Porter v. Warden (Habeas Corpus Order) ( 2012 )

VIRGINIA:
In the Supreme Court of Virginia held at the Supreme Court
Building in the City of Richmond, on Friday, the 2nd day of March,
2012.
PRESENT: KINSER, C.J., LEMONS, GOODWYN and MILLETTE, JJ., and
CARRICO, LACY and KOONTZ, S.JJ.
Thomas Alexander Porter, Petitioner,
against Record No. 091615
Warden of the Sussex I State Prison, Respondent.
Upon a Petition for a Writ of Habeas Corpus
Upon consideration of the petition for a writ of habeas corpus
filed August 10, 2009, the respondent's motion to dismiss, the
petitioner's opposition to the motion to dismiss, the respondent's
supplemental motion to dismiss, the petitioner's opposition to the
supplemental motion to dismiss, and the respondent's reply to
petitioner's opposition, as well as the criminal, appellate, and
habeas records in this case, the Court is of the opinion that the
motion to dismiss should be granted and the writ should not issue.
Thomas Alexander Porter was convicted in the Circuit Court of the
City of Norfolk of capital murder, use of a firearm in the commission
of a felony, and grand larceny. The jury found the aggravating factor
of "future dangerousness" and fixed Porter's sentence at death for the
capital murder conviction and 22 years' imprisonment for the non-
capital offenses. The trial court imposed the sentences fixed by the
jury. This Court affirmed petitioner's convictions and upheld the
sentence of death in Porter v. Commonwealth, 276 Va. 203, 215, 661
S.E.2d 415, 419 (2008), cert. denied, 556 U.S. 1189 (2009).
CLAIM (I)
In Claim (I), petitioner alleges he was denied the right to a
fair trial by an impartial jury because Juror T, who served as a juror
during petitioner's trial, failed to disclose during voir dire that
Juror T's brother was employed as a deputy sheriff in Chesapeake,
Virginia. When asked by defense counsel if he had any family members
involved in law enforcement, Juror T stated only that he had a nephew
who was a police officer in Arlington County, where the case was being
tried after a change of venue from the City of Norfolk. Petitioner
alleges that Juror T's service was affected because the victim was a
law enforcement officer. Petitioner contends that Juror T found the
victim's wife to be a powerful witness and that he found her testimony
moving and emotional precisely because Juror T's brother is a deputy
sheriff. Petitioner alleges that due to Juror T's concealment of his
brother's service as a Chesapeake law enforcement officer, petitioner
was unable to conduct meaningful voir dire as to the juror's potential
prejudice.
The Court holds that it can consider Claim (I), but it is without
merit. The record, including the trial transcript and the affidavits
provided in support of the petition for a writ of habeas corpus,
demonstrates that Juror T did not disclose his brother's service as a
Chesapeake law enforcement officer during voir dire or at any time
prior to the conclusion of petitioner's direct appeal. Thus, this
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constitutional claim could not have been raised at trial or on direct
appeal and is ripe for consideration.
In determining whether to grant a new trial based on an
allegation that a juror was dishonest during voir dire, this Court
applies the two-part test enunciated in McDonough Power Equipment,
Inc. v. Greenwood, 464 U.S. 548 (1984), which states that
to obtain a new trial in such a situation, a party must
first demonstrate that a juror failed to answer honestly a
material question on voir dire, and then further show that a
correct response would have provided a valid basis for a
challenge for cause. The motives for concealing information
may vary, but only those reasons that affect a juror's
impartiality can truly be said to affect the fairness of a
trial.
Id. at 556.
In this case, defense counsel, Joseph A. Migliozzi, Jr., asked
the jurors, "But is anyone here, or a member of your close personal
family, worked in law enforcement in any capacity as a volunteer or an
employee?" Several prospective jurors, including Juror T, raised hands
in response. The entirety of the exchange with Juror T was as
follows:
[JUROR T]: My nephew is an Arlington County police officer.
MR. MIGLIOZZI: Your nephew?
[JUROR T]: Yes.
MR. MIGLIOZZI: In this county here?
[JUROR T]: 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?
[JUROR T]: No.
Upon receiving Juror T's negative response, counsel moved on to the
next prospective juror. The record demonstrates that Juror T answered
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truthfully that he had a nephew who was an Arlington County Police
Officer, Arlington County being the jurisdiction where the case was
being tried following a change of venue, and that he was not asked,
nor did he have the opportunity to answer, if he had any additional
relationships with law enforcement officers. Thus, petitioner has
failed to demonstrate that Juror T failed to answer honestly a
material question during voir dire.
CLAIM (II)
In Claim (II), petitioner alleges the Commonwealth failed to
disclose exculpatory information as required by Brady v. Maryland, 373
U.S. 83 (1963), and presented false testimony or allowed it to go
uncorrected in violation of Napue v. Illinois, 360 U.S. 264 (1959),
and Giglio v. United States, 405 U.S. 150 (1972).
As the Court has stated previously:
In Brady[], the United States Supreme Court held that
"the suppression by the prosecution of evidence favorable to
an accused upon request violates due process where the
evidence is material either to guilt or to punishment,
irrespective of the good faith or bad faith of the
prosecution." Id. at 87. Whether evidence is material and
exculpatory and, therefore, subject to disclosure under
Brady is a decision left to the prosecution. Pennsylvania
v. Ritchie, 480 U.S. 39, 59 (1987). Inherent in making this
decision is the possibility that the prosecution will
mischaracterize evidence, albeit in good faith, and withhold
material exculpatory evidence which the defendant is
entitled to have under the dictates of Brady. If the
defendant does not receive such evidence, or if the
defendant learns of the evidence at a point in the
proceedings when he cannot effectively use it, his due
process rights as enunciated in Brady are violated. United
States v. Russell, 971 F.2d 1098 (4th Cir. 1992); United
States v. Shifflett, 798 F. Supp. 354 (1992); Read v.
