Porter v. Gilmore

Decision Date14 August 2020
Docket NumberCivil Action No. 3:12CV550–HEH
Citation479 F.Supp.3d 252
Parties Thomas Alexander PORTER, Petitioner, v. Ivan GILMORE, Respondent.
CourtU.S. District Court — Eastern District of Virginia

Robert Edward Lee, Jr., Dawn M. Davison, Virginia Capital Representation Resource Center, Charlottesville, VA, Brian French, Pro Hac Vice, Nixon Peabody LLP, Boston, MA, Kenneth John Nichols, Nixon Peabody LLP, Washington, DC, Trey Robert Kelleter, Kelleter Law, PC, Norfolk, VA, for Petitioner.

Alphonso Simon, Jr., Matthew P. Dullaghan, Office of the Attorney General, Richmond, VA, for Respondent.


(Denying Petition After Second Remand)

Henry E. Hudson, Senior United States District Judge

Thomas Alexander Porter filed this petition for habeas corpus under 28 U.S.C. § 2254 ( "2254 Petition," ECF No. 22), challenging his capital murder conviction and death sentence for the 2005 killing of a Norfolk police officer.1 The matter is before the Court on the second remand by the United States Court of Appeals for the Fourth Circuit, and Amended Claim I.2 (ECF No. 221.) For the reasons stated below, Amended Claim I will be dismissed and the § 2254 Petition will be denied.

A. First Remand

On October 9, 2012, Porter filed his § 2254 Petition challenging his capital murder conviction and death sentence for the 2005 shooting of a Norfolk police officer. By Memorandum Opinion and Order entered on August 21, 2014, the Court granted Respondent's Motion to Dismiss the § 2254 Petition. See Porter v. Davis , No. 3:12CV550-JRS, 2014 WL 4182677, at *1 (E.D. Va. Aug. 21, 2014). On October 16, 2014, the Court denied Porter's Rule 59(e) Motion. See Porter v. Davis , No. 3:12CV550-JRS, 2014 WL 5317863, at *1 (E.D. Va. Oct. 16, 2014). Porter appealed.

On October 20, 2015, the United States Court of Appeals for the Fourth Circuit dismissed Porter's appeal and remanded the matter back to this Court. See Porter v. Zook , 803 F.3d 694, 695 (4th Cir. 2015) (" Porter I "). The Fourth Circuit observed that, "[a]mong the multiple claims Porter presented to the district court was one alleging that a juror[3 ] in his case was ‘actually biased,’ in violation of his right to trial by an impartial jury." Id. (citing Smith v. Phillips , 455 U.S. 209, 215, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982) ). The Fourth Circuit noted that, "[b]ecause the district court did not resolve [the actual bias] claim, its decision was not a final order over which we have jurisdiction" and remanded the matter to this Court. Id.

Thereafter, by Memorandum Order entered on October 29, 2015, the Court directed the parties to submit further briefing that set forth all of the facts, law, and argument with respect to the actual bias claim. (ECF No. 88.) By Memorandum Opinion and Order entered on April 25, 2016, the Court found:

(1) that Porter exhausted his actual bias claim by fairly presenting the same to the Supreme Court of Virginia; (2) that the Supreme Court of Virginia decided the merits of the actual bias claim;4 and, (3) that under either the deferential standard set forth in 28 U.S.C. § 2254(d)(1)(2), or a de novo standard of review, the actual bias claim lacks merit and may be dismissed without conducting an evidentiary hearing.

Porter v. Zook , No. 3:12CV550, 2016 WL 1688765, at * 1 (E.D. Va. Apr. 25, 2016). By Memorandum Opinion and Final Order entered on September 22, 2016, the Court denied Porter's Rule 59(e) Motion. Porter v. Zook , No. 3:12CV550, 2016 WL 5338508, at *1 (E.D. Va. Sept. 22, 2016.) Porter again appealed.

B. Second Remand

On January 23, 2018, the Fourth Circuit affirmed in part, vacated in part, and remanded the matter back to this Court with instructions. See Porter v. Zook , 898 F.3d 408, 414 (4th Cir. 2018) (" Porter II "). This time, the Fourth Circuit observed that,

After he pursued a direct and collateral review in state court, Appellant filed the operative 28 U.S.C. § 2254 petition in the district court, raising a host of challenges to his conviction and sentence. Chief among them was a claim that one of the jurors was biased against him. Specifically, when asked at voir dire whether any jurors had relatives in law enforcement, the juror did not disclose that his brother was a law enforcement officer in the jurisdiction adjacent to Norfolk.
The district court dismissed the § 2254 petition. Appellant filed a plenary appeal of that dismissal, and we dismissed the appeal and remanded for further consideration of Appellant's actual bias claim, which the district court failed to address in the first instance. On remand, the district court dismissed Appellant's actual bias claim as a matter of law without holding an evidentiary hearing. We now consider that decision and the dismissal of his other claims.
Although we affirm the majority of Appellant's claims, we are constrained to remand once again on the juror bias issue. In dismissing the actual bias claim, the district court failed to recognize the applicability of Supreme Court precedent requiring a hearing in these circumstances; erected inappropriate legal barriers and faulted Appellant for not overcoming them; and ignored "judicially-recognized factors" in determining whether a hearing is necessary. United States v. Henry , 673 F.3d 285, 291 (4th Cir. 2012). We likewise conclude that the district court erred in Porter I by dismissing Appellant's separate but related juror bias claim brought pursuant to McDonough Power Equipment, Inc. v. Greenwood , 464 U.S. 548, 104 S.Ct. 845, 78 L.Ed.2d 663 (1984).

