Thomas Porter v. David Zook , 803 F.3d 694 ( 2015 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-5
THOMAS ALEXANDER PORTER,
Petitioner - Appellant,
v.
DAVID ZOOK, Warden, Sussex I State Prison,
Respondent - Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. James R. Spencer, Senior
District Judge. (3:12-cv-00550-JRS)
Argued: September 16, 2015 Decided: October 20, 2015
Before SHEDD, THACKER, and HARRIS, Circuit Judges.
Dismissed and remanded by published opinion. Judge Harris wrote
the opinion, in which Judge Shedd and Judge Thacker joined.
ARGUED: Dawn Michele Davison, VIRGINIA CAPITAL REPRESENTATION
RESOURCE CENTER, Charlottesville, Virginia, for Appellant.
Matthew P. Dullaghan, OFFICE OF THE ATTORNEY GENERAL OF
VIRGINIA, Richmond, Virginia, for Appellee. ON BRIEF: Robert
Lee, Lindsey Layer, VIRGINIA CAPITAL REPRESENTATION RESOURCE
CENTER, Charlottesville, Virginia; Brian K. French, NIXON
PEABODY, LLP, Boston, Massachusetts; Trey Kelleter, VANDEVENTER
BLACK, LLP, Norfolk, Virginia, for Appellant. Mark R. Herring,
Attorney General of Virginia, OFFICE OF THE ATTORNEY GENERAL OF
VIRGINIA, Richmond, Virginia, for Appellee.
PAMELA HARRIS, Circuit Judge:
Thomas Alexander Porter appeals from a district court order
dismissing his petition for a writ of habeas corpus under 28
U.S.C. § 2254. Among the multiple claims Porter presented to
the district court was one alleging that a juror in his case was
“actually biased,” in violation of his right to trial by an
impartial jury. See Smith v. Phillips, 455 U.S. 209, 215
(1982). Because the district court did not resolve that claim,
its decision was not a final order over which we have
jurisdiction. Accordingly, we must dismiss Porter’s appeal and
remand for adjudication of Porter’s actual bias claim.
I.
In 2005, Porter shot and killed police officer Stanley
Reaves in Norfolk, Virginia. On the afternoon of the murder,
Porter and another man were at the apartment of a female
acquaintance, along with her two daughters and other family
members, attempting to purchase marijuana. Officer Reaves was
called to the scene after Porter began to brandish a semi-
automatic pistol and threatened to shoot the women in the
apartment. When Officer Reaves confronted Porter just outside
the apartment, Porter drew his pistol, then concealed on his
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person, and shot Officer Reaves three times. Porter then took
Officer Reaves’s pistol and fled. 1
After a month-long manhunt led to his capture, Porter was
indicted in the Circuit Court of the City of Norfolk on multiple
charges. The most serious was a charge of capital murder, for
the intentional killing of a police officer in order to
interfere with the performance of his official duties. See Va.
Code § 18.2-31.6.
As was to be expected, Officer Reaves’s senseless killing
provoked widespread mourning and outrage in Norfolk and the
surrounding communities. The killing also generated extensive
media coverage, both during the manhunt for Porter and after his
apprehension and indictment. Citing concerns about the ability
to empanel an impartial jury in Norfolk, Porter filed a motion
for a change of venue, to which the Commonwealth consented. The
Norfolk court granted the motion and transferred Porter’s trial
to the Circuit Court of the County of Arlington.
Porter ultimately was convicted of three counts, including
capital murder. At the sentencing phase, the jury found the
1The facts surrounding Porter’s crime and the extensive
proceedings related to this case are detailed in the decision of
the Supreme Court of Virginia affirming Porter’s conviction and
sentence, Porter v. Commonwealth, 661 S.E.2d 415 (Va. 2008), as
well as the decision of the district court dismissing Porter’s
petition for federal habeas relief, Porter v. Davis, No. 3:12-
CV-550-JRS, 2014 WL 4182677 (E.D. Va. Aug. 21, 2014).