Virginia State Bar, 233 Va. 560, 564-65, 357 S.E.2d 544,
546-47 (1987).
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. . . .
Exculpatory evidence is material if there is a
reasonable probability that the outcome of the proceeding
would have been different had the evidence been disclosed to
the defense. "A reasonable probability" is one which is
sufficient to undermine confidence in the outcome of the
proceeding. United States v. Bagley, 473 U.S. 667, 682
(1985); Robinson v. Commonwealth, 231 Va. 142, 151, 341
S.E.2d 159, 164 (1986).
Muhammad v. Warden, 274 Va. 3, 4, 646 S.E.2d 182, 186 (2007) (quoting
Muhammad v. Commonwealth, 269 Va. 451, 510, 619 S.E.2d 16, 49-50
(2005) (quoting Bowman v. Commonwealth, 248 Va. 130, 133, 445 S.E.2d
110, 111-12 (1994))), cert. denied, 552 U.S. 1319 (2008).
Furthermore, this Court has previously held that, "[i]n order to
find that a violation of Napue occurred[,] . . . we must determine
first that the testimony [at issue] was false, second that the
prosecution knew of the falsity, and finally that the falsity affected
the jury's judgment." Teleguz v. Commonwealth, 273 Va. 458, 492, 643
S.E.2d 708, 729 (2007), cert. denied, 552 U.S. 1191 (2008).
(A)
In Claim (II)(A), petitioner alleges the Commonwealth was
required to, but did not, disclose that a prosecution witness, Jim
Downey, was under arrest for a probation violation that exposed him to
a 17 year prison sentence at the time he testified at petitioner's
trial. Petitioner contends that the Commonwealth failed to disclose
that the prosecutor pursuing the probation violation charges against
Downey was the same prosecutor who elicited Downey's testimony at
petitioner's trial, and that Downey was arrested on the same day that
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he provided testimony in petitioner's trial, and then later released
on his own recognizance.
Because the information regarding Downey's arrest was available
to petitioner via public records in existence at the time of his
direct appeal, the Court holds that Claim (II)(A) is barred because
this non-jurisdictional issue could have been raised on direct appeal
and, thus, is not cognizable in a petition for a writ of habeas
corpus. Slayton v. Parrigan, 215 Va. 27, 29, 205 S.E.2d 680, 682
(1974), cert. denied, 419 U.S. 1108 (1975).
(B)
In Claim (II)(B), petitioner alleges the Commonwealth failed to
disclose to him that Simone Coleman, a prosecution witness,
contradicted the claim of Selethia Anderson, another prosecution
witness, of having seen the shooting occur. Relying on an affidavit
by Coleman, petitioner argues that Anderson's testimony that she was
sitting on her front porch when she saw the police vehicle arrive,
watched as petitioner approached the officer and shot him, and
observed petitioner run towards his parked vehicle and point his gun
in her direction, causing her to flee inside with her baby, was
subject to impeachment by Coleman's statement that she lived in the
same apartment and did not see anyone sitting on the porch during the
same time frame.
The Court need not resolve questions related to whether this
information was material because the Court holds that the evidence was
not favorable to petitioner, as it did not contradict the testimony of
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Selethia Anderson and, therefore, failure to disclose was not a
violation of Brady. In order to show a violation of Napue, petitioner
must show that Anderson's testimony was false, that the prosecution
knew of the falsity, and that the falsity affected the jury's
judgment. Napue, 360 U.S. at 269-71. See Teleguz, 273 Va. at 491-92,
643 S.E.2d at 729.
The record, including the trial transcript and Coleman's
affidavit, demonstrates that Anderson was sitting on her front porch
and saw a police vehicle pull up and park across the street. Anderson
witnessed petitioner shoot the officer, and then retreated to her home
when she saw petitioner move toward his vehicle and point a gun in her
direction. Coleman's trial testimony and affidavit demonstrate that
she noticed the police vehicle pulling up the road as she was "coming
out of [her] home and starting to cross 28th Street." After Coleman
walked down the street, she glanced back and witnessed petitioner
shoot the police officer. Coleman ran away from the shooting, but
then returned to her apartment after she saw the petitioner flee. The
witnesses' testimony supports the inference that Anderson entered and
exited the porch in between the time that the porch would have been
visible to Coleman as she exited her apartment and walked down the
street. Furthermore, Coleman's affidavit states only that she "most
likely" would have noticed if Anderson had been sitting on the porch
when Coleman exited the building.
(C)
In Claim (II)(C), petitioner alleges the Commonwealth was
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required to, but did not, disclose information regarding previous
incidents of the victim's unprofessional conduct as a Baltimore,
Maryland police officer. Petitioner contends the Commonwealth did not
provide exculpatory evidence regarding a 1994 incident in which
Officer Reaves handcuffed a suspect on the ground and slashed the
tires of the suspect's bicycle. During this incident, a bystander,
George Hite, objected and was arrested for disorderly conduct. A
fellow Baltimore police officer swept Hite's legs out from under him,
causing Hite to hit his head resulting in Hite's death. In a
subsequent civil lawsuit, Officer Reaves stated he believed his fellow
officer had acted appropriately, although eyewitnesses contradicted
Reaves' version of events.
