Porter v. Davis

Filing 77

MEMORANDUM OPINION. Signed by District Judge James R. Spencer on 8/21/14. (tdai, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
RICHMOND DIVISION
THOMAS ALEXANDER PORTER,
Petitioner,
v.

Civil Action No. 3:12-CV-550-JRS

KEITH W. DAVIS,
Warden, Sussex I State Prison
Respondent.
MEMORANDUM OPINION
THIS MATTER is before the Court on Warden Keith Davis’s (“Warden”) Motion to
Dismiss (ECF No. 57). Porter seeks relief under 28 U.S.C. § 2254 from his capital murder
conviction and death sentence for the 2005 shooting death of a Norfolk police officer. Porter
filed his § 2254 Petition on October 9, 2012. His petition was amended with leave of the Court
on May 9, 2013 (“Amended Petition”). For the reasons below, the Court will GRANT the Motion
to Dismiss. Porter’s related Second Motion for Discovery (ECF No. 72) will be DENIED AS
MOOT.
FACTUAL AND PROCEDURAL BACKGROUND
The following is a brief summary of the facts and procedural history relevant to the
present Amended Petition. On March 14, 2007, Porter was convicted by a jury in the Circuit
Court for Arlington County of the capital murder of Norfolk Police Officer Stanley Reaves
(“Officer Reaves”), use of a firearm in the commission of a murder, and grand larceny of a
firearm. On the afternoon of October 28, 2005, Porter and another man, Reginald Copeland
(“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 were also present. Porter eventually began arguing with
the women over the marijuana and brandished a semi-automatic pistol concealed on his person.
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Copeland exited the apartment, with Porter locking the door behind him, and then left the
complex. After walking a few blocks, Copeland came across three uniformed police officers,
including Officer Reaves, and reported Porter’s behavior to the officers. Officer Reaves then
drove to the complex with Copeland following on foot. As 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’s service revolver and fled.
At trial, the prosecution argued that Porter was guilty of capital murder under Virginia
Code § 18.2-31.6 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 Officer 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 out his service revolver, causing Porter to fear for his life and
safety. A key issue argued at the guilt phase 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
quickly. Valorie’s sister, Monika Arrington, and her cousins, Monica Dickens and April Phillips,
testified corroborating Valorie and Latoria’s accounts.

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The Commonwealth sought the death penalty under Virginia Code § 19.2-264.21 based
on Porter’s “future dangerousness,” 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 the probability that he would commit violent criminal acts constituting a
serious threat to society, the term “society” meant prison society since Porter would spend the
rest of his life incarcerated without parole if not sentenced to death. Porter v. Commonwealth
(Porter I), 661 S.E.2d 415, 442 (Va. 2008). The Commonwealth objected, and the trial court
instructed the jury that: “Society is everything. Everybody, anywhere, anyplace, anytime.” (SH
App. 4169).2 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 App. 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.
The jury convicted Porter of all counts, and at the sentencing phase, found the future
dangerousness aggravating factor. The jury sentenced Porter to death for the capital murder

“[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. . . .” § 19.2-264.2; see § 19.2-264.4(C).

1

The Joint Appendix (“JA”) encompasses Volumes 1-12 (or pages 1-4817). The State Habeas
Appendix (“SH App.”) encompasses the Joint Appendix and Volumes 13-21 (pages 4817-8335).
Volumes 13-21 (pages 4817-8335), however, are only in electronic form. Additional materials are in
the Federal Appendix (“Fed. App.”).

2

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conviction and to a total of twenty-two (22) years of imprisonment for the non-capital offenses.
The Supreme Court of Virginia found the following facts regarding the sentencing phase of trial:
During the penalty stage of the proceedings, the Commonwealth
presented evidence in aggravation, which included Porter’s prior convictions of
misdemeanor carrying a concealed weapon in 1994, felony robbery and use of a
firearm during the commission of a felony in 1994, misdemeanor disturbing the
peace, misdemeanor assault and battery and misdemeanor threatening a police
officer and resisting arrest in 1996, felony possession of heroin, felony possession
of a firearm with drugs, and felony possession of a firearm by a convicted felon in
1997, misdemeanor assault and battery in 1997, and misdemeanor obstruction of
justice in 2005. The Commonwealth presented evidence of several incidents
while Porter was incarcerated, including altercations between Porter, fellow
inmates, and prison guards. The Commonwealth also introduced audiotapes of
portions of two telephone conversations between Porter and an unidentified
female recorded during Porter’s incarceration, which the Commonwealth
introduced because they “are directly relevant to the issue of the defendant’s lack
of remorse” and included Porter bragging that he was a “good shot.”
The Commonwealth also introduced the testimony of Officer Reaves’ wife
and sister, and each described the devastating impact of Officer Reaves’ death
upon his extended family. Porter presented mitigation evidence which included
testimony of his mother and sister as to his childhood, family life and educational
background.
Porter I, 661 S.E.2d at 424. On July 16, 2007, the Circuit Court for the City of Norfolk imposed
the jury’s sentences 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. 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 (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 Supreme

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Court of Virginia 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
for an extension of the page limit on September 20, 2012, and the Court denied both motions on
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 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). Porter filed his Amended Petition on May 9, 2013. Porter’s Petition includes seventeen
claims that can be divided into exhausted claims and those that have not been procedurally
defaulted or exhausted. The exhausted claims include:
I.
II.
III.
IV.
V.
VI.
VII.

Juror Misconduct Violated Porter’s Rights to an Impartial Jury and to Due
Process
The Prosecution Violated Brady Regarding Officer Reaves’s History of
Unprofessional Conduct
The Prosecution Violated Brady and Napue Regarding Selethia Anderson
Counsel Unreasonably Failed To Have Officer Reaves’s Holster Examined For
Fingerprints
Trial Counsel Unreasonably Failed to Call Powerful Exculpatory Testimony
Regarding Trial Counsel’s Use of Copeland’s Testimony
Counsel Unreasonably Failed to Obtain a Jury Instruction on First-Degree
Murder
Trial Counsel Failed to Investigate Officer Reaves’s History of Unprofessional
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VIII.
IX.
X.
XI.

Conduct
Counsel Failed to Conduct an Adequate Investigation into Porter’s Chaotic and
Abusive Childhood and Failed to Present Uncovered Evidence
Counsel Failed to Reasonably Investigate the Prosecution’s Aggravating Evidence
Counsel Failed to Investigate and Present Evidence of Porter’s Correctional
Experiences
The State Court Violated Porter’s Rights Under the 8th and 14th Amendments by
Denying Porter the Assistance of a Risk Assessment Expert

Claims that have not been procedurally exhausted include:
XII.

The Prosecution Withheld Material Evidence Impeaching a Penalty-Phase
Witness
XIII. Counsel Unreasonably Failed to Protect Porter’s Constitutional Right to Testify
XIV. Counsel Unreasonably Failed to Assert that His Proposed Risk Assessment
Would Be of the Same Nature as that Contained in his Expert’s Declaration
XV.
Counsel Unreasonably Failed to Object to Improper Curative Instructions and
Comments by the Trial Court during His Closing that Denied Porter a Fair
Sentencing
XVI. Counsel Failed to Adequately Investigate the Shooting of Officer Reaves
XVII. The Prosecution Withheld Material Evidence Impeaching a Guilt-Phase Witness
LEGAL STANDARDS

I.

Standard of Review
A federal court may review a petition for a writ of habeas corpus by a person serving a

sentence imposed by a state court only on the ground that the person is being held in custody “in
violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). The
federal court may grant the petition on a claim decided on its merits by the state court only if
that decision “was contrary to, or involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the United States,” id. § 2254(d)(1), or “was
based on an unreasonable determination of the facts in light of the evidence presented in the
State court proceeding,” id. § 2254(d)(2). “The only limitation on § 2254(d)’s application is that
the claims submitted must have been adjudicated on the merits in state court. When a claim has
not been adjudicated on the merits by the state court, a federal court reviews the claim de novo.”
Winston v. Kelly, 592 F.3d 535, 553-54 (4th Cir. 2010).

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A decision is “contrary to” federal law if it resolves a question of law in a way that
contradicts the relevant Supreme Court precedent, or if it yields a result that differs from the
outcome of a Supreme Court case involving “materially indistinguishable” facts. Williams v.
Taylor, 529 U.S. 362, 405-06, 413 (2000). A decision applies federal law unreasonably if it is
based on the correct legal principle but applies that rule unreasonably to the facts of a case.
Winston, 592 F.3d at 554. A state court’s decision must have been objectively unreasonable as
opposed to merely incorrect or erroneous. Id. The question is not “whether a federal court
believes the state court’s determination was incorrect but whether that determination was
unreasonable—a substantially higher threshold.” Schriro v. Landrigan, 550 U.S. 473, 1939
(2007) (citing Williams, 529 U.S. at 410). This standard similarly applies to a state court’s
factual determinations. Winston, 592 F.3d at 554. A federal court is to presume the correctness
of the state court’s finding of facts and not find an “unreasonable determination” of the facts,
unless the petitioner rebuts the presumption that the state court’s findings were incorrect by
clear and convincing evidence. Id.
Thus, under § 2254(d), if a state court applies the correct legal rule to the facts of a case
in a reasonable way, or makes factual findings reasonably based on the evidence presented, a
federal court does not have the power to grant a writ of habeas corpus, even if the federal court
would have applied the rule differently. Williams, 529 U.S. at 406-08.

II.

Exhaustion
State exhaustion “‘is rooted in considerations of federal-state comity,’” and in

Congressional determination via federal habeas laws “that exhaustion of adequate state
remedies will ‘best serve the policies of federalism.’” Slavek v. Hinkle, 359 F. Supp. 2d 473, 479
(E.D. Va. 2005) (quoting Preiser v. Rodriguez, 411 U.S. 475, 491–92 & n.10 (1973)). The
purpose of the exhaustion is “to give the State an initial opportunity to pass upon and correct
alleged violations of its prisoners’ federal rights.” Picard v. Connor, 404 U.S. 270, 275 (1971)
(internal quotation marks omitted). Exhaustion has two aspects. First, a petitioner must utilize
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all available state remedies before he can apply for federal habeas relief. See O’Sullivan v.
Boerckel, 526 U.S. 838, 844–48 (1999). As to whether a petitioner has used all available state
remedies, the statute notes that a habeas petitioner “shall not be deemed to have exhausted the
remedies available in the courts of the State . . . if he has the right under the law of the State to
raise, by any available procedure, the question presented.” 28 U.S.C. § 2254(c).
The second aspect of exhaustion requires a petitioner to have offered the state courts an
adequate opportunity to address the constitutional claims advanced on federal habeas. “To
provide the State with the necessary ‘opportunity,’ the prisoner must ‘fairly present’ his claim in
each appropriate state court (including a state supreme court with powers of discretionary
review), thereby alerting that court to the federal nature of the claim.” Baldwin v. Reese, 541
U.S. 27, 29 (2004) (quoting Duncan v. Henry, 513 U.S. 364, 365–66 (1995)). Fair presentation
demands that “‘both the operative facts and the controlling legal principles’ must be presented
to the state court.’” Longworth v. Ozmint, 377 F.3d 437, 448 (4th Cir. 2004) (quoting Baker v.
Corcoran, 220 F.3d 276, 289 (4th Cir. 2000)). The burden of proving that a claim has been
exhausted in accordance with a “state’s chosen procedural scheme” lies with the petitioner.
Mallory v. Smith, 27 F.3d 991, 994-995 (4th Cir. 1994). Accordingly, claims that are not
presented to the state court system are procedurally defaulted and barred from review here,
absent a showing of cause and prejudice or actual innocence.

III.

Ineffective Assistance of Counsel
Ineffective assistance of counsel claims under the Sixth Amendment are examined under

the two-prong test set forth in Strickland, 466 U.S. at 687. To succeed under Strickland, a
petitioner must show both that: (1) his attorney’s performance fell below an objective standard
of reasonableness, and (2) he suffered actual prejudice. Id. The first prong of Strickland
(performance prong) requires the petitioner to “‘show that counsel’s representation fell below an
objective standard of reasonableness’ measured by ‘prevailing professional norms.’” Lewis v.
Wheeler, 609 F.3d 291, 301 (4th Cir. 2010) (quoting Strickland, 466 U.S. at 688). There is a
8

“strong presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance,” and “[j]udicial scrutiny of counsel’s performance must be highly
deferential.” Strickland, 466 U.S. at 689. When making an ineffective assistance of counsel
determination, a court must consider “the practical limitations and tactical decisions that
counsel faced.” Bunch v. Thompson, 949 F.2d 1354, 1363 (4th Cir. 1991). The second prong of
Strickland (prejudice prong) requires the petitioner to show that counsel’s errors were serious
enough to deprive the petitioner of a fair trial. Strickland, 466 U.S. at 687. In essence, the
petitioner must show “there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” Id. at 694. If it is clear the
petitioner has failed to satisfy either prong of the Strickland standard, a court need not inquire
into whether he satisfied the other. Id. at 697.
A counsel’s failure to investigate adequately for sentencing can be ineffective, thus,
violating the performance prong of Strickland. Emmett v. Kelly, 474 F.3d 154, 161 (4th Cir.
2007). The prevailing question is “whether the investigation supporting counsel’s decision not to
introduce mitigating evidence of [the petitioner’s] background was itself reasonable.” Wiggins v.
Smith, 539 U.S. 510, 523 (2003); see also Romipilla v. Beard, 545 U.S. 374, 380 (2005). In the
context of a capital case, “[t]he ABA Guidelines provide that investigations into mitigating
evidence ‘should comprise efforts to discover all reasonably available mitigating evidence and
evidence to rebut any aggravating evidence that may be introduced by the prosecutor.” Wiggins,
539 U.S. at 524. However, counsel’s actions are assessed in light of context and the facts “as seen
from counsel’s perspective at the time” Id. “[A] strategic choice made by counsel after a
thorough investigation is ‘virtually unchallengeable.’” Emmett, 474 F.3d at 178 (quoting
Strickland, 466 U.S. at 691); see also Stout v. Netherland, Nos. 95-4008, 95-4007, 1996 WL
496601, at *10 (4th Cir. Sept. 3, 1996) (“[P]rovided there is a conceivable strategic advantage to
the decision not to introduce certain evidence in mitigation, that choice is virtually unassailable
9

on collateral review.”). “[S]trategic choices made after less than complete investigation are
reasonable precisely to the extent that reasonable professional judgments support the
limitations on investigation.” Strickland, 466 U.S. at 690-691. The Supreme Court clarified that,
“[i]n other words, counsel has a duty to make reasonable investigations or to make a reasonable
decision that makes particular investigations unnecessary. In any ineffectiveness case, a
particular decision not to investigate must be directly assessed for reasonableness in all the
circumstances, applying a heavy measure of deference to counsel’s judgments.” Id. at 691. A
petitioner’s counsel does not have to investigate every possible avenue of mitigation. See id.; see
also Emmett, 474 F.3d at 161.
Regarding prejudice in the context of mitigation evidence, “[w]hen a defendant asserts
prejudice with respect to his sentence, the Court must ‘reweigh the evidence in aggravation
against the totality of available mitigating evidence.’” Hedrick v. True, 443 F.3d 342, 349 (4th
Cir. 2006) (quoting Wiggins, 539 U.S. at 534). The Fourth Circuit explained that:
The question a reviewing court must answer in determining whether a petitioner
was prejudiced by a failure to present such evidence, then, is not whether the
evidence was as “powerful” as the mitigation evidence in other cases, but rather
whether the evidence was “powerful” enough to offset the aggravating evidence
and demonstrate a reasonable probability of a different result in the petitioner’s
case.
Yarbrough v. Johnson, 520 F.3d 329, 342 (4th Cir. 2008). Further “[a] defendant who alleges a
failure to investigate on the part of his counsel must allege with specificity what the investigation
would have revealed and how it would have altered the outcome . . . .” United States v. Green,
882 F.2d 999, 1003 (5th Cir. 1989).

IV.

Martinez Claims
The Supreme Court held in Martinez that, “[w]here, under state law, claims of ineffective

assistance of trial counsel must be raised in an initial-review collateral proceeding, a procedural
default will not bar a federal habeas court from hearing a substantial claim of ineffective

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assistance.” 132 S. Ct. 1309, 1320 (2012). A federal habeas court may excuse a defendant’s
procedural default where
(1) the claim of “ineffective assistance of trial counsel” was a “substantial” claim;
(2) the “cause” consisted of there being “no counsel” or only “ineffective” counsel
during the state collateral review proceeding; (3) the state collateral review
proceeding was the “initial” review proceeding in respect to the “ineffectiveassistance-of-trial-counsel claim”; and (4) state law requires that an “ineffective
assistance of trial counsel [claim] . . . be raised in an initial-review collateral
proceeding.
Trevino v. Thaler, 133 S. Ct. 1911, 1918 (2013) (quoting Martinez, 132 S. Ct. at 1318-19, 1320-21).

V.

Brady Claims
Under Brady v. Maryland, 373 U.S. 83 (1963), a court is required to vacate a conviction

and order a new trial if it finds that the prosecution suppressed material, exculpatory evidence.
United States v. King, 628 F.3d 693, 701 (4th Cir. 2011). In order to obtain relief under Brady, a
litigant must “(1) identify the existence of evidence favorable to the accused; (2) show that the
government suppressed the evidence; and (3) demonstrate that the suppression was material.”
Id. (citing Monroe v. Angelone, 323 F.3d 286, 299 (4th Cir. 2003)). Under the Brady analysis,
evidence is material if it generates a “reasonable probability” of a different result at trial had the
evidence been disclosed. Moseley v. Branker, 550 F.3d 312, 318 (4th Cir. 2008) (quoting United
States v. Bagley, 473 U.S. 667, 682 (1985)). “‘The question is not whether the defendant would
more likely than not have received a different verdict with the evidence, but whether in its
absence he received a fair trial, understood as a trial resulting in a verdict worthy of
confidence.’” Id. (quoting Kyles v. Whitley, 514 U.S. 419, 434 (1995)). “Showing that the
prosecution knew of an item of favorable evidence unknown to the defense does not amount to a
Brady violation, without more.” Kyles, 514 U.S. at 437.
The Fourth Circuit has recently interpreted defaulted Brady claims in the context of the
Supreme Court’s decision in Banks v. Dretke, 540 U.S. 668, 691 (2004)
The Supreme Court has explained that the cause and prejudice showing
necessary to overcome a defaulted Brady claim parallel[s] two of the three
components of the alleged Brady violation itself. . . . Thus, the required showing
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of cause corresponds to the Brady requirement that the petitioner show that the
state suppressed the evidence. . . . The showing of prejudice required to excuse a
procedural default corresponds to the Brady prejudice requirement.
Walker, 589 F.3d at 137 (internal citation and quotation marks omitted). To be material, failure
to disclose must “deprive the defendant of a fair trial.” Bagley, 473 U.S. at 675. As such,
“evidence is material only if there is a reasonable probability that, had the evidence been
disclosed to the defense, the result of the proceeding would have been different. A ‘reasonable
probability’ is a probability sufficient to undermine confidence in the outcome.” Bagley, 473
U.S. at 682; see also Kyles, 514 U.S. at 434. Further, “Brady requires that the government
disclose only evidence that is not available to the defense from other sources, either directly or
through diligent investigation.” McCleskey v. Zant, 499 U.S. 467, 498 (1991).

