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Porter V. Zook, 898 F.3D 408 (4Th Cir

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Porter V. Zook, 898 F.3D 408 (4Th Cir No. 18- ____ IN THE Supreme Court of the United States THOMAS ALEXANDER PORTER, Petitioner, v. DAVID ZOOK, Respondent. APPENDIX TO PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT BRIAN K. FRENCH ROBERT LEE MORGAN C. NIGHAN DAWN M. DAVISON NIXON PEABODY, LLC VIRGINIA CAPITAL Exchange Place REPRESENTATION 53 State Street RESOURCE CENTER Boston, Massachusetts 2421 Ivy Road, Suite 301 (617) 345-1258 Charlottesville, VA 22903 [email protected] (434) 817-2970 [email protected] [email protected] [email protected] KENNETH J. NICHOLS NIXON PEABODY, LLC 799 9th Street, N.W., Suite 500 Washington, D.C. 20001-5327 (202) 585-8000 [email protected] TABLE OF CONTENTS Porter v. Zook, 898 F.3d 408 (4th Cir. Aug. 3, 2018) ..................................................... 1 Porter v. Zook, Judgment (4th Cir. Aug. 3, 2018) ........................................................ 30 Porter v. Zook, Order Denying Rehearing (4th Cir. Aug. 31, 2018) ........................... 31 Porter v. Zook, Order Staying Issuance of Mandate (4th Cir. Sep. 6, 2018) .............. 32 Porter v. Zook, Issuance of Mandate (4th Cir. Oct. 10, 2018) ..................................... 33 Porter v. Zook, 2016 U.S. Dist. LEXIS 55127 (E.D. Va. Apr. 25, 2016) ..................... 34 Porter v. Warden, 283 Va. 326, 722 S.E.2d 534 (Va. Mar. 2, 2012) ............................ 46 Porter v. Commonwealth, 276 Va. 203, 661 S.E.2d 415 (Va. Jun. 6, 2008) ............... 58 Lawlor v. Zook, 909 F.3d 614 (4th Cir. Nov. 27, 2018) ............................................. 105 i Positive As of: November 29, 2018 2:05 PM Z Porter v. Zook United States Court of Appeals for the Fourth Circuit January 23, 2018, Argued; August 3, 2018, Decided No. 16-18 Reporter 898 F.3d 408 *; 2018 U.S. App. LEXIS 21576 ** certain testimony from being solicited in an evidentiary THOMAS ALEXANDER PORTER, Petitioner - Appellant, hearing, it would not preclude the petitioner or other jurors v. DAVID ZOOK, Warden, Sussex I State Prison, from testifying altogether. Respondent - Appellee. Outcome Prior History: [**1] Appeal from the United States District Affirmed in part, vacated in part, and remanded. Court for the Eastern District of Virginia, at Richmond. (3:12- cv-00550-JRS). James R. Spencer, Senior District Judge. LexisNexis® Headnotes Porter v. Zook, 2016 U.S. Dist. LEXIS 55127 (E.D. Va., Apr. 25, 2016) Disposition: AFFIRMED IN PART, VACATED IN PART, AND REMANDED WITH INSTRUCTIONS. Criminal Law & Procedure > ... > Standards of Review > Contrary & Unreasonable Standard > Contrary Core Terms to Clearly Established Federal Law Criminal Law & Procedure > Habeas juror, district court, actual bias, voir dire, evidentiary hearing, Corpus > Appeals > Standards of Review law enforcement officer, impartial, state court, gun, juror bias, apartment, biased, murder, merits, bias, answered, Criminal Law & Procedure > ... > Appeals > Standards of unreasonably, law enforcement, discovery, questions, police Review > De Novo Review officer, trial counsel, pulled, inlaw, allegations, killing, convicted, ineffective, investigate, shot Criminal Law & Procedure > Habeas Corpus > Evidentiary Hearings > Review of Denials Case Summary Criminal Law & Procedure > Habeas Corpus > Procedure > Discovery Overview HN1[ ] Contrary & Unreasonable Standard, Contrary HOLDINGS: [1]-In dismissing the actual juror bias claim of to Clearly Established Federal Law the 28 U.S.C.S. § 2254 petitioner--who was convicted in Virginia state court of capital murder and was sentenced to Pursuant to the Antiterrorism and Effective Death Penalty Act death--the district court failed to recognize the applicability of of 1996, the United States Court of Appeals for the Fourth U.S. Supreme Court precedent requiring a hearing in the Circuit generally applies a highly deferential standard of circumstances, erected inappropriate legal barriers and faulted review to federal habeas petitions challenging state court petitioner for not overcoming them, and ignored judicially- decisions: An application for a writ of habeas corpus on recognized factors in determining whether a hearing was behalf of a person in custody pursuant to the judgment of a necessary; [2]-The district court also erred in by dismissing state court shall not be granted with respect to any claim that the petitioner's separate but related juror bias claim brought was adjudicated on the merits in State court proceedings pursuant to McDonough Power Equipment, Inc. v. unless the adjudication of the claim --(1) resulted in a decision Greenwood; [3]-Although Fed. R. Evid. 606(b) might prevent that was contrary to, or involved an unreasonable application 1 Page 2 of 29 898 F.3d 408, *408; 2018 U.S. App. LEXIS 21576, **1 of, clearly established Federal law, as determined by the defendant by the Sixth Amendment. Prejudice requires Supreme Court of the United States; or (2) resulted in a showing that counsel's errors were so serious as to deprive the decision that was based on an unreasonable determination of defendant of a fair trial, a trial whose result is reliable. In the facts in light of the evidence presented in the State court contrast, on the merits of an actual bias claim, an appellant proceeding. 