Another incident of Officer Reaves' alleged unprofessional
conduct occurred in 2001, when he allegedly engaged in a pursuit of a
dirt bike in contravention of police policy. When Officer Reaves
caught up to the dirt bike, the driver lost control of the bike, was
thrown into a utility pole and died of head injuries. Petitioner
argues that evidence regarding these incidents would have undermined
the Commonwealth's assertions that Officer Reaves was not aggressive,
bolstered petitioner's defense that Officer Reaves drew his gun and
pointed it at petitioner without provocation, and created a reasonable
probability that at least one juror would have concluded the
Commonwealth did not establish "future dangerousness" during the
sentencing phase.
The Court need not resolve questions related to whether this
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information was material because the Court holds that the evidence was
not known to the Commonwealth. The record, including a 2009 Freedom
of Information Act response from the Assistant City Attorney for the
City of Norfolk and the affidavit of Philip Evans II, Deputy
Commonwealth's Attorney for the City of Norfolk, demonstrates that the
Commonwealth did not possess any information concerning the 1994 or
2001 incidents. Furthermore, pursuant to Brady, there is no
obligation to produce information available to the defendant from
other sources, including diligent investigation by the defense. See
Fullwood v. Lee, 290 F.3d 663, 686 (4th Cir. 2002); Cherrix v.
Commonwealth, 257 Va. 292, 302-03, 513 S.E.2d 642, 649, cert. denied,
528 U.S. 873 (1999).
(D)
In Claim (II)(D), petitioner contends that the Commonwealth
failed to disclose that Juror T had a brother who was a deputy sheriff
in the City of Chesapeake.
The Court finds that Claim (II)(D) is without merit. The record,
including the affidavits of the Deputy Commonwealth's Attorney and
petitioner's counsel, demonstrates that the Commonwealth received the
venire list the day before petitioner's trial, and petitioner's
counsel received it the day of trial. The venire list provided no
indication that Juror T had a brother who was a deputy sheriff in
another jurisdiction. Thus, petitioner has not established that the
Commonwealth possessed any additional information that was not
provided to petitioner. Moreover, the record does not show that the
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Commonwealth knew Juror T's brother was employed as a deputy sheriff.
Petitioner argues that all of the allegedly exculpatory evidence
must be considered in its totality when determining the materiality of
the evidence. Petitioner is correct that when considering materiality,
we consider suppressed evidence as a whole, not item by item. See
Workman v. Commonwealth, 272 Va. 633, 645, 636 S.E.2d 368, 375 (2006);
Kyles v. Whitley, 514 U.S. 419, 436 (1995). However, we do not reach
the issue of materiality unless we first determine that the evidence
was not available to petitioner, or is favorable to the accused
because it is exculpatory or because it may be used for impeachment.
Workman, 272 Va. at 644-45, 636 S.E.2d at 374; Muhammad, 274 Va. at
13, 646 S.E.2d at 191. The allegedly withheld evidence in Claim
(II)(B) was not favorable to the accused. Furthermore, the evidence
in Claims (II)(C) and (II)(D) was as available to the petitioner as it
was to the Commonwealth. For these reasons, we will not address the
issue of materiality, and we further hold that Claims (II)(B),
(II)(C), and (II)(D) are without merit.
CLAIM (III)
In several portions of Claim (III), petitioner alleges counsel
were ineffective for failing to investigate Porter's childhood and
educational history. Counsel Joseph A. Migliozzi, Jr., executed an
affidavit on September 8, 2009 recounting counsel's recollections that
the investigation was conducted and that counsel made strategic
choices concerning additional investigation based upon the information
counsel had received. Counsel was unable, however, to provide much
10
detail because counsel's notes had been retained by the Office of the
Capital Defender, which would not allow counsel to review the files
citing privilege on behalf of petitioner. This Court ruled that
petitioner had waived his privilege with respect to counsel's notes
and had waived the work product protection as to materials relating to
petitioner's claims that counsel had failed to investigate
petitioner's childhood and educational history. The circuit court
subsequently reviewed the materials in camera and ordered that certain
documents be turned over to the respondent for review by counsel.
In his supplemental motion to dismiss, the respondent relies on a
second affidavit also executed by counsel on August 2, 2011 and
reasserts the motion for production of counsel's files in their
entirety and contends that although the files confirmed the existence
of extended interviews with Bernice Porter and Cora Gaston and twelve
separate interviews with school officials, counsel was unable to
provide further details because of the redacted nature of the notes he
received. Relying on counsel's assertion that the files confirm
counsel's earlier recollection of his investigation and strategic
choices and noting that petitioner has provided no evidence that such
recollection is inaccurate, the Court denies respondent's latest
motion for the production of counsel's files and holds that the record
is sufficient for the Court to address petitioner's claims.
(A)
In Claim (III)(A), petitioner alleges he was denied the effective
assistance of counsel because counsel failed to request and obtain a
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jury instruction on the lesser-included offense of first-degree
murder. Petitioner asserts that without proof of the gradation
element that the killing was for the purpose of interfering with the
law enforcement officer's official duties, the killing of an officer
is no more than first-degree murder. Petitioner testified that
Officer Reaves grabbed petitioner's arm and pointed a gun at
petitioner without provocation. Petitioner contends that this
testimony was corroborated in part by Reggie Copeland and Melvin
Spruill, and established that petitioner believed Officer Reaves was
not acting in his official capacity as a law enforcement officer at
the time of the shooting. Petitioner argues counsel's failure to
request the instruction was not strategic because counsel fought for
instructions on other lesser offenses, and there was more than a
scintilla of evidence to support granting the first-degree murder
instruction.