VI.

Evidentiary Hearings
The decision to grant an evidentiary hearing is left to the “sound discretion of district

courts.” Schriro, 550 U.S. at 473; see 28 U.S.C. § 2254, Rule 8(a) (“[T]he judge must review the
answer [and] any transcripts and records of state-court proceedings . . . to determine whether an
evidentiary hearing is warranted.”). A federal court must consider whether the evidentiary
hearing would provide the petitioner the opportunity to “prove the petition’s factual allegations,
which, if true, would entitle the applicant to federal habeas relief.” Schriro, 550 U .S. at 474; see
Mayes v. Gibson, 210 F.3d 1284, 1287 (10th Cir. 2000). Courts must also consider the standards
prescribed by § 2254 when considering whether an evidentiary hearing is appropriate. Schriro,
550 U.S. at 474.

VII.

Affidavit of Facts

The Court’s July 30, 2012, order required Porter to:
(e) state any facts which Petitioner wants the Court to consider in a separate
section titled “Affidavit of Facts.” The Court will not accord any evidentiary value
to conclusory statements of law or fact; and each fact must be set forth in a
separately numbered paragraph and in the form prescribed by Fed. R. Civ. P.
56(c), accompanied by an affirmative statement that demonstrates that the fact
asserted is based on personal knowledge or other referenced evidence in the
record; and
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(f) with respect to any statement of a fact in the petition, and the subsequent
briefs or motions submitted by the parties, also cite to the page of the trial
transcript or the state court record that supports the factual proposition asserted.
To the extent Petitioner relies on his own knowledge as the basis for a particular
fact, the statement should be accompanied by a citation to the appropriate
numbered paragraph of the “Affidavit of Facts” described in paragraph (3)(e)
herein.
(ECF No. 8). As the Warden notes, Porter has failed to comply with these requirements. Under
the heading “Affidavit of Facts,” Porter includes only one sentence: “An affidavit of facts, signed
under penalty of perjury is in the state record. SH 8238–75.” (Am. Pet. 2). The reference is to
Porter’s affidavit filed with his state habeas petition. Porter does not incorporate his state
affidavit into his federal petition and never cites to the appropriate numbered paragraph of that
affidavit in his present petition. Porter does not assert that his state habeas affidavit is in the
form required by Federal Rule of Civil Procedure 56(c). The Warden contends that the Court
need not look anywhere but Porter’s affidavit to find support for Porter’s claims. See id. 56(c)(3).
However, Rule 56(c)(3) states that “[t]he court need consider only the cited materials, but it may
consider other materials in the record.” Id. As such, the Court will consider the entire record in
this case.
EXHAUSTED CLAIMS

I.

Claim One: Voir Dire Claim Involving Bruce Treakle
The state habeas court reviewed the following facts:
In this case, defense counsel, Joseph A. Migliozzi, Jr., asked the jurors,
“But is anyone here, or a member of your close personal family, worked in law
enforcement in any capacity as a volunteer or an employee?” Several prospective
jurors, including Juror T, raised hands in response. The entirety of the exchange
with Juror T was as follows:
[JUROR T]: My nephew is an Arlington County police officer.
MR. MIGLIOZZI: Your nephew?
[JUROR T]: Yes.
MR. MIGLIOZZI: In this county here?
[JUROR T]: 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?
[JUROR T]: No.

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Upon receiving Juror T’s negative response, counsel moved on to the next
prospective juror.
Porter II, 722 S.E.2d at 539. On those facts, the Supreme Court of Virginia applied the two part
test stated in McDonough Power Equipment, Inc. v. Greenwood, 464 U.S. 548, 556 (1984) to
find that
The record demonstrates that Juror T answered truthfully that he had a nephew
who was an Arlington County Police Officer, Arlington County being the
jurisdiction where the case was being tried following a change of venue, and that
he was not asked, nor did he have the opportunity to answer, if he had any
additional relationships with law enforcement officers. Thus, petitioner has failed
to demonstrate that Juror T failed to answer honestly a material question during
voir dire.
Porter II, 722 S.E.2d at 539.
A. Reasonable Application of the Facts?
By affidavit, Maryl Sattler indicates that Bruce Treakle (“Juror Treakle”) told her that his
brother was a sheriff’s officer in Norfolk. (Id. at 6215). During voir dire, Juror Treakle only
answered that his nephew was an Arlington county police officer; he was not, however, asked if
other relatives were police. (Id. at 1225-29). Pernell Treakle later indicated in an affidavit that he
is a Chesapeake duty Sherriff and has been employed at this law enforcement position since
2000. (SH App. 5491).
The record reflects that Juror Treakle’s brother was actually employed as a member of
the Chesapeake Police Department. The record does indicate that Chesapeake officers were
especially upset by victim’s death. (Id. at 7702-804). The parties point to no conclusive
indication on the record that Juror Treakle knew that his brother worked in Chesapeake rather
than Norfolk. There are also no allegations that Juror Treakle’s brother influenced or pressured
him, see Fullwood v. Lee, 290 F.3d 663, 681-82 (4th Cir. 2002), or that Juror Treakle was closeminded to the evidence or had made up his mind before trial. Contrary to Porter’s argument that
Treakle remained silent when his trial counsel again asked the panel if anyone had anything
more to say on this question before changing topics, (see SH App. 1229-30), the record does not

14

reflect that Porter’s trial counsel asked a catch-all question or an additional question regarding
relatives that Juror Treakle failed to answer. Specifically, after interviewing all of the jurors who
had familial ties to law enforcement, Porter’s trial counsel asked: “All right. Any more hands?”,
(id. at 1229), indicating that he wanted to know if any more people had ties to law enforcement.
It does not appear that the state habeas court made an unreasonable finding.
B. Reasonable Application of the Law?
The state habeas court appears to have reasonably applied clearly established law. The
Sixth Amendment mandates that “[i]n all criminal prosecutions, the accused shall enjoy the
right to a . . . trial[] by an impartial jury.” U.S. Const. amend. VI. The Sixth Amendment
prohibits biased jurors from serving on criminal juries. See United States v. Wood, 299 U.S. 123,
133 (1936). Under the McDonough test, “a juror’s bias may be established by showing (1) that
the juror ‘failed to answer honestly a material question on voir dire’; and (2) that ‘a correct
response [to that question] would have provided a valid basis for a challenge for cause.’”
Conaway v. Polk, 453 F.3d 567, 584-85 (4th Cir. 2006) (quoting Greenwood, 464 U.S. at 556)
(the “McDonough test”); see also Billings v. Polk, 441 F.3d 238, 244 (4th Cir. 2006).
Additionally, “where, . . . 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.’”
Id. at 588 (quoting McDonough, 464 U.S. at 556).3
“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.” Jones v. Cooper, 311 F.3d 306, 313 (4th Cir.
2002). Such a presumption is justified where a juror is “a close relative of one of the participants
in the trial or the criminal transaction.” Conaway, 453 F.3d at 586 (citing Phillips, 455 U.S. at
“[B]eliefs, biases, and preferences of every juror may be explored and exposed by the defendant at
voir dire.” Stockton v. Commonwealth, 852 F.2d 740, 744 (4th Cir. 1988). “Further, when some
external manifestation of a juror’s predisposition subsequently calls the juror’s impartiality into
question, the defendant is afforded the opportunity to establish the juror’s actual bias.” Id. Typically,
“the remedy for allegations of juror partiality is a hearing in which the defendant has the opportunity
to prove actual bias.” Smith v. Phillips, 455 U.S. 209, 215 (1982).
3

15

222) (O’Connor, J., concurring). However, at the same time, state habeas court findings are
presumptively correct under 28 U.S.C. § 2254(d) and federal courts in habeas proceedings must
not disturb the findings of state courts unless the federal habeas court finds that there is
convincing evidence undercutting the state court finding. Eaton v. Angelone, 139 F.3d 990, 995
(4th Cir. 1998) (“[W]e refuse to transform a federal habeas proceeding into a second trial. In this
case an evidentiary hearing.”).4
In sum, Porter argues that the state habeas court erred when it held that Juror Treakle
did not give a dishonest response or omit material information because Porter’s trial counsel
asked (1) whether Juror Treakle had any family that were law enforcement officers and (2)
whether Juror Treakle had anything else to add. Porter’s claim fails at the first step of the
McDonough test. It is clear that Juror Treakle did not volunteer false information. The main
question of import is whether Juror T’s omission of an additional family member that was a law
enforcement officer amounted to a “material omission.” “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.” See McDonough, 464 U.S. at 555.
Juror Treakle’s failure to advise that he had additional relationships with law
enforcement officers did not amount to a deliberate omission of material information. In
Billings v. Polk, the Fourth Circuit highlighted a set of acts in Williams v. Taylor that were
indicative of a material omission. Billings, 441 F.3d at 244 n.2. There, a juror indicated that she
was not related to any of the witnesses even though she had been married to one of them for 17
years and was the mother of his four children. Id. (citing Williams, 529 U.S. at 440).
Additionally, the woman stated that she had never been represented by any of the attorneys
Remmer v. United States, 347 U.S. 227, 229 (1954) is typically cited for the proposition that “a
presumption of prejudice arises when there is ‘any private communication, contact, or tampering,
directly or indirectly, with a juror during a trial about the matter pending before the jury.’” Billings,
441 F.3d at 248 (quoting Remmer, 347 U.S. at 229).

4

16

even though one of them had represented her during her divorce. Id. (529 U.S. at 440-41). In
comparison, it does not appear that any of Juror Treakle’s answers were submitted with scienter
in mind, i.e., “misleading, disingenuously technical, or otherwise indicative of an unwillingness
to be forthcoming.” Id. Porter’s trial counsel simply failed to ask Juror Treakle whether he had
additional family members that were law enforcement officers. See Billings, 441 F.3d at 245. On
the other hand, if the Court assumes that Juror Treakle knew that his brother transported
prisoners in the custody of the department of corrections, it is hard to believe that he could have
not realized that such a position constituted “law enforcement in any capacity.” See Porter II,
722 S.E.2d at 539. A Deputy Sheriff is clearly a law enforcement officer. Williams, 529 U.S. at
441–42. In any event, even if Porter meets the first step of the McDonough test, he cannot show
actual or implied bias on the part of Juror Treakle.
The fact that a juror “once had a family member in law enforcement is plainly not one of
the ‘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 Sherriff’s 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 of the litigation is such that
17

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 of the participants in the trial or the
criminal transaction, 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 “[a]bsent 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.
In sum, it does not appear that the state habeas court unreasonably applied established
federal law. While Porter argues that the best way to clear up any discrepancies is to hold an
evidentiary hearing, such measures are unnecessary. Because the Court can decide this matter
on the record at hand, the Court will deny Porter’s request for a hearing.

II.

Claim Two: Brady Claim Regarding Officer Reaves’s Employment
History
The state habeas court held that:
[P]etitioner alleges the Commonwealth was required to, but did not,
disclose information regarding previous incidents of the victim’s unprofessional
conduct as a Baltimore, Maryland police officer. Petitioner contends the
18

Commonwealth did not provide exculpatory evidence regarding a 1994 incident
in which Officer Reaves handcuffed a suspect on the ground and slashed the tires
of the suspect’s bicycle. During this incident, a bystander, George Hite, objected
and was arrested for disorderly conduct. A fellow Baltimore police officer swept
Hite’s legs out from under him, causing Hite to hit his head resulting in Hite’s
death. In a subsequent civil lawsuit, Officer Reaves stated he believed his fellow
officer had acted appropriately, although eyewitnesses contradicted Officer
Reaves’ version of events.
Another incident of Officer Reaves’ alleged unprofessional conduct
occurred in 2001, when he allegedly engaged in a pursuit of a dirt bike in
contravention of police policy. When Officer Reaves caught up to the dirt bike,
the driver lost control of the bike, was thrown into a utility pole and died of head
injuries. Petitioner argues that evidence regarding these incidents would have
undermined the Commonwealth’s assertions that Officer Reaves was not
aggressive, bolstered petitioner’s defense that Officer Reaves drew his gun and
pointed it at petitioner without provocation, and created a reasonable probability
that at least one juror would have concluded the Commonwealth did not establish
“future dangerousness” during the sentencing phase.
The Court need not resolve questions related to whether this information
was material because the Court holds that the evidence was not known to the
Commonwealth. The record, including a 2009 Freedom of Information Act
response from the Assistant City Attorney for the City of Norfolk and the affidavit
of Philip Evans II, Deputy Commonwealth’s Attorney for the City of Norfolk,
demonstrates that the Commonwealth did not possess any information
concerning the 1994 or 2001 incidents. Furthermore, pursuant to Brady, there is
no obligation to produce information available to the defendant from other
sources, including diligent investigation by the defense. See Fullwood v. Lee, 290
F.3d 663, 686 (4th Cir. 2002); Cherrix v. Commonwealth, 257 Va. 292, 302–03,
513 S.E.2d 642, 649, cert. denied, 528 U.S. 873, 120 S. Ct. 177, 145 L.Ed.2d 149
(1999).
Porter II, 722 S.E.2d at 541.
A. Reasonable Application of the Facts?
The state habeas court found that the relevant evidence was not known to the
Commonwealth. Porter presents circumstantial evidence showing that the Norfolk Police
Department required a background check regarding prior employment. Porter infers that this
policy must mean that the Norfolk Police Department was aware of the two incidents at issue
regarding Reaves’s history as a Baltimore police officer.5
The first incident referenced by Porter reportedly involved an incident in 1994 (“1994
Incident”) in which Officer Reaves allegedly slashed an arrestee’s tires after detaining him and
To the extent that Porter relies on evidence that was not properly before the state habeas court, this
Court declines to consider it. Cullen v. Pinholster, 131 S. Ct. 1388, 1402 (2011).
5

19

in which another fellow officer caused the death of the same detainee by sweeping him off of his
feet while he was handcuffed. The second incident reportedly involved an arrest in 2001 (“2001
Incident”) where Officer Reaves allegedly caused the death of a suspect by chasing him in his
patrol car. Porter contends that Officer Reaves’s employment records supported his testimony
that he panicked when Officer Reaves approached him in a threatening manner. Regarding the
1994 Incident, Officer Reaves stated that an official investigation was launched regarding his
actions after the incident. He further stated that he saw a related investigative report (“IID
report”) first hand, that he was sanctioned, and that he was later removed from street duty. (SH
App. 6915). However, Officer Reaves did not state that he was ever formally reprimanded or that
a formal IID report was ever filed in his personal record. (Id. at 6916). Regarding the 2001
Incident, Porter does not proffer any direct evidence that Officer Reaves had any disciplinary
action taken against him as a result of the incident. Collectively, Porter has not provided
sufficient evidence to show that prosecutors must have necessarily known about either the 1994
or the 2001 Incident. As such, the Court finds that the state habeas court did not unreasonably
apply the facts.
B. Reasonable Application of the Law?
The state habeas court did not incorrectly apply federal law when it held that the
prosecutors had no obligation to produce information available to Porter from other sources,
including diligent investigation by the defense. See Fullwood, 290 F.3d at 686. Because the state
habeas court did not unreasonably apply the facts on the record, there is no indication that the
prosecutors withheld any Brady material available to the Norfolk Police Department.
Even assuming that reports of the 1994 and 2001 Incidents existed, under Brady, a
prosecutor has duty to learn of favorable evidence known to others acting on government’s
behalf, including the police. Youngblood v. West Virginia, 547 U.S. 867, 870 (2006)
(referencing investigating officers, not police in general). To the extent that Porter argues that
the prosecutors should have been able to obtain Officer Reaves’s alleged disciplinary record
20

from the Baltimore Police Department, Kyles cannot “be read as imposing a duty on the
prosecutor’s office to learn of information possessed by other government agencies that have no
involvement in the investigation or prosecution at issue.” United States v. Morris, 80 F.3d 1151,
1169 (7th Cir. 1996); see also United States v. Pelullo, 399 F.3d 197, 216, 218 (3rd Cir. 2005)
(concluding that prosecutors did not violate Brady where that there was no “constructive
knowledge” because there was no reason to believe that officials from the Pension and Welfare
Benefits Administration were acting on behalf of the prosecution or were members of the
“prosecution team.”). Accordingly, the state habeas court did not unreasonably apply the
applicable federal law.

III.

Claim Three: Brady and Napue Claims Regarding Selethia Anderson
The state habeas court held that:
[P]etitioner alleges the Commonwealth failed to disclose to him that
Simone Coleman, a prosecution witness, contradicted the claim of Selethia
Anderson, another prosecution witness, of having seen the shooting occur.
Relying on an affidavit by Coleman, petitioner argues that Anderson’s testimony
that she was sitting on her front porch when she saw the police vehicle arrive,
watched as petitioner approached the officer and shot him, and observed
petitioner run towards his parked vehicle and point his gun in her direction,
causing her to flee inside with her baby, was subject to impeachment by
Coleman’s statement that she lived in the same apartment and did not see anyone
sitting on the porch during the same time frame.
The Court need not resolve questions related to whether this information
was material because the Court holds that the evidence was not favorable to
petitioner, as it did not contradict the testimony of Selethia Anderson and,
therefore, failure to disclose was not a violation of Brady. In order to show a
violation of Napue, petitioner must show that Anderson’s testimony was false,
that the prosecution knew of the falsity, and that the falsity affected the jury’s
judgment. Napue, 360 U.S. at 269–71, 79 S. Ct. 1173. See Teleguz, 273 Va. at
491–92, 643 S.E.2d at 729.
The record, including the trial transcript and Coleman’s affidavit,
demonstrates that Anderson was sitting on her front porch and saw a police
vehicle pull up and park across the street. Anderson witnessed petitioner shoot
the officer, and then retreated to her home when she saw petitioner move toward
his vehicle and point a gun in her direction. Coleman’s trial testimony and
affidavit demonstrate that she noticed the police vehicle pulling up the road as
she was “coming out of [her] home and starting to cross 28th Street.” After
Coleman walked down the street, she glanced back and witnessed petitioner
shoot the police officer. Coleman ran away from the shooting, but then returned
to her apartment after she saw the petitioner flee. The witnesses’ testimony
supports the inference that Anderson entered and exited the porch in between
21

the time that the porch would have been visible to Coleman as she exited her
apartment and walked down the street. Furthermore, Coleman’s affidavit states
only that she “most likely” would have noticed if Anderson had been sitting on
the porch when Coleman exited the building.
Porter II, 722 S.E.2d at 540-41.
A. Reasonable Application of the Facts?
Porter argues that the state habeas court decision was based on at least two unreasonable
determinations of the facts under § 2254(d)(2): first, that the state habeas court found that the
record, including trial transcripts and Simone Coleman’s (“Coleman”) affidavit, demonstrated
that Selethia Anderson (“Anderson”) was sitting on her front porch and saw a police vehicle pull
up to the scene of the shooting; and second, that Anderson’s trial testimony was presumed to be
true and that it supported an inference that Anderson only arrived on the front step after
Coleman passed over the step and left the step before Coleman returned. Porter contends that
concealed information came from Coleman who told police that she stood on the same small
front step where Anderson claimed she stood at that same time that Anderson claimed to be
standing on the step but that she did not see Anderson. Porter contends that each woman had to
exit her apartment over the same front step but Anderson expressly testified that she had been
outside on the front step waiting for her daughter to come home from school before Officer
Reaves’s car pulled up and Coleman claimed that she crossed the front step as Officer Reaves’s
car pulled up and Anderson was not there. Porter contends that any inconsistency is material
because the two women’s apartments were right next to each other. Porter contends that the
state court simply altered the evidence in the record before it to find that the trial testimony
“supports an inference” that Anderson left her apartment sometime after Coleman left her
apartment and that Anderson went back inside her apartment before Coleman returned. Porter
also argues that the Virginia Supreme Court unreasonably relied on Coleman’s6 handwritten
addition to her affidavit that she only “most likely” would have noticed someone on the porch as

