USCA4 Appeal: 20-13 Doc: 60 Filed: 01/12/2022 Pg: 1 of 17

PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 20-13

THOMAS ALEXANDER PORTER,

Petitioner - Appellant,

v.

RICK WHITE, Warden, Red Onion State Prison,

Respondent - Appellee.

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: December 7, 2021 Decided: January 12, 2022

Before KING, THACKER, and HARRIS, Circuit Judges.

Affirmed by published opinion. Judge Thacker wrote the opinion, in which Judge King and Judge Harris joined.

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. USCA4 Appeal: 20-13 Doc: 60 Filed: 01/12/2022 Pg: 2 of 17

THACKER, Circuit Judge:

Virginia state inmate Thomas Alexander Porter (“Appellant”) challenges the district

court’s denial of his

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,

(Va. 2008) (direct appeal); Porter v. Warden,

(Va. 2012) (per curiam) (state habeas), Appellant filed a

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,

(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,

(E.D. Va. Aug. 21, 2014) (“Porter I”),

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aff’d in part, vacated in part sub nom. Porter v. Zook,

(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,

(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,

(E.D. Va. Apr. 25, 2016) (“Porter III”), aff’d in part, vacated in part,

(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,

(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,

(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.”

. 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

1 Citations to the “J.A.” refer to the Joint Appendix filed by the parties in this appeal.

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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.”

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.”

at 1904–05.

II.

We review de novo the district court’s denial of Appellant’s

petition. Richardson v. Kornegay,

(4th Cir. 2021) (quoting Teleguz v.

Pearson,

(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,

(4th Cir. 2012) (quoting Monroe v. Angelone,

(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.,

(4th Cir. 2008) (quoting United States v. U.S. Gypsum Co.,

(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,

(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,

, 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,

(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.”

(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,

(1984).

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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,

(4th Cir. 2018) (quoting Smith v. Phillips,

(1982)).

Stated differently, a juror is actually biased when he cannot be impartial. See United States

v. Turner,

(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,

, 1037 n.12 (1984))).

In rejecting Appellant’s actual bias claim, the district court distinguished between

extrinsic bias -- “any private communication, contact, or tampering directly or indirectly,

with a juror during a trial about the matter pending before the jury,” Remmer v. United

States,

(1954) -- and intrinsic bias -- “the general body of experiences

that jurors are understood to bring with them to the jury room,” Warger v. Shauers,

, 51 (2014). The district court observed that there was no evidence of any improper

external influence on Juror Treakle, and it specifically found that Juror Treakle did not hear

or see anything about Appellant’s crimes prior to the trial and that Juror Treakle never

discussed the details of Appellant’s trial with his brother Officer Pernell. See Porter v.

Gilmore,

, 281–83 (E.D. Va. 2020) (“Porter V”).

The district court acknowledged that Appellant’s “contention that Juror Treakle

omitted material information in response to the voir dire questions . . . involves potential

intrinsic bias.” Porter V, 479 F. Supp. 3d at 284. However, the district court found that

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Juror Treakle’s failure to fully answer the three questions was unintentional and that he did

not deliberately omit material information when giving his responses. Id. at 285–94.

Although the facts here are certainly suspect, we are mindful of the standard of review, and

we discern no clear error in these findings with respect to any of the three voir dire

questions.

1.

Turning first to the question about whether Juror Treakle or any of his family

members or close friends had been victims of violent crimes, the district court found that

Juror Treakle did not intentionally fail to disclose that his brother Ronald had physically

attacked his brother Calvin on multiple occasions or that his parents were killed in a crash

purportedly caused by a drunk driver.

Specifically, the district court found that Juror Treakle was not “subjectively aware

that his brother Calvin had been a victim of a violent crime” because Juror Treakle “was

not familiar with the details of the [first] incident [in which his brother Ronald assaulted

his brother Calvin], when it occurred, or the extent of any injury” and “did not know about

a second assault.” Porter V, 479 F. Supp. 3d at 293. Indeed, consistent with the district

court’s findings, Juror Treakle testified at his deposition that he did not consider the

“disagreement[s]” between Calvin and Ronald to be “assault” and that he didn’t think about

the incidents, which occurred more than a decade before Appellant’s trial, because he did

not associate with Ronald much and they happened “[t]oo far -- long ago.” J.A. 1958,

1967.

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The district court also found that Juror Treakle’s “knowledge of [his parents’ car

accident] was limited, and that he did not view [it] as a violent crime.” Porter V, 479 F.

