Porter v. Davis

Filing 81

MEMORANDUM OPINION. Signed by District Judge James R. Spencer on 10/16/2014. Copies to all counsel of record.(jsmi, ) (Main Document 81 replaced on 10/16/2014) (tdai, ).

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
RICHMOND DIVISION

THOMAS ALEXANDER PORTER,
Petitioner,

Civil Action No. 3:i2-CV-550-JRS
KEITH W. DAVIS,

Respondent, Sussex I State Prison
Respondent.
MEMORANDUM OPINION

THISMATTER is before the Court on a Motion to Alter or Amend Judgment Pursuant to
Federal Rule of Civil Procedure 59(e) (ECF No. 79) ("Motion") filedby ThomasAlexander Porter

("Petitioner"). Petitioner requests that the Court vacate it Memorandum Opinion and Orderof

August 21, 2014 (ECF Nos. 77, 78), which grantedRespondent Keith W. Davis's ("Respondent")
Motion to Dismiss (ECF No. 57). The Respondent opposes the Motion. For the reasons below,
the Court DENIES Petitioner's Motion.
I.

FACTUAL AND PROCEDURAL BACKGROUND

The following is a brief summary of the facts and proceduralhistory relevant to the
present Motion. On March14, 2007, Petitionerwas convicted by a jury in the Circuit Courtfor

Arlington County ofthe capital murder of Norfolk Police Officer Stanley Reaves, use ofa firearm

in the commission ofa murder, and grand larceny of a firearm. Onthe afternoon ofOctober 28,

2005, Petitioner and another man, Reginald Copeland, traveled to a Norfolk apartment complex
to inquire about purchasing marijuana. They entered the apartment of Copeland's
acquaintance, Valorie Arlington, where her two daughters, two cousins, sister, and niece were

also present. Petitioner eventually began arguing with the women over the marijuana and
brandished a semi-automatic pistol concealed on his person. Copeland exited the apartment,
with Petitioner locking the doorbehind him, and then leftthe complex. After walking a few

blocks, Copeland came across three uniformed police officers, including Officer Reaves, and

reported Petitioner's behavior tothe officers. Officer Reaves then drove tothecomplex with

Copeland following on foot. As Officer Reaves exited his vehicle and approached the building,
he encountered Petitioner on the sidewalk in front of the complex. Officer Reaves confronted
Petitioner by grabbing his left arm, and instructed Petitioner to take his hands out of his

pockets. Petitioner drew the pistol concealed inhis pocket and shot Officer Reaves three times,
killing him. Petitioner then took Officer Reaves' service revolver and fled.

At trial, the prosecution arguedthat Petitioner wasguilty of capitalmurder under Va.
Code. § 18.2-31.6 because he intentionally killed Officer Reaves in order to interfere with the

performance ofhis official duties. Specifically, the prosecution arguedthat Petitioner, who was

already a convicted felon and knew that he could be sentback to jailif found in possession ofa
firearm, shotOfficer Reaves to prevent Officer Reaves from arresting him forbeing a felon
carrying a firearm. Petitioner did not deny shooting Officer Reaves, but claimed that he did so

because Officer Reaves pulled his service revolver on him, causing Petitioner to fear for his life
and safety. Akeyissue argued at the guiltphase was at what point Petitionerknewthat there
was a police officer outsidethe complex whomhe might encounter, and thus, whenhe could

haveformed the intent to interferewith a police officer engaged in his official duties. Valorie
Arlington's daughter Latoria testified that before Petitioner left the apartment, she stated aloud

that shecould see Copeland and Officer Reaves talking outside through the apartment window.

Valorie testified thatwhen Petitioner left, heranout oftheapartment and down thebuilding
stairs quicldy. Valorie's sister, Monika Arrington, and hercousins, Monica Dickens and April
Phillips, testified, corroborating Valorie and Latoria's accounts.

The Commonwealth sought the death penalty underVa. Code Ann. §19.2-264.21 based
on Petitioner's "futuredangerousness," namely the probability that he would commit acts of

1"[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

violence constituting a continuing serious threatto society. Petitioner 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" meantprison society sincePetitioner
wouldspend 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). TheCommonwealth objected, and

the trial court instructed thejurythat: "Society is everything. Everybody, anywhere, anyplace,
anytime." (SH App. 4169.) Petitioner'scounsel then continuedthat the jury shouldfocus on the
fact that society incorporates persons withinthe penitentiarysystem, 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 considerwhat mayhappen 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 prettysimple." (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. Petitioner also

movedfor the appointment of a risk assessment expert to rebut the evidence of his future
dangerousness, but this motion was denied.