Simone Coleman is currently referred to as “Simone Moore” or “Moore” in parts of both parties’
briefs. For the sake of simplicity this memorandum will refer to her as “Coleman.”
6

22

limiting her certainty. Porter II, 722 S.E.2d at 541; (see SH App. 8231, ¶ 8).
Coleman testified that she came out of her home shortly before 4:00 pm and was
crossing 28th street, about to cross her driveway, when police pulled up to the scene of the
shooting. (SH App. 1717-20, 1744). Coleman was walking away from her home until Porter shot
Officer Reaves, at which point she ran home on foot. (Id. at 1739-41). Anderson states that she
was on the porch shortly before 4:00 pm when Reaves’s police car pulled up to the scene of the
shooting, (id. at 2225-26), and when Porter shot Officer Reaves, (id. at 2230). When Coleman
was on the porch, she did not notice anyone except one man in the area. (Id. at 1759-60). Both
Coleman and Anderson indicated that they lived across the street from the brick house where
the murder took place. (See id. at 1117-18, 2224-26). Anderson described the place that she lived
as the brick building in the upper left corner of Commonwealth Exhibit 26. (Id. at 4369).
Coleman described her house as the brick building in the far corner of Commonwealth Exhibit
26. (Id.) While there is no mention of an address, the record indicates that both Selethia
Anderson and Coleman lived in the same brick building.7
In any event, it is theoretically possible that Selethia Anderson entered the porch after
Coleman left for work and entered her apartment shortly before Coleman made her way back to
her apartment. Although Coleman’s new affidavit explicitly states that she would have seen
someone sitting on the porch as she left the apartment, Coleman does not explicitly state that
she did not see, or even knew of, Selethia Anderson. (See id. at 8230-31). The record reflects that
there is no conflict between the testimony of Anderson and Coleman because Coleman cannot
speak to events that took place when she was not present. Thus, Porter has not met his heavy
burden to show that the state habeas court’s finding of fact was unreasonable.
B. Reasonable Application of the Law?
Porter essentially contends that Coleman’s amendment to her original affidavit was
The brick building—identified by Porter as 404 West 28th Street, Norfolk, Virginia—is the only
brick building from which Selethia Anderson could have witnessed Reaves’s murder consistent with
her testimony.
7

23

somehow misinterpreted by the state habeas court. However, a witness’s undisclosed statement
is not favorable if it is not inconsistent with her trial testimony. McHone v. Polk, 392 F.3d 691,
701 (4th Cir. 2004). As stated by the state habeas court, Brady and Napue do not apply to this
claim because the evidence at issue is not exculpatory.
Regarding the knowledge of Coleman’s testimony, Porter must meet a heavy burden to
show false testimony. “A defendant seeking to vacate a conviction based on perjured testimony
must show that the testimony was, indeed, perjured.” United States v. Griley, 814 F.2d 967, 971
(4th Cir. 1987). “Inconsistencies in testimony by government witnesses do not establish the
government’s knowing use of false testimony.” Id.; see also Allen v. Ballard, CIV.A. 1:06-0597,
2009 WL 669273, at *44, *47 (S.D.W. Va. Mar. 11, 2009). The Court finds that Porter failed to
present any evidence during his state habeas proceedings that would indicate that false
testimony was presented by the prosecutor. Thus, his allegation that the prosecutor engaged in
misconduct by offering false testimony is without merit. Accordingly, the state habeas court did
not unreasonably apply the applicable federal law.

IV.

Claim Four: Ineffective Assistance Claim Regarding Fingerprinting of
Officer Reaves’s Holster
The state habeas court held that
[P]etitioner alleges he was denied the effective assistance of counsel
because counsel failed to request that Officer Reaves’ gun holster be tested for
fingerprints. Petitioner asserts such testing would have shown that petitioner’s
fingerprints were not on the snap and thumb break of the holster, which would
have supported his testimony that Officer Reaves had already drawn his gun
when petitioner shot him, and undermined the Commonwealth’s assertion that
petitioner took the gun from Officer Reaves’ holster.
The Court holds that [Porter’s claim] satisfies neither the “performance”
nor the “prejudice” prong of the two-part test enunciated in Strickland. Petitioner
has failed to proffer any evidence that, had fingerprint testing been done, it would
have shown the absence of his fingerprints on Officer Reaves’ holster, or that
such evidence would have supported petitioner’s version of the events. Although
the testimony at trial demonstrated that the holster snap would have had to be
released in order for the gun to be removed, there was no evidence that
unsnapping the device required a maneuver that would leave a clear and
identifiable fingerprint. Thus, petitioner has failed to demonstrate that counsel’s

24

performance was deficient or that there is a reasonable probability that, but for
counsel’s alleged error, the result of the proceeding would have been different.
Porter II, 722 S.E.2d at 549-50.
A. Reasonable Application of the Facts or Law?
Porter argues that the facts before the state habeas court, including (1) expert testimony
that prints of value can be recovered from the holster’s thumb break surface, (SH App. 4818),
and (2) that a person attempting to remove a weapon from Officer Reaves’s holster would have
had to touch the thumb break surface, (SH App. 3091-92), show that the state habeas court’s
findings were unreasonable. Porter notes that his trial counsel had the presence of mind to ask
the prosecution’s witnesses if they tested the holster for fingerprints. (SH App. 2699, 2724).
Porter contends that eliminating himself as a possible source for the fingerprint on the holster
strap was likely to establish the fact that Officer Reaves drew his weapon before Porter shot him
and, thus, provide evidentiary support for jury instructions on self-defense and on first and
second degree murder. As a result, Porter contends that, absent his trial counsels’ ineffective
assistance, there would have been a reasonable probability of a different outcome in jurors’
decisions. Porter represents that his request for the assistance of an expert in state habeas
proceedings to examine the holster for fingerprints as “part of the evidence establishing
prejudice” for his claim was inappropriately denied. (Fed. App. 305). Porter argues that any
deficiency in his allegations is the result of the state habeas court’s refusal to allow him access to
Officer Reaves’s holster and the assistance of an expert fingerprint examiner.
The record reflects that no witness testified that they actually saw Porter take the
handgun from Reaves’s holster and touch the thumb strap. Porter is the only witness that
testifies that Officer Reaves pulled his service weapon from his holster and subsequently
dropped it when Porter shot him in the head. Porter is the only witness that testified that he did
not, in fact, touch Reaves’s holster in attempting to retrieve his service weapon.
Porter has a burden to show a reasonable probability that the trial jury would have had a

25

reasonable doubt about his guilt had trial counsel shown that his fingerprints were not on the
holster. See Joyner v. United States, CRIM. No. 3:06-00016, 2010 WL 2998464, at *5 (D.S.C.
July 27, 2010); see also Henry v. Johnson, CIVA No. 3:07CV583, 2008 WL 2704401, at *4 (E.D.
Va. July 3, 2008). Although the state habeas court held that “[a]lthough the testimony at trial
demonstrated that the holster snap would have had to be released in order for the gun to be
removed,” it did not make an explicit finding that a person would have had to touch the holster
snap with his hand to release it. See Porter II, 722 S.E.2d at 550. Further, the state habeas court
held that “there was no evidence that unsnapping the device required a maneuver that would
leave a clear and identifiable fingerprint.” Id.
Even assuming that Porter’s trial counsel unreasonably failed to perform testing on the
holster, the prosecution was free to argue that Porter, and not Officer Reaves, took the service
weapon from the holster by twisting or jiggling the weapon free. The record reflects that Porter’s
witness deemed it possible to remove Reaves’s service weapon with a “twist” or “jiggle.” (See SH
App. 3101-02). Therefore, an absence of fingerprints on the holster would not undermine the
testimony of multiple witnesses that Officer Reaves did not draw his weapon from his holster
prior to grabbing Porter. Thus, there is no prejudice because there is not a reasonable
probability that the jury would have reached a different verdict had trial counsel introduced
fingerprint evidence. See Joyner, 2010 WL 2998464, at *5. As such, Porter cannot meet the
prejudice prong of Strickland.
Porter’s trial counsel did not perform deficiently in failing to test Reaves’s holster for
fingerprints. As stated above, it was possible for Porter to retrieve Reaves’s gun without
touching the holster. Therefore, there would have been little benefit to ascertaining whether
Porter’s fingerprints were on the holster. Conversely, in testing the holster, Porter’s trial counsel
would have taken a huge risk that Porter’s fingerprints were on the holster. Such representation
cannot be said to be constitutionally deficient. As such, Porter cannot meet the performance
prong of Strickland.
26

In sum, the state habeas court did not unreasonably apply the facts or the applicable
federal law.

V.

Claim Five: Ineffective Assistance of Counsel Claim Regarding Trial
Counsel’s Use of Copeland’s Testimony
The state habeas court held that:
[P]etitioner alleges he was denied the effective assistance of counsel
because counsel failed to emphasize Copeland’s testimony that he saw petitioner
exit the apartment building as Copeland ran up to Officer Reaves, who had
parked in front of the apartment building. Petitioner asserts this testimony
directly conflicted with the testimony of Latoria Arrington, and of other witnesses
in the apartment, that petitioner did not leave the apartment until she said, “Why
is Reggie talking to the police officer?” According to petitioner, Copeland’s
testimony, when viewed with the petitioner’s testimony, was sufficient to cast
doubt on the prosecution’s argument that petitioner knew he would be
confronting a police officer when he left the apartment. Petitioner continues that
despite the fact that the timing sequence was critical, his counsel only argued to
the jury that Arrington and the other apartment occupants could not have seen
out of the window due to the positioning of the blinds. Petitioner contends that
counsel failed to emphasize that Copeland’s “far more powerful and credible”
testimony undermined Arrington’s credibility, and created reasonable doubt that
Officer Reaves was killed for the purpose of interfering with his official duties.
The Court holds that [Porter’s claim] satisfies neither the “performance”
nor the “prejudice” prong of the two-part test enunciated in Strickland. The
record, including the trial transcript and the September 8, 2009 affidavit of
counsel, demonstrates that counsel reasonably chose to pursue a trial strategy of
attacking the credibility of the Commonwealth’s witnesses, Copeland and Latoria
Arrington. Furthermore, petitioner’s own statement established that he saw
Officer Reaves on the sidewalk before the shooting, which would support the
Commonwealth’s argument that petitioner chose to confront Officer Reaves.
Thus, petitioner has failed to demonstrate that counsel’s performance was
deficient or that there is a reasonable probability that, but for counsel’s alleged
error, the result of the proceeding would have been different.

Porter II, 722 S.E.2d at 543.
A. Reasonable Application of the Facts and Law?
Under the Strickland analysis, “counsel has wide latitude in deciding how best to
represent a client, and deference to counsel’s tactical decisions in his closing presentation is
particularly important because of the broad range of legitimate defense strategy at that stage.”
Yarborough v. Gentry, 540 U.S. 1, 5-6 (2003). As such, “[j]udicial review of a defense attorney’s
summation is therefore highly deferential-and doubly deferential when it is conducted through
27

the lens of federal habeas.” Id. at 6.
The record reflects that Porter’s trial counsel made a strategic decision not to rely on
Copeland’s testimony because they did not view him as a credible witness. (Fed. App. 441 ¶ 5,
445 ¶ 4). Pursuant to this strategy, trial counsel told jury not to believe Copeland or other
witnesses on several points, (see SH App. 3234-36), but wanted the jury to believe one part of
Copeland’s testimony, (id. at 3269). These actions appear to be part of counsels’ strategy to use
Copeland’s testimony sparingly in light of the fact that they were challenging his credibility. (Id.
at 3234-35). Despite Porter’s ability to imagine a different or more effective tactic during closing
arguments, there is no indication that Porter’s trial counsels’ representation fell below the
objective standards of reasonableness. Because there is a strong presumption that Porter’s
attorney’s conduct was within the wide range of reasonable professional assistance, and Porter’s
trial counsels’ strategic choices were logical based on all the circumstances and evidence, Porter
cannot satisfy the performance prong of Strickland.
Additionally, there is no prejudice regarding Porter’s trial counsels’ failure to use
Copeland to refute the testimony of Latoria Arrington. Even assuming that Porter was able to
successfully impeach Latoria Arrington’s testimony—ostensibly weakening the value of her
testimony regarding Porter’s state of mind prior to the murder of Officer Reaves—other
testimony establishes the fact that Porter saw Officer Reaves in uniform and approached him,
thus, choosing to confront him. (See SH App. 1724-35) (detailing Simone Coleman’s account of
Porter’s actions when he left the building where Valorie Arrington lived). As the state habeas
court notes, Porter’s own testimony indicates that he saw Officer Reaves on the sidewalk prior to
shooting him. Porter II, 722 S.E.2d at 543. There is not a reasonable probability that, but for his
trial counsels’ alleged error, the result of the proceeding would have been different and, thus,
Porter cannot meet the prejudice prong of Strickland.
To the extent that Porter presents a separate claim that his trial counsel should have
argued that Officer Reaves arrived later than the witnesses in the Valorie Arrington’s apartment
28

initially testified by relying on the testimony of Spruill and Coleman, such a claim is improper
because it was never fairly presented to the Supreme Court of Virginia. See Mallory, 27 F.3d at
995; Gray, 518 U.S. at 162; see also Boerckel, 526 U.S. at 848.
In sum, the state habeas court did not unreasonably apply the facts or the applicable
federal law.

VI.

Claim Six: Ineffective Assistance Claim Regarding Jury Instruction for
First-Degree Murder
The state habeas court held that:
[P]etitioner alleges he was denied the effective assistance of counsel
because counsel failed to request and obtain a jury instruction on the lesserincluded offense of first-degree murder. Petitioner asserts that without proof of
the gradation element that the killing was for the purpose of interfering with the
law enforcement officer’s official duties, the killing of an officer is no more than
first-degree murder. Petitioner testified that Officer Reaves grabbed petitioner’s
arm and pointed a gun at petitioner without provocation. Petitioner contends
that this testimony was corroborated in part by Copeland and Melvin Spruill, and
established that petitioner believed Officer Reaves was not acting in his official
capacity as a law enforcement officer at the time of the shooting. Petitioner
argues counsel’s failure to request the instruction was not strategic because
counsel fought for instructions on other lesser offenses, and there was more than
a scintilla of evidence to support granting the first-degree murder instruction.
The Court holds that [Porter’s claim] satisfies neither the “performance”
nor the “prejudice” prong of the two-part test enunciated in Strickland v.
Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L.Ed.2d 674 (1984). The
record, including the trial transcript and the September 8, 2009 affidavit of
counsel, demonstrates that counsel made a strategic decision not to request a jury
instruction that was not supported by the evidence. Porter testified that he knew
there was a warrant out for his arrest, that he knew he was carrying a firearm
although he was a convicted felon, and that he saw Officer Reaves in his police
uniform. Although Porter also testified that he was not thinking about the
warrant and that he thought Officer Reaves was “pulling a gun on him,” accepting
petitioner’s testimony as true, and viewing the evidence in the light most
favorable to him, nothing supports a finding that Porter reasonably believed the
officer was not engaged in the execution of official duties at the time of the
shooting. Furthermore, central to petitioner’s defense was counsel’s argument
that petitioner did not premeditate his action. Therefore, a first-degree murder
instruction, which would necessarily include the element of premeditation, would
have been inconsistent with counsel’s theory. Counsel’s strategic decision to not
request a first-degree murder instruction was reasonable under counsel’s theory
of the case. Thus, petitioner has failed to demonstrate that counsel’s performance
was deficient or that there is a reasonable probability that, but for counsel’s
alleged error, the result of the proceeding would have been different.

29

Porter II, 722 S.E.2d at 542-43.
A. Reasonable Application of the Facts?
Porter’s argument that the state habeas court unreasonably held that nothing supports a
finding that Porter reasonably believed Officer Reaves was not engaged in the execution of
official duties at the time of the shooting is technically correct because, at the very least, as seen
below, Porter’s own testimony supports his theory that he believed otherwise. Porter is correct
in noting that “the crucial inquiry . . . is not whether the officer was in fact engaged at the time
he was killed in performing a law enforcement duty but, rather, whether the killer acted with the
purpose of interfering with what he perceived to be an officer’s performance of a law
enforcement duty.” Delong v. Commonwealth, 362 S.E.2d 669, 676 (Va. 1987). That being said,
the Court’s underlying holding that Porter could not have reasonably believed Officer Reaves
was not engaged in the execution of official duties at the time of the shooting is supported by the
facts. Porter does not point to any clear and convincing evidence that establishes that the state
habeas court’s factual findings were in error.
B. Reasonable Application of the Law?
A defendant is not entitled to a first-degree jury instruction if there is no evidence to
support it. See Pruett v. Thompson, 996 F.2d 1560, 1564 (4th Cir. 1993); Winston v.
Commonwealth, 604 S.E.2d 21, 44 (Va. 2004). Under Virginia Code § 18.2–31(6), the “willful,
deliberate, and premeditated killing of a law-enforcement officer” for the purpose of “interfering
with the performance of his official duties” constitutes capital murder. In order for Porter’s trial
counsel to have obtained an instruction for first-degree murder, the trial court would have had
to conclude that there was more than a scintilla of evidence to believe that Officer Reaves was
not killed “for the purpose of interfering with the performance of his official duties.” Id.
Porter, in effect, contends that his trial counsel could and should have pursued a theory
that Officer Reaves was not engaged in his official duties when he came into contact with Porter.
In support, Porter presents an alternate strategy and avers that his trial counsel did not obtain
30