Supp. 3d at 294. Again, the district court’s findings are supported by Juror Treakle’s

deposition testimony: Juror Treakle testified only that his aunt told him that his parents had

been killed by “a drunk driver [who] was speeding or racing during that Christmas holiday

back in 1977,” when Juror Treakle was a teenager. J.A. 1875.

In sum, the district court reasonably concluded that Juror Treakle did not knowingly

fail to disclose this information in response to the voir dire question about whether Juror

Treakle or any of his family members or close friends had been victims of violent crimes.

Appellant attempts to discredit the district court’s findings in this regard by

manufacturing inconsistencies in Juror Treakle’s testimony. For instance, Appellant

contrasts Juror Treakle’s testimony that he was not thinking about the incidents involving

Calvin and Ronald during voir dire with his ability to remember them during his deposition

more than a decade after the trial. But the fact that Juror Treakle recalled the incidents

during his deposition does not bear on whether he deliberately omitted that information

during voir dire. Appellant has not identified any evidence suggesting that Juror Treakle

withheld information when answering the voir dire question about whether he or any of his

family members or close friends had been victims of violent crimes to conceal bias or to

secure a seat on Appellant’s jury. Therefore, the district court properly held that Appellant

had not demonstrated actual bias with regard to this question.

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2.

Turning next to the question about whether Juror Treakle or any of his family

members or close friends had ever been arrested or prosecuted for a criminal offense, the

district court likewise found that Juror Treakle did not intentionally fail to disclose that his

son, his brothers Ronald and Calvin, and his niece had all been prosecuted for various

criminal offenses. Having considered the testimony of Juror Treakle, the district court

stated:

Although Juror Treakle’s silence with respect to this question provided a false assurance to counsel during voir dire that he did not have family members who had been arrested or prosecuted, Juror Treakle’s silence was not a knowingly false response. Juror Treakle did not think about these family members during voir dire.

Porter V, 479 F. Supp. 3d at 290–91. Again, consistent with the district court’s finding,

Juror Treakle testified during his deposition that he “just didn’t think about saying

anything” in response to this voir dire question because he “just never thought about --

stuff that happened in the past.” J.A. 2020. He testified that his son had spent some time

in jail and on probation for drug charges as a teenager a decade before the trial, and he

seemed to know generally that his brothers and niece had been involved in criminal

proceedings but did not know or recall many details. Juror Treakle avowed that it “didn’t

even dawn on [him] to talk about them at all” during voir dire. Id. at 1903.

Appellant again attempts to undercut the district court’s findings by pointing to

Juror Treakle’s ability to recall his relatives’ criminal offenses during his deposition.

However, Juror Treakle acknowledged that these incidents happened only after being 10 USCA4 Appeal: 20-13 Doc: 60 Filed: 01/12/2022 Pg: 11 of 17

directly asked about them and after Appellant’s counsel provided documentation for Juror

Treakle to review. That context bolsters, rather than undermines, the district court’s

findings because Juror Treakle was unable to articulate the details of his relatives’ criminal

offenses absent prompting from Appellant’s counsel. More importantly, Appellant has

again not identified any evidence demonstrating that Juror Treakle intentionally failed to

disclose information when answering the question about whether Juror Treakle or any of

his family members or close friends had ever been arrested or prosecuted for a criminal

offense in order to conceal bias or to secure a seat on Appellant’s jury. As such, the district

court likewise properly held that Appellant had not demonstrated actual bias with respect

to this question.

3.

Finally, turning to the question about whether Juror Treakle or any of his family

members or close friends worked in law enforcement, the district court found that Juror

Treakle was not “intentionally dishonest” when he failed to disclose that his brother Officer

Pernell and several of his cousins were employed by law enforcement agencies. Porter V,

479 F. Supp. 3d at 285.

As to Juror Treakle’s cousins, the district court found that he “was not close with

these cousins, rarely saw them, and he did not think of these cousins ‘at all’ during voir

dire or trial.” Porter V, 479 F. Supp. 3d at 286. This is consistent with Juror Treakle’s

deposition testimony. Juror Treakle testified that he didn’t think to mention his cousins

because he did not “associate with them all that much” and “never thought about them at

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all.” J.A. 1863, 1897. Indeed, Juror Treakle had difficulty even remembering the name of

his cousin who worked for the Federal Bureau of Investigation.