The jury convicted Petitioner of all counts, and at the penalty phase, found the future

dangerousness aggravating factor. Thejury sentenced Petitioner to death for the capital murder
conviction and to a total of twenty-two (22) years ofimprisonment for the non-capital offenses.
TheVirginia Supreme Court found the following facts regarding the sentencing phaseoftrial:
Duringthe penaltystage of the proceedings, the Commonwealth presented
evidencein aggravation, which included Petitioner's prior convictionsof
misdemeanor carrying a concealed weapon in 1994, felony robberyand use ofa

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 ofheroin, felony possession
of a firearmwith drugs, and felony possession ofa firearmby a convicted felon in
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(0.

1997. misdemeanor assault and battery in 1997, and misdemeanor obstruction of
justice in 2005. The Commonwealth presented evidence of several incidents

while Petitioner was incarcerated, including altercations between Petitioner,
fellow inmates, and prison guards. The Commonwealth also introduced
audiotapes of portions of two telephone conversations between Petitioner and an

unidentified female recorded during Petitioner'sincarceration, which the
Commonwealth introduced because they "are directlyrelevant to the issue of the
defendant's lackof remorse" and included Petitioner bragging that he was a
"good shot."

The Commonwealth also introduced the testimonyof Officer Reaves' wife and
sister, and each described the devastating impact ofOfficer Reaves' death upon
his extended family. Petitioner presented mitigation evidence whichincluded
testimonyof his mother and sister as to his childhood, family life and educational
background.

Porter I, 661 S.E.2d at 424. OnJuly 16, 2007, the Circuit Court for the City ofNorfolk imposed
the jury's sentences and entered finaljudgment on July 18, 2007.
On August 13, 2007, Petitioner appealed his capital murder conviction and death

sentence to the Supreme Court ofVirginia, which affirmed the judgmenton June 6, 2008, see
Porter I. Petitionerthen petitioned the United States SupremeCourtfor a writ of certiorari,

which was denied onApril 20, 2009. OnAugust 10, 2009, Petitioner filed a petition forstate
habeas post-conviction relief in the Supreme Court ofVirginia, raising several claims of

ineffective assistance oftrial counsel under Strickland v. Washington, 466 U.S. 668, 687 (1984),
among other claims. TheRespondent moved to dismiss the state habeas petition, and afterthe

production ofrelevant work-product from Petitioner's trial counsel relating to the ineffective
assistance claims, and a supplemental motionto dismiss, the Virginia Supreme Courtdismissed
Petitioner's petition on March 2, 2012. See Porterv. Warden of theSussex I StatePrison

(Porter II), 722 S.E.2d 534 (Va. 2012). The Court denied Petitioner's petition for a rehearing on
April 28, 2011, and the trial court set Petitioner's execution forAugust 2, 2012.
Petitionerfiled a motion for a stay of the execution in this Court on July 27, 2012, and

the Courtgranted a stayof ninety (90) days on July 30, 2012. The CourtalsodirectedPetitioner

to file hispetition, notto exceed eighty (80) pages, within seventy (70) days. On July31, 2012,

by Petitioner's Motion, the Court appointed two attorneys as counsel, oneofwhom had also
represented Petitionerin his state habeas proceedings. Petitioner movedfor an extension of
time and for an extension of the page limit on September20, 2012, and the Courtdeniedboth

motions onSeptember 25, 2012. On October 9, 2012, the date his Petition was due, Petitioner

filed asecond motion for an extension oftime until February 19,2013, oralternatively, an
additional sixty (60) days to file his procedurally defaulted claims.

The Motion was filed by one ofPetitioner's appointed counsel individually seeking to
prepare claims thatPetitioner's state habeas counsel—Petitioner's other appointed counsel in
this Court—provided ineffective assistance byfailing to raise claims ofineffective assistance of

trial counsel inthestate habeas proceedings, arguing that thedefault ofthe underlying

ineffective assistance claims was excused inlight oftherecently decided Martinez v. Ryan, 132
S. Ct. 1309 (2012) (holding that the ineffective assistance of initial post-conviction review

counsel may establish cause for defaulting an ineffective assistance oftrial counsel claim).
Petitioner filed his Amended Petition on May 9, 2013. Petitioner's Petition included seventeen

claims thatcan bedivided into exhausted claims and those thathave not been procedurally
defaulted. TheExhausted claims included, in relevant part, claims that: 1) Counsel
Unreasonably Failed to Obtain a Jury Instruction on First-Degree Murder (Claim VI) and 2)
Trial Counsel Failed to Investigate Officer Reaves's History ofUnprofessional Conduct (Claim
VII).