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aggravating factor of future dangerousness, see Va. Code § 19.2-
264.2, and sentenced Porter to death for capital murder. Porter
appealed his capital conviction and death sentence, and the
Supreme Court of Virginia affirmed both. Porter then filed a
petition for state habeas post-conviction relief in the Supreme
Court of Virginia, which dismissed the petition.
After the conclusion of state court proceedings, Porter
filed the federal habeas petition that is the subject of this
appeal, seeking relief under 28 U.S.C. § 2254 and raising close
to twenty different claims. The Warden of Sussex I State
Prison, where Porter is incarcerated, moved to dismiss. The
district court granted the Warden’s motion and entered an order
dismissing Porter’s petition. The court also issued Porter a
certificate of appealability, and this timely appeal followed.
II.
A.
The parties to this appeal have not questioned our
jurisdiction. But before we consider the merits of an appeal,
we have an independent “obligation to verify the existence of
appellate jurisdiction.” Palmer v. City Nat’l Bank, of W. Va.,
498 F.3d 236, 240 (4th Cir. 2007). And that jurisdiction
generally is limited to appeals from “final decisions of the
district courts,” 28 U.S.C. § 1291 — decisions that “end[] the
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litigation on the merits and leave[] nothing for the court to do
but execute the judgment.” Miller v. Simmons, 814 F.2d 962, 964
(4th Cir. 1987) (quoting Coopers & Lybrand v. Livesay, 437 U.S.
463, 467 (1978)).
“Ordinarily, a district court order is not ‘final’ until it
has resolved all claims as to all parties.” Fox v. Baltimore
City Police Dep’t, 201 F.3d 526, 530 (4th Cir. 2000) (emphasis
added). In making that assessment, we look to substance, not
form. Regardless of the label given a district court decision,
if it appears from the record that the district court has not
adjudicated all of the issues in a case, then there is no final
order. See Witherspoon v. White, 111 F.3d 399, 402 (5th Cir.
1997); C.H. ex rel. Hardwick v. Heyward, 404 F. App’x 765, 768
(4th Cir. 2010) (unpublished) (“[A] district court mislabeling a
non-final judgment ‘final’ does not make it so.” (quoting
Stillman v. Travelers Ins. Co., 88 F.3d 911, 914 (11th Cir.
1996))).
The same rule applies in habeas cases. See Prellwitz v.
Sisto, 657 F.3d 1035, 1038 (9th Cir. 2011) (dismissing habeas
appeal for lack of jurisdiction where district court failed to
adjudicate all claims); United States v. Blakely, 101 F. App’x
905, 905–06 (4th Cir. 2004) (unpublished) (same). And just as
the label attached to a district court order does not end our
inquiry into finality, the issuance of a certificate of
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appealability cannot by itself establish that the district court
actually has resolved every claim between the parties.
In short, even if a district court believes it has disposed
of an entire case, we lack appellate jurisdiction where the
court in fact has failed to enter judgment on all claims.
Witherspoon, 111 F.3d at 402; Hardwick, 404 F. App’x at 767–68.
That is what has happened here. Because the district court did
not rule on Porter’s claim of actual juror bias, we must dismiss
this appeal for want of jurisdiction.
B.
Among the myriad issues raised in Porter’s § 2254 petition
are two related but distinct claims, each alleging a violation
of the right to trial by an impartial jury. Though their
factual predicates differ slightly, both rest at least in part
on the failure of one of Porter’s jurors, Bruce Treakle, to
disclose at voir dire that he had a brother who, like the victim
in this case, was a law-enforcement officer, serving in a
jurisdiction immediately adjacent to Norfolk, Virginia.
