Motion to Amend under Rule 15(a)(2).
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Claim Five:

Porter’s trial counsel was ineffective in not using Reginald Copeland’s
testimony in closing argument to rebut Latoria Arrington’s testimony,
and state habeas counsel was ineffective in not clearly identifying
testimony that corroborated Copeland’s account. To the extent this
ineffective‐assistance‐of‐trial‐counsel claim has been defaulted, Porter
asserts that the ineffective assistance of state habeas counsel excuses
the default under Martinez.

Claim Nine: Porter’s trial counsel was ineffective in not properly investigating and
rebutting the prosecution’s evidence that Porter ran into the home of a
stranger in order to evade the police, and his state habeas counsel was
ineffective in inadvertently deleting a citation to Porter’s affidavit
supporting his claim that the home he ran into was his own. To the
extent this ineffective‐assistance‐of‐trial‐counsel claim has been
defaulted, Porter asserts that the ineffective assistance of state habeas
counsel excuses this default under Martinez.

Claims Eight, Porter’s trial counsel was ineffective in not adequately investigating
Nine & Ten: mitigating and aggravating evidence, and his state habeas counsel was
ineffective in failing to support the ineffective assistance of trial
counsel claims with two affidavits from Porter’s trial investigators. To
the extent that these ineffective‐assistance‐of‐trial‐counsel claims
have been defaulted, Porter asserts that the ineffective assistance of
state habeas counsel excuses the defaults under Martinez.

Claim
Porter’s trial counsel was ineffective in not asserting that his proposed
Fourteen:
risk assessment would be of the same nature as that contained in his
expert’s declaration. Porter asserts that the ineffective assistance of
state habeas counsel in not raising this specific ineffective‐assistance‐
of‐trial‐counsel claim excuses the default under Martinez.

Claim
Porter’s trial counsel was ineffective in not objecting to curative
Fifteen:
instructions as to the definition of “society.” Porter asserts that the
ineffective assistance of state habeas counsel in not raising this
specific ineffective‐assistance‐of‐trial‐counsel claim excuses the
default under Martinez.

Claim
Porter’s trial counsel failed to adequately investigate the shooting by
Sixteen:
speaking with Valorie Arrington about her quid pro quo agreement to
testify for the prosecution. Porter claims that the ineffective assistance
of state habeas counsel in not raising this specific ineffective‐
assistance‐of‐trial‐counsel claim excuses the default under Martinez.

Claim
The prosecution violated its obligations under Brady v. Maryland, 373
Seventeen:
U.S. 83 (1963) by not disclosing a quid pro quo agreement with Valorie
Arrington which would have impeached her testimony. Porter asserts
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that the suppression of the evidence constitutes cause for his default of
this claim under Banks v. Dretke, 540 U.S. 668 (2004) and that he was
prejudiced because the evidence is material under Brady.

The Warden filed an immediate response in opposition, arguing that the proposed
amendments were made in bad faith and are futile because they lack merit. On February
19, 2013, the Court tolled the statute of limitations in order to consider the merits of the
Motion, and with leave of Court, the Warden filed a supplemental response on March 4,
2013. Porter has replied to the Warden’s response and this matter is now ripe for review.
II.

LEGAL STANDARD
Pursuant to Rule 15(a), when a party seeks to amend a pleading more than twenty‐

one (21) days after the opposing party has responded, “[the] party may amend its pleading
only with the opposing party's written consent or the court's leave. The court should freely
give leave when justice so requires.” Fed. R. Civ. P. 15(a)(2). The Court has discretion to
grant or deny leave, but “‘leave to amend a pleading should be denied only when the
amendment would be prejudicial to the opposing party, there has been bad faith on the
part of the moving party, or the amendment would have been futile.’” Laber v. Harvey, 438
F.3d 404, 426‐27 (4th Cir. 2006)(citing Johnson v. Oroweat Foods Co., 785 F.2d 503, 509
(4th Cir. 1986)); Foman v. Davis, 371 U.S. 178, 182 (1962)(“In the absence of any apparent
or declared reason—such as undue delay, bad faith or dilatory motive on the part of the
movant, repeated failure to cure deficiencies by amendments previously allowed, undue
prejudice to the opposing party . . . , futility of amendment, etc.—the leave sought should, as
the rules require, be freely given”)(internal quotation marks omitted). “[D]elay alone is not
sufficient reason to deny leave to amend,” as the delay “must be accompanied by prejudice,
bad faith, or futility.” Johnson, 785 F.2d at 509‐10.