The Court holds that Claim (III)(A) satisfies neither the
"performance" nor the "prejudice" prong of the two-part test
enunciated in Strickland v. Washington, 466 U.S. 668, 687 (1984). The
record, including the trial transcript and the September 8, 2009
affidavit of counsel, demonstrates that counsel made a strategic
decision not to request a jury instruction that was not supported by
the evidence. Porter testified that he knew there was a warrant out
for his arrest, that he knew he was carrying a firearm although he was
a convicted felon, and that he saw Officer Reaves in his police
uniform. Although Porter also testified that he was not thinking
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about the warrant and that he thought Officer Reaves was "pulling a
gun on him," accepting petitioner's testimony as true, and viewing the
evidence in the light most favorable to him, nothing supports a
finding that Porter reasonably believed the officer was not engaged in
the execution of official duties at the time of the shooting.
Furthermore, central to petitioner's defense was counsel's argument
that petitioner did not premeditate his action. Therefore, a first-
degree murder instruction, which would necessarily include the element
of premeditation, would have been inconsistent with counsel's theory.
Counsel's strategic decision to not request a first-degree murder
instruction was reasonable under counsel's theory of the case. Thus,
petitioner has failed to demonstrate that counsel's performance was
deficient or that there is a reasonable probability that, but for
counsel's alleged error, the result of the proceeding would have been
different.
(B)
In Claim (III)(B), petitioner alleges he was denied the effective
assistance of counsel because counsel failed to emphasize Reggie
Copeland's testimony that he saw petitioner exit the apartment
building as Copeland ran up to Officer Reaves, who had parked in front
of the apartment building. Petitioner asserts this testimony directly
conflicted with the testimony of Latoria Arrington, and of other
witnesses in the apartment, that petitioner did not leave the
apartment until she said, "Why is Reggie talking to the police
officer?" According to petitioner, Copeland's testimony, when viewed
13
with the petitioner's testimony, was sufficient to cast doubt on the
prosecution's argument that petitioner knew he would be confronting a
police officer when he left the apartment. Petitioner continues that
despite the fact that the timing sequence was critical, his counsel
only argued to the jury that Arrington and the other apartment
occupants could not have seen out of the window due to the positioning
of the blinds. Petitioner contends that counsel failed to emphasize
that Copeland's "far more powerful and credible" testimony undermined
Arrington's credibility, and created reasonable doubt that Reaves was
killed for the purpose of interfering with his official duties.
The Court holds that Claim (III)(B) satisfies neither the
"performance" nor the "prejudice" prong of the two-part test
enunciated in Strickland. The record, including the trial transcript
and the September 8, 2009 affidavit of counsel, demonstrates that
counsel reasonably chose to pursue a trial strategy of attacking the
credibility of the Commonwealth's witnesses, Reggie Copeland and
Latoria Arrington. Furthermore, petitioner's own statement
established that he saw Officer Reaves on the sidewalk before the
shooting, which would support the Commonwealth's argument that
petitioner chose to confront Officer Reaves. Thus, petitioner has
failed to demonstrate that counsel's performance was deficient or that
there is a reasonable probability that, but for counsel's alleged
error, the result of the proceeding would have been different.
(C)
In Claim (III)(C), petitioner alleges he was denied the effective
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assistance of counsel because counsel failed to adequately challenge
the authenticity of the third jailhouse letter that petitioner
allegedly wrote to a fellow inmate indicating that he shot Officer
Reaves because petitioner believed a warrant for his arrest existed,
and he did not want to return to jail. Petitioner asserts that
counsel should have obtained an expert in handwriting analysis to
opine that someone other than petitioner wrote the note.
The Court holds that Claim (III)(C) satisfies neither the
"performance" nor the "prejudice" prong of the two-part test
enunciated in Strickland. The record, including the trial transcript,
demonstrates that petitioner's counsel objected to the admission of
the third jailhouse letter based on a lack of foundation, and the
court overruled the objection. Petitioner has failed to establish
that a handwriting expert would have opined that petitioner did not
write the letter. Henry Chatman, the recipient of the letter,
testified that he understood the letter came from petitioner. No
evidence, other than petitioner's testimony, suggested the letter was
not authentic. The affidavit of Nancy McCann, a document and
handwriting examiner, submitted by petitioner, does not support
petitioner's contention that he did not write the letter. McCann
states only that "it cannot be conclusively determined through the
application of accepted methods and techniques" that petitioner wrote
the disputed letter. In fact, petitioner's counsel had obtained the
services of an expert handwriting examiner, and after reviewing the
expert's possible testimony, counsel made a strategic decision to not
15
call the expert. Thus, petitioner has failed to demonstrate that
counsel's performance was deficient or that there is a reasonable
probability that, but for counsel's alleged error, the result of the
proceeding would have been different.
(D)
In Claim (III)(D), petitioner alleges he was denied the effective
assistance of counsel because counsel failed to conduct an adequate
investigation into petitioner's childhood and present important
mitigating evidence regarding the abuse petitioner received as a
child. Petitioner asserts counsel should have presented evidence that
he was physically beaten by his caregivers and grew up amidst
neighborhood and family violence. Petitioner contends that counsel
conducted only cursory interviews with petitioner's mother and other
adults in his life as he grew up, and did not follow up on evidence of
physical abuse. Petitioner further asserts counsel's failure resulted
in depriving his mental health expert of information crucial to his
evaluation, and undermined confidence in the jurors' sentencing phase
decisions because they were not provided with a proper context for
understanding petitioner's behavior.