28 U.S.C.S. § 2254(d)(1)-(2). However, where a must prove that a juror, because of his or her partiality or bias, state court has not considered a properly preserved claim on was not capable and willing to decide the case solely on the its merits, a federal court must assess the claim de novo. The evidence before it. Thus, what a petitioner must prove to Fourth Circuit also reviews for abuse of discretion a district succeed in a Strickland claim -- that not only did counsel court's failure to conduct an evidentiary hearing or to make grave errors, but that those errors affected the outcome authorize discovery in a § 2254 proceeding. of the proceedings -- is a much higher bar that what he must prove on an actual bias claim. Criminal Law & Procedure > ... > Challenges to Jury Venire > Bias & Prejudice > Burdens of Proof Criminal Law & Procedure > ... > Challenges to Jury Venire > Bias & Prejudice > Burdens of Proof Criminal Law & Procedure > ... > Challenges to Jury Venire > Bias & Prejudice > Tests for Juror Bias & Criminal Law & Procedure > Counsel > Effective Prejudice Assistance of Counsel > Tests for Ineffective Assistance of Counsel HN2[ ] Bias & Prejudice, Burdens of Proof Criminal Law & Procedure > ... > Challenges to Jury Actual jury bias and bias based on McDonough Power Venire > Bias & Prejudice > Tests for Juror Bias & Equipment, Inc. v. Greenwood are distinct because while a Prejudice McDonough claim requires a showing of juror misconduct, an actual bias claim may succeed regardless of whether the juror Criminal Law & Procedure > ... > Challenges to Jury was truthful or deceitful. Venire > Bias & Prejudice > Hearing Requirement Criminal Law & Procedure > Habeas Corpus > Review > Burdens of Proof Criminal Law & Procedure > ... > Challenges to Jury Venire > Bias & Prejudice > Burdens of Proof HN4[ ] Bias & Prejudice, Burdens of Proof Criminal Law & Procedure > ... > Review > Specific The Strickland inquiry focuses on counsel's representation Claims > Ineffective Assistance of Counsel measured against established professional norms, but the actual bias inquiry focuses on a juror's lack of partiality, for Criminal Law & Procedure > Habeas which the Constitution lays down no particular tests and Corpus > Review > Specific Claims procedure. U.S. Supreme Court case law contemplates further fact finding once sufficient allegations of juror bias have been Criminal Law & Procedure > Counsel > Effective made, whereas Strickland claims are generally based on a Assistance of Counsel > Tests for Ineffective Assistance concluded and comprehensive record. A habeas petitioner of Counsel need only demonstrate that he diligently pursued his actual HN3[ ] Bias & Prejudice, Burdens of Proof bias claim in state court; his allegations, if true, could entitle him to relief; and he fulfills at least one of six factors set forth Ineffective assistance of counsel claims are subject to a in Townsend v. Sain. substantially different -- and more demanding -- standard of proof than actual bias claims. In order to demonstrate ineffective assistance of counsel in a habeas proceeding under Constitutional Law > ... > Fundamental Strickland, a petitioner must demonstrate first, counsel's Rights > Criminal Process > Right to Jury Trial performance was deficient, and second, the deficient performance prejudiced the defense. Deficient performance Criminal Law & Procedure > Sentencing > Capital requires showing that counsel made errors so serious that Punishment counsel was not functioning as the counsel guaranteed the 2 Page 3 of 29 898 F.3d 408, *408; 2018 U.S. App. LEXIS 21576, **1 Criminal Law & Procedure > ... > Challenges to Jury HN7[ ] Review, Burdens of Proof Venire > Bias & Prejudice > Right to Unbiased Jury At the motion to dismiss stage, a district court must accept a HN5[ ] Criminal Process, Right to Jury Trial petitioner's well-pleaded allegations as true, and draw all reasonable inferences therefrom in the petitioner's favor. The Sixth Amendment, made applicable to the states through the Fourteenth Amendment, requires that a state provide an impartial jury in all criminal prosecutions. If even one partial Criminal Law & Procedure > Juries & Jurors > Jury juror is empaneled and the death sentence is imposed, the Deliberations > Privacy
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