The Respondent moved to dismiss the Petition onJune3, 2013. ECF No. 57. On August
21, 2014, the Court granted Respondent's motion to dismiss. See ECF Nos. 77, 78. On

September 17, 2014, Petitioner filed theinstant motion to alter judgment under Rule 59(e).

ECF. No. 79. The Respondent responded onSeptember 29, 2014. Petitioner did not file a reply.
II.

LEGAL STANDARD

Rule59(e) of the FederalRules of Civil Procedure governs motions to alter or amend a

judgment. The Rule simply provides, "[a] motion to alter or amend ajudgment mustbe filed no

laterthan 28 days after the entry ofthejudgment." Fed. R. Civ. P. 59(e); see also Lee-Thomas v.

Prince George's Cnty. Pub. Sch., 666 F.3d 244, 247 n.4 (4th Cir. 2012); Katyle v. PennNat'l
Gaming, Inc., 637 F.3d 462,471 n.4 (4th Cir. 2011). Under Rule 59(e), it is well settled-and the

Fourth Circuit has reiterated—that motions to alter or amend judgment may be granted in only
three circumstances: inorder "(1) to accommodate an intervening change incontrolling law; (2)
to account for new evidence not available attrial; or(3) to correct aclear error of law orprevent
manifest injustice." Zinkand v. Brown, 478 F.3d 634, 637 (4th Cir. 2007; Pac. Ins. Co. v. Am.

Nat'l Fire Ins. Co., 148 F.3d 396,403 (4th Cir. 1998) (citations omitted); Hutchinson v. Staton,
994 F.sd 1076,1081 (4th Cir. 1993), ARule 59(e) motion isnot intended to permit a disgruntled

litigant torelitigate "the very issues that the court has previously decided." Belong v.
Thompson, 790 F. Supp. 594, 618 (E.D. Va. 1991), affd, 1993 U.S. App. LEXIS 1941 (4th Cir.

1993) (quoting Durkin v. Taylor, 444 F. Supp. 879, 888 (E.D. Va. 1977)). Mere disagreement

with the Court's legal conclusion does not constitute clear error ormanifestly unjust application

oflaw. Hutchinson, 994 F.2d at1081-82. So, where the Rule 59(e) motion presents nothing
other than the petitioner's displeasure with the Court's ruling, the Court "has no proper basis
upon which to alter oramend theorder previously entered." Delong, 790 F. Supp. at 618. In
sum, a Rule 59(e) motion is "an extraordinary remedy which should be used sparingly." Pac.
Ins. Co., 148 F.3d at 403.
III.

DISCUSSION

Petitioner's Motion focuses largely onhis assertion that the Court "misapprehended or

misunderstood thefacts" and erroneously based its judgment onits misunderstanding.
Petitioner's Motionto Alter or Amend Judgment Pursuant to Federal Rule of Civil Procedure

59(e) ("Pet's Mot.") at 1-2 (quoting Barber ex rel. Barber v. Colorado Dep't Revenue, 562 F.3d
1222,1228 (10th Cir. 2009). Petitioner assertsthree related alleged "clear errors that affected
this Court's decision": (1) the Courterred in finding that Petitioner's trial counsel did not
pursue a self-defense argument; (2) the Court erred in finding that Petitioner's trial counsel

reasonably did not seeka first-degree instructionbecause it wouldhavebeen contraryto the
argument that Petitioner did not premeditate killing Officer Reaves; and (3) the Court erred in

applying the "notion" that Petitioner's trial counsel consistently argued hislack ofpremeditation
as part of their strategy. Id. at 3-5.

However, looking to the Hutchinson factors applied to motions to alter or amend

judgment under Rule 59(e) guidance, Petitioner does not present any proper grounds insupport
of amending the Court's earlierjudgment. Contrary to Petitioner's assertion, there has been no
misapprehension or misunderstanding of facts. Rather, the Court and Petitioner have a

different view as to import ofthe facts andtheirimpact onthe relevant legal analysis. After
considering the pleadings filed byboth parties, it's clear that the Respondent better understands
the Court's reasoning.
IV.

Conclusion

For the reasons above, the CourtDENIES the Motion (ECF No. 79).
Let the Clerk send a copy of this Memorandum Opinionto all counsel of record. An
appropriate Order shall issue.

/S/

James R. Spencer
Senior U. S. District Judee

ENTERED this ( b day of October 2014