The Court holds that Claim (III)(D) satisfies neither the
"performance" nor the "prejudice" prong of the two-part test
enunciated in Strickland. The record, including the trial transcript,
demonstrates that counsel presented mitigating evidence to the jury
through testimony about the violent neighborhood in which petitioner
was raised, the abuse he observed his mother receive, the loss of a
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younger sibling, the lack of parental involvement and supervision, and
the learning and emotional difficulties petitioner experienced in
school. Petitioner's mother, Bernice Porter, specifically denied that
any incidents of physical or sexual abuse of petitioner were ever
reported. The affidavits of counsel demonstrate that counsel
investigated and interviewed numerous friends and family members, and
made the strategic decision not to call one of petitioner's caregivers
because she would not have made a good witness. Thus, petitioner has
failed to demonstrate that counsel's performance was deficient or that
there is a reasonable probability that, but for counsel's alleged
error, the result of the proceeding would have been different.
(E)
In Claim (III)(E), petitioner alleges he was denied the effective
assistance of counsel because counsel failed to reasonably investigate
the Commonwealth's evidence of some of petitioner's prior convictions
and unadjudicated bad acts. Petitioner contends that counsel was
unable to rebut this aggravating evidence because counsel did not
investigate these incidents and merely whispered questions about the
incidents to petitioner as the Commonwealth's witnesses were taking
the stand. According to petitioner, a proper investigation would have
uncovered valuable mitigating information that would have explained
how petitioner was provoked prior to each incident and how petitioner
was punished afterwards.
Regarding another incident, petitioner alleges he punched another
inmate in 1998 because the other inmate had attacked petitioner for no
17
reason. Petitioner alleges counsel failed to discover that
Corrections Officer Adkins' testimony of an incident in which
petitioner grabbed Adkins' shirt through the cell bars and banged
Adkins against the bars did not match Adkins' contemporaneous report
of the incident. In addition, contrary to Adkins' testimony,
petitioner alleges that after the incident petitioner was mistreated
and punished. Concerning another incident, petitioner alleges that an
inmate attacked by petitioner in 1997 had provoked petitioner by
bumping into him during a fight the inmate was having with two other
men, and by uttering "fighting words."
Petitioner contends that counsel made petitioner's reaction
appear less reasonable by characterizing the "fighting words" as a
homosexual advance. Petitioner also alleges counsel further failed to
ascertain that on February 15, 2007, petitioner did not "refuse to go
to court, saying he was not going to court without a fight."
Petitioner states that he had questioned deputies as to a change in
the strip search procedure, and that deputies responded by rushing the
cell, punching and kicking petitioner, shooting petitioner with "mace
balls," and pushing petitioner into an elevator wall. Petitioner
alleges that counsel refused to take any action despite petitioner's
complaints and "failed to confront witnesses about the unprovoked and
unjustified quality of their actions." Finally, petitioner contends
counsel failed to rebut the Commonwealth's argument that petitioner
ran away from police into a "stranger's house" by establishing that
petitioner lived in the townhouse with his mother.
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The Court holds that Claim (III)(E) satisfies neither the
"performance" nor the "prejudice" prong of the two-part test
enunciated in Strickland. Petitioner fails to allege how the
punishment or response petitioner may have received following each
event serves to mitigate petitioner's actions. The record, including
the trial transcript and the September 8, 2009 affidavit of counsel,
demonstrates that counsel had investigators review the nearly 100
convictions and unadjudicated bad acts the Commonwealth intended to
rely on during the sentencing phase of trial and obtain as much
information as possible about each incident. Counsel personally
visited Wallens Ridge and Red Onion State Prisons to obtain
information about the incidents that took place while petitioner was
an inmate at these facilities. Counsel also cross-examined witnesses
about the incidents. Counsel attempted to elicit testimony that a
guard had overheard the victim in the 1998 incident say something to
petitioner prior to the altercation, which the officer denied.
Counsel further elicited testimony that petitioner required medical
treatment after the 1998 incident.
As to the Adkins incident, counsel specifically questioned Adkins
as to whether his testimony had changed from his initial report, and
Adkins clarified his testimony. As to the 1997 incident, counsel
attempted to present evidence that the victim verbally provoked
petitioner, but the court sustained the Commonwealth's objection to
such testimony on the grounds that "words never justify an assault."
Counsel reasonably followed up with questions regarding whether the
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inmate ever made physical advances toward petitioner, in order to
demonstrate that petitioner had been provoked. Counsel also pursued
this line of questioning because petitioner had told counsel that the
victim was "queer."
As to the February 15, 2007 incident, counsel questioned the
testifying deputy as to whether the officers had changed the
procedures by which petitioner was searched to find out "if there was
any particular reason why this may have caused this event to take
place." Further, the deputy testified that petitioner was physically
handled, by stating officers "took him down," held him against a wall
so he could not move, pushed him into his cell, and "forced him in
there hard." Finally, petitioner cites no support in the record for
his assertion that he resided in the townhouse to which he fled during
a police chase. Thus, petitioner has failed to demonstrate that
counsel's performance was deficient or that there is a reasonable
probability that, but for counsel's alleged error, the result of the
proceeding would have been different.
(F)(1)
In Claim (III)(F)(1), petitioner alleges he was denied the
effective assistance of counsel because counsel failed to present
accurate evidence of petitioner's experience in juvenile detention and
the conditions under which he resided. Petitioner alleges "the
prosecution painted juvenile detention as offering Porter a wealth of
benefits that he rejected," and contends that counsel should have
established that the juvenile detention facilities were "violent,
20
overcrowded, stressful, and unsanitary." Relying on a 1992 report,
and affidavits from a former Norfolk Detention Center Supervisor and a
fellow inmate, petitioner alleges that treatment and rehabilitation
were impossible due to the conditions, and that the juveniles were in
the facilities, "first and foremost, for punishment."