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Whether prejudice exists depends on the nature and timing of the amendment;
while an amendment is not prejudicial “if it merely adds an additional theory of recovery to
the facts already pled and is offered before any discovery has occurred,” an amendment is
prejudicial if it “raises a new legal theory that would require the gathering an analysis of
facts not already considered . . . and is offered shortly before or during trial.” Laber, 438
F.3d at 427 (internal citations omitted). Bad faith is shown by proof that the moving party’s
motive is to unduly delay the litigation, see Ward Elecs. Serv. Inc. v. First Commercial Bank,
819 F.2d 496, 497 (4th Cir. 1987), and may be inferred if the delay is unexplained, see Nat’l
Bank of Wash. v. Pearson, 863 F.2d 322, 328 (4th Cir. 1988). “A motion to amend a pleading
should only be denied as futile if a proposed amendment advances a claim or defense that
is frivolous or legally deficient on its face,” Hillyard Enters. V. Warren Oil Co., No. 5:02‐CV‐
329‐H(4), 2003 U.S. Dist. LEXIS 27920, at *13 (E.D.N.C. July 3, 2003)(citing Johnson, 785
F.2d at 510), for instance, because it fails to state a plausible claim under Rule 12(b)(6),
United States ex. Rel. Wilson v. Kellogg Brown & Root, Inc., 525 F.3d 370, 376 (4th Cir. 2008).
See Davis v. Piper Aircraft Co., 615 F.2d 606, 613 (4th Cir. 1980); Chattery Int’l, Inc. v. JoLida,
Inc., WDQ‐10‐2236, 2011 U.S. Dist. LEXIS 109788, at * 10 (D. Md. Sept. 27, 2011)(“Leave to
amend will only be denied as futile when the amended motion would not survive a motion
to dismiss)(citing Kellogg Brown & Root, Inc.).
III.

DISCUSSION
Porter seeks to amend four of the claims in his Petition in light of Martinez and to

add four new claims. The Court considers each category of claims separately.
A. Porter’s Amendments to Claims Already Included in his Petition

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In order to state a plausible claim under Martinez, a petitioner must allege that: (1)
the state imposing the sentence requires a prisoner to raise ineffective assistance of trial
counsel claims in the initial‐review collateral proceeding, (2) the petitioner was not
appointed counsel in the initial‐review collateral proceeding or his appointed counsel was
ineffective under Strickland, and (3) the underlying ineffective assistance of trial counsel
claim is substantial in that it has “some merit.” Martinez, 132 S.Ct. at 1318. Martinez “does
not concern attorney errors in other kinds of proceedings.” Id. at 1320. Since Virginia
requires ineffective assistance claims to be raised on initial collateral review, Lenz v.
Commonwealth, 544 S.E.2d 299, 304 (Va. 2001), the Martinez inquiry in this case concerns
only the latter two prongs.
Martinez applies only to procedurally defaulted claims of ineffective assistance of
trial counsel, see 132 S.Ct. at 1315, 1320. A claim is procedurally defaulted if the petitioner
failed to exhaust available state remedies by fairly presenting “both the operative facts and
the controlling legal principles,” of his federal claim “face‐up and squarely” to the state
court, and the state court would now find the claim procedurally barred. See Pethtel v.
Ballard, 617 F.3d 299, 306 (4th Cir. 2010)(internal quotations and citations omitted);
Breard v. Pruett, 134 F.3d 615, 619 (4th Cir. 1998). See also Matthews v. Evatt, 105 F.3d 907,
911 (4th Cir. 1997)(“[A] federal habeas court may consider only those issues which have
been fairly presented to the state courts”)(internal quotations and citations omitted).
In this case, the Court DENIES Porter leave to amend Claims Five, Eight, Nine, and
Ten because these claims are not procedurally defaulted. Although the Warden argued in
support of the Motion to Dismiss that Porter defaulted various arguments in support of
these claims because the arguments were not squarely presented to the Supreme Court of

