Porter v. Zook

• Decision Date: 25 April 2016
• Docket Number: Civil Action No. 3:12CV550
• Court: U.S. District Court — Eastern District of Virginia
• Parties: THOMAS ALEXANDER PORTER, Petitioner, v. DAVID ZOOK, Respondent.

THOMAS ALEXANDER PORTER, Petitioner, v. DAVID ZOOK, Respondent.

Civil Action No. 3:12CV550

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Richmond Division

April 25, 2016

MEMORANDUM OPINION

Thomas Alexander Porter filed this petition for habeas corpus under 28 U.S.C. § 2254 challenging his capital murder conviction and death sentence for the 2005 shooting death of a Norfolk police officer.¹ 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. 3:12-CV-550-JRS, 2014 WL 4182677, at *1 (E.D. Va. Aug. 21, 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). The Fourth Circuit observed that, "[a]mong the multiple claims Porter presented to the district court was one alleging that a juror[²] 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 (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 tothe actual bias claim. For the reasons set forth below, the Court finds: (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;³ 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.

I. The Applicable Constraints upon Federal Habeas Corpus Review

In order to obtain federal habeas relief, at a minimum, a petitioner must demonstrate that he is "in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). The Antiterrorism and Effective Death Penalty Act ("AEDPA") of 1996 further circumscribed this Court's authority to grant relief by way of a writ of habeas corpus. Specifically, "[s]tate court factual determinations are presumed to be correct and may be rebutted only by clear and convincing evidence." Gray v. Branker, 529 F.3d 220, 228 (4th Cir. 2008) (citing 28 U.S.C. § 2254(e)(1)). Additionally, under 28 U.S.C. § 2254(d), a federal court may not grant a writ of habeas corpus based on any claim that was adjudicated on the merits in state court unless the adjudicated claim:

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d). The Supreme Court has emphasized that the question "is not whether a federal court believes the state court's determination was incorrect but whether thatdetermination was unreasonable—a substantially higher threshold." Schriro v. Landrigan, 550 U.S. 465, 473 (2007) (citing Williams v. Taylor, 529 U.S. 362, 410 (2000)).

II. Factual and Procedural Background Regarding the Actual Bias Claim

Porter was charged and ultimately convicted of the capital murder of Stanley Reaves, a Norfolk Police Officer. See Porter v. Commonwealth, 661 S.E.2d 415, 419-24 (Va. 2008). Porter moved for a change of venue from the Circuit Court for the City of Norfolk to the Circuit Court for the County of Arlington.⁴ Id. at 423. The Norfolk Circuit Court granted the motion and transferred Porter's trial to the Circuit Court of the County of Arlington ("Circuit Court"). Id.

A. Pertinent Voir Dire with Respect to Law Enforcement Officers

At the inception of voir dire, the Circuit Court informed the venire that Porter was charged with the capital murder of a Norfolk police officer. (State Habeas Record ("SH") 1197, 1201.) Juror Treakle and the rest of the venire assured the Circuit Court that they were not aware of any bias or prejudice against the Commonwealth or the accused. (SH 1202.) Defense counsel asked the venire:

Have you, any member of your family or close personal friend worked for or with any law enforcement organization, either as an employee or on a volunteer basis?

. . . .. . . [I]s anyone here, or a member of your close personal family, worked in law enforcement in any capacity as a volunteer or an employee?

(SH 1224-25.) A number of jurors raised their hands and then the following exchange occurred:

MR. MIGLIOZZI: I'm going to start in the back row. Mr. Treakle.

MR. TREAKLE: My nephew is an Arlington County police officer.

MR. MIGLIOZZI: Your nephew?

MR. TREAKLE: Yes.

MR. MIGLIOZZI: In this county here?

MR. TREAKLE: 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?

MR. TREAKLE: No.

(SH 1225-26.) Defense counsel then proceeded to question briefly the other seven members of the venire who had raised their hands. (SH 1226-29.)