an instruction due to some type of confusion regarding the applicable law. However, the record
reflects that the issue was all but conceded as a part of Porter’s trial counsels’ deliberate strategy.
(Fed. App. 441 ¶ 4) (“After assessing the evidence that Officer Reaves was fatally shot while in
uniform and on patrol, we concluded that we could not successfully make the contrary argument
that his shooting was not “for the purpose of interfering with the performance of his official
duties.”). As the Warden notes, Porter’s trial counsel argued as the center of his defense that
Porter did not premeditate his actions, based on Porter’s own statements. (SH App. 3149, 3167,
3176, 3270, 3273). “Failure to request an instruction on a lesser-included offense can be proper
trial strategy.” Washington v. United States, 291 F. Supp. 2d 418, 442 (W.D. Va. 2003); see
Hooks v. Ward, 184 F.3d 1206, 1234 (10th Cir. 1999) (“[I]n the context of instructions on lesser
included offenses, we see particular strategy reasons why a defendant might not want to present
the jury with a compromise opportunity.”). Given Porter’s trial counsels’ strategy, it was not
unreasonable for his counsel to opt not to seek a first-degree murder jury instruction because it
would have been contrary to his theory of the case. See Elliott v. Kelly, No. 1:08-CV-430, 2009
WL 855796, at *17 (E.D. Va. Mar. 31, 2009) (“Counsel cannot be faulted for refusing instructions
contrary to his theory of the case.”); Parks v. Pitcher, No. 1999 U.S. Dist. LEXIS 19679, *39–40
(E.D. Mich. Nov. 11, 1999) (“In the present case, counsel’s main strategy was to attack the intent
to kill element and seek a complete acquittal for petitioner on these charges. Petitioner has
failed to show that counsel’s decision to attack the intent to kill element and seek a complete
acquittal for petitioner on this ground was not reasonable trial strategy.”). While Porter did not
explicitly admit that Officer Reaves was acting in his official duties when he approached him,
(see SH App. 3041), he did admit that Officer Reaves was a police officer in uniform prior to
leaving the building where Valorie Arrington lived, (see id. at 2993). Further, multiple witnesses
contradicted Porter’s testimony that he did not know that Copeland had summoned the police in
response to Porter being in the apartment of Valorie Arrington. (Id. at 2075, 2122, 2151). In
contrast to Porter’s current arguments, Porter repeatedly testified at trial that he did not make a
31

decision to kill Officer Reaves, (id. at 3033-34), and “blanked out” when he shot Officer Reaves a
second and third time in the head, (id. at 3009-10), implying a lack of premeditation. Porter’s
argument that attempting to attain a jury instruction for first-degree murder was possible does
not establish that his trial counsel’s contrary actions were unreasonable. Porter has not rebutted
this considerable deference and presumption and, thus, cannot satisfy the performance prong of
Strickland.
Regarding prejudice, Porter fails to show that, had his counsel attempted to obtain an
instruction on first-degree murder, the result of the guilt phase of his trial would have been
different. As the Warden notes, the trial court held that Porter did not make out a case of selfdefense, and the state habeas court found that “nothing supports a finding that Porter
reasonably believed the officer was not engaged in the execution of official duties at the time of
the shooting.” Porter II, 722 S.E.2d at 543. Thus, Porter would have had no basis on which to
pursue a first-degree murder charge. In addition, Porter’s trial counsel did not pursue a theory
of self-defense, based on Porter’s own statements. (SH App. 3149, 3167, 3176, 3270, 3273). A
first-degree instruction would not have fit Porter’s trial counsels’ theory and would not have
been persuasive to the jury absent some foundation. As such, Porter fails the prejudice prong of
Strickland.
i. Irrebuttable Presumption
Porter argues that his trial counsel improperly understood the applicable law regarding
jury instructions on first-degree murder as creating some type of “irrebuttable presumption” is
barred because it was not presented to the state habeas court. Porter argues that the trial court
improperly adopted this understanding of the law in derogation of Sandstrom v. Montana, 442
U.S. 510 (1979). Porter did not present this claim to the state habeas court. It is axiomatic that in
order for a federal claim to be exhausted, it must be presented to the highest state court.
Matthews v. Evatt, 105 F.3d 907, 911 (4th Cir. 1994). To the extent that Porter attempts to now
bring this separate claim, not based on Strickland, it is barred as unexhausted. In any event,
32

there is little indication that Porter’s counsel understood the law as creating any irrebuttable
presumption that the element of “interfering with the performance of his official duties” was
proven beyond a reasonable doubt. As such, Porter’s related argument has no merit.

VII.

Claim Seven: Ineffective Assistance Claim Regarding the Alleged Conduct
of Officer Reaves

The state habeas court held that:
[P]etitioner alleges he was denied the effective assistance of counsel
because counsel failed to discover and use evidence of Officer Reaves’ history of
unprofessional conduct while he was a Baltimore City police officer. Petitioner
contends that counsel should have requested Officer Reaves’ personnel file when
Officer Reaves’ previous performance was obviously relevant because the main
factual dispute at trial was whether Officer Reaves approached petitioner
forcefully and with his gun drawn. Petitioner contends that had the jury been
presented with such evidence, there is a reasonable probability that he would not
have been convicted of capital murder and at least one juror would have found
that “an aggravating factor was not proven beyond a reasonable doubt or that
death was not the most appropriate punishment.”
The Court holds that [Porter’s claim] satisfies neither the “performance”
nor the “prejudice” prong of the two-part test enunciated in Strickland. Petitioner
acknowledges that counsel was not on notice of Officer Reaves’ alleged prior
employment history. Petitioner fails to articulate how personnel records relating
to Officer Reaves’ employment as a Baltimore police officer, which do not show
any formal disciplinary proceedings and do not reference any instances of Officer
Reaves inappropriately displaying or using his service weapon, would have been
relevant in bolstering petitioner’s testimony that Officer Reaves forcefully
approached petitioner with his gun drawn. Thus, petitioner has failed to
demonstrate that counsel’s performance was deficient or that there is a
reasonable probability that, but for counsel’s alleged error, the result of the
proceeding would have been different.
Porter II, 722 S.E.2d at 549.
A. Reasonable Application of the Facts?
The record reflects that Porter’s trial counsel did not have constructive or actual notice of
Officer Reaves’s alleged prior employment history. Porter’s inference that his trial counsel may
have been on constructive or actual notice of Reaves’s employment records fails in light of the
state habeas court’s finding that “Petitioner acknowledge[d] that counsel was not on notice of
Officer Reaves’ alleged prior employment history.” Porter II, 722 S.E.2d at 549. Factual findings
of a state habeas court are presumed correct unless rebutted by clear and convincing evidence.
33

See 28 U.S.C. § 2254(e)(1). The finding is supported by Porter’s trial counsels’ statement that his
investigation did not reveal any information about Reaves’s personnel files. (Fed. App. 447, ¶ 9).
Here, Porter has not met his burden to present clear and convincing evidence to the contrary.
See supra Claim Two.
B. Reasonable Application of the Law?
As stated above, the record reflects that Porter’s trial counsel did not have constructive
or actual notice of Officer Reaves’s alleged prior employment history. As such, Porter does not
identify any evidence his trial counsel possessed that “would have led a reasonably competent
attorney to investigate further.” Wiggins, 539 U.S. at 534. Further, Porter’s counsel indicated
that they made a strategic decision not to pursue such a strategy. As stated previously, “counsel
has a duty to make reasonable investigations or to make a reasonable decision that makes
particular investigations unnecessary.” Strickland, 466 U.S. at 691. Counsel had reason to limit
his investigation into Reaves’s employment history: Reaves’s employment record was not
relevant to Porter’s trial counsels’ theories that (1) Porter shot Reaves’s without premeditation;
or (2) that Porter did not constitute a future danger. The record also reflects that Porter’s trial
counsel did not believe that the theory that Officer Reaves acted outside his official capacity was
viable. (Fed. App. 441, ¶ 4). The fact that Officer Reaves acted in his official capacity when he
approached Porter weakens Porter’s current theory that evidence of Reaves’s service record
could have help refute the prosecution’s theory that Officer Reaves approached Porter simply to
talk to him. Therefore, Porter has not satisfied the performance prong of Strickland.
In the alternative, Porter was not prejudiced even if his trial counsel failed to uncover
disciplinary records regarding Officer Reaves. Porter’s arguments are consistent with his
apparent overarching theory that his trial counsel could or should have made a self-defense
argument in retrospect. Again, the trial court held that Porter did not make out a case of selfdefense, (SH App. 3173), and absent evidence that Porter acted in self-defense, character
evidence of his victim was inadmissible. See Jordan v. Commonwealth, 252 S.E.2d 323, 325
34

(Va. 1979). Thus Porter would have had no basis on which to pursue a first-degree murder
charge. In addition, Porter’s theory of self-defense was contradicted by his own statements. (SH
App. 3149, 3167, 3176, 3270, 3273). A first-degree instruction would not have fit Porter’s trial
counsels’ theory and would not have been persuasive to the jury absent some foundation. As
such, Porter has not met the prejudice prong of Strickland.

VIII.

Claim Eight: Ineffective Assistance Claim Regarding Usage of Mitigating
Facts from Porter’s Childhood

The state habeas court held that:
[P]etitioner alleges he was denied the effective assistance of counsel
because counsel failed to conduct an adequate investigation into petitioner’s
childhood and present important mitigating evidence regarding the abuse
petitioner received as a child. Petitioner asserts counsel should have presented
evidence that he was physically beaten by his caregivers and grew up amidst
neighborhood and family violence. Petitioner contends that counsel conducted
only cursory interviews with petitioner’s mother and other adults in his life as he
grew up, and did not follow up on evidence of physical abuse. Petitioner further
asserts counsel’s failure resulted in depriving his mental health expert of
information crucial to his evaluation, and undermined confidence in the jurors’
sentencing phase decisions because they were not provided with a proper context
for understanding petitioner’s behavior.
The Court holds that [Porter’s claim] satisfies neither the “performance”
nor the “prejudice” prong of the two-part test enunciated in Strickland. The
record, including the trial transcript, demonstrates that counsel presented
mitigating evidence to the jury through testimony about the violent
neighborhood in which petitioner was raised, the abuse he observed his mother
receive, the loss of a younger sibling, the lack of parental involvement and
supervision, and the learning and emotional difficulties petitioner experienced in
school. Petitioner’s mother, Bernice Porter, specifically denied that any incidents
of physical or sexual abuse of petitioner were ever reported. The affidavits of
counsel demonstrate that counsel investigated and interviewed numerous friends
and family members, and made the strategic decision not to call one of
petitioner’s caregivers because she would not have made a good witness. Thus,
petitioner has failed to demonstrate that counsel’s performance was deficient or
that there is a reasonable probability that, but for counsel’s alleged error, the
result of the proceeding would have been different.
Porter II, 722 S.E.2d at 544.
A. Reasonable Application of the Facts?
35

Porter essentially contends that the state habeas court unreasonably discounted or failed
to take into account his mitigation evidence regarding his emotional and physical abuse as a
child. Porter asserts that the state habeas court refused to consider any of his evidence
establishing his failure-to-investigate argument.
The record reflects that Porter presented virtually the same facts before the state habeas
court, whose findings are presumed correct absent clear and convincing evidence to the
contrary. The state habeas court does not cite some of Porter’s evidence in support of its holding
that Porter could not satisfy Strickland under either the performance or prejudice prongs.
Porter II, 722 S.E.2d at 544. The state habeas court acknowledged, however, that Porter
“asserted counsel should have presented evidence that he was physically beaten by his
caregivers and grew up amidst neighborhood and family violence.” Porter II, 722 S.E.2d at 544.
There is little indication that the state habeas court refused to consider Porter’s potential
mitigation evidence. Porter cites no legal support for his argument that the failure to make
specific findings regarding each specific piece of evidence can constitute an unreasonable
finding of fact. For these reasons, the Court holds that the state habeas court did not make any
unreasonable findings of fact in this claim. Porter’s implied argument that the state habeas court
did not properly weigh his mitigation evidence during its Strickland analysis will be addressed
in the next section.
B. Reasonable Application of the Law?
i. Performance Prong of Strickland
Porter appears to argue that the state habeas court erred because it did not take into
account the powerful nature of the mitigation evidence that his trial counsel refused to pursue.
Porter essentially argues that this powerful evidence should have greatly informed the state
habeas court’s assessment of both the performance and prejudice prongs of Strickland.
However, as stated above, there is no indication that the state habeas court discounted evidence
in the record. Further, a state habeas court’s holdings are assessed for reasonableness, not
36

correctness, and the Court must still apply a “heavy measure of deference to counsel’s strategic
decision not to investigate further.” Strickland, 466 U.S. at 691.
Porter essentially states that the mitigation evidence that his trial counsel neglected to
investigate showed that he was emotionally and physically abused and neglected. Two of
Porter’s siblings that were not interviewed did not actually grow up in the household with
Porter. (SH App. 5321, 5324-26). It appears that Porter’s counsel did not interview at least one
person—Wynonia Roberts—who could have testified that George Avant both hit Porter, (see id.
at 5341), and that Porter was neglected, (see id. at 5344). However, the state habeas court
explicitly found that Porter’s trial counsel investigated and interviewed numerous friends and
family members. Porter II, 722 S.E.2d at 544. The record reflects that Porter’s trial counsel
interviewed, among others, his entire immediate family, including Cora Gaston and Porter’s
girlfriend Janice Hendricks. (Fed. App. 442 ¶ 9, 446 ¶ 6); (SH App. 8278). Porter’s trial counsel,
Joseph Migliozzi specifically reported that he extensively interviewed Cora Gaston and Bernice
Porter. (Id. at 489).
Porter claims to have informed his trial counsel that he was beaten as a child by Bernice
Porter, George Avant, Cora Gaston, and William Wilson (Fed. App. ¶ 57). Bernice Porter,
however, specifically stated that there were no reports or allegations of sexual or physical abuse.
(SH App. 3646, 3655). The Court can infer from Porter’s and his mother’s testimony that
Porter’s trial counsel were at least aware of his allegations of abuse. In light of the fact that
Porter’s own mother denied that any instances of abuse were reported or alleged—despite
reportedly beating Porter with broom handles and belts—it would not have been unreasonable
for Porter’s trial counsel to decline to expend resources on reports of abuse that were explicitly
denied by a key mitigation witness. While it would have been reasonable for Porter’s counsel to
investigate further, it was not unreasonable for them not to do so.
Porter’s trial counsel reasonably concluded based on their earlier investigation that the
evidence they developed would have given the jury an accurate picture of Porter’s personality
37

and upbringing and that further investigation would turn up unreliable, insubstantial, or
cumulative evidence. See Bacon v. Lee, 225 F.3d 470, 481 (4th Cir. 2000). Porter’s trial counsel
conducted a reasonable investigation in light of the fact that there was little indication on the
record before the Court that witnesses at the time reported that Porter was physically abused.
Further, Bernice Porter explicitly denied any incidences of abuse. The fact that Porter now
presents multiple witnesses that support his story is not dispositive because the relevant issue is
the reasonableness of the scope of the investigation. Porter’s trial counsels’ investigation and
representation were not deficient or unreasonable.
Porter’s trial counsel made a strategic decision not to use the testimony of Cora Gaston,
(Fed. App. 442), and decided not to utilize Porter’s mental health expert, (Fed. App. 443, 446).
These strategic decisions are afforded considerable deference and such representation was not
constitutionally deficient.
The record before this Court indicates that Porter’s trial counsel interviewed multiple
people who now affirm that Porter was beaten but whose testimony was either not utilized at all
or not utilized for the purpose of establishing abuse. Specifically Porter’s trial counsel could have
utilized the testimony of: (1) Derrick Jones—who now reports that Cora Gaston beat Porter
several times and was emotionally abusive, (SH App. 5212), and who was not asked at trial
about the abuse of Porter, (id. at 3740-56); (2) George Avant—who now admits to hitting Porter,
(id. at 4831), and who testified but now reports that he does not remember much and was not
asked about his abuse of Porter, (id. at 3677-85); and (3) Cora Gaston who now reports that she
beat Porter when he “acted up,” (id. at 5102), tried to give Porter back to his mom several times,
(id. at 5102), and essentially told Porter that she doesn’t care about him, (SH App. 5104). The
state habeas court noted that, instead of presenting evidence of abuse, Porter’s counsel
“presented mitigating evidence to the jury through testimony about the violent neighborhood in
which petitioner was raised, the abuse he observed his mother receive, the loss of a younger
sibling, the lack of parental involvement and supervision, and the learning and emotional
38

difficulties petitioner experienced in school.” Porter II, 722 S.E.2d at 544.
Porter’s trial counsel chose to highlight different types of evidence during the sentencing
phase of Porter’s trial including, among other things: (1) that he grew up a troubled child with
behavioral, mental, and perhaps neurological problems, (SH App. 4181-93), (2) that he had no
male role model growing up, (id. at 4196), and (3) that he wanted to work and be a productive
citizen, (id. at 4197-200). The central theories of Porter’s trial counsel appear to be that: (1)
Porter grew up with limited choices and his later criminal actions were a product of his
upbringing, (see id. at 4195); (2) that no one was there to help Porter make better decisions or
understand the consequences of his bad acts, (see id. at 4195-96), and (3) that Porter eventually
grew up to be an impulsive and immature person, causing him to make the mistake of shooting
Officer Reaves, (see id. at 24201-03). Porter’s trial counsel also presented at least some
mitigating evidence showing neglect—specifically, the lack of parental involvement and
supervision. These are reasonable theories and the evidence to support them was obtained
through sufficient investigations.8 In sum, Porter cannot meet the performance prong of
Strickland.
ii. Prejudice Prong of Strickland
Porter presented support for his allegations of abuse to the state habeas court. (See Fed.
App. 129-37). The state habeas court acknowledged that Porter “asserted counsel should have
presented evidence that he was physically beaten by his caregivers and grew up amidst
neighborhood and family violence.” Porter II, 722 S.E.2d at 544. The sole mention of abuse by
the state habeas court was that: upon being interviewed by counsel, Porter’s mother expressly
stated that no incidences of sexual or physical abuse were reported. Id. There is no indication,
however, that the state habeas court failed to assess “the totality of the available mitigation

These theories are consistent with the report of Porter’s mental health expert who interviewed
Bernice Porter separately. (See id. at 8279-80).
8

39

evidence-both that adduced at trial, and the evidence adduced in the habeas proceeding,”
Williams, 529 U.S. 397-98.9
“‘[E]vidence about the defendant’s background and character is relevant because of the
belief, long held by this society, that defendants who commit criminal acts that are attributable
to a disadvantaged background . . . may be less culpable than defendants who have no such
excuse.’” Penry v. Lynaugh, 492 U.S. 302, 319 (1989) abrogated by Atkins v. Virginia, 536 U.S.
304 (2002)) (quoting California v. Brown, 479 U.S. 538, 545 (1987) (O'Connor, J.,
concurring)). This is not a case where Porter’s trial counsel did not produce any mitigation
evidence or withheld especially helpful evidence supporting a theory that Porter was not morally
culpable. See, e.g., Wiggins, 539 U.S. at 535. As the state habeas court notes, Porter’s trial
counsel presented mitigation evidence going toward moral culpability including testimony about
the violent neighborhood in which petitioner was raised, the abuse he observed his mother
receive, the loss of a younger sibling, the lack of parental involvement and supervision, and the
learning and emotional difficulties petitioner experienced in school. It is true that presenting
additional mitigation evidence showing that Porter was abused and neglected would have, as
Porter points out, provided additional “context for understanding Porter’s later behavior.” (Am.
Pet. 45). This evidence could have also have strengthened Porter’s counsels’ theories that Porter
was essentially born without a chance to succeed in life and that he had no real role models to
help him navigate his life. However, as evidence used to mitigate moral culpability, such
evidence is largely cumulative and not dispositive. See Wong v. Belmontes, 558 U.S. 15, 23
(2009) (prejudice did not arise from a counsels’ failure to use cumulative “humanizing”
mitigation evidence); Jackson v. Kelly, 650 F.3d 477, 482 (4th Cir. 2011) (holding that prejudice
typically does not arise from a counsel’s failure to use anecdotal, cumulative examples of abuse).