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Virginia, the Warden now argues that the claims are not defaulted. (See Warden’s Supp.
Reply. Opp. Mot. for Leave to Amend (“Warden’s Supp. Reply”) 6, ECF No. 50). Upon careful
review of each claim, it is apparent that Claims Five, Eight, Nine and Ten are not defaulted.
Amendment would thus be futile as Porter cannot state a plausible Martinez claim on the
ground that state habeas counsel’s ineffective assistance excuses the procedural default of
a meritorious ineffective‐assistance‐of‐trial‐counsel claim if there is no procedural default.
1. Claim Five
In Claim Five, Porter asserts that his trial counsel were ineffective under Strickland
because they failed to cite in closing argument Reginald Copeland’s testimony that he
arrived at Officer Reaves’s vehicle at the same time as Porter was leaving the apartment
building. Porter claims that Copeland’s testimony could have rebutted Latoria Arrington’s
testimony that she saw Copeland speaking to Officer Reaves before Porter left the
apartment. To dispel trial counsels’ claims that they made a reasonable strategic decision
to challenge the testimony of both Copeland and Arrington, Porter argues that his trial
counsel could have corroborated Copeland’s account with the testimony of Melvin Spruill
and Simone Coleman. In Porter’s state habeas petition, he argued: “Copeland was a key
prosecution witness with no incentive to contradict the state’s case. No other eyewitness
supports the account of the tight‐knit group of women in the apartment with respect to
timing. See A2226‐29; 1646‐52; 1723‐24.” (Fed. Appx. 126.) Pages A1646‐52 and A1723‐24
contain the testimony of Spruill and Coleman, respectively, as to when each saw Porter and
Officer Reaves interact, and Porter argues that this testimony was favorable to him.
To the extent that this citation without contextual or parenthetical explanations as
to which witnesses’ testimony would be found on the cited pages constitutes a default of

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the claim, Porter argues that his “state habeas counsel’s failure to clearly identify the
corroborative testimony or provide a simple unambiguous citation to the testimony of
Coleman and Spruill falls well below the minimal norms expected of an attorney under
Strickland.” (Pet’r’s Mot. Leave to Amend Ex. A (hereinafter “Porter’s Add. Claims”) 2.)
Porter further argues that if state habeas counsel failed to fully explain the citation
“intentionally because of page limitations that arbitrarily constrained counsel’s choices and
forced counsel to make ‘either‐or’ strategic decisions about which meritorious claims to
preserve, counsels’ performance was deficient and prejudicial under United States v. Cronic,
as the state court imposed restrictions such that ‘the likelihood that any lawyer, even a fully
competent one, could provide effective assistance [was] so small that a presumption of
prejudice is appropriate.’ 466 U.S. 648, 659‐60 (1984).” (Id.)
However, Porter’s arguments are unavailing because this claim is not procedurally
defaulted. The failure of state habeas counsel to sufficiently label the cited testimony does
not amount to a failure to present to the state court the “operative facts and the controlling
legal principles” underlying Porter’s ineffective assistance of trial counsel claim. Baker v.
Corcoran, 220 F.3d 276, 289 (4th Cir. 2000)(citing Matthews, 105 F.3d at 911(internal
quotation marks omitted)). Even if state habeas counsel could have more clearly identified
the portions of the trial transcript cited in support of Porter’s claim, Martinez applies only
to procedurally defaulted ineffective assistance claims. In this case, the Supreme Court of
Virginia was fully apprised of the substance of Porter’s federal claim despite counsel’s
failure to explain which witnesses’ testimony was contained on the cited pages, and thus,
Claim Five is not procedurally defaulted. Accordingly, amendment under Martinez would
be futile and the Court DENIES the Motion to Amend Claim Five.

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2. Claim Nine
In Claim Nine, Porter argues that his trial counsel were ineffective in not properly
investigating a claim of aggravating evidence made by the prosecution that Porter once fled
the police and escaped into a stranger’s townhome, and that if trial counsel had
investigated they would have discovered that the home Porter ran into was his own,
thereby minimizing the impact of this aggravating evidence. The Supreme Court of Virginia
denied this claim on state habeas review after finding that Porter provided no support for
his claim that he lived in the home, and Porter has since asserted that, in an effort to edit
his petition to comply with the state’s page limits, his state habeas counsel inadvertently
deleted the reference to the pages of Porter’s affidavit where he provides this townhome as
his address. Accordingly, Porter argues that “[t]o the extent the lack of a single citation is
viewed to support the state court finding, state habeas counsel’s failure to insert a simple,
ten‐character page cite in the state habeas petition fell well below the minimal norms
expected of an attorney under Strickland” (Porter’s Add. Claims 3), and Porter repeats his
argument under Cronic that he was prejudiced by the page limits, see supra p. 11.
However, amendment in light of Martinez would be futile because Claim Nine is not
procedurally defaulted. The requirement that a federal habeas petitioner exhaust the
remedies available to him in state court “applies as much to the development of facts
material to a petitioner’s claim as it does to the legal principles underlying those claims.”
Winston v. Kelly, 592 F.3d 535, 549 (4th Cir. 2010); Breard, 134 F.3d at 619 (“The
exhaustion requirement is not satisfied if the petitioner presents new legal theories or
factual claims for the first time in his federal habeas petition.”) In this case, Porter did
present the factual claim that he lived in the townhome to the Virginia Supreme Court, even