Although Porter now suggests that exploring the nuances of each venire person's relationships with, and any empathy for, law enforcement officials was critical to assessing whether a juror could remain impartial, the contemporaneous voir dire suggests otherwise. As reflected in the below exchange, the attorneys trying the case and who were most familiar with the facts were content with a general reassurance from the venire person that any relationship he or she had with law enforcement officials would not impair his or her ability to render a fair and impartial verdict:

MR. SHARP: My uncle is a retired NYPD officer.

MR. MIGLIOZZI: Okay. Knowing that, and that this involves the alleged shooting of a police officer, would you have any — do you believe that those facts and that relationship would impair your ability to sit and render a fair and impartial verdict in this case?

MR. SHARP: No.

MR. MIGLIOZZI: Mr. Hurley.

MR. HURLEY: I was a consultant to the U.S. Department of Housing & Urban Development, and part of my job was to develop security plans for public housing projects. And I was in charge of the law enforcement and in charge of keeping the places safe.

MR. MIGLIOZZI: Okay. Same question as everyone else. Do you think that that would impair your ability to sit in a case such as this?

MR. HURLEY: No.

MR. MIGLIOZZI: Thank you. Mr. Delaney.

MR. DELANEY: My cousin is a prison guard in Erie, Pennsylvania, but it doesn't impair my ability.

MR. MIGLIOZZI: And I will go down the front row. Mr. Zacate.

MR. ZACATE: Yes. My cousin is a Metropolitan police officer, D.C.

MR. MIGLIOZZI: Same question to you. Do you think that would affect your ability to sit --

MR. ZACATE: No.

MR. MIGLIOZZI: -- on this jury?

MR. ZACATE: No.

MR. MIGLIOZZI: All right. Any more hands?

(SH 1228-29.)

Additional voir dire provided assurance that the jurors, including Bruce Treakle, could remain impartial in deciding the appropriate punishment despite the fact the case involved the capital murder of a police officer. Specifically, the Circuit Court broke the venire down into groups of four persons to pose specific questions about their ability to fairly decide a capital case. During that questioning, Treakle repeatedly assured the Circuit Court that he could remainimpartial and follow the Circuit Court's instructions, even though the case involved the capital murder of a police officer. (SH 1285-94.) For example, defense counsel reminded Treakle that the case involved the capital murder of a police officer (SH 1285) and asked, "If you should convict, the defendant, Mr. Porter, of capital murder, could you follow the Court's instructions and consider voting for a sentence of less than the death penalty." (SH 1292.) Treakle responded, "Yes." (SH 1292.) Thereafter, defense counsel asked:

If after you have already found that Mr. Porter is guilty beyond a reasonable doubt of the willful, deliberate and premeditated killing of a police officer, you were then presented with evidence in aggravation that there was a probability that Mr. Porter would commit criminal acts of violence that would constitute a serious threat to society, could you follow your instructions and consider voting against the death penalty and in favor of a life sentence without parole?

(SH 1293.) Treakle responded in the affirmative. (SH 1293.) Treakle and the three other venire persons were also asked, "[D]o any of the four of you know of any reason why you could not or would not be able to fairly and impartially determine the facts of the case or abide by the instructions of the Court on the sentencing issues?" (SH 1290.) All four jurors responded in the negative. (SH 1290.)

B. State Habeas Investigation

Following Porter's conviction and direct appeal, members of Porter's state habeas team interviewed individuals who were members of Porter's jury. (SH 6214.) On May 30, 2009, Maryl Sattler and Dawn Davison spoke to Bruce Treakle. (SH 6214.) During the state habeas proceedings, Porter submitted an affidavit from Sattler memorializing her conversation with Bruce Treakle:

Ms. Davison . . . explained to Mr. Treakle that we were there representing Thomas Porter, and that we were interviewing jurors as part of our review of the entire case. Mr. Treakle indicated that he understood and was willing to speakwith us. He explained that he had to pick up his wife at 3:00 p.m., so he would only be available for a few minutes.

Ms. Davison asked Mr. Treakle which of the witnesses made the greatest impression on him during

...