Porter v. White, 011222 FED4, 20-13

Docket Nº20-13
Opinion JudgeTHACKER, CIRCUIT JUDGE
Party NameTHOMAS ALEXANDER PORTER, Petitioner - Appellant, v. RICK WHITE, Warden, Red Onion State Prison, Respondent - Appellee.
AttorneyBrian Kenneth French, NIXON PEABODY, LLP, Boston, Massachusetts, for Appellant. Matthew P. Dullaghan, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellee. Robert E. Lee, Jr., Dawn M. Davison, VIRGINIA CAPITAL REPRESENTATION RESOURCE CENTER, Charlottesville, Virginia, for ...
Judge PanelBefore KING, THACKER, and HARRIS, Circuit Judges.
Case DateJanuary 12, 2022
CourtUnited States Courts of Appeals, United States Court of Appeals (4th Circuit)

THOMAS ALEXANDER PORTER, Petitioner - Appellant,

v.

RICK WHITE, Warden, Red Onion State Prison, Respondent - Appellee.

No. 20-13

United States Court of Appeals, Fourth Circuit

January 12, 2022

Argued: December 7, 2021

Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. Henry E. Hudson, Senior District Judge. (3:12-cv-00550-HEH)

ARGUED:

Brian Kenneth French, NIXON PEABODY, LLP, Boston, Massachusetts, for Appellant.

Matthew P. Dullaghan, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellee.

ON BRIEF:

Robert E. Lee, Jr., Dawn M. Davison, VIRGINIA CAPITAL REPRESENTATION RESOURCE CENTER, Charlottesville, Virginia, for Appellant.

Mark R. Herring, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellee.

Before KING, THACKER, and HARRIS, Circuit Judges.

1

THACKER, CIRCUIT JUDGE

Virginia state inmate Thomas Alexander Porter ("Appellant") challenges the district court's denial of his 28 U.S.C. § 2254 petition for a writ of habeas corpus. His two juror bias claims, which center on one juror's failure to fully answer three questions asked on voir dire, are at issue in this appeal. Because we must defer to the district court's finding that the juror was credible when he testified that he did not intentionally withhold information in response to those questions, we affirm.

I.

A.

In 2007, Appellant was convicted of capital murder in Virginia state court for killing a police officer in 2005. He was sentenced to death. After unsuccessfully pursuing direct and collateral review of his conviction and sentence in state court, see Porter v. Commonwealth, 661 S.E.2d 415 (Va. 2008) (direct appeal); Porter v. Warden, 722 S.E.2d 534 (Va. 2012) (per curiam) (state habeas), Appellant filed a 28 U.S.C. § 2254 petition for a writ of habeas corpus in federal district court in October 2012. Among numerous other claims, Appellant asserted two juror bias claims -- one of actual bias and another based on McDonough Power Equipment, Inc. v. Greenwood, 464 U.S. 548 (1984). These juror bias claims stemmed from the failure of one juror, Bruce Treakle ("Juror Treakle"), to disclose in response to voir dire questioning that his brother, Pernell Treakle ("Officer Pernell"), was a law enforcement officer. The district court granted the respondent's motion to dismiss the petition without an evidentiary hearing or any further discovery. Porter v. Davis, No. 3:12-cv-550-JRS, 2014 WL 4182677 (E.D. Va. Aug. 21, 2014) ("Porter I"),

2

aff'd in part, vacated in part sub nom. Porter v. Zook, 898 F.3d 408 (4th Cir. 2018). On appeal, we held that the district court's order was not final because it had not addressed Appellant's actual bias claim, so we dismissed the appeal and remanded the case to the district court for further consideration of that claim. Porter v. Zook, 803 F.3d 694 (4th Cir. 2015) ("Porter II").

The district court dismissed Appellant's actual bias claim after the remand, again without an evidentiary hearing or any other discovery. Porter v. Zook, No. 3:12-cv-550, 2016 WL 1688765 (E.D. Va. Apr. 25, 2016) ("Porter III"), aff'd in part, vacated in part, 898 F.3d 408 (4th Cir. 2018). Appellant appealed the dismissal of that claim and of his earlier claims that were addressed in Porter I. We affirmed the district court's dismissal of all of Appellant's claims except his actual bias and McDonough juror bias claims, which we remanded for an evidentiary hearing and further discovery. Porter v. Zook, 898 F.3d 408 (4th Cir. 2018) ("Porter IV").

Discovery following remand revealed that in addition to not disclosing information about his brother Officer Pernell, Juror Treakle withheld information in response to two other voir dire questions. The district court permitted Appellant to amend his § 2254 petition to add these facts. The district court also held an evidentiary hearing. On August 14, 2020, the district court issued an order dismissing Appellant's juror bias claims, denying his § 2254 petition, and denying a certificate of appealability. Porter v. Gilmore, 479 F.Supp.3d 252 (E.D. Va. 2020) ("Porter V").

Appellant filed a timely notice of appeal on September 14, 2020. We granted a certificate of appealability on August 10, 2021.

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B.