Appellant faults Juror Treakle for not thinking very hard about his answer to this

voir dire question and for carelessly failing to provide information about his cousins, but,

again, this lends credence to the district court’s determination that Juror Treakle’s failure

to mention them was inadvertent. And, again, Appellant has not identified any evidence

indicating that Juror Treakle intentionally failed to disclose that his cousins worked for law

enforcement agencies in an effort to conceal bias or to secure a seat on Appellant’s jury.

Juror Treakle’s failure to disclose that his brother Officer Pernell was a police

officer presents a more difficult question. The district court found, as with respect to Juror

Treakle’s omission of his cousins, that Juror Treakle did not intentionally withhold

information about Officer Pernell in response to the voir dire question about whether he or

any of his family members or close friends worked in law enforcement. Porter V, 479 F.

Supp. 3d at 286. The district court reasoned that Juror Treakle “readily admitted that he

had a close family relative [his nephew] in law enforcement,” “freely admitted to

[Appellant’s] habeas counsel that his brother [Officer] Pernell worked in law

enforcement,” and “steadfastly believed that he had mentioned or thought he had

mentioned [Officer Pernell] during voir dire.” Id. Juror Treakle indeed testified during his

deposition that he thought he had mentioned Officer Pernell during voir dire, but he “might

have made -- made a mistake by being nervous and forgot to mention his name.” J.A.

1894. He stated, “I thought I did [mention Officer Pernell]. There was so much going on

at that time going through my mind, I just -- just slipped my memory.” Id. at 1899.

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At odds with Juror Treakle’s testimony, Officer Pernell testified during the

evidentiary hearing that Juror Treakle told him he had been “summoned for jury duty,” and

Officer Pernell told Juror Treakle “that if he told the jury committee that he had a brother

that was a police officer he might not get selected to serve on it.” J.A. 1676. Juror Treakle,

on the other hand, testified during his deposition that he did not talk to anyone except his

wife about his jury service. The district court acknowledged Officer Pernell’s testimony

but downplayed its importance, finding that at the time Juror Treakle discussed his jury

service with Officer Pernell, “Juror Treakle did not know what case he would serve on or

if he would even be selected as a juror.” Porter V, 479 F. Supp. 3d at 272.

Appellant complains -- and rightfully so -- that the district court did not resolve the

conflict between Officer Pernell’s testimony and Juror Treakle’s testimony. But in finding

that “Juror Treakle’s nondisclosure of [Officer Pernell] was inadvertent,” the district court

plainly credited Juror Treakle’s testimony that he thought he had mentioned Officer Pernell

in response to the question about whether he or any of his family members or close friends

worked in law enforcement. Porter V, 479 F. Supp. 3d at 273. That is, the district court,

after hearing testimony from both Juror Treakle and Officer Pernell, found that Juror

Treakle was credible when he testified that he believed he had disclosed that his brother

Officer Pernell was a police officer. While we may have made a different decision in the

face of the testimony of a police officer versus Juror Treakle, we must defer to the district

court’s credibility determination. Teleguz v. Zook,

(4th Cir. 2015)

(“[T]he court below, and not the reviewing court, weighs the credibility, and we generally

do not review credibility determinations.” (internal quotation marks omitted)). Therefore,

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we hold that the district court did not clearly err by finding that Juror Treakle did not

intentionally withhold information about Officer Pernell during voir dire.

Of course, as the district court acknowledged, “an actual bias claim may succeed

‘regardless of whether the juror was truthful or deceitful’” in giving his voir dire answers.

Porter v. Zook,

(4th Cir. 2015) (“Porter II”) (quoting Jones,

). Here, Appellant simply asserts that Juror Treakle’s dishonesty demonstrates actual

bias. He has not pointed to any evidence aside from Officer Pernell’s testimony to

demonstrate such dishonesty, and the district court found that Juror Treakle was not

knowingly dishonest. Accordingly, the district court properly concluded that Appellant

had not established actual bias with respect to the question about whether Juror Treakle or

any of his family members or close friends worked in law enforcement.

4.

Appellant also argues that Juror Treakle’s pattern of withholding information in

response to voir dire questions, his admission that he was not really focusing on the voir

dire questions, and the volume of information withheld are sufficient to demonstrate actual

bias. The district court rejected this argument based on its finding “that Juror Treakle did

not repeatedly lie or intentionally conceal material information in his voir dire to secure a

spot on the jury.” Porter V, 479 F. Supp. 3d at 295. The district court elaborated:

[W]ith respect to two of the questions, Juror Treakle was not aware that his answers were false. He truthfully answered that he had a family member in law enforcement and steadfastly believed that he mentioned his brother. The record establishes that Juror Treakle did not realize or understand that his answer should have been “yes” to the question about family members

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who had been victims of violent crime. With respect to the question about whether anyone in his family had been arrested or prosecuted, Juror Treakle simply did not think of these individuals and had no motive to lie about the answer to secure a seat on the jury.