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if state habeas counsel neglected to cite Porter’s affidavit in support of this factual
assertion. While “new evidence surfacing in federal court that fundamentally alters a claim
will render the claim unexhausted,” Winston, 592 F.3d at 556, this case is unlike those in
which courts have found a claim to be unexhausted because the petitioner presents
entirely new or significantly different factual claims in federal court. See, e.g., Burns v.
Estelle, 695 F.2d 847, 849‐50 (5th Cir. 1983)(petitioner’s claim in federal habeas that
counsel was ineffective due to a conflict of interest that prevented counsel from calling an
alibi witness was substantially different from the general claim on state habeas that
counsel was ineffective due to a conflict of interest). Porter’s affidavit was evidence in the
state record considered by the Supreme Court of Virginia, and the citation to the affidavit in
his federal habeas petition does not fundamentally alter the claim that he lived in the
townhome. For these reasons, Porter’s claim has been exhausted and is not procedurally
defaulted, and therefore, his proposed amendment under Martinez would be futile.
Accordingly, the Court DENIES Porter’s Motion for leave to amend Claim Nine.
3. Claims Eight, Nine, Ten
In Claims Eight, Nine, and Ten, Porter presents several arguments that his trial
attorneys were ineffective in failing to adequately investigate his abusive childhood,
correctional experiences, and the prosecution’s aggravating evidence. In support of these
claims, Porter cites affidavits from his trial investigator Daryl Van Horn and trial mitigation
specialist Jennifer Schweizer. The parties dispute whether these affidavits were part of the
record considered by the Supreme Court of Virginia on state habeas, and thus, Porter
argues that to the extent that the affidavits were not presented on state habeas, “state
habeas counsel’s failure to perform the ministerial act of entering the affidavits into the

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state record with Porter’s petition along with the fifty‐plus other affidavits that were
introduced at that time fell well below the minimal norms expected of an attorney under
Strickland.” (Porter’s Add. Claims 4.) Porter also argues that if the affidavits were not
attached to the state habeas petition because they had not yet been created, it could not
have been a reasonable strategic decision to present the numerous affidavits that were
attached to the petition without first creating these two particular affidavits. Porter asserts
that many of the affidavits in the state record from fellow inmates, past teachers,
acquaintances, and family members are highly cumulative, and that a reasonable attorney
would not have prioritized attaching these affidavits to the state habeas petition over
affidavits from the investigators about the scope of their investigation.
As with Claim Five, the Court finds that Claims Eight, Nine, and Ten are not
procedurally defaulted. Firstly, Jennifer Schweizer’s affidavit, which was appended to
Porter’s opposition to the Warden’s Supplemental Motion to Dismiss the state habeas
petition (see Fed. Appx. 500 n.6, ECF No. 22‐17), was considered by the Supreme Court of
Virginia and was a part of the state record. See Porter II, 722 S.E.2d at 538. Secondly,
although it is not apparent that Daryl Van Horn’s affidavit was made a part of the record,
the failure to attach Van Horn’s affidavit to the state habeas petition does not procedurally
default Claims Eight, Nine, and Ten because Van Horn was the fact investigator for the guilt
phase of Porter’s trial, and these claims each concern the investigation into mitigating and
aggravating evidence for the penalty phase. Schweizer was the only mitigation investigator
at the Capital Defender Office which represented Porter and it was primarily her
responsibility to develop and conduct the mitigation investigation. (Fed. Appx. 508
(Schweizer Aff. ¶¶ 3‐5.)) Van Horn occasionally helped Schweizer by “locating penalty‐