During voir dire, Porter’s attorney asked potential jurors
whether they or members of their “close personal family” had
“worked in law enforcement in any capacity as a volunteer or an
employee.” Treakle raised his hand, and when called on,
explained that his nephew was a police officer in Arlington,
Virginia, where the trial was being held. Porter’s attorney
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asked Treakle whether this relationship would affect his ability
to be fair and impartial, and Treakle responded that it would
not. The attorney moved on to other prospective jurors, and
Treakle did not mention any additional relatives in law
enforcement.
As the district court explained, however, the record
reflects that Treakle has a second and closer relative, a
brother, who also worked in law enforcement, as a deputy sheriff
in Chesapeake, Virginia, which borders Norfolk. That fact came
to light only after Porter’s direct appeal, when Porter’s
counsel and a law student volunteer interviewed Porter’s jurors.
According to an affidavit submitted by the law student, Treakle
explained that the trial testimony of Officer Reaves’s widow had
been “moving and very emotional for him because his brother is a
sheriff’s officer in Norfolk.” 2 J.A. 2198. After “express[ing]
sympathy for law enforcement officers” who “put their lives on
the line every day for the community,” Treakle declined to speak
further to Porter’s counsel.
With this as his core factual predicate, Porter raises two
separate claims regarding juror bias in his § 2254 petition.
One focuses exclusively on Treakle’s conduct during voir dire,
2
A subsequent affidavit from Treakle’s brother, Pernell,
clarified that Pernell Treakle actually was a deputy sheriff in
Chesapeake, Virginia, at all times relevant to this case.
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and invokes McDonough Power Equipment, Inc. v. Greenwood, 464
U.S. 548 (1984). McDonough, as we have explained, “set[s] forth
a particularized test for determining whether a new trial is
required in the context of juror deceit during voir dire.”
Jones v. Cooper, 311 F.3d 306, 310 (4th Cir. 2002). Under that
test, the bar for juror misconduct is set high: Relief may be
granted only if a “juror fail[s] to answer honestly a material
question,” McDonough, 464 U.S. at 556, and a juror’s failure to
elaborate on a response that is factually correct but less than
comprehensive may not meet this standard where no follow-up
question is asked. See, e.g., Billings v. Polk, 441 F.3d 238,
245 (4th Cir. 2006) (McDonough provides for relief “only where a
juror gives a dishonest response to a question actually posed,
not where a juror innocently fails to disclose information that
might have been elicited by questions counsel did not ask”);
Fitzgerald v. Greene, 150 F.3d 357, 363-64 (4th Cir. 1998) (no
McDonough claim where juror whose granddaughter had been
molested answered that no member of his family had been “raped”
because attorney limited question to rape and did not ask
follow-up question about molestation). Applying that standard,
the district court dismissed Porter’s McDonough claim, finding
that the state court reasonably held that Treakle “did not
volunteer false information” in a way that implicates McDonough
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when he failed to advise of a second relative in law
enforcement.
Porter’s second claim is different: Relying in part but
not entirely on what he alleges was Treakle’s dishonesty at voir
dire, Porter also invokes Smith v. Phillips, 455 U.S. 209(1982), and claims that Treakle was not a fair and impartial
juror. This claim of “actual bias” (sometimes called “bias in
fact”) is, as we have made clear, distinct from a McDonough
claim. “The McDonough test is not the exclusive test” for
identifying bias, and while a McDonough claim requires a showing
of juror misconduct, an actual bias claim may succeed
“regardless of whether the juror was truthful or deceitful.”
Jones, 311 F.3d at 310; see also Fitzgerald, 150 F.3d at 364(considering McDonough and actual bias claims independently).
And of special relevance here, one factor that may give rise to
distinct concerns about actual bias is a personal relationship
that colors a juror’s perspective on a case, see Fields v.