The Court holds that Claim (III)(F)(1) satisfies neither the
"performance" nor the "prejudice" prong of the two-part test
enunciated in Strickland. The record, including the trial transcript,
demonstrates that the Commonwealth argued that petitioner was
committed to several juvenile detention centers, which included "all
the services that can be offered." Further, petitioner does not
allege that he was denied any specific support services. To the
contrary, the affidavit submitted by petitioner from Lanett W.
Brailey, a teacher at one of the juvenile correctional centers in
which petitioner resided, indicates that petitioner was recommended
for, and received, special education classes. Petitioner fails to
allege how the sentencing outcome would have been different had
counsel presented information concerning the general conditions of
these facilities. Thus, petitioner has failed to demonstrate that
counsel's performance was deficient or that there is a reasonable
probability that, but for counsel's alleged error, the result of the
proceeding would have been different.
(F)(2)
In Claim (III)(F)(2), petitioner alleges he was denied the
effective assistance of counsel because counsel failed to present
21
evidence of the conditions under which petitioner lived while in
prison, which would have given a context to jurors for his prison
behavior and shown that he acted in the interest of self-preservation.
Petitioner contends that counsel should have presented evidence that
petitioner lived for four years in stressful and inhumane conditions,
and that inmates at Wallens Ridge and Red Onion State Prisons were
subjected to being beaten, electrically shocked, and strapped to a
bed. Petitioner argues that guards frequently called inmates,
including petitioner, by racial slurs. Specifically, petitioner
claims that guards harassed him due to his religious beliefs and
because he had a female friend of a different race. According to
petitioner, prisoners were often punished severely for even minor
infractions.
The Court holds that Claim (III)(F)(2) satisfies neither the
"performance" nor the "prejudice" prong of the two-part test
enunciated in Strickland. Other than his claims that he was verbally
abused because of his relationship with a woman of another race and
his religious beliefs, petitioner does not allege that the evidence he
contends counsel should have proffered was related to petitioner's
individual experience. This Court has held that "evidence regarding
the general nature of prison life" is not admissible even if used to
rebut the aggravating factor of future dangerousness. Bell v.
Commonwealth, 264 Va. 172, 201, 563 S.E.2d 695, 714 (2002)(internal
quotation marks and alteration omitted), cert. denied, 537 U.S. 1123(2003). Furthermore, petitioner fails to allege how the sentencing
22
outcome would have been different had the jury understood that
petitioner's violent acts in prison were fueled by petitioner's
alleged need to act in the interest of self-preservation given the
general nature of prison life or petitioner's having been taunted.
Thus, petitioner has failed to demonstrate that counsel's performance
was deficient or that there is a reasonable probability that, but for
counsel's alleged error, the result of the proceeding would have been
different.
(F)(3)
In Claim (III)(F)(3), petitioner alleges he was denied the
effective assistance of counsel because counsel failed to present
evidence of petitioner's successful adaptation to prison life.
Petitioner asserts that he was well regarded by fellow inmates who
considered him to be generous and able to avoid trouble. Petitioner
received a report from a counselor at Red Onion that he was a
satisfactory worker as a "Houseman," and was a respectful employee.
Petitioner contends that this information, had it been presented to
jurors, would have lessened his moral culpability and tended to show
that he did not pose a future danger to society if sentenced to life
imprisonment.
The Court holds that Claim (III)(F)(3) satisfies neither the
"performance" nor the "prejudice" prong of the two-part test
enunciated in Strickland. During the penalty phase, counsel argued
that petitioner's incarceration for life was appropriate because
petitioner had been in the penitentiary for seven years and had
23
incurred only two infractions, and that in all of his previous
convictions he had either pleaded guilty or cooperated against a co-
defendant. Petitioner has not established that additional testimony
from fellow inmates, who would be subject to cross-examination, or the
admission of one prison record indicating that in an annual review
petitioner received a satisfactory work report, but also stating that
petitioner needed to "abstain from socially inappropriate behavior,"
would have increased the likelihood of the jury sentencing petitioner
to life imprisonment. Thus, petitioner has failed to demonstrate that
counsel's performance was deficient or that there is a reasonable
probability that, but for counsel's alleged error, the result of the
proceeding would have been different.
(G)
In Claim (III)(G), petitioner alleges he was denied the effective
assistance of counsel because counsel failed to adequately investigate
petitioner's educational history and present the mitigating factors
that would have been revealed by such investigation. In Claim
(III)(G)(1), petitioner asserts counsel should have presented evidence
that petitioner's previous teachers and social workers identified
petitioner's mother and great aunt as disinterested and uninvolved.
Petitioner contends that he had special needs in his early educational
development and he did not receive stability and security from his
home life. In Claim (III)(G)(2), petitioner asserts counsel should
have presented evidence that his early educational experience was
disrupted by his chaotic home life in which he was frequently
24
transferred to different schools and different homes. Petitioner
contends that his unstable situation resulted in his lack of a genuine
chance to succeed in school, and that counsel was unable to
effectively rebut the Commonwealth's assertions that petitioner was
solely responsible for his shortcomings, because counsel presented
some school records, but failed to call as witnesses, former educators
who remembered petitioner's positive behavior and character. In Claim
(III)(G)(3), petitioner asserts counsel should have presented evidence
that petitioner was identified in his early school years as needing
special education and psychological services. In Claim (III)(G)(4),
petitioner asserts counsel failed to adequately investigate
petitioner's disciplinary notices in school, and such investigation
would have shown petitioner's conduct was a manifestation of his
"handicapping condition," not malicious intent. Petitioner contends
that had counsel accurately presented information regarding his
educational experiences, the evidence would have rebutted the
Commonwealth's contentions that petitioner rejected efforts to help
him, and would have humanized him by showing that his difficulties
were the predictable product of his disabilities, not evil or malice.