Id. (internal citations to this case omitted).

The Fourth Circuit also determined that Porter's actual bias claim "was not heard ‘on the merits’ " by the state court, and "[a]s such, this court and the district court are not bound by the deference afforded in § 2254(d), but rather, may conduct our review of the actual bias issue de novo." Id. at 425 (citation omitted). With respect to the McDonough claim, the Fourth Circuit found that because the state "court addressed this issue on the merits ... we review under the deferential AEDPA standard." Id. at 430. However, "[e]ven under this deferential standard, the state habeas court unreasonably applied clearly established federal law" when it concluded that, because Juror Bruce P. Treakle ("Juror Treakle") indicated that he had a nephew in law enforcement, he "did not fail to ‘honestly’ answer the relevant voir dire question." Id. at 430–31. Therefore, the Fourth Circuit, "affirm[ed] in part, vacate[d] in part, and remand[ed] with instructions that the district court allow discovery and hold an evidentiary hearing on Appellant's two separate juror bias claims." Id. at 414.

C. Proceedings After Second Remand

By Order entered on November 13, 2018, the Court and the parties agreed that the close of discovery would be April 5, 2019, and that the evidentiary hearing would be held on May 1, 2019. (ECF No. 119.) On January 14, 2019, the parties entered into a Joint Order Regarding Discovery, in which the parties agreed to issue a broad subpoenas duces tecum to Juror Treakle, the juror who indicated that he had a brother in law enforcement, Pernell R. Treakle, the brother who worked for the Chesapeake Sheriff's Office, and the Chesapeake Sheriffs Office. (ECF No. 122.) On March 15, 2019, the Court heard arguments on a Motion for Discovery filed by Porter pertaining to items of discovery removed from the January 14, 2019 Joint Discovery Order. During the hearing, "the parties agreed to meet and to narrow the broad scope of Petitioner's discovery requests without the Court's intervention." (ECF No. 138, at 1.) Accordingly, by Order entered on March 19, 2019, "based upon the parties’ joint representation, the Court DENIE[D] Petitioner's Motion as MOOT, and the Court [would] await the submission of a joint discovery order that resolves the matter." (Id. ) The Court further explained that, "[i]n the event the parties are unable to successfully narrow the scope of the requested discovery, Petitioner may refile his Motion for the Court's reconsideration." (Id. ) On March 22, 2019, the Court granted Porter's request to issue an additional subpoena duces tecum to the City of Chesapeake. (ECF No. 141.)

At the request of the parties, on April 4, 2019, the Court issued a second Scheduling Order that extended the close of discovery to July 3, 2019, and moved the evidentiary hearing to August 8, 2019. (ECF No. 144.) On May 6, 2019, the Court granted the parties’ Third Joint Order Regarding Discovery allowing Porter to obtain documents from the Chesapeake Sheriff's Office, the Norfolk Police Department, and the Chesapeake Police Department. (ECF No. 147.) On May 23, 2019, Porter filed a Motion for Discovery seeking criminal records from the Alexandria and Arlington County police departments, and the Virginia Department of State Police, for a second brother of Juror Treakle, Ronald Treakle. (ECF No. 153.) Also, on May 23, 2019, the Court granted the parties’ Joint Order for Deposition of Juror Treakle. (ECF No. 155.) On July 1, 2019, Porter conducted a lengthy deposition of Juror Treakle. (ECF No. 240–1.)

On June 18, 2019, the Court conducted a hearing on the Motion for Discovery of the criminal records of Ronald Treakle. "[B]ased on the arguments of counsel and for good cause shown, the Court GRANT[ED] petitioner Thomas Alexander Porter leave to conduct discovery" with respect to the subpoena duces tecum to the Alexandria and Arlington police departments, and to the Virginia Department of State Police. (ECF No. 165, at 1.) On August 2, 2019, and at the request of the parties, the Court issued a third Scheduling Order extending the date for the close of discovery until October 11, 2019, allowing Porter the opportunity to file a motion amend Count I, and continuing the evidentiary hearing until February 12, 2020. (ECF No. 188.)

By Order entered on September 10, 2019, the Court granted Petitioner's Motion for Leave to Conduct Depositions of Calvin Treakle,...

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