Id.

We likewise reject Appellant’s argument. The Supreme Court has emphasized that

a juror cannot be expected to behave according to some consummate ideal: “There is little

doubt that postverdict investigation into juror misconduct would in some instances lead to

the invalidation of verdicts reached after irresponsible or improper juror behavior. It is not

at all clear, however, that the jury system could survive such efforts to perfect it.” Tanner

v. United States,

(1987). That Juror Treakle may have been careless

when considering his responses to the voir dire questions, as Appellant argues, does not

indicate that he had a preconceived notion about the result of Appellant’s trial or that he

could not decide Appellant’s guilt or innocence based on the evidence adduced at trial. In

short, carelessness is not equivalent to partiality. See Jones,

(“Misstatements on a jury questionnaire . . . are troubling, but do not, standing alone,

indicate juror bias.”). And although a juror’s dishonesty during voir dire “is evidence of

bias,” Conaway v. Polk,

(4th Cir. 2006) (quoting Burton v. Johnson,

(10th Cir. 1991)), critically, the district court here found that Juror Treakle

was not being dishonest when he failed to fully answer the three voir dire questions.

Accordingly, like the district court, we decline to infer that Juror Treakle was

actually biased solely because he failed to disclose information in response to the three voir

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dire questions, where the district court found “that Juror Treakle did not repeatedly lie or

intentionally conceal material information in his voir dire to secure a spot on the jury.”

Porter V, 479 F. Supp. 3d at 295.

B.

We next address Appellant’s juror bias claim based on McDonough Power

Equipment, Inc. v. Greenwood,

(1984). To succeed on a McDonough claim,

a litigant must demonstrate that (1) “a juror failed to answer honestly a material question

on voir dire” and (2) “a correct response would have provided a valid basis for a challenge

for cause.”

. Even when a litigant makes this showing, however, “a juror’s bias

is only established under McDonough if the juror’s ‘motives for concealing information’

or the ‘reasons that affect [the] juror’s impartiality can truly be said to affect the fairness

of [the] trial.’” Conaway,

(quoting McDonough,

).

Appellant argues that the district court erred by requiring him to prove as much in order to

succeed on his McDonough claim. But we have made clear that “[t]he inquiry into whether

a trial’s fairness was affected essentially constitutes a third part” of the McDonough test.

at 585 n.20 (citing Jones,

).

Appellant focuses on the second McDonough element and argues that the district

court erred by limiting its analysis only to actual and implied bias when considering

whether Juror Treakle would have been subject to a valid for-cause challenge if he had

fully answered the three voir dire questions. Significantly, Appellant relies on the same

arguments to support both his McDonough claim and his actual bias claim and essentially

contends that Juror Treakle should have been dismissed for cause because he was actually

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biased. Therefore, having disposed of Appellant’s actual bias claim, we need not decide

whether the district court applied the correct standard to Appellant’s McDonough claim.

We hold, as did the district court, that Appellant has not established that Juror

Treakle would have been dismissed for cause if he had not withheld any information in

response to the three voir dire questions. Notably, Appellant does not assert that had Juror

Treakle fully answered those questions, his responses would have revealed actual bias.

Instead, Appellant argues, just as he does in support of his actual bias claim, that Juror

Treakle’s failure to fully answer the questions is itself evidence of actual bias. 2 As we have

already explained, Appellant’s actual bias claim runs headlong into the district court’s

findings that Juror Treakle was credible and did not intentionally withhold information

during voir dire, and the fact that Juror Treakle may have been careless in considering his

responses to the voir dire questions does not indicate partiality. His McDonough claim

fails for the same reasons.

IV.

For the foregoing reasons, the judgment of the district court is

AFFIRMED.

2 Appellant also argues that Juror Treakle’s carelessness in considering his responses to the voir dire questions suggests that he was unable or unwilling to follow the trial court’s instructions. But McDonough’s second element focuses on whether the juror’s “correct response [to a voir dire question] would have provided a valid basis for a challenge for cause.”

. Therefore, Appellant’s argument makes no sense: if Juror Treakle had disclosed all the information when answering the three questions, Appellant would surely not be asserting that Juror Treakle should have been dismissed for cause because he was unable or unwilling to follow the trial court’s instructions because he would have actually followed the trial court’s instructions.

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