It is possible that the state habeas court made a credibility determination. It is also possible that the
state habeas court held that the evidence Porter sought to introduce was cumulative in nature or
outweighed by aggravating evidence.
9

40

To the extent that Porter’s trial counsel failed to establish that Porter was physically abused, as
stated above, this presentation was consistent with his counsels’ reasonable investigations.
While somewhat mitigating, Porter’s alleged of physical abuse from Avant and Wilson
was not as severe as the type of physical abuse that is typically found to be necessary to vacate a
trial. See Wiggins, 539 U.S. at 535 (nothing that petitioner was severely physically abused and
molested repeatedly by his mother and a series of foster parents, was hospitalized after his
mother forced his hand onto a hot stove, and was raped by his second foster father). There
would have been at least some negative effect of introducing evidence of abuse by his mother
and Cora Gaston because supporting witnesses would have been subjected to cross-examination
where they would have had to testify to Porter’s bad acts as a child, Cf. Moody v. Polk, 408 F.3d
141, 151 (4th Cir. 2005), and would be subject to impeachment by the prosecution. At least some
of Porter’s alleged physical abuse may also have been interpreted as disciplinary, thus,
contradicting his trial counsels’ theory that Porter grew up severely neglected and without any
proper parenting. (See SH App. 5012) (Cora Gaston stating that “[w]hen Thomas acted up, I had
to beat him.”).
Porter implies that his trial counsels’ inadequate investigations effectively precluded him
from utilizing his mental health expert. However, utilization of his expert would have allowed
the prosecution to use its expert as well. The prosecution’s mental health expert report contains
testimony from Porter that is both aggravation and potential impeachment evidence. The report
generally states that certain factors of Porter’s childhood history were mitigating but that the
larger portion of his life reflects his own independent decision making capacity. (Fed. App. 451).
Porter reportedly told the prosecution’s mental health expert that he “posed too much of a
challenge to the women who raised him,” and that he “intentionally violated the rules of the
household” as part of his “philosophy of reciprocal retribution.” (Id.) Any contrary testimony by
Porter risked impeachment.

41

In any event, Porter’s additional evidence of abuse must also be weighed against the
prosecution’s aggravating evidence regarding future dangerousness, including: the potential
positive effect of Porter’s teachers and child psychologists, Porter’s extensive criminal history,
his extensive history of violent acts as both a juvenile and an adult, his poor work history, the
terrible nature of Officer Reaves’s murder, and the murder’s effect on Reaves’s immediate
family. Moreover, the jury was presented with evidence of Porter’s lack of remorse as
demonstrated by a phone call in which Porter stated he was a “good shot.” The Court finds that
the aggravating evidence far outweighs the potential mitigating evidence that Porter proffers.
For the above reasons, there is not a reasonable probability that, but for Porter’s trial counsels’
alleged error, the result of the proceeding would have been different. Porter cannot satisfy the
prejudice prong of Strickland.
In sum, the state habeas court did not unreasonably apply the facts or the law.

IX.

Claim Nine: Ineffective Assistance Claim Regarding the Prosecution’s
Aggravating Evidence
The state habeas court held that:
[P]etitioner alleges he was denied the effective assistance of counsel
because counsel failed to reasonably investigate the Commonwealth’s evidence of
some of petitioner’s prior convictions and unadjudicated bad acts. Petitioner
contends that counsel was unable to rebut this aggravating evidence because
counsel did not investigate these incidents and merely whispered questions about
the incidents to petitioner as the Commonwealth’s witnesses were taking the
stand. According to petitioner, a proper investigation would have uncovered
valuable mitigating information that would have explained how petitioner was
provoked prior to each incident and how petitioner was punished afterwards.
Regarding another incident, petitioner alleges he punched another inmate
in 1998 because the other inmate had attacked petitioner for no reason.
Petitioner alleges counsel failed to discover that Corrections Officer Adkins’
testimony of an incident in which petitioner grabbed Adkins’ shirt through the
cell bars and banged Adkins against the bars did not match Adkins’
contemporaneous report of the incident. In addition, contrary to Adkins’
testimony, petitioner alleges that after the incident petitioner was mistreated and
punished. Concerning another incident, petitioner alleges that an inmate
attacked by petitioner in 1997 had provoked petitioner by bumping into him
during a fight the inmate was having with two other men, and by uttering
“fighting words.”

42

Petitioner contends that counsel made petitioner’s reaction appear less
reasonable by characterizing the “fighting words” as a homosexual advance.
Petitioner also alleges counsel further failed to ascertain that on February 15,
2007, petitioner did not “refuse to go to court, saying he was not going to court
without a fight.” Petitioner states that he had questioned deputies as to a change
in the strip search procedure, and that deputies responded by rushing the cell,
punching and kicking petitioner, shooting petitioner with “mace balls,” and
pushing petitioner into an elevator wall. Petitioner alleges that counsel refused to
take any action despite petitioner’s complaints and “failed to confront witnesses
about the unprovoked and unjustified quality of their actions.” Finally, petitioner
contends counsel failed to rebut the Commonwealth’s argument that petitioner
ran away from police into a “stranger’s house” by establishing that petitioner
lived in the townhouse with his mother.
The Court holds that [Porter’s claim] satisfies neither the “performance”
nor the “prejudice” prong of the two-part test enunciated in Strickland. Petitioner
fails to allege how the punishment or response petitioner may have received
following each event serves to mitigate petitioner’s actions. The record, including
the trial transcript and the September 8, 2009 affidavit of counsel, demonstrates
that counsel had investigators review the nearly 100 convictions and
unadjudicated bad acts the Commonwealth intended to rely on during the
sentencing phase of trial and obtain as much information as possible about each
incident. Counsel personally visited Wallens Ridge and Red Onion State Prisons
to obtain information about the incidents that took place while petitioner was an
inmate at these facilities. Counsel also cross-examined witnesses about the
incidents. Counsel attempted to elicit testimony that a guard had overheard the
victim in the 1998 incident say something to petitioner prior to the altercation,
which the officer denied. Counsel further elicited testimony that petitioner
required medical treatment after the 1998 incident.
As to the Adkins incident, counsel specifically questioned Adkins as to
whether his testimony had changed from his initial report, and Adkins clarified
his testimony. As to the 1997 incident, counsel attempted to present evidence that
the victim verbally provoked petitioner, but the court sustained the
Commonwealth’s objection to such testimony on the grounds that “words never
justify an assault.” Counsel reasonably followed up with questions regarding
whether the inmate ever made physical advances toward petitioner, in order to
demonstrate that petitioner had been provoked. Counsel also pursued this line of
questioning because petitioner had told counsel that the victim was “queer.”
As to the February 15, 2007 incident, counsel questioned the testifying
deputy as to whether the officers had changed the procedures by which petitioner
was searched to find out “if there was any particular reason why this may have
caused this event to take place.” Further, the deputy testified that petitioner was
physically handled, by stating officers “took him down,” held him against a wall
so he could not move, pushed him into his cell, and “forced him in there hard.”
Finally, petitioner cites no support in the record for his assertion that he resided
in the townhouse to which he fled during a police chase. Thus, petitioner has
failed to demonstrate that counsel’s performance was deficient or that there is a
reasonable probability that, but for counsel’s alleged error, the result of the
proceeding would have been different.
Porter II, 722 S.E.2d at 544-46.

43

A. Reasonable Application of the Facts?
Porter contends that his trial counsel made no attempt to provide proper context at the
sentencing phase of his trial. Porter contends that the state habeas court’s decision was based on
two unreasonable determinations of fact. First, Porter contends that the court’s finding that his
trial counsel had their investigators “obtain as much information as possible about each
incident” is solely supported by his trial counsels’ self-serving affidavit. Porter represents that
available evidence—including investigator and prison inmate testimony—shows that no such
investigation took place. (Fed. App. 511, 566) (affidavits of Daryl Van Horne and Jennifer
Schweizer). Second, Porter represents that the only investigation his trial counsel claim to have
personally undertaken related to the altercations in Wallens Ridge or Red Onion State Prisons,
was meeting with one unidentified inmate at either Wallens Ridge or Red Onion State Prisons.
Porter argues that the state court’s decision rested on an unreasonable determination of the
facts and its process of making its factual determinations regarding the scope of counsels’
investigation was so defective that the decision deserves no deference. Porter argues that the
state habeas court’s finding that his trial counsel cross-examined some witnesses is
nonresponsive to Porter’s claim that his trial counsels’ deficient investigation prevented them
from effectively rebutting the prosecution’s evidence at the sentencing phase of his trial.
Porter argues that the state habeas court made an unreasonable finding of fact that he
did not make a prejudice argument in a portion of his claim. Porter contends that an explanation
of the circumstances of Porter’s prior bad acts would have taken weight off the aggravating side
and added weight to the mitigating side, because jurors would have learned that Porter was not
a violent and unpredictable aggressor but instead a man reacting—albeit in ways that
demonstrated his limited life experiences—to the violent circumstances that confronted him.
Porter also claims that the state habeas court’s finding, that he cited “no support in the
record for his assertion that he resided in the townhouse to which he fled during a police chase,”
is rebutted by the record. Regarding whether this information was properly before the Court,
44

Porter argues that he had originally cited to the relevant entry in his affidavit in the long petition
that Porter submitted to the state court with his motion to exceed the 60-page limit. Porter
contends that, when counsel edited the long petition to comport with the page limit, the
reference to the record was inadvertently deleted. Porter notes that other pages of Porter’s
affidavit were cited in support of this claim in his 60-page petition. (Fed. App. 141–42); see also
ECF No. 52, at 12–13 (finding that Porter presented claim that he lived in the townhouse to the
state court).
Regarding Porter’s claim that the state habeas court erred regarding whether he resided
in the townhouse to which he fled during a police chase, the only piece of evidence that Porter
cited was a trial exhibit showing an arrest warrant, (see Fed. App. 142-43; SH App. 4541-45).
This evidence is unpersuasive because the address of the townhouse to which he ran was not
given at trial or in his state petition. (SH App. 3416-20; State Habeas Pet 37-38, Fed. App. 14243). Moreover, Porter’s second citation to his own affidavit (SH App. 8257-58) was not cited in
his state petition, (see Fed. App. 142-43). There is no indication that the Court did not consider
Porter’s affidavit or the record, however. The Court finds that Porter has not met his burden to
show that the state habeas court’s finding was unreasonable.
Regarding whether the state habeas court erred by finding that Porter’s counsel obtained
as much information as possible, Porter bases his arguments on affidavits from Daryl Van Horn
and Jennifer Schweizer—two investigators on Porter’s defense team at trial. Porter notes that
the investigator’s recollections differ from those of his trial counsel. (See Fed. App. 456).10
Porter’s argument that the state habeas court’s related finding was unreasonable has not been
adequately supported by convincing evidence. Porter does not present any convincing evidence
This Court has previously held that Jennifer Schweizer’s affidavit was before the state habeas court
because it was appended to Porter’s opposition to the Warden’s Supplemental Motion to Dismiss the
state habeas petition. (ECF No. 52 at p. 14) (citing Fed. App. 500 n.6, ECF No. 22‐17; Porter II, 722
S.E.2d at 538). The Court further held that it was not apparent that Van Horn’s affidavit was before
the state habeas court but that Van Horn’s affidavit does not present any new facts that are material
to this claim because he was the investigator for the guilt phase of Porter’s trial. (ECF No. 52 at p.
14). As such, the Court will take into consideration Jennifer Schweizer’s affidavit.
10

45

contradicting the affidavits of Porter’s trial counsel stating that they performed an adequate
investigation. Further, the state habeas court’s finding is more appropriately interpreted as
stating that “Porter’s trial counsel conducted a reasonable investigation.”
Regarding Porter’s second argument that the state habeas court erred when it found that
his trial counsel cross examined witnesses about the incidents, Porter’s citation to Schweizer’s
affidavit is not dispositive because her affidavit indicates only that she did not interview anyone
regarding Porter’s unadjudicated acts. (Fed. App. 511) (“I did not interview any witness or victim
relating to the 76 unadjudicated bad acts.”) This does not contradict Porter’s trial counsels’
assertion that they personally conducted such interviews. (See id. at 442). To the extent that
Porter relies on his own affidavit or the testimony of prison inmates, the Court finds that such
testimony does not rise to the level of showing by clear and convincing evidence that the state
habeas court’s finding was unreasonable. The state habeas court had at least some basis for its
finding considering that Porter’s trial counsel submitted sworn statements. (Id. at 442, ¶ 9).
To the extent that the state habeas court made a factual finding that Porter failed to
argue that he was prejudiced, see Porter II, 722 S.E.2d at 545, Porter has not proffered
convincing evidence to the contrary. Porter makes a legal argument that explaining the
circumstances of his prior bad acts would have lessened the effect of the aggravating evidence
and increased the strength of his mitigation evidence. However, to the extent that the state
habeas court’s statement is a factual finding, Porter’s explanation does not make the state
habeas courts finding unreasonable. At most, Porter merely differs in opinion as to state habeas
court’s the interpretation of his argument. This issue is a question of law that will be addressed
in the next section.
B. Reasonable Application of the Law?
Porter’s trial counsel acted reasonably and the state habeas court reasonably applied the
applicable federal law to the facts. The state habeas court expressly found that:

46

The record, including the trial transcript and the September 8, 2009 affidavit of
counsel, demonstrates that counsel had investigators review the nearly 100
convictions and unadjudicated bad acts the Commonwealth intended to rely on
during the sentencing phase of trial and obtain as much information as possible
about each incident. Counsel personally visited Wallens Ridge and Red Onion
State Prisons to obtain information about the incidents that took place while
petitioner was an inmate at these facilities. Counsel also cross-examined
witnesses about the incidents.
Porter II, 722 S.E.2d at 545-47. Porter’s evidence to the contrary, mainly consisting of his own
affidavit and the affidavits of prisoners that stated that they were not interviewed as a part of
any investigation, (see SH App. 5133, 5136, 5209, 5247, 5495-98), is not dispositive. The record
reflects that after an investigation, Porter’s counsel chose to rely on cross-examination of the
prosecution’s witnesses as opposed to another tactic. (See id). All of this evidence was before the
state habeas court, (See Fed. App. 139-48) (Claims E and F of Porter’s state habeas petition),
which then made a credibility finding. Porter’s trial counsel expressly stated that they personally
went to both of the prisons at issue and interviewed the inmates and corrections officers
involved. (Id. at 442 ¶ 9).
Porter contends that his trial counsel did not appropriately investigate the circumstances
of his attack on Downey. Porter contend that had his counsel properly investigated the incident,
they would have known that Downey yelled at Porter “Suck my Dick” prior to the altercation.
(Am. Pet. 56). Due to this purported failure, Porter argues that his trial counsel were unable to
effectively place the attack in a proper context. However, as the state habeas court notes, the
trial court sustained the prosecution’s objection that “words never justify an assault.” (SH App.
3430). Porter’s trial counsel could not have rendered unreasonable representation by failing to
provide this “context.” Instead, Porter’s trial counsel subsequently attempted to establish that
Porter by questioning whether Downey made some type of homosexual advance. (Id. at 342833). This representation was objectively reasonable.
Porter cannot meet the performance prong of the Strickland test and, based on these
facts, the state habeas court applied the correct legal rule in a reasonable way.

47

Even assuming that Porter’s version of the events in his affidavit were true and: (1) the
violent events that took place at multiple prisons would have been softened by some beneficial
context, and (2) the house that he ran away into was his mother’s, the Court finds that there is a
low probability that at least one person the jury would have come to a different decision on
Porter’s future dangerousness considering the evidence proffered by the prosecution including:
the number and nature of Porter’s violent unadjudicated acts and criminal convictions,
audiotapes of portions of two telephone conversations between Porter and an unidentified
female recorded during Porter’s incarceration, which the Commonwealth introduced because
they were “directly relevant to the issue of the defendant’s lack of remorse” and included Porter
bragging that he was a “good shot,” and the testimony of Officer Reaves’s wife and sister—each
describing the devastating impact of Officer Reaves’s death upon his extended family. Porter I,
661 S.E.2d at 424. Additionally as the Warden points out, any mitigation evidence relying on the
testimony of inmates would be subject to heavy impeachment and scrutiny. Further, any
attempt to provide context for the multitude of violent incidents would also have the effect of
highlighting Porter’s record of disobedience and violence. Porter would also have had to subject
himself to cross-examination to the extent that he relies on facts highlighted in his affidavit. See
infra Claim Fourteen. As such, Porter cannot meet the prejudice prong of Strickland.
In sum, the state habeas court did not unreasonably apply the facts or the law.

X.

Claim Ten: Ineffective Assistance Claim Regarding Prison Investigation
The state habeas court held that:
In Claim (III)(F)(1), petitioner alleges he was denied the effective
assistance of counsel because counsel failed to present accurate evidence of
petitioner’s experience in juvenile detention and the conditions under which he
resided. Petitioner alleges “the prosecution painted juvenile detention as offering
Porter a wealth of benefits that he rejected,” and contends that counsel should
have established that the juvenile detention facilities were “violent, overcrowded,
stressful, and unsanitary.” Relying on a 1992 report, and affidavits from a former
Norfolk Detention Center Supervisor and a fellow inmate, petitioner alleges that
treatment and rehabilitation were impossible due to the conditions, and that the
juveniles were in the facilities, “first and foremost, for punishment.”