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phase witnesses” and making the initial contact with a mitigation witness, but Van Horn
“was not responsible for record collection, reviewing records received, or conducting
substantive interviews with penalty phase witnesses.” (See id. at 507‐08; Fed. Appx. 565
(Van Horn Aff. ¶ 5.)) Since Schweizer’s affidavit was a part of the state record, and because
Van Horn’s affidavit does not present any new facts that are material to Claims Eight, Nine,
and Ten, these claims are not defaulted. As amendment would be futile, the Court thus
DENIES the Motion for Leave to Amend Claims Eight, Nine, and Ten.
B. Porter’s Additional Claims
Porter also seeks to add four procedurally defaulted claims to his Petition. The Court
GRANTS Porter leave to amend his Petition to include Claims Fourteen, Fifteen, Sixteen,
and Seventeen to his Petition. While none of these claims are particularly strong, Porter has
at least pled claims that suffice under the liberal standard for granting leave to amend.
1. Claim Fourteen
In Claim Fourteen, Porter argues that his trial counsel failed to provide sufficient
support for his pretrial motion for the appointment of a forensic psychologist. Porter
moved for the appointment of Dr. Mark Cunningham to provide risk assessment testimony
for the jury’s consideration in determining his future dangerousness, and trial counsel
submitted along with this motion a sample individualized risk assessment that Dr.
Cunningham had produced for another capital case, Commonwealth v. Gray. The trial court
denied the motion, and the Supreme Court of Virginia affirmed on direct appeal, finding
that the motion failed to proffer that the expert would produce an individualized or
particularized analysis of Porter’s criminal record, prior history, prior or current
incarceration, or the circumstances of the offense. Porter I, 661 S.E.2d at 440. The Court

15

also held that Porter’s defective proffer was not saved by his reference to the declaration
that Dr. Cunningham produced in the Gray case (hereinafter “Gray Declaration”) because
“[a]t no place in the Prison Expert Motion, or in his oral argument before the circuit court,
does Porter state that Dr. Cunningham intends to do in this case that which he purported to
do in the Gray case.” Id. at 441. The Court further stated: “Even if we assume that the
representation in the Gray Declaration would meet the test [for admissibility] of our prior
decisions, Porter never proffered that analysis was what he intended in this case.” Id.
Because the Supreme Court of Virginia called this motion “notable for an essential,
but missing, element,” id. at 440, Porter asserts that his trial counsel performed deficiently
under Strickland. Porter argues that the prejudice resulting from trial counsels’ failure to
make the necessary proffer is cumulative with the prejudice articulated in Claim Eleven of
his federal habeas petition, wherein he asserts that the state court violated his rights under
the Eighth and Fourteenth Amendments by denying him the assistance of a risk assessment
expert. Porter further contends that it was unreasonable for state habeas counsel to fail to
raise this ineffective assistance of trial counsel claim “in the face of a state court holding
that openly chided trial counsel for an apparent oversight that contributed to the denial of
a motion of critical importance to Porter’s sentencing defense.” (Porter’s Add. Claims 7.)
Since state habeas counsel did separately present Claim Eleven challenging the denial of
the risk assessment expert, Porter argues that it was unreasonable to “forego an obvious
ineffective assistance of counsel claim that is part and parcel of another existing
meritorious claim.” (Id.) Porter argues that he was prejudiced because state habeas
counsel’s error resulted in the failure “to preserve critical support for a claim that is

16

otherwise meritorious” (id.), and he also reasserts his argument of deficient performance
and presumed prejudice under Cronic.
In response, the Warden argues that the Supreme Court of Virginia concluded that
the Gray Declaration was not sufficiently individualized to be admissible, thus Dr.
Cunningham’s report would not have been admissible even if Porter had proffered that he
would produce the same kind of report as in Gray. Therefore, the Warden asserts that
Porter was not prejudiced, and thus amendment would be futile, because the underlying
ineffective assistance of trial counsel claim has no merit.
The question of whether Porter has stated a plausible Martinez claim is a close call.
However, under the permissive standard for a motion to amend in which the Court must
freely grant leave, the Court finds that amendment would not be futile because Porter has
at least stated a claim that is not “frivolous or legally deficient on its face,” Hillyard Enters.,
2003 U.S. Dist. LEXIS 27920, at *13, even if it is not an especially strong claim. Accordingly,
the Court GRANTS Porter leave to Amend his Petition to include Claim Fourteen.
2. Claim Fifteen
In Claim Fifteen, Porter asserts that his trial counsel was ineffective in failing to
timely object to the trial court’s curative instructions during his closing argument that the
jury was not required to simply consider what may happen in prison when evaluating the
probability that Porter would commit a violent crime constituting a serious threat to
society. Porter describes the instructions as “an impromptu rebuttal argument on behalf of
the prosecution,” and “stinging rebuke and misstatement,” and he argues that “[t]he jury
could only have interpreted this one‐sided and intemperate intervention to mean that the
trial court agreed with the prosecution’s allegation about Porter’s dangerousness, and had