Woodford, 309 F.3d 1095, 1103-06 (9th Cir. 2002) (remanding for
hearing on actual bias where juror’s wife had been a victim of
violent crime and district court had relied only on McDonough in
rejecting bias claim) — including a relationship with a family
member in law enforcement, see United States v. Scott, 854 F.2d
697, 698–700 (5th Cir. 1988) (ordering new trial where juror’s
failure to disclose that his brother was a deputy sheriff raised
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“a genuine prospect of actual bias,” regardless of whether
juror’s voir dire answers were dishonest under McDonough).
As is to be expected, the thrust of Porter’s actual bias
claim differs from that of his claim under McDonough. To show
actual bias, Porter relies not only on Treakle’s conduct at voir
dire, but also on the allegation that Treakle’s relationship
with his brother actually “impacted his perception of the
evidence and his participation in deciding Porter’s guilt and
punishment,” as reflected by Treakle’s admission that he was
especially moved by the testimony of Officer Reaves’s widow
because his brother was a sheriff’s officer from the same area
as Officer Reaves. Porter also draws on the fact that his trial
was moved from Norfolk because of concerns about juror bias, and
on the allegation that Chesapeake law enforcement was especially
affected by the death of Officer Reaves (who lived with his
family in Chesapeake and was killed in next-door Norfolk) and
participated in the extended manhunt for Porter. All told,
Porter argues, there is enough to support a finding that
“Treakle was actually biased against him,” or, at a minimum, to
entitle him to an evidentiary hearing on actual bias. J.A. 3699
& n.3.
The Warden, for his part, defends against Porter’s actual
bias claim separately and on the merits in his motion to
dismiss. Focusing on Treakle’s statements to Porter’s counsel,
10
as alleged in the law-student affidavit, the Warden argues that
bias in fact cannot be shown simply because Treakle responded
favorably to the “obviously moving” testimony of Officer
Reaves’s widow.
Notwithstanding these arguments, the district court
dismissed Porter’s petition without ruling on or seeming to
recognize Porter’s actual bias claim. Instead, the portion of
the court’s opinion devoted to juror bias addresses only the
McDonough test for juror misconduct during voir dire, dismissing
Porter’s McDonough claim for the reasons discussed above. It
does not acknowledge a distinct actual bias claim, and it never
passes on a central component of that claim: the law-student
affidavit that has Treakle drawing a connection between his
relationship with his brother and his response to certain trial
testimony. 3
3 The district court did observe that even if Treakle had
“failed to answer honestly a material question” under McDonough,
Porter would be unable to satisfy McDonough’s requirement that
an honest answer “would have provided a valid basis for a
challenge for cause,” 464 U.S. at 556, because he could not show
that the trial court would have dismissed Treakle for “actual or
implied bias.” The court went on, however, to consider only
whether Porter’s allegations were sufficient to warrant an
imputation of bias under the “doctrine of implied bias,” without
any analysis of actual bias. Whether or not consideration of
actual bias as a component of a McDonough claim suffices to
dispose of a freestanding actual bias claim, no such
consideration is apparent here.
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Our point here is not to fault the district court; Porter’s
petition contains a multitude of claims, some of which have
multiple subparts, and it is easy to see how one “variation[]”
of a juror bias claim, Jones, 311 F.3d at 310, could be
overlooked. And we of course express no view as to the merits
of Porter’s actual bias claim. But we are constrained to agree
with Porter that the district court did not adjudicate his
actual bias claim.
Because the district court failed to rule on Porter’s
actual bias claim, it never issued a final decision on Porter’s
habeas petition. We therefore lack jurisdiction and must
dismiss Porter’s appeal. We remand the case to the district
court so that it can decide Porter’s actual bias claim. On
remand, the district court may consider any argument or defense
properly raised by Porter or the Warden, and may conduct an
evidentiary hearing or any other proceedings it deems necessary
to resolve the claim.
III.
We dismiss Porter’s appeal and remand to the district court
for consideration of Porter’s actual bias claim. We express no
opinion regarding the district court’s dismissal of Porter’s
other claims.
DISMISSED AND REMANDED
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