48

The Court holds that Claim (III)(F)(1) satisfies neither the “performance”
nor the “prejudice” prong of the two-part test enunciated in Strickland. The
record, including the trial transcript, demonstrates that the Commonwealth
argued that petitioner was committed to several juvenile detention centers, which
included “all the services that can be offered.” Further, petitioner does not allege
that he was denied any specific support services. To the contrary, the affidavit
submitted by petitioner from Lanett W. Brailey, a teacher at one of the juvenile
correctional centers in which petitioner resided, indicates that petitioner was
recommended for, and received, special education classes. Petitioner fails to
allege how the sentencing outcome would have been different had counsel
presented information concerning the general conditions of these facilities. Thus,
petitioner has failed to demonstrate that counsel’s performance was deficient or
that there is a reasonable probability that, but for counsel’s alleged error, the
result of the proceeding would have been different.
In Claim (III)(F)(2), petitioner alleges he was denied the effective
assistance of counsel because counsel failed to present evidence of the conditions
under which petitioner lived while in prison, which would have given a context to
jurors for his prison behavior and shown that he acted in the interest of selfpreservation. Petitioner contends that counsel should have presented evidence
that petitioner lived for four years in stressful and inhumane conditions, and that
inmates at Wallens Ridge and Red Onion State Prisons were subjected to being
beaten, electrically shocked, and strapped to a bed. Petitioner argues that guards
frequently called inmates, including petitioner, by racial slurs. Specifically,
petitioner claims that guards harassed him due to his religious beliefs and
because he had a female friend of a different race. According to petitioner,
prisoners were often punished severely for even minor infractions.
The Court holds that Claim (III)(F)(2) satisfies neither the “performance”
nor the “prejudice” prong of the two-part test enunciated in Strickland. Other
than his claims that he was verbally abused because of his relationship with a
woman of another race and his religious beliefs, petitioner does not allege that
the evidence he contends counsel should have proffered was related to
petitioner’s individual experience. This Court has held that “evidence regarding
the general nature of prison life” is not admissible even if used to rebut the
aggravating factor of future dangerousness. Bell v. Commonwealth, 264 Va. 172,
201, 563 S.E.2d 695, 714 (2002) (internal quotation marks and alteration
omitted), cert. denied, 537 U.S. 1123, 123 S. Ct. 860, 154 L.Ed.2d 805 (2003).
Furthermore, petitioner fails to allege how the sentencing outcome would have
been different had the jury understood that petitioner’s violent acts in prison
were fueled by petitioner’s alleged need to act in the interest of self-preservation
given the general nature of prison life or petitioner’s having been taunted. Thus,
petitioner has failed to demonstrate that counsel’s performance was deficient or
that there is a reasonable probability that, but for counsel’s alleged error, the
result of the proceeding would have been different.
In Claim (III)(F)(3), petitioner alleges he was denied the effective
assistance of counsel because counsel failed to present evidence of petitioner’s
successful adaptation to prison life. Petitioner asserts that he was well regarded
by fellow inmates who considered him to be generous and able to avoid trouble.
Petitioner received a report from a counselor at Red Onion that he was a
satisfactory worker as a “Houseman,” and was a respectful employee. Petitioner
contends that this information, had it been presented to jurors, would have

49

lessened his moral culpability and tended to show that he did not pose a future
danger to society if sentenced to life imprisonment.
The Court holds that Claim (III)(F)(3) satisfies neither the “performance”
nor the “prejudice” prong of the two-part test enunciated in Strickland. During
the penalty phase, counsel argued that petitioner’s incarceration for life was
appropriate because petitioner had been in the penitentiary for seven years and
had incurred only two infractions, and that in all of his previous convictions he
had either pleaded guilty or cooperated against a codefendant. Petitioner has not
established that additional testimony from fellow inmates, who would be subject
to cross-examination, or the admission of one prison record indicating that in an
annual review petitioner received a satisfactory work report, but also stating that
petitioner needed to “abstain from socially inappropriate behavior,” would have
increased the likelihood of the jury sentencing petitioner to life imprisonment.
Thus, petitioner has failed to demonstrate that counsel’s performance was
deficient or that there is a reasonable probability that, but for counsel’s alleged
error, the result of the proceeding would have been different.
Porter II, 722 S.E.2d at 546-47.
A. Reasonable Application of the Facts?
Porter contends that the state habeas court made an unreasonable finding of fact when it
dismissed the first two portions of the claim—regarding juvenile detention and prison
conditions—based on a finding that Porter failed to allege Strickland prejudice for these
portions. Id. at 546.
i. Juvenile Detention Evidence
Porter argues that the state habeas court unreasonably found that Porter had failed to
allege prejudice regarding “how the sentencing outcome would have been different had counsel
presented information concerning the general conditions of these facilities.” Porter II, 722
S.E.2d at 546. There is little, however, that indicates that the findings of the state habeas court
were unreasonable. While Porter disagrees with the state habeas court’s interpretation of the
evidence and notes that the court did not address the specific evidence that Porter proffered,
(see Am. Pet. 67), the holding of the state habeas court does not indicate that it did not review
the evidence; merely that it classified some of the evidence as “information concerning the
general conditions” of Porter’s confinement. Porter II, 722 S.E.2d at 546. Porter has not met his
burden to show that the state habeas court made an unreasonable factual finding.

50

ii. Prison Conditions
Porter claims that the state habeas court made an erroneous finding regarding his prison
experiences. Porter notes that he proffered evidence in an attempt to place his violent acts in
context. To that effect, Porter cited to Department of Corrections records; interviews with
inmates and professionals who investigated, reported on, or sued over the conditions at the
prisons; and publicly available reports, news articles, and court documents. (Am. Pet. 145)
(citing SH 4834-40, 4893-99, 4956-5099, 5122-89, 5204-10, 5233-38, 5243-44, 5282-83,
53465458, 5480-84, 5492-5500, 7678-96, 7805-49, 7901-8044). Porter also cited to evidence
that guards harassed and dehumanized inmates by calling them racial slurs. (Id.) (citing SH
4834-35, 4893-95, 5123-24, 5132, 5143, 5205, 5347, 5481, 5494, 5524-25). Porter also cited to
evidence detailing abuse that was typical in the jails. (See id. at 145-46). Porter then describes
how guards directed racial and religious slurs at him and avers that correctional officer Adkins
told him to “[g]et off your flying carpet and eat, bitch” before Porter attacked him. (Id.)
Porter’s argument is, in effect, one based on the state habeas court’s application of
Strickland. The state habeas court did not mention that Porter proffered at least some
mitigation as to why he attacked correctional officer Adkins. Porter does not present a case with
substantially similar facts that contradicts the state habeas court’s finding that the applicable
evidence did not bear on Porter’s character, prior record, or the circumstances of his offense. To
the extent that the state habeas court made a finding, Porter has not met his burden to show that
the state habeas court made an unreasonable factual finding and there is no indication that the
state habeas court did not consider the entire record before it. This argument will be further
discussed in the section below on the state habeas court’s application of the law.
iii. Evidence Regarding Porter’s Adaptability
Porter contends that the state habeas court erred when it refused to consider the context
of Porter’s good behavior. Porter essentially contests the state habeas court’s interpretation of
his mitigation evidence. Porter does not present a case with substantially similar facts that
51

contradicts the state habeas court’s finding. Porter’s argument is, in effect, one based on the
state habeas court’s application of Strickland. To the extent that the state habeas court made a
finding, Porter has not met his burden to show that the state habeas court made an
unreasonable factual finding. This argument will be further discussed in the section below on
the state habeas court’s application of the law.
B. Reasonable Application of the Law?
i. State Habeas Court’s Individual Assessment of Porter’s Claims
Porter contends that the state habeas court improperly split the evidence of his
experience in various juvenile detention centers, experience in prison, and his positive
adaptation to prison into three separate claims. As such, Porter argues that the state habeas
court improperly applied Strickland because it found that Porter had failed to allege prejudice
for the first two claims when he asserts that he did. (See Fed. App. 148).
In Porter’s state habeas claim, he stated that his counsel was on notice but unreasonably
failed to investigate and present accurate evidence of his prior correctional experiences and his
good adjustment to incarceration. (See id. at 143). Porter then forecasted that he could prove at
an evidentiary hearing certain facts and split his state habeas claim into three sets of evidence—
juvenile detention conditions, prison conditions, and his adaptation to prison life. (See id. at
143-48). However, it is only in the section on his successful adaptation on prison life that Porter
mentioned prejudice. (See id. at 148). Porter stated that:
Counsel’s failure to present information in DOC files, to investigate leads
contained in those files, and to share related public information about the DOC
facilities, undermines confidence in the jurors’ sentencing decisions. Jurors
would have seen Porter’s ‘unadjudicated criminal conduct’ in a new light that
greatly lessened his moral culpability. They would have heard insightful
testimony about Porter’s character and successful adaptation to prison.
(Id.) There is little indication that Porter meant the aforementioned phrase to refer to his
sections regarding juvenile detention or prison conditions. These statements could easily be
interpreted as referring to evidence of a work report from a counselor at Red Onion State Prison

52

that Porter alleges that his trial court counsel neglected to present to the jury. As such, the state
habeas court reasonably split Porter’s claim and held that Porter failed to allege prejudice for the
first two portions of this claim. It must be noted that Porter bears the burden to present
persuasive and legally sufficient claims. As such, Porter cannot satisfy the prejudice requirement
of Strickland regarding these portions.
ii. Juvenile Detention Evidence
For the sake of argument, the Court will endeavor to assess this claim as if Porter had
alleged prejudice in each separate portion. Porter argues that the state habeas court
unreasonably found that Porter failed to allege prejudice regarding “how the sentencing
outcome would have been different had counsel presented information concerning the general
conditions of these facilities.” Porter II, 722 S.E.2d at 546. Porter implies that the state habeas
court refused to consider his evidence of the appalling conditions at the juvenile detention
facilities in which he was housed as a child.
The state habeas court then went on to essentially hold that Porter did not meet the
performance prong of Strickland because he could not meet his burden to show that such
evidence was sufficiently valuable as mitigation evidence. The Court is inclined to agree with the
state habeas court regarding its prejudice analysis.
There is no indication that the state habeas court refused to consider Porter’s evidence.
In any event, while the evidence regarding Porter’s juvenile detention may provide some context
and some mitigation as evidence pertaining to moral culpability, as the state habeas court notes,
the mitigation evidence is lessened by certain facts. Porter was not denied any rights or services
in the juvenile detention centers and was actually assigned special education classes. The
contextual evidence of “Dickensian conditions” in the juvenile detention centers in which Porter
was housed is not enough to counter the strength of the aggravating evidence. As such, the Court
holds that Porter has not demonstrated that there is a reasonable probability that, but for
counsels’ alleged error, the result of the proceeding would have been different.
53

Regarding the performance prong, Porter alleges that his trial counsel failed to
investigate and present accurate evidence of his correctional experiences as a juvenile. Porter’s
trial counsel stated that they assigned investigators on the defense team to thoroughly review
and report on any additional information regarding each prior conviction and unadjudicated
bad act. (Fed. App. 442). Because these facts are disputed, the Court will rest its analysis on the
prejudice prong of Strickland.
iii. Prison Conditions Evidence
Porter implies that the state habeas court refused to consider his evidence regarding the
inhumane conditions of the prisons in which he was incarcerated, thus, in some way improperly
applying the Strickland test. Porter infers that the state habeas court appeared to have
discounted Porter’s prison conditions related evidence altogether. (See Am. Pet. 67) (citing
Porter II, 722 S.E.2d at 546).
In determining prejudice, the state habeas court was required to evaluate the mitigation
evidence available, including evidence adduced in the habeas proceeding, and weigh it against
the evidence in aggravation. See Emmett v. True, CIV.A. No. 7:05-CV-00329, 2006 WL 482417,
at *13 (W.D. Va. Feb. 27, 2006) (citing Williams, 529 U.S. at 397-98). However, “as a condition
for obtaining habeas corpus from a federal court, a state prisoner must show that the state
court’s ruling on the claim being presented in federal court was so lacking in justification that
there was an error well understood and comprehended in existing law beyond any possibility for
fairminded disagreement.” Harrington v. Richter, 131 S. Ct. 770, 786-787 (2011).
Porter cites to Skipper v. South Carolina for the proposition that the state habeas court
improperly dismissed Porter’s evidence as generalized prison conditions evidence, thus,
depriving Porter of the opportunity to present evidence of the context of his good adjustment in
exceptionally difficult circumstances. (See Am. Pet. 67) (citing Skipper v. South Carolina, 476
U.S. 1, 7 n.2 (1986)). The Supreme Court of Virginia acknowledges that a defendant is always
entitled to present relevant mitigating evidence in a capital case. Lawlor v. Commonwealth, 738
54

S.E.2d 847, 881-82 (Va. 2013) (citing Skipper, 476 U.S. at 4; Simmons v. South Carolina, 512
U.S. 154, 164 (1994)). In Morva v. Commonwealth, the Supreme Court of Virginia noted that it
has previously held that “the United States Constitution does not limit the traditional authority
of a court to exclude, as irrelevant, evidence not bearing on the defendant’s character, prior
record, or the circumstances of his offense.” 683 S.E.2d 553, 564-65 (Va. 2009) (quoting Burn,
541 S.E.2d at 893). The Supreme Court of Virginia has firmly established, however, that to be
admissible, evidence relating to a prison environment must connect the specific characteristics
of the particular defendant to his future adaptability in the prison environment. Juniper, 626
S.E.2d at 424. Such evidence must also be peculiar to the defendant’s character, history, and
background in order to be relevant to the future dangerousness inquiry. Id. at 423-24. As such,
the Supreme Court of Virginia has held that conditions of prison life and the security measures
utilized in a maximum security facility are not relevant to the future dangerousness inquiry
unless such evidence is specific to the defendant on trial and relevant to that specific defendant’s
ability to adjust to prison life. Id. at 423-24.11
In characterizing the remainder of Porter’s evidence as “evidence regarding the general
nature of prison life” and citing to Bell v. Commonwealth, 563 S.E.2d 695, 714 (Va. 2002) in
support of the proposition that such evidence would not be admissible even if used to rebut the
aggravating factor of future dangerousness, the state habeas court appears to have applied this
jurisprudence to Porter’s mitigation evidence because it related, at least in part, to general
prison conditions and was not just evidence related to “context” or “moral culpability.” There is
no indication that the Supreme Court of Virginia’s application of these standards are
unconstitutional.

Such holdings typically have been expressed where a petitioner attempted to use “evidence of
restrictions on a prisoner’s physical capacity to commit violence due to generalized prison
conditions” in order to mitigate future dangerousness. Lawlor, 738 S.E.2d at 882. Porter attempts as
much in the next section where he argues that the state habeas court should have granted his motion
to appoint Dr. Cunningham as his mitigation expert.

11

55

To the extent that Porter argues that the state habeas court refused to weigh such
evidence as it relates to context or moral culpability, the state habeas court explicitly stated that
“petitioner fails to allege how the sentencing outcome would have been different had the jury
understood that petitioner’s violent acts in prison were fueled by petitioner’s alleged need to act
in the interest of self-preservation given the general nature of prison life or petitioner’s having
been taunted.” Porter II, 722 S.E.2d at 546. Porter’s assumption that the state habeas court
simply discounted his mitigation evidence also ignores a more reasonable reading of the state
habeas court’s holding: that Porter’s counsel could not have rendered deficient representation
by failing to proffer evidence that would have been inadmissible at trial. Porter, thus, has not
met his burden on the performance prong of Strickland.12
In any event, Porter has not satisfied the prejudice prong of Strickland. Much like the
context evidence regarding Porter’s experience in various juvenile detention facilities, while
Porter’s proffer of his experiences in various prisons may provide some context and some
mitigation, as stated below, infra Claim Fourteen, it is not enough to counter the strength of the
aggravating evidence. See Porter I, 661 S.E.2d at 424. As such, the Court holds that Porter has
not demonstrated that there is a reasonable probability that, but for counsels’ alleged error, the
jury would not have found that Porter was a future danger to society.
iv. Evidence Regarding Porter’s Adaptability
The Court finds that Porter has not satisfied the prejudice prong of Strickland. Porter
must mitigate strong aggravating evidence, including: (1) Porter’s prior convictions, (2)
audiotapes of portions of two telephone conversations between Porter and an unidentified
female recorded during Porter’s incarceration, which the Commonwealth introduced because
they were “directly relevant to the issue of the defendant’s lack of remorse” and included Porter

As stated previously, Porter’s trial counsels’ strategic decision not to present such evidence is
afforded heavy deference. As stated in Claim Nine, Porter’s trial counsel performed an adequate
investigation of Porter’s prison experiences. It follows that their decision not to use such evidence
was reasonable.

12

56

bragging that he was a “good shot,” and (3) testimony of Officer Reaves’s wife and sister—each
describing the devastating impact of Officer Reaves’s death upon his extended family. Porter I,
661 S.E.2d at 424. As the state habeas court noted, Porter’s evidence of his successful adaptation
to prison life would be weakened by the fact that any additional testimony from fellow inmates,
would be subject to impeachment on cross-examination. Additionally, the impact of the work
report referred to by Porter would be weakened by the fact that the report also stated that Porter
needed to “abstain from socially inappropriate behavior.” Porter II, 722 S.E.2d at 547. Porter’s
contention that he would have been viewed by the jury in a different light ignores the
fundamental fact that he has an extensive history of violent conduct in prison. As such, Porter
cannot satisfy the prejudice prong of Strickland.
As stated previously, Porter’s trial counsels’ strategic decision not to present such
evidence is afforded heavy deference. Porter’s trial counsel performed an adequate investigation.
See supra Claim 9. Their decision not to use such evidence was reasonable in light of its
minimal, and possibly counterproductive, effect as mitigation evidence. Thus, Porter cannot
meet the performance prong of Strickland and the state habeas court did not unreasonably
apply the applicable law.

XI.

Claim Eleven: Whether Porter’s Rights Were Violated Under the 8th and
14th Amendments When he was Denied the Assistance of a Risk
Assessment Expert
The Supreme Court of Virginia held, in part, that:
After the circuit court had appointed a mental health expert and a
neuropsychological expert to assist in Porter’s defense, Porter filed the Prison
Expert Motion requesting that Dr. Mark D. Cunningham be appointed “as an
expert on the assessment of the risk of violence by prison inmates and, in
particular, the risk of future dangerousness posed by the defendant if
incarcerated in a Virginia penitentiary for life.” The circuit court denied the
motion and Porter assigns error to that ruling because it did not allow him “to
rebut the Commonwealth’s allegation that the defendant constitutes a continuing
threat to society, and also to establish, as a mitigating factor, that the likelihood
of further serious violence by the defendant was low.”
....
Porter’s Prison Expert Motion for appointment of Dr. Cunningham is
notable for an essential, but missing, element. At no place in the motion does he
57

proffer that Dr. Cunningham’s statistical analysis of a projected prison
environment will “focus . . . on the particular facts of [his] history and
background, and the circumstances of his offense.” Burns, 261 Va. at 340, 541
S.E.2d at 893; see Code §§ 19.2–264.2 and Code § 19.2–264.4(C). Nothing in
Porter’s motion is a proffer of an “individualized” or “particularized” analysis of
Porter’s “prior criminal record,” “prior history”, his prior or current
incarceration, or the circumstances of the crime for which he had been convicted.
See id., Juniper, 271 Va. at 427, 626 S.E.2d at 424, Bell, 264 Va. at 201, 563
S.E.2d at 714, Burns, 261 Va. at 339–40, 541 S.E.2d at 893.
Porter’s proffer in the motion was that Dr. Cunningham would testify as
to a statistical projection of how prison restrictions could control an inmate
(situated similarly to what he would project Porter to face) in a likely prison
setting. Nothing in this proffer relates to the essential statutory elements in Code
§§ 19.2–264.2 and 19.2–264.4 that focus the future dangerousness inquiry on the
defendant’s prior history, prior criminal record and/or the circumstances of the
offense. Additionally, nothing in Porter’s proffer analyzes our application of this
statutory directive to the “defendant’s character, history and background.” Not
only is the Prison Expert Motion devoid of any reference that the proffered
evidence would be “individualized” or “particularized” to Porter, his post
conviction Motion for a New Trial was similarly silent.
....
Porter’s proffer in the Prison Expert Motion fails to address the statutory
factors under Code § 19.2–264.2 and 19.2–264.4(C) as being individualized and
particularized as to Porter’s prior history, conviction record and the
circumstances of the crime. As our precedent would render inadmissible the
statistical speculation he does offer, Porter has failed to show the “particularized
need” necessary to meet the Husske test. “In light of the inadmissibility of the
evidence that [Porter] sought to introduce through the expert, he also failed to
establish how he would be prejudiced by the lack of the expert’s assistance.” Bell,
264 Va. at 201, 563 S.E.2d at 715. Accordingly, we conclude that the circuit court
did not abuse its discretion in denying the Prison Expert Motion.
Porter I, 661 S.E.2d at 434, 437, 440, 442 (internal footnotes omitted).
A. Reasonable Application of the Law and Facts?
The Constitution requires that indigent defendants be provided with the “basic tools for
an adequate defense”; namely, that such individuals receive the tools necessary to subject the
prosecution’s evidence to “meaningful adversarial testing.” See United States v. Cronic, 466 U.S.
648, 656 (1984). Typically, “when a defendant demonstrates to the trial judge that his sanity at
the time of the offense is to be a significant factor at trial, the State must, at a minimum, assure
the defendant access to a competent psychiatrist who will conduct an appropriate examination
and assist in evaluation, preparation, and presentation of the defense.” Ake v. Oklahoma, 470
U.S. 68, 83 (1985). The Supreme Court of Virginia has established a separate but related test for
58

non-psychiatric experts. Under Husske v. Commonwealth of Virginia, the appointment of nonpsychiatric experts is only required if an indigent defendant has made a “particularized showing
of the need for the assistance of such experts.” 476 S.E.2d 920, 925 (Va. 1996).13 Further, “a
determination of future dangerousness revolves around an individual defendant and a specific
crime. Evidence regarding the general nature of prison life in a maximum security facility is not
relevant to that inquiry, even when offered in rebuttal to evidence of future dangerousness.”
Burns v. Commonwealth, 541 S.E.2d 872, 893 (Va. 2001). The “particularized need” standard
set forth in Husske has repeatedly been held to be within the federal constitutional standard
articulated in Ake. Yarbrough, 490 F. Supp. 2d at 719-20 (collecting cases supporting the
proposition that the Husske standard passes constitutional muster).
The Virginia Capital punishment statute requires the jury to make a two-stage
determination. The jury first decides whether the prosecutor has established one or both of the
statutory aggravating factors. Va. Code §§ 19.2–264.4(C), (D). If the jury finds neither
aggravator satisfied, it must impose a sentence of life imprisonment. Id. If the jury finds one or
both of the aggravators established, however, it has full discretion to impose either a death
sentence or a sentence of life imprisonment. Id. At trial, the jury found that Porter was likely to

13

The Supreme Court of Virginia stated that
[A]n indigent defendant’s constitutional right to the appointment of an expert, at the
Commonwealth’s expense, is not absolute. We hold that an indigent defendant who
seeks the appointment of an expert witness, at the Commonwealth’s expense, must
demonstrate that the subject which necessitates the assistance of the expert is likely
to be a significant factor in his defense, and that he will be prejudiced by the lack of
expert assistance. An indigent defendant may satisfy this burden by demonstrating
that the services of an expert would materially assist him in the preparation of his
defense and that the denial of such services would result in a fundamentally unfair
trial. The indigent defendant who seeks the appointment of an expert must show a
particularized need: Mere hope or suspicion that favorable evidence is available is not
enough to require that such help be provided. This particularized showing demanded
is a flexible one and must be determined on a case-by-case basis. The determination
whether a defendant has made an adequate showing of particularized necessity lies
within the discretion of the trial judge.