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felt compelled to intervene to keep trial counsel from misleading the jury on this crucial
point.” (Porter’s Add. Claims 10‐11.) Porter argues that he was prejudiced by trial counsels’
failure to immediately object because the Supreme Court of Virginia refused to consider his
argument on direct appeal that the instructions violated the Sixth Amendment on the
ground that trial counsel had not timely objected.
Porter asserts that it was unreasonable for state habeas counsel to not raise an
ineffective assistance claim based on the failure to object because this potential claim was
obvious, and “[u]nder prevailing professional norms, a reasonable habeas attorney would
not have had any strategic reason for foregoing a meritorious claim.” (Porter’s Add. Claims
11.) Porter argues that the failure to raise this claim was even more unreasonable in light
of the fact that state habeas counsel was already challenging the jury’s finding of future
dangerousness by presenting Claim Eleven, arguing that the state court violated the Eighth
and Fourteenth Amendments by denying Porter a risk assessment expert. Porter asserts
that Claims Eleven and Fifteen cumulatively prejudiced him by denying him “a
constitutionally sound sentencing proceeding on the aggravating factor of future
dangerousness” (id. at 12), and he again argues that state habeas counsel’s performance
was deficient and prejudicial under Cronic.
In response, the Warden argues that the trial court did not err or abuse its
discretion in making the curative instructions defining “society,” and therefore, even if trial
counsel had timely objected, Porter could not have prevailed on appeal. Accordingly, the
Warden argues that amendment would be futile because the underlying ineffective
assistance of trial counsel claim has no merit.

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As with Claim Fourteen, while Porter has not presented a strong claim under
Martinez in Claim Fifteen, Porter has at least stated a claim that is seemingly not “frivolous
or legally deficient on its face,” Hillyard Enters., 2003 U.S. Dist. LEXIS 27920, at *13. In the
interest of freely granting leave to amend, the Court thus GRANTS Porter leave to amend
his Petition to include Claim Fifteen.
3. Claim Sixteen
In Claim Sixteen, Porter argues that his trial counsel failed to adequately investigate
the shooting of Officer Reaves, and that an adequate investigation would have led to a
statement from Valorie Arrington that she entered into a quid pro quo agreement with the
Commonwealth. Porter has attached an affidavit from Arrington to his Motion in which she
states that she initially told two prosecutors that she “did not know Thomas Porter and had
nothing to say about the matter” (Porter’s Add. Claims Ex. A (Arrington Aff.) ¶ 2.) However,
after Arrington’s then‐boyfriend, who was in jail in Norfolk at the time, came up in
conversation, Arrington “clearly conveyed” to the prosecutors the message, “I’ll help you if
you help me.” (Id.) Arrington states that the prosecutors agreed to help get her boyfriend
released from jail, and that they then discussed her testimony. Arrington claims that her
boyfriend was released shortly thereafter, and she subsequently testified at Porter’s trial.
Porter argues that evidence of this quid pro quo would have impeached Arrington
by showing a bias or interest in testifying for the prosecution. Porter further maintains that
this evidence would also have impeached the other four women who testified about the
events in Arrington’s apartment, particularly April Phillips who also denied knowledge of
the shooting at first. Porter claims that the alleged quid pro quo is highly relevant to Claim
Five, in which he argues that trial counsel failed to sufficiently rebut Latoria Arrington’s