The Court holds that Claim (III)(G) satisfies neither the
"performance" nor the "prejudice" prong of the two-part test
enunciated in Strickland. The record, including the affidavits of
counsel, demonstrates that counsel thoroughly investigated
petitioner's school record, including conducting twelve separate
interviews with school officials in Norfolk and New Jersey. The trial
25
transcript demonstrates that counsel presented an extensive amount of
testimony and evidence relating to petitioner's educational challenges
and emotional and behavioral difficulties in school. Counsel
presented testimony from seven teachers and one school psychiatrist
and submitted school records into evidence, including petitioner's
individual education plans and psychological reports. The testimony
showed that petitioner was classified in school at various times as
learning disabled, emotionally disturbed, and neurologically impaired.
Three teachers testified that petitioner did not pose a behavioral
problem in school, but that he was immature, solitary, cried a lot,
never smiled, and needed special services. One teacher, Katherine
Towler, stated that petitioner was cooperative during school testing
and was a willing student, but that his disabilities led to
frustration. Another teacher, Grace Houchins, testified that
petitioner had "no village" to support him, and "was in a world almost
by himself." Furthermore, Houchins had opined that, at the time
petitioner was in school, "necessary help now will help prevent much
sorrow down the road."
Counsel introduced records of the school psychiatrist, which
showed the psychiatrist believed petitioner's emotional problems were
causing his academic issues. The affidavit of counsel demonstrates
that counsel contacted "nearly all" of petitioner's living teachers in
Norfolk, and traveled to New Jersey to interview additional teachers
and principals. In closing argument, counsel noted petitioner's
frequent school transfers and his long existing classification in
26
school as emotionally disturbed. Counsel argued the choices
petitioner made were derived from the circumstances he was exposed to
throughout his life, and that petitioner had no model to guide him and
no one to instruct him. Petitioner does not identify any additional
non-cumulative mitigating evidence derived by his educational history
that he contends counsel failed to present. Thus, petitioner has
failed to demonstrate that counsel's performance was deficient or that
there is a reasonable probability that, but for counsel's alleged
error, the result of the proceeding would have been different.
(H)
In Claim (III)(H), petitioner alleges he was denied the effective
assistance of counsel because counsel failed to offer expert mental
health evidence. Petitioner asserts that counsel should have
presented testimony by Dr. Stejskal, petitioner's court appointed
defense psychologist, to show that petitioner's experiences of
childhood abandonment and abuse derailed his emotional and
psychological development. Dr. Stejskal would have opined that
petitioner's adjustment was compromised by neuro-developmental
problems and his mother's unwillingness to provide him with proper
supervision and structure. Petitioner contends that, had counsel
provided Dr. Stejskal's testimony, it would have rebutted the
Commonwealth's claim that petitioner's conduct was solely the result
of his "choices" rather than the outcome of circumstances over which
he had no control.
The Court holds that Claim (III)(H) satisfies neither the
27
"performance" nor the "prejudice" prong of the two-part test
enunciated in Strickland. The record, including the September 8, 2009
affidavit of counsel, demonstrates that counsel made a strategic
decision not to present Dr. Stejskal's testimony because the
introduction of such evidence would have allowed the Commonwealth to
present damaging testimony from its own expert, Dr. Leigh D. Hagan.
Dr. Hagan's opinions would have contradicted and undercut Dr.
Stejskal's testimony, as Dr. Hagan's report stated that "while certain
factors of [petitioner's] childhood history were mitigating because
they were beyond his control, the much larger portion of the
defendant's life reflects his own independent decision making
capacity," and that "[t]he way in which he used that capacity
compromised his character." Counsel's decision to present evidence of
petitioner's emotional and neurological issues through his school
records and not present Dr. Stejskal's testimony prevented the
Commonwealth from submitting Dr. Hagan's opinions as rebuttal
evidence. Thus, petitioner has failed to demonstrate that counsel's
performance was deficient or that there is a reasonable probability
that, but for counsel's alleged error, the result of the proceeding
would have been different.
(I)
In Claim (III)(I), petitioner alleges he was denied the effective
assistance of counsel because counsel failed to discover and use
evidence of Officer Reaves' history of unprofessional conduct while he
28
was a Baltimore City police officer. 1 Petitioner contends that counsel
should have requested Reaves' personnel file when Reaves' previous
performance was obviously relevant because the main factual dispute at
trial was whether Reaves approached petitioner forcefully and with his
gun drawn. Petitioner contends that had the jury been presented with
such evidence, there is a reasonable probability that he would not
have been convicted of capital murder and at least one juror would
have found that "an aggravating factor was not proven beyond a
reasonable doubt or that death was not the most appropriate
punishment."
The Court holds that Claim (III)(I) satisfies neither the
"performance" nor the "prejudice" prong of the two-part test
enunciated in Strickland. Petitioner acknowledges that counsel was
not on notice of Reaves' alleged prior employment history. Petitioner
fails to articulate how personnel records relating to Officer Reaves'
employment as a Baltimore police officer, which do not show any formal
disciplinary proceedings and do not reference any instances of Officer
Reaves inappropriately displaying or using his service weapon, would
have been relevant in bolstering petitioner's testimony that Officer
Reaves forcefully approached petitioner with his gun drawn. Thus,
petitioner has failed to demonstrate that counsel's performance was
deficient or that there is a reasonable probability that, but for
1
In support of this claim, petitioner attempts to incorporate
"the availability, substance, and prejudice resulting from counsel's
omissions" from Claim (II)(C). The Court declines to consider these
allegations "by reference."