Husske, 476 S.E.2d at 925-26 (internal citations omitted).

59

“commit criminal acts of violence that would constitute a continuing serious threat to society.”
Va. Code § 19.2-264.4(C).
The Supreme Court of Virginia found that Porter’s proffer in his Prison Expert Motion
was that Dr. Cunningham would testify as to a statistical projection of how prison restrictions
could control an inmate in a likely prison setting. Porter I, 661 S.E.2d at 440. Porter attempts
use this Court as another venue to challenge the status quo of Supreme Court of Virginia
jurisprudence regarding risk assessment experts. (See Am. Pet. 71) (“[T]he state court limited
the universe of admissible mitigating evidence to the defendant’s character, prior record, and
circumstances of the offense. That limitation is unconstitutional.”). Porter does not point to any
Supreme Court cases that invalidate the relevant Virginia precedent and, thus, this claim fails.
DEFAULTED CLAIMS

XII.

Claim Twelve: Brady Claim Regarding Jim Downey
A. Background Facts

Porter represents that Downey’s testimony was vital to the prosecution’s case against
him in the sentencing phase of his trial. Downey was reportedly the only witness offered by the
prosecution who claimed to have suffered serious physical injury as a result of an encounter with
Porter. At the closing and rebuttal arguments of sentencing, the prosecutor reportedly
emphasized Porter’s “brutal” assault on Downey and the threats that Downey claimed Porter
made to get Downey to drop the case. (SH App. 4134-35, 4225). Jim Downey testified that
Porter brutally assaulted him in jail with a metal mop wringer in an argument over a cupcake.
The assault left Downey with permanent injuries. (Id. at 3425-27, 3432-33). Porter now alleges
that one prosecutor, Assistant Commonwealth’s Attorney Linda Bryant, had an undisclosed
agreement with Downey that she would make his probation violation “go away” if he agreed to
testify. Porter concludes that the prosecution hid this purported agreement in violation of
Brady.

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B. Analysis
The record before the Court contains conflicting testimony in which Porter relies heavily
on the testimony of Downey and the Warden relies heavily on the testimony of the prosecutors,
particularly Linda Bryant. Even if the Court were to take Downey’s word over Bryant’s and find
that Porter had been diligent as to his Brady claim, there is no evidence of prejudice. Downey
was used primarily during the sentencing phase of Porter’s conviction. Porter essentially argues
that Downey’s testimony was especially potent aggravation evidence. However, the prosecution
also presented other powerful aggravation evidence including: (1) Porter’s prior convictions; (2)
evidence of several other violent incidents in prison between Porter and fellow inmates and
prison guards; (3) audiotapes of portions of two telephone conversations between Porter and an
unidentified female recorded during Porter’s incarceration; and (4) testimony of Officer
Reaves’s wife and sister. The evidence regarding Downey was a small part of the evidence
presented to the jury by the prosecution in favor of a finding of dangerousness. Specifically,
while it is true that Downey was the only witness that was physically attacked by Porter, the
evidence of his injuries went to Porter’s history as a violent inmate and was, thus, cumulative to
the rest of Porter’s history of violence while imprisoned. As such, there was not a “reasonable
probability” that, had the evidence been disclosed to the defense and Downey’s testimony
impeached, a juror would have decided differently.14

The Warden avers that Brady does not apply to the extent that Porter asserts a continuing right to
exculpatory evidence post-conviction. It is true that “[a] criminal defendant proved guilty after a fair
trial does not have the same liberty interests as a free man.” Dist. Attorney’s Office for Third Judicial
Dist. v. Osborne, 557 U.S. 52, 68 (2009). Under the Osborne framework, “[o]nce a defendant has
been afforded a fair trial and convicted of the offense for which he was charged, the presumption of
innocence disappears.” Herrera v. Collins, 506 U.S. 390, 399 (1993). However, it is also equally true
that Brady applies to “evidence favorable to an accused that is material to guilt or to punishment.”
Cone v. Bell, 556 U.S. 449, 451 (2009). Downey was used primarily during the penalty phase of
Porter’s conviction. Porter represents that Downey was the only witness who claimed to have
suffered serious injury as a result of Porter’s conduct and that the prosecutors used him to impeach
Porter’s character. Because Porter challenges the prosecution’s use of Downey during the penalty
phase of his trial, Brady applies.
14

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To whatever extent Porter seeks to state a claim under Napue v. Illinois, 360 U.S. 264
(1959), he has neither identified any testimony that he can allege is false or impliedly false.

XIII.

Claim Thirteen: Ineffective Assistance Claim Regarding Testifying In the
Sentencing Phase

Porter first argues that the state habeas court prevented his habeas counsel from
representing him effectively and presenting this meritorious claim by establishing a page
limitation of sixty pages, thereby providing cause to excuse the default of this claim. Pursuant to
Cronic, a per se Sixth Amendment violation may arise where “assistance provided by defense
counsel is fatally compromised” to the point where a petitioner has been deprived of assistance
of counsel despite actually having counsel. United States v. Smith, 640 F.3d 580, 589 (4th Cir.
2011). This constructive denial of counsel arises in situations where the ability of a defendant’s
counsel to present an adequate defense has been effectively destroyed. See id. at 590 (discussing
cases where courts have determined that defendant and his counsel’s communication had so
deteriorated as to prevent the mounting of an adequate defense). The Fourth Circuit expressly
“cautioned against ‘broaden[ing] the per-se prejudice exception to Strickland,’ warning that it
would ‘add an extra layer of litigiousness to ineffective assistance law.’” Id. (quoting Glover v.
Miro, 262 F.3d 268, 277 (4th Cir. 2001)). Porter does not direct the Court to any case in which
page limitations of the sort complained of by him implicated concerns of the type delineated in
Cronic. Porter’s argument regarding page limitations is not enough to satisfy the “cause”
requirement of Martinez v. Ryan. 132 S. Ct. at 1315.
For the sake of argument, the Court will assess Porter’s Martinez claim in earnest.
Regarding the performance prong of Porter’s Strickland claim, Porter argues that his trial
counsel did not advise him of his right to testify during the sentencing phase of his trial. The
Warden contends that Porter’s trial counsel did advise him of this right and that they made a
conscious decision to have Porter testify and show his remorse at the guilt phase of the trial.
(Fed App. 443, ¶ 17, and 447, ¶ 11). As the Warden points out, Porter’s affidavit in support of his
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position contains inaccuracies. First, Porter argues in his affidavit, that “[n]o one ever told me
that the right not to testify was accompanied by a right to testify.” (SH App. 8238). However,
immediately prior to Porter’s testifying in the guilt phase the trial judge asked if trial counsel
were ready “to talk with Mr. Porter about his right to or not testify.” (Id. at 2924).
Generally, an evidentiary hearing is required unless it is clear from the pleadings, files,
and records that a movant is not entitled to relief. See United States v. Witherspoon, 231 F.3d
923, 925-26 (4th Cir. 2000); Raines v. United States, 423 F.2d 526, 529 (4th Cir. 1970). When a
movant presents a colorable Sixth Amendment claim showing disputed facts involving
inconsistencies beyond the record, a hearing is mandated. See United States v. Magini, 973 F.2d
261, 264 (4th Cir. 1992); Raines, 423 F.2d at 530 (“There will remain . . . a category of petitions,
usually involving credibility, that will require an evidentiary hearing in open court.”). The record
reflects that Porter’s trial counsel explicitly stated
We advised Porter of his right to testify in both the guilt/innocence and penalty
phases of his trial. We also discussed the need to express remorse to the jury. As a
matter of trial tactics, we chose not to wait for the penalty phase to do so, but
elected to have Porter express his remorse in the guilt/innocence phase of the
trial.
(Fed. App. 443, ¶ 17). Such determinations a credibility assessment between Porter and his
counsel. Raines, 423 F.2d at 530 (“When the issue is one of credibility, resolution on the basis of
affidavits can rarely be conclusive, but that is not to say they may not be helpful.”). However, as
seen below, a hearing is not necessary because Porter cannot meet the prejudice prong of
Strickland.
At first instance, it must be noted that there is some question as to whether Porter has
failed to meet his burden to argue that he was prejudiced by his inability to testify at sentencing.
Porter merely argues that, had he been able to testify, he would have presented the jury with
testimony consistent with his sworn affidavit and expressed his remorse over Reaves’s death.
(Am. Pet. 78); (SH App. 8238-75). In any event, Porter cannot establish prejudice.

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Porter’s testimony consisted of nearly forty pages of mitigation evidence in which he
touches upon his early life, experiences in school, criminal past, and his time in prison. Without
going into too much detail, Porter described his upbringing in poverty, living in dangerous
neighborhoods. Porter detailed how he was periodically beaten by his mother’s boyfriends,
including George Avant and William Wilson. Porter reported how he watched his mother being
physically beaten by her various boyfriends. He detailed how he was beaten by his mother and
Cora Gaston. He reported being neglected by Cora Gaston and sent back and forth between
caregivers due to lack of interest. Porter details his experiences in school and juvenile detention.
Porter detailed his drug dealing experience as an adolescent. He reports that a police officer
punched him in his face while he attempted to flee the scene of a crime. He asserts that he ran
into his mother’s, and not a stranger’s, house during the arrest at black stone court. Porter
attempts to mitigate his history of violence in prison by asserting that he fought Downey because
of homosexual advances. Porter also details how he was tortured, harassed, beaten, denigrated,
and called racial and anti-Muslim slurs by prison staff at Wallens Ridge State Prison. Porter
attempts to mitigate his attack of a prison guard at Wallens Ridge State Prison. Porter contends
that he was placed in long periods of segregation at Red Onion State Prison. He also states that
he was called racial slurs at that prison. Porter reports that the guards threatened prisoners with
rubber “stinger rounds.” (Id. at 8269). Finally, Porter reports that he was beaten and threatened
while being housed at the Norfolk City Jail while he awaited his trial.15 Porter also states that he
was beaten in the bullpen of the trial court prior to trial.
Even in light of Porter’s affidavit, he cannot satisfy the prejudice prong of Strickland.
Porter was able to express his remorse in the guilt phase of the trial and his trial counsel was
able to advise the jury of this testimony during the sentencing phase of the trial. (SH App.
4204). Any further testimony would have been cumulative to an extent. Further, the prosecutors
undoubtedly would have elicited evidence probative of his remorselessness including powerful
Although the Court does not refer to every detail of Porter’s affidavit, the Court considered the
entirety of the affidavit.

15

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audiotapes of portions of two telephone conversations between Porter and an unidentified
female recorded during Porter’s incarceration, which included Porter bragging that he was a
“good shot.”
At least some of the testimony in Porter’s affidavit would not be admissible.16 Other
portions of his affidavit would have contradicted his statements that his mother did a
“wonderful job” raising him. (Fed. App. 453) (citing Commonwealth’s expert report). Moreover,
Porter’s testimony would have contradicted his mother’s testimony that Porter never suffered
any physical abuse. As stated in other sections, Porter ignores the negative implications of
subjecting himself to cross-examination on the stand. In weighing the positive and mitigating
aspects of Porter’s testimony, it is incumbent upon the Court to also weigh the negative and
aggravating facts that would have been presented to the jurors. Porter would have had to explain
the bad acts that led him to state that he “posed too much of a challenge to the women who
raised him,” and that he “intentionally violated the rules of the household” as part of his
“philosophy of reciprocal retribution.” (Id. at 451). Porter likely would have given extended
testimony about his extensive criminal history and his violent conduct in both juvenile detention
facilities and in prison. Specifically, Porter would have been asked about his consistent history of
violent conduct against both fellow prisoners and corrections officers. Such evidence is “a
double-edged sword that might as easily have condemned [the petitioner] to death as excused
his actions.” See Moody, 408 F.3d at 151. While, Porter’s proposed testimony would have
provided more context and perhaps made him slightly less morally culpable, it is unlikely that it
would have created a reasonable probability that at least one juror would have concluded that
the mitigating evidence outweighed the aggravating evidence on the issue of future
dangerousness.

As stated in the previous claims, at least some of the evidence proffered by Porter would not be
admissible at trial because it is in derogation of various rules of criminal procedure or would not be
remotely relevant to future dangerousness. Further, some of the information Porter cites to is
repetitive and cumulative of information actually presented to the jury.
16

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Assuming he can assert a Martinez claim, Porter cannot establish prejudice related to his
trial counsels’ actions and, thus, his state habeas counsels’ actions were not constitutionally
deficient under Martinez.

XIV.

Claim Fourteen: Ineffective Assistance Claim Regarding Risk Assessment
Proffer

In a motion for the pretrial appointment of Dr. Cunningham to provide risk assessment
testimony, Porter’s trial counsel indicated that Dr. Cunningham would testify as to a statistical
projection of how prison restrictions could control an inmate in a prison setting. The motion
included, among other attachments, a declaration from Dr. Cunningham that was submitted in
another case, Gray v. Commonwealth, 645 S.E.2d 448, 452 (Va. 2007). The trial court denied
the motion, and the Supreme Court of Virginia held that Porter had failed to establish that the
proposed assessment would be an “individualized” or “particularized” analysis of his history,
prior criminal history, or the circumstances of the crime. Porter I, 661 S.E.2d at 440-441. The
Virginia Supreme Court specifically noted that Porter did not explicitly state that Dr.
Cunningham would perform the same type of risk assessment as he did in Gray. Id. at 441.
Porter now argues that his trial counsel’s failure to “make a simple, self-evident proffer fell well
below the minimum norms expected of an attorney under Strickland.” (Am. Pet. 80). Porter
argues that this failure prejudiced him because Dr. Cunningham was necessary as a key piece of
mitigating evidence regarding his criminal history.
A. Performance Prong of Strickland
Porter cannot satisfy the prejudice prong of Strickland. Even assuming that Porter’s trial
counsel had argued that Dr. Cunningham would provide testimony similar to the testimony he
provided in Gray, the Supreme Court of Virginia indicated that the proffer Dr. Cunningham
prepared for Gray was itself not sufficiently individualized to be admissible under its precedent.
See Porter I, 661 S.E.2d at 441 n.15. The Virginia Supreme Court stated that:

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the tenor of the Gray Declaration raises the same issues already discussed with
regard to our precedent in Burns and Bell. Even though Dr. Cunningham has
adopted the use of key words like “individualized assessment,” the analysis
appears to be of the same genre of the rejected proffers of how security measures
in a future incarceration may affect a defendant’s ability to commit more violent
acts. . . . Our precedent is clear that such evidence is not relevant either in
rebuttal or mitigation as to the future dangerousness factor.
Id. In Morva v. Commonwealth, a defendant moved for an expert using a proffer very similar to
that in Gray. 683 S.E.2d at 566. There, the defendant attempted to utilize Dr. Cunningham to
provide risk assessment testimony regarding a statistical analysis of individualized
characteristics that reportedly had been shown to reduce the likelihood of future violent
behavior in prison, including the defendant’s prior behavior while incarcerated, age, level of
educational attainment, and appraisals of his security requirements during prior incarceration.
Id. The proffer in Morva is virtually identical to the proffer in Gray. See Porter I, 661 S.E.2d at
441 n.15 (“For example, he states in the Gray Declaration that ‘[b]ecause risk is always a
function of context or preventative interventions, increased security measures can act to
significantly reduce the likelihood of Mr. Gray engaging in serious violence in prison.’”); (SH
App. 4729) (“This individualized assessment of Mr. Gray will be based on his prior behavior
while in [prison], appraisals of his security requirements during prior incarceration, his age, his
level of educational attainment, and other features and characteristics regarding him.”). Porter
could not have been prejudiced by his trial counsel’s actions because, even if his counsel had
argued that Dr. Cunningham would provide the testimony described in his declaration pursuant
to Gray, the trial court would have been within its rights to reject such testimony.17 There is not
a reasonable certainty that, but for Porter’s trial counsels’ failure to object at trial, Porter would
Porter’s argument that his trial counsel should have attempted to use Dr. Cunningham in the exact
way that he was used in Gray additionally ignores the fact that the defendant in Gray and Porter
were not similarly situated. The defendant in Gray did not have any record of violence while
incarcerated and Dr. Cunningham was able to extrapolate the future dangerousness of Mr. Gray
based on this trend of nonviolence. Gray, 645 S.E.2d at 455. Porter, on the other hand had a number
of violent altercations in both juvenile detention and while incarcerated in multiple jails.
It must be noted that Porter received, among others, a mental health expert (SH App. 186)
and a neuropsychological expert, (id. at 254), that comported with the constitutional requirements as
described in Ake. 470 U.S. at 83.

