Porter v. Davis

• Decision Date: 21 August 2014
• Docket Number: Civil Action No. 3:12-CV-550-JRS
• Court: U.S. District Court — Eastern District of Virginia
• Parties: THOMAS ALEXANDER PORTER, Petitioner, v. KEITH W. DAVIS, Warden, Sussex I State Prison Respondent.

THOMAS ALEXANDER PORTER, Petitioner, v. KEITH W. DAVIS, Warden, Sussex I State Prison Respondent.

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

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

August 21, 2014

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.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.

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 murderconviction 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 SupremeCourt 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. Juror Misconduct Violated Porter's Rights to an Impartial Jury and to Due

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