29
counsel's alleged error, the result of the proceeding would have been
different.
(J)
In Claim (III)(J), petitioner alleges that, if this Court holds
that the Brady claim raised in Claim (II)(D) is defaulted because
counsel should have raised it at trial and on direct appeal, he was
denied the effective assistance of counsel because counsel failed to
raise the claim that Juror T was biased due to his brother's
employment as a law enforcement officer at trial and on direct appeal.
Petitioner further contends that participation of a biased juror is a
"structural error" and prejudice is presumed. See, e.g., Jackson v.
Warden, 271 Va. 434, 436, 627 S.E.2d 776, 781 (2006) (describing
"structural error" as "defying harmless error review").
The Court holds that Claim (III)(J) satisfies neither the
"performance" nor the "prejudice" prong of the two-part test
enunciated in Strickland. The record, including the trial transcript
and the September 8, 2009 affidavit of counsel, demonstrates that
counsel did not know that Juror T had a brother in law enforcement.
More importantly, petitioner has provided no admissible evidence that
Juror T was biased against petitioner as a result of his brother's
employment. Petitioner has failed to demonstrate that counsel's
performance was deficient or that there is a reasonable probability
that, but for counsel's alleged error, the result of the proceeding
would have been different.
(K)
30
In Claim (III)(K), petitioner alleges he was denied the effective
assistance of counsel because counsel failed to request that Officer
Reaves' gun holster be tested for fingerprints. Petitioner asserts
such testing would have shown that petitioner's fingerprints were not
on the snap and thumb break of the holster, which would have supported
his testimony that Officer Reaves had already drawn his gun when
petitioner shot him, and undermined the Commonwealth's assertion that
petitioner took the gun from Officer Reaves' holster.
The Court holds that Claim (III)(K) satisfies neither the
"performance" nor the "prejudice" prong of the two-part test
enunciated in Strickland. Petitioner has failed to proffer any
evidence that, had fingerprint testing been done, it would have shown
the absence of his fingerprints on Officer Reaves' holster, or that
such evidence would have supported petitioner's version of the events.
Although the testimony at trial demonstrated that the holster snap
would have had to be released in order for the gun to be removed,
there was no evidence that unsnapping the device required a maneuver
that would leave a clear and identifiable fingerprint. Thus,
petitioner has failed to demonstrate that counsel's performance was
deficient or that there is a reasonable probability that, but for
counsel's alleged error, the result of the proceeding would have been
different.
(L)
In Claim (III)(L), petitioner alleges he was denied the effective
assistance of counsel because counsel failed to renew and expand the
31
motion to recuse the trial judge. Petitioner also alleges that
counsel failed to object every time the trial judge engaged in acts of
bias against petitioner. 2
The Court holds that Claim (III)(L) satisfies neither the
"performance" nor the "prejudice" prong of the two-part test
enunciated in Strickland. The record, including the trial transcript
and the pretrial motions, demonstrates that counsel did file a motion
for the trial judge to recuse himself prior to trial based on the fact
that the judge was a former prosecutor whose office had prosecuted
petitioner for several offenses, including at least one that had been
admitted into evidence. Counsel renewed the motion for recusal, on
different grounds, at the end of trial. Petitioner has not alleged
what further actions counsel should have taken to object to the trial
judge's participation on this basis. Thus, petitioner has failed to
demonstrate that counsel's performance was deficient or that there is
a reasonable probability that, but for counsel's alleged error, the
result of the proceeding would have been different.
CLAIM (IV)
In Claim (IV), petitioner alleges he was deprived of his due
process right to a fair trial because the trial judge had a
preexisting bias against petitioner based on the judge's former career
as a prosecutor.
2
In support of this claim, petitioner attempts to incorporate
petitioner's allegations in Claim (IV) that the trial court deprived
petitioner of his right to a fair trial. The Court declines to
consider these allegations "by reference."
32
The Court holds that Claim (IV) is barred because this non-
jurisdictional issue could have been raised at trial and on direct
appeal and, thus, is not cognizable in a petition for a writ of habeas
corpus. Slayton, 215 Va. at 29, 205 S.E.2d at 682.
Upon consideration whereof, petitioner's motion to supplement the
appendix, motions for production of documents and for appointment of
experts, and prayer for a plenary hearing are denied.
Upon consideration of the respondent's "Motion to Strike Appendix
Entries," the petitioner's opposition and the respondent's reply, the
Court declines to strike the entries. The Court will, however, apply
the appropriate evidentiary rules and the petitioner's assertions that
certain statements are not being offered for the truth of the matters
asserted when considering the admissibility of the exhibits and of any
statements contained in the exhibits.
Upon consideration of the petitioner's "Motion to Strike the
Warden's Evidence Proffered with the Motion to Dismiss," the
respondent's opposition and the petitioner's reply, the Court denies
petitioner's motion to strike all of the Warden's evidence, holding
that the submission of affidavits is permissible pursuant to Code
§ 8.01-660. The Court will, however, apply the appropriate
evidentiary rules and the respondent's assertions that certain
statements are not being offered for the truth of the matters asserted
when considering the admissibility of the exhibits and statements
contained therein.
Accordingly, for the reasons stated, the petition is dismissed.
33
This order shall be published in the Virginia Reports.
A Copy,
Teste:
Patricia L. Harrington, Clerk
34