Appellant's juror bias claims are based on Juror Treakle's failure to truthfully answer three questions asked to the venire during voir dire: • The prosecutor asked "whether you, any member of your immediate family or close friends has [sic] ever been the victim of a violent crime." J.A. 55.[1] When one potential juror asked the prosecutor to define the term "violent crime," the prosecutor responded, "Crime against a person. In other words, an assault or robbery. It could be a homicide." Id. at 56. Juror Treakle did not respond to this question, although one of his brothers, Ronald Treakle ("Ronald"), was arrested and found guilty of assault after he physically attacked another brother, Calvin Treakle ("Calvin"), on at least two occasions, and his parents died in a car accident purportedly caused by a drunk driver.

• The prosecutor also asked, "Have you or any member of your immediate your [sic] family or close friend ever been arrested or prosecuted for the alleged commission of a criminal offense?" J.A. 57. Juror Treakle did not respond to this question, either, although at least four of his family members -- his son, his brothers Ronald and Calvin, and his niece -- had been arrested and prosecuted for various criminal offenses.

• Appellant's counsel asked, "Have you, any member of your family or close personal friend worked for or with any law enforcement organization, either as an employee

4 or on a volunteer basis?" J.A. 74-75. Juror Treakle disclosed that his nephew was a police officer in the county where the trial was being held. Upon further questioning, he denied that this relationship would affect his ability to be an impartial juror. However, Juror Treakle did not mention that he had several other family members, including his brother Officer Pernell and three of his cousins, who also worked in law enforcement.

Juror Treakle testified at his October 2019 deposition, which was conducted during further discovery before the district court in this case, that his failure to fully respond to these questions "wasn't deliberate at all." J.A. 2052. Although he agreed that he "hadn't thought very hard about [his] answers to each of those questions," he explained, "It didn't dawn on me to think about those because it happened in the past and it just didn't dawn on me." Id. Juror Treakle also testified at his July 2019 deposition, which was likewise conducted during further discovery before the district court in this case, that he "did not listen" to the other jurors' affirmative answers to the questions, and although he "probably heard what they were saying, [he] just didn't comprehend . . . what they were saying." Id. at 1904-05.

II.

We review de novo the district court's denial of Appellant's 28 U.S.C. § 2254 petition. Richardson v. Kornegay, 3 F.4th 687, 695 (4th Cir. 2021) (quoting Teleguz v. Pearson, 689 F.3d 322, 327 (4th Cir. 2012)). In doing so, "we review the district court's 'legal conclusions de novo and findings of fact for clear error.'" Wolfe v. Clarke, 691 F.3d 410, 423 (4th Cir. 2012) (quoting Monroe v. Angelone, 323 F.3d 286, 299 (4th Cir. 2003)).

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"A finding [of fact] is 'clearly erroneous' when although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed." Evergreen Int'l, S.A. v. Norfolk Dredging Co., 531 F.3d 302, 308 (4th Cir. 2008) (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)).

We are also bound by § 2254(d), "which circumscribes a federal court's ability to issue a writ of habeas corpus" for a petitioner in state custody, when it applies. Owens v. Stirling, 967 F.3d 396, 410 (4th Cir. 2020). However, in a previous appeal of this case, we determined that Appellant's juror bias claims are not subject to § 2254(d). See Porter v. Zook, 898 F.3d 408, 425, 430-31 (4th Cir. 2018). Accordingly, we do not apply this deferential standard of review in this appeal.

III.

"[T]he Sixth Amendment [to the United States Constitution], made applicable to the states through the Fourteenth Amendment, requires that a state provide an impartial jury in all criminal prosecutions." Jones v. Cooper, 311 F.3d 306, 310 (4th Cir. 2002) (internal citation omitted). "If even one partial juror is empaneled and the death sentence is imposed, the State is disentitled to execute the sentence." Id. (alteration and internal quotation marks omitted). Appellant asserts that his Sixth Amendment right to an impartial jury was violated because Juror Treakle sat on the jury that convicted him. He contends that Juror Treakle's failure to fully answer the three voir dire questions demonstrates both actual bias and a successful juror bias claim under the test articulated in McDonough Power Equipment, Inc. v. Greenwood, 464 U.S. 548 (1984).

6

A.

Like the district court, we begin with Appellant's actual bias claim. Actual bias, or "bias in fact," exists when "a juror, because of his or her partiality or bias, [is] not 'capable and willing to decide the case solely on the evidence before [him or her].'" Porter v. Zook, 898 F.3d 408, 423 (4th Cir. 2018) (quoting Smith v. Phillips, 455 U.S. 209, 217 (1982)). Stated differently, a juror is actually biased when he cannot be impartial. See United States v. Turner, 389 F.3d 111, 117 (4th Cir. 2004) ("[A] juror is impartial only if he can lay aside his opinion and render a verdict based on the evidence presented in court." (quoting Patton v. Yount, 467 U.S. 1025, 1037 n.12 (1984))).

In rejecting Appellant's actual bias claim, the district court distinguished between extrinsic bias -- "any private...

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