17

67

have received a favorable post-conviction ruling from the Supreme Court of Virginia providing
him with relief. Thus, Porter cannot meet the performance prong of Strickland.
B. Prejudice Prong of Strickland
As stated previously, there is a “strong presumption that counsel’s conduct falls within
the wide range of reasonable professional assistance,” and “[j]udicial scrutiny of counsel’s
performance must be highly deferential.” Strickland, 466 U.S. at 689. Porter has not met his
burden to overcome this deference. Porter has not expressly proffered exactly what Dr.
Cunningham, or another expert like him, would testify to if Porter’s counsel not been
purportedly deficient. Porter has essentially argued that Porter’s trial counsel failed “to make a
simple, self-evident proffer,” implying that Porter’s counsel should have done what the Virginia
Supreme Court said that he did not. To the extent that Porter argues that his trial counsel should
have stated that Dr. Cunningham would provide testimony similar to the testimony he provided
in Gray, he cannot meet the performance prong of Strickland.
In the motion for a risk assessment expert, Porter’s trial counsel argued, in part, that Dr.
Cunningham should have been allowed to testify as to a statistical projection of how prison
restrictions could control Porter in a likely prison setting by utilizing two arguments. First,
Porter’s trial counsel argued that his motion did not run afoul of Virginia precedent prohibiting
testimony on the general nature of prison life or prison society. (See SH App. 4716). Second,
Porter argued that the Supreme Court of Virginia misinterpreted federal constitutional law
when it held that the structure of an inmate’s life in maximum security prison was irrelevant to
rebut evidence of future dangerousness. (Id.) (citing Burns v. Commonwealth, 541 S.E.2d 872,
893 (Va. 2001)). Neither of these arguments indicates that Porter’s trial counsel somehow
misunderstood the applicable standard as Porter now implies. To the contrary, the risk
assessment expert motion indicates that Porter’s trial counsel appears to have been acutely
aware of the applicable precedent. Additionally, while Porter argues that his trial counsel failed
to make a “simple” and “self-evident” proffer that Dr. Cunningham would testify to evidence
68

regarding his personal background and history, he is not entirely correct. The Supreme Court of
Virginia noted and dismissed as overly vague Porter’s trial counsel’s related argument that Dr.
Cunningham would:
be able to opine in a scientific matter based on an individualized assessment of
Mr. Porter, which includes prior behavior while he was incarcerated in the past,
to include the 76 unadjudicated bad acts that the Commonwealth has noticed;
appraisals of past security requirements while he was incarcerated; and his age;
his level of education and comparative review of the statistical data regarding
similarly-situated inmates.
Porter I, 661 S.E.2d at 441-42. The record, thus, reflects that Porter’s trial counsel at least made
a basic argument that Dr. Cunningham’s testimony would be individualized, an argument
similar to one used and rejected in a subsequent case. See Morva, 683 S.E.2d at 563.
The true question is whether Porter’s trial counsel rendered constitutionally deficient
representation by effectively attempting to challenge the Virginia standard precluding evidence
related to prison security and violence. Porter argues that his trial counsel should have simply
attempted to use Dr. Cunningham for the same type of testimony that the Supreme Court of
Virginia allowed in Gray. It is true that Dr. Cunningham’s testimony was allowed in Gray. 645
S.E.2d at 455. However, in Gray, Dr. Cunningham provided an individualized assessment based
on a defendant’s prior behavior while in prison, appraisals of his security requirements during
incarceration, his age, level of education, and other features interpreted in light of group
statistical data regarding similarly situated inmates. (SH App. 4729). As the Supreme Court of
Virginia noted in Porter I, Dr. Cunningham’s declaration in Gray was, at least, in part the same
type of proffer regarding how security measures could affect future dangerousness. See Porter I,
661 S.E.2d at 441 n.15. Porter’s trial counsel did not render constitutionally deficient
representation by attempting to introduce a similar proffer when the Virginia Supreme Court
had not wholly rejected Dr. Cunningham’s proffer in Gray.
Moreover, Porter argues in Claim Eleven that the trial court and the Virginia Supreme
Court erred when they refused to allow him to use Dr. Cunningham to testify using group

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statistical information. (Am. Pet. 68-72). In his amended petition Porter presents a variety of
arguments, virtually identical to those of his trial counsel in his motion for a risk assessment
expert. (See SH App. 4712-19). It is unclear to this Court how virtually identical arguments could
be considered both persuasive in one context and constitutionally deficient in another. It cannot
be true that attorneys who make sophisticated constitutional arguments in an effort to challenge
existing standards in a particular state render constitutionally deficient representation when at
least a colorable argument exists for challenging such precedent. Cf. United States v. Bourgeois,
537 F. App’x 604, 657 (5th Cir. 2013) (Dr. Cunningham successfully retained, but not used, as an
expert); United States v. Caro, 461 F. Supp. 2d 478, 481 (W.D. Va. 2006), aff’d, 597 F.3d 608
(4th Cir. 2010) (same).
In sum, Porter cannot satisfy the requirements of Strickland and, thus, cannot show that
his habeas counsel was deficient pursuant to Martinez.

XV.

Claim Fifteen: Ineffective Assistance Claim Regarding Failure to Object
During Closing Argument
The Supreme Court of Virginia held that:
Porter contends that the circuit court erred during the penalty phase of
the trial when it made “prejudicial” comments and “intemperate” curative
instructions. Specifically, Porter argues the circuit court “erred by making
prejudicial comments concerning the definition of ‘society’ during defense
counsel’s closing argument; by stating prejudicial, intemperate, and one-sided
‘curative’ mid-argument instructions on this point; and by denying the
defendant’s motion for a mistrial following this incident.”
The record shows that the circuit court interrupted Porter’s counsel
during closing argument in order to instruct the jury that society meant
“[e]verybody, anywhere, anyplace, anytime” in response to comments from
counsel that “society” meant prison society. When Porter’s counsel again made
similar remarks, a discussion at the bench occurred which led the court to
comment to the jury that “society” was a “definitional word” that was not
“complex” and “pretty simple” to understand. At no point during either
interruption did Porter’s counsel object to the court’s comments. At the
conclusion of his closing arguments, Porter’s counsel moved for a mistrial based
on the court’s comments, which motion the court denied. The next day, Porter
filed a written mistrial motion, which the court also denied.
Porter contends that the court’s comments violated his Sixth Amendment
right to have counsel present a summation of the evidence to the jury and denied
him a fair opportunity to rebut the Commonwealth’s allegation that he would be a
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continuing threat to society. Porter maintains that the court’s comments
prejudiced him as the jury could have interpreted the comments as a form of
rebuttal from the court in which the court appeared to agree with the
Commonwealth’s contention that Porter was a continuing threat to society.
We do not consider the merits of Porter’s contentions because the record
shows that he failed to timely object to any of the circuit court’s comments. Rule
5:25. See also Reid v. Baumgardner, 217 Va. 769, 774, 232 S.E.2d 778, 781 (1977)
(citing Russo v. Commonwealth, 207 Va. 251, 256–57, 148 S.E.2d 820, 824–25
(1966)) (finding that an objection must be made at the time words are spoken
and the objection is waived if not timely made).
Porter I, 661 S.E.2d at 442.
Porter brings a Martinez claim, averring that his state habeas counsel was ineffective for
failing to argue that he was prejudiced by his trial counsels’ failure to immediately object to the
trial court’s curative instructions. As stated above, see supra Claim XIV, Porter’s arguments
regarding page limitations are insufficient to show “cause” exists to assert a Martinez claim. In
any event, the Court will address Porter’s claim on its merits for the sake of argument.
Porter argues that he was prejudiced by his trial counsels’ failure to immediately object
to the trial court’s curative instructions regarding the proper definition of “society” under
Virginia Code § 19.2-264.4 because the Supreme Court of Virginia refused to consider the merits
of Porter’s contentions. Porter I, 661 S.E.2d at 442. Porter’s trial counsel did not, for whatever
reason, object to the jury instructions after some extended discussion of the merits of the trial
judge’s position. (SH App. 4167-72). The Court does not have an affidavit containing Porter’s
trial counsels’ logic regarding these actions. However, in Porter’s motion for a mistrial, his trial
counsel did note that Porter was not attempting to re-define society at the time. (SH App. 564).
Porter’s trial counsel instead moved for a mistrial due to the perceived prejudicial effect of
multiple instructions to the jury that were adverse to Porter and purportedly did not allow him
to adequately respond to the prosecutor’s evidence regarding the probability that Porter was a
continuing threat. (Id. at 564-65). The Motion for Mistrial serves as evidence that Porter’s trial
counsel made a conscious decision not to object to the trial court’s jury instructions regarding
society because he was not attempting to redefine society. As stated previously, counsel’s

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strategic decisions are accorded considerable deference and there is a strong presumption that
they fell within the wide range of objectively reasonable assistance. Porter’s trial counsels’
actions were reasonable in light of the fact that the instructions related to “prison society” were
not objectionable.18
In his amended petition, Porter reasons that his trial counsel’s attempt to ask the jury to
“focus” on “prison society” was somehow correct. (Am. Pet. 83) (“[P]rison society is obviously a
segment of our society at large and it is commonsensical to think about that portion of society
closest to someone, such as neighbors or family members, when assessing a person’s
dangerousness to others.”). To the contrary, in Porter’s trial counsels’ Motion for Mistrial, he
argued that the mere implication that Porter had made a “prison society” based argument was
improper. (SH App. 565). In any event, it appears that the trial judge did not make any curative
instructions that were objectionable. See, e.g., Pannell v. Commonwealth, CIV A No. 706-CV00600, 2007 WL 1047063, at *2 (W.D. Va. Apr. 3, 2007) (concluding that a petitioner provided
no valid basis upon which his counsel could have objected to a judges jury instruction). The
Court finds that there is no reasonable certainty that the jury’s ultimate finding on the issue of
dangerousness would not have resulted if Porter’s trial counsel had objected to the trial judge’s
jury instructions on the definition of “society.”
Porter contends that the trial court’s instructions were prejudicial regarding his counsel’s
request that juror’s “step into Porter’s shoes,” (SH App. 4174), or his counsel’s statement that it
was “ironic” that the prosecutors were asking the jury to sentence Porter to death, (id. at 4163).
Porter cannot meet the performance prong of Strickland because such instructions were not
objectionable because they were not contested as inaccurate statements of the law by either
The trial court sustained the Commonwealth’s objections to Porter’s misstatement of the “society”
at issue under § 19.2-264.4 because “society” means society in general and is not limited to prison
society. See Porter I, 661 S.E.2d at 437-39; Lovitt v. Commonwealth, 537 S.E.2d 866, 879 (Va.
2000), cert. denied, 534 U.S. 815 (2001) (because “[t]he statute does not limit this consideration to
‘prison society’ when a defendant is ineligible for parole, and we decline Lovitt’s effective request that
we rewrite the statute to restrict its scope.”). The trial court’s instructions each were aimed at
assuring that the applicable standard was clear to the jury.

18

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party. It must be noted that Porter made similar arguments in his Motion for Mistrial that was
denied by the trial court.19 There is not a reasonable certainty that, but for Porter’s trial counsels’
failure to object at trial, Porter would have received a favorable post-conviction ruling from the
Supreme Court of Virginia providing him with relief. Thus, Porter cannot meet the prejudice
prong of Strickland.
In sum, Porter cannot satisfy Strickland or Martinez and this claim will be dismissed.

XVI.

Claim Sixteen: Ineffective Assistance Claim Regarding Valorie Arrington

Porter bases his Martinez claim on a theory that his habeas counsel should have brought
an ineffective assistance of counsel claim regarding his trial counsels’ failure to interview Valorie
Arrington at the guilt phase of this trial. Valorie 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 a quid pro quo agreement between Valorie
Arrington and the Commonwealth would have impeached her 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 testimony, because the jury may have found
Latoria less credible if they knew of her mother’s quid pro quo.
As stated above, see supra Claim XIV, Porter’s arguments regarding page limitations are
insufficient to show “cause” exists to assert a Martinez claim. In any event, the Court will
To the extent that Porter challenges the jury instruction(s), it is unclear whether this Court has a
proper role in assessing the validity of the trial court’s jury instructions. “A state court’s ruling on
matters of state law which do not implicate federal constitutional protections, such as the trial court’s
determination of what evidence to admit, do not present claims cognizable under § 2254.” Moore v.
Johnson, No. 7:08CV00526, 2009 WL 2474101, at *20 (W.D. Va. Aug. 12, 2009) (citing Estelle v.
McGuire, 502 U.S. 62, 72 (1991)). A federal habeas court may grant relief only upon finding that the
alleged court error under state law “by itself so infected the entire trial that the resulting conviction
violates due process.” Estelle, 502 U.S. at 72 (quoting Cupp v. Naughten, 414 U.S. 141, 147 (1973)).
19

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address Porter’s claim on its merits for the sake of argument.
The Court finds that no prejudice took place at trial. Even if Porter’s contentions about a
quid pro quo arrangement between the prosecution and Valorie Arrington were true, at least
three other witnesses that were not in the apartment with Latoria Arrington—Melvin Spruill,
Selethia Anderson, and Simone Coleman—saw Porter approach, have a brief encounter with,
shoot, and kill Officer Reaves. Moreover, the prosecution would have been able to utilize the
remaining unimpeached witnesses in Valorie Arrington’s apartment prior to the murder to
establish that Porter knew that Officer Reaves was on duty prior the murder. Valorie Arrington
does not directly implicate the other witnesses in the apartment in her new testimony.
Additionally, other witnesses saw him flee the scene of the crime, there is no reasonable
probability that the tainting of Valorie Arrington’s testimony, or even the testimony of the other
people in the apartment, would have changed the outcome of the guilt phase of the trial in the
face of so many other witnesses and other evidence. See United States v. Robinson, No. 2:07CR-00014, 2012 WL 2526985, at *7 (W.D. Va. June 29, 2012) (finding that there was no
prejudice under Strickland because there was no reasonable probability that a missing witness’s
testimony would have changed the outcome of the trial in the face of surveillance camera
footage, verified by multiple officers’ eye witness testimony).
As such, the Court need not address whether Porter’s habeas counsel’s actions were
reasonable under the performance prong of Strickland.20 466 U.S. at 697 (holding that a
determination need not be made concerning the attorney’s performance if it is clear that no
prejudice would have resulted had the attorney been deficient).

XVII. Claim Seventeen: Brady Claim Regarding Valorie Arrington
Based on a new affidavit from Valorie Arrington dated January 29, 2013, Porter
contends that Valorie Arrington entered into a quid pro quo with the prosecution to testify after

Porter does not appear to argue that Valorie Arrington’s testimony should have been used in the
sentencing phase of Porter’s trial.
20

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initially denying any knowledge of Porter. (Fed. App. 590-591). The Warden argues that there
was no such inducement. The Warden argues that the prosecutor’s sworn statement refutes
Valorie Arrington’s accusation on multiple grounds. (Resp’t’s Mem. Supp. Mot. to Dismiss Ex. 5,
at ¶ 5). Even assuming that the newly uncovered facts about Valorie Arrington’s testimony are
true, there is no indication that this evidence was affirmatively concealed by the prosecution or
that Porter’s counsel could not have discovered this information by interviewing Valorie
Arrington pursuant to a “diligent investigation.” See Zant, 499 U.S. at 498. Additionally, the
Court finds that, even if Porter’s contentions about a quid pro quo arrangement between the
prosecution and Valorie Arrington were true, as stated in the preceding claim, no prejudice is
present because several other witnesses saw Porter shoot and kill Officer Reaves.

XVIII. Cumulative Error and Prejudice
Porter argues that the evidence, viewed cumulatively, establishes a reasonable
probability that at least one juror would have concluded that the mitigating evidence outweighed
the aggravating evidence had Porter’s sentencing hearing comported with fundamental notions
of fairness. In support Porter argues that:
Claim XIV establishes that every aspect of Porter’s sentencing was infused with
constitutional deficiency. Trial counsel failed to investigate the prosecution’s
aggravating evidence (Claim IX) and the prosecution itself withheld material
impeachment evidence of a penalty-phase witness (Claim XII); trial counsel
failed abysmally in investigating and developing mitigation evidence relating to
his past (Claim VIII: childhood and Claim X: correctional experiences) even as
Porter was denied crucial mitigation evidence from a risk assessment expert on
his future dangerousness (Claims XI and XIV), and Porter was denied his own
right to testify in mitigation (Claim XIII); and then, after the presentation of
evidence, Porter was even denied the ability to make legitimate, relevant
arguments to the jury in an effort to save his life (Claim XV).
(Pet’r’s Reply 43). Typically, courts find that there is no cumulative prejudice where no
prejudice has taken place in separate claims: “[h]aving rejected each of petitioner’s individual
claims, there is no support for the proposition that such actions when considered collectively
have deprived petitioner of his constitutional right to effective assistance of counsel.” Elliott, 652
S.E.2d at 481 (quoting Lenz v. Warden, 593 S.E.2d at 305); see also Mueller v. Angelone, 181
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F.3d 557, 586 n.22 (4th Cir. 1999). In any event, the Court finds that even assuming that Porter’s
counsels’ actions were unreasonable pursuant to Claims X and XIV, whatever cumulative
prejudice that exists in this matter does not amount to a successful Strickland or Martinez claim
or invalidate the trial.

XIX.

Certificate of Appealability

An appeal may not be taken from the final order in a § 2254 proceeding unless a judge
issues a Certificate of Appealability. 28 U.S.C. § 2253(c)(1)(A); see Rule 11(a) of the Rules
Governing § 2254 Proceedings. A Certificate of Appealability should issue only if the petitioner
has made a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2).
Specifically, the petitioner must show that “jurists of reason would find it debatable whether the
petition states a valid claim of the denial of a constitutional right and that jurists of reason
would find it debatable whether the district court was correct in its procedural ruling.” Slack v.
McDaniel, 529 U.S. 473, 484 (2000); see Rose v. Lee, 252 F.3d 676, 683 (4th Cir. 2001). “While
the existence of the death penalty is not in itself grounds for the grant of a certificate of
appealability, in such a serious context any doubt as to whether one should issue must be
resolved in the petitioner’s favor.” Longworth v. Ozmint, 302 F. Supp. 2d 535, 571 (D.S.C. 2003)
(citing Clark v. Johnson, 202 F.3d 760, 764 (5th Cir. 2000)). As such, the Court GRANTS a
certificate of appealability regarding all claims because Porter has colorable arguments
regarding each claim.

XX.

Porter’s Second Motion for Leave to Conduct Discovery
On April 22, 2014, Porter moved for leave to investigate: (1) undisclosed exculpatory

statements by government witnesses; (2) possible police misconduct related to Claim Sixteen;
and (3) the prosecutor’s alleged violation of its constitutional obligations under Claim
Seventeen. This Motion will be DENIED AS MOOT.
//
//
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XXI.

Conclusion

For the reasons above, the Court will GRANT the Motion to Dismiss and DENY AS
MOOT Porter’s Second Motion for Leave to Conduct Discovery
Let the Clerk send a copy of this Memorandum Opinion to all counsel of record. An
appropriate Order shall issue.

____________/s/___________
James R. Spencer
Senior U. S. District Judge
ENTERED this

21st

day of August 2014.

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