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testimony, because the jury may have found Latoria less credible if they knew of her
mother’s quid pro quo. Accordingly, Porter asserts cumulative prejudice with Claim Five.
Porter claims that it was unreasonable for state habeas counsel not to raise this
claim because counsel did raise ineffective assistance claims on state habeas regarding trial
counsels’ investigation into the mitigating and aggravating evidence, and Porter argues that
trial counsels’ investigation during the guilt phase was even more deficient. Accordingly,
Porter states that “it is baffling why habeas counsel would not bother to assert an even
more substantial and meritorious claim of ineffective investigation relating to the guilt
phase.” (Porter’s Add. Claims. 14.) Porter reasserts his claim that he was prejudiced by his
state habeas counsel’s deficient performance under Cronic, and also alleges that “state
habeas counsel’s deficient performance clearly prejudiced Porter by failing to assert a
substantial and meritorious ineffective‐assistance‐of‐trial‐counsel claim.” (Id.)
In response, the Warden argues that leave to amend would be futile because the
underlying ineffective assistance of trial counsel claim does not have merit. Specifically, the
Warden argues that even if trial counsel had uncovered the alleged quid pro quo by further
investigating, there is no reasonable probability that the outcome of Porter’s trial would be
different even if the jury had disbelieved Valorie Arrington based on this evidence. The
Warden asserts that Porter would not have been prejudiced, firstly, because the other four
women testified consistently, and secondly, because Valorie’s account was the least
detailed since she never testified that Porter was aware that Officer Reaves was outside
when he left the apartment, the most emphasized fact elicited from any of the women’s
testimony. The Warden argues that Porter merely speculates that the evidence would also
have impeached the other four women given their relationships with Valorie Arrington.

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As with Claims Fourteen and Fifteen, Claim Sixteen presents a claim under Martinez
that is at least not “frivolous or legally deficient on its face,” Hillyard Enters., 2003 U.S. Dist.
LEXIS 27920, at *13, and the Court will not deny leave to amend due to futility. Accordingly,
the Court GRANTS Porter leave to amend his Petition to include Claim Sixteen.
4. Claim Seventeen
In Claim Seventeen, Porter alleges that the prosecution violated its obligation under
Brady to disclose evidence of its alleged quid pro quo agreement with Valorie Arrington,
which could have been used to impeach Valorie Arrington as well as the other four women
in her apartment. Porter argues that the state’s suppression of the relevant evidence, which
Porter claims is material under Brady, establishes cause and prejudice excusing the
procedural default of this Brady claim under Banks v. Dretke, 540 U.S. 668, 691 (2004).
In response, the Warden asserts that Banks relied on a three‐factor test for cause
articulated in Strickler v. Greene, 527 U.S. 263, 289 (1999): “(a) the prosecution withheld
exculpatory [or impeaching] evidence; (b) petitioner reasonably relied on the prosecution's
open file policy as fulfilling the prosecution's duty to disclose such evidence; and (c) the
[State] confirmed petitioner's reliance on the open file policy during state habeas
proceedings that petitioner had already received everything known to the government.”
Banks, 540 U.S. at 692 (citing Strickler). The Warden argues that Porter has not established
cause because he makes no argument that the Commonwealth had an open file policy or
that prosecutors gave any blanket assurances that they would disclose exculpatory
evidence. The Warden also maintains that Porter cannot show that the information was
material under Brady for the same reason Porter cannot show that he was prejudiced in
Claim Sixteen by his attorney’s failure to discover the quid pro quo, namely that the

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evidence would not have impeached the testimony of Valorie Arrington or the other four
women. Accordingly, the Warden asserts that Porter cannot show that he was prejudiced
by any Brady violation, and he further argues that Porter cannot make this argument
consistently with Claim Sixteen, because if “his trial counsel should have discovered the
information on their own, then no Brady violation occurred.” (Warden’s Supp. Reply 17.)
While the Warden rightly points out that Porter has alleged only the first factor in
Strickler, the Court will not deny leave to amend on the ground of futility since Porter has at
least not pled a claim that is “frivolous or legally deficient on its face,”3 Hillyard Enters.,
2003 U.S. Dist. LEXIS 27920, at *13. Accordingly, the Court GRANTS Porter leave to amend
his Petition to include Claim Seventeen.
C. Bad Faith as a Ground for Denial of Leave to Amend

Although the parties primarily discuss whether the proposed amendments would be

futile, the Warden also asserts that Porter has showed bad faith and dilatory motive in
seeking an undue delay, and that leave to amend should also be denied for this reason. See
Foman, 371 U.S. at 182. The Warden argues that the filing of this Motion on the day that the
statute of limitations was to expire under Porter’s calculation and Porter’s request that the
Court make an immediate ruling both show bad faith. Further, the Warden argues that, in
light of the fact that the Court previously denied Porter’s earlier motions for an extension of
While Banks and Strickler both relied on the three factors found in Strickler to conclude
that the petitioner in each case had established cause for defaulting his Brady claim, the
Court declined to decide whether any one or two of the factors would suffice to
demonstrate cause. Strickler, 527 U.S. at 289 (“We need not decide in this case whether any
one or two of these factors would be sufficient to constitute cause, since the combination of
all three surely suffices”); see Banks, 540 U.S. at 693 n.13 (same). Accordingly, Porter’s
failure to allege the latter two factors cannot render the pleading insufficient under Rule
12(b)(6) in light of the fact that the United States Supreme Court has declined to decide
whether all three factors are necessary.
3

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time and page length, the present Motion is an attempt to circumvent the previously
imposed limitations on Porter’s Petition or to get the Court to reconsider its decisions
despite no change or misunderstanding of the relevant facts or law. Lastly, the Warden
argues that a motion to amend may properly be denied if allowing the amendment would
violate the Court’s scheduling order or the amended pleading would assert an entirely new
theory of the case. See Parker v. Joe Lujan Enters., Inc., 848 F.2d 118, 121 (9th Cir. Guam
1988)(holding that a failure to comply with the court’s scheduling order in this tort case
was one ground supporting the decision to deny leave to amend).

The Court will decline to deny Porter leave to amend on this ground because there is

no explicit evidence of bad faith in this case. Although amendment at this point would allow
Porter more time than the February 19, 2013 deadline he sought in his first motion for an
extension, Porter did indicate in his September 20, 2012 motions4 that he intended to
investigate whether any claims existed under Martinez, and counsel sought funds for an
investigator to pursue these potential claims. The Court did not rule on the merits of
Porter’s request for investigative assistance because he sought leave to file the request ex
parte; after the Court denied leave to proceed ex parte, Porter chose not to otherwise
submit a request for an investigator. However, Porter’s counsel represents that he
ultimately paid for an investigator on his own (Mem. Supp. Leave to Amend 5 n.2, ECF No.
45), and thus, there is some support for counsel’s claim that he has been continually
investigating the Martinez claims.
On the other hand, Porter submitted his second request for additional time to
separately file his procedurally defaulted claims on October 9, 2012, the day that the
The Order denying these motions for additional time and pages (ECF No. 16) advised
Porter that the Court would request supplemental briefing if necessary.
4

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Petition was due. In addition, Porter could have responded, and to some extent did respond
(see Opp. Mot. Dismiss 29 n.38, ECF No. 42), to the Warden’s arguments that Claims Five,
Eight, Nine, and Ten were procedurally defaulted in his response to the Warden’s Motion to
Dismiss, rather than seeking leave to amend the Petition with respect to these claims.
Nonetheless, the Motion does not seem to have been filed merely for the purpose of
defeating the Motion to Dismiss, and there is no explicit evidence that Porter could have
developed and presented the four additional claims earlier. See Sandcrest Outpatient Serv.,
P.A. v. Cumberland Cnty. Hosp., 853 F.2d 1139, 1149 (4th Cir. 1988)(affirming the denial of
leave to amend where the proposed amendment appeared “to have been an after‐thought
by appellant, possibly prompted only by the concern that it would lose on the summary
judgment motion”); Googerdy v. N.C. Agric. & Tech. State Univ., 386 F.Supp.2d 618, 622‐24
(M.D.N.C. 2005)(denying leave to amend partly because the plaintiff admitted to moving to
amend in order to defeat the defendant’s pending motion to dismiss). Accordingly, there is
insufficient proof of bad faith in this case to deny leave to amend on this ground.
IV.

CONCLUSION
For the above reasons, the Court GRANTS IN PART and DENIES IN PART Porter’s

Motion for Leave to Amend. Specifically, the Court DENIES Porter’s Motion for leave to
Amend Claims Five, Eight, Nine, and Ten, and GRANTS Porter’s Motion for Leave to Amend
his Petition to include Claims Fourteen, Fifteen, Sixteen, and Seventeen.
Let the Clerk send a copy of this Memorandum Opinion to all counsel of record.
An appropriate order shall issue.

____________________/s/_________________
James R. Spencer
United States District Judge

ENTERED this 2nd day of May 2013.

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