JAMES R. SPENCER, Senior District Judge.
Thomas Alexander Porter filed this petition for habeas corpus under 28 U.S.C. § 2254 challenging his capital murder conviction and death sentence for the 2005 shooting death of a Norfolk police officer.
On October 20, 2015, the United States Court of Appeals for the Fourth Circuit dismissed Porter's appeal and remanded the matter back to this Court. See Porter v. Zook, 803 F.3d 694, 695 (4th Cir. 2015). The Fourth Circuit observed that, "[a]mong the multiple claims Porter presented to the district court was one alleging that ajuror[
Thereafter, by Memorandum Order entered on October 29, 2015, the Court directed the parties to submit further briefing that set forth all of the facts, law, and argument with respect to the actual bias claim. For the reasons set forth below, the Court finds: (1) that Porter exhausted his actual bias claim by fairly presenting the same to the Supreme Court of Virginia; (2) that the Supreme Court of Virginia decided the merits of the actual bias claim;
In order to obtain federal habeas relief, at a minimum, a petitioner must demonstrate that he is "in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). The Antiterrorism and Effective Death Penalty Act ("AEDPA") of 1996 further circumscribed this Court's authority to grant relief by way of a writ of habeas corpus. Specifically, "[s]tate court factual determinations are presumed to be correct and may be rebutted only by clear and convincing evidence." Gray v. Branker, 529 F.3d 220, 228 (4th Cir. 2008) (citing 28 U.S.C. § 2254(e)(1)). Additionally, under 28 U.S.C. § 2254(d), a federal court may not grant a writ of habeas corpus based on any claim that was adjudicated on the merits in state court unless the adjudicated claim:
28 U.S.C. § 2254(d). The Supreme Court has emphasized that the question "is not whether a federal court believes the state court's determination was incorrect but whether that determination was unreasonable-a substantially higher threshold." Schriro v. Landrigan, 550 U.S. 465, 473 (2007) (citing Williams v. Taylor, 529 U.S. 362, 410 (2000)).
Porter was charged and ultimately convicted of the capital murder of Stanley Reaves, a Norfolk Police Officer. See Porter v. Commonwealth, 661 S.E.2d 415, 419-24 (Va. 2008). Porter moved for a change of venue from the Circuit Court for the City of Norfolk to the Circuit Court for the County of Arlington.
At the inception of voir dire, the Circuit Court informed the venire that Porter was charged with the capital murder of a Norfolk police officer. (State Habeas Record ("SH") 1197, 1201.) Juror Treakle and the rest of the venire assured the Circuit Court that they were not aware of any bias or prejudice against the Commonwealth or the accused. (SH 1202.) Defense counsel asked the venire:
(SH 1224-25.) A number of jurors raised their hands and then the following exchange occurred:
(SH 1225-26.) Defense counsel then proceeded to question briefly the other seven members of the venire who had raised their hands. (SH 1226-29.)
Although Porter now suggests that exploring the nuances of each venire person's relationships with, and any empathy for, law enforcement officials was critical to assessing whether a juror could remain impartial, the contemporaneous voir dire suggests otherwise. As reflected in the below exchange, the attorneys trying the case and who were most familiar with the facts were content with a general reassurance from the venire person that any relationship he or she had with law enforcement officials would not impair his or her ability to render a fair and impartial verdict:
(SH 1228-29.)
Additional voir dire provided assurance that the jurors, including Bruce Treakle, could remain impartial in deciding the appropriate punishment despite the fact the case involved the capital murder of a police officer. Specifically, the Circuit Court broke the venire down into groups of four persons to pose specific questions about their ability to fairly decide a capital case. During that questioning, Treakle repeatedly assured the Circuit Court that he could remain impartial and follow the Circuit Court's instructions, even though the case involved the capital murder of a police officer. (SH 1285-94.) For example, defense counsel reminded Treakle that the case involved the capital murder of a police officer (SH 1285) and asked, "If you should convict, the defendant, Mr. Porter, of capital murder, could you follow the Court's instructions and consider voting for a sentence ofless than the death penalty." (SH 1292.) Treakle responded, "Yes." (SH 1292.) Thereafter, defense counsel asked:
(SH 1293.) Treakle responded in the affirmative. (SH 1293.) Treakle and the three other venire persons were also asked, "[D]o any of the four of you know of any reason why you could not or would not be able to fairly and impartially determine the facts of the case or abide by the instructions of the Court on the sentencing issues?" (SH 1290.) All four jurors responded in the negative. (SH 1290.)
Following Porter's conviction and direct appeal, members of Porter's state habeas team interviewed individuals who were members of Porter's jury. (SH 6214.) On May 30, 2009, Maryl Sattler and Dawn Davison spoke to Bruce Treakle. (SH 6214.) During the state habeas proceedings, Porter submitted an affidavit from Sattler memorializing her conversation with Bruce Treakle:
(SH 6215 (punctuation and spacing corrected) (paragraph numbers omitted).) Porter asserts that when his "representatives returned to visit again with [Bruce] Treakle, he refused to speak further." (Porter Br. 6, ECF No. 93.)
On June 18, 2009, Ms. Davison also obtained an affidavit from Bruce Treakle's brother, Pernell Treakle. (SH 5491.) Pernell stated that he is a Deputy Sheriff with the Chesapeake Sheriffs Office in Chesapeake, Virginia and had been employed in that position for the past nine years. (SH 5491.)
Porter notes that Chesapeake is adjacent to Norfolk and that the Chesapeake law enforcement personnel were involved in the manhunt for Porter and "were outspoken in their grief and support for Officer Reaves and his family." (Porter Br. 4 (citing SH 7702-7804), ECF No. 93.) Despite his counsel's conversation with Bruce and Pernell Treakle, Porter has not pointed the Court to any allegations that suggest Bruce and Pernell Treakle discussed anything about Porter's crimes prior to Porter's trial. Moreover, during voir dire, in response to the Circuit Court's questions, Bruce Treakle and the rest of the venire assured the Court that they had not seen or heard "anything about this case either today or any other time." (SH 1202.)
During the state habeas proceedings, with respect to the juror bias claim, Porter asserted, in pertinent part:
(SH 109-10 (last alteration in original) (footnote omitted).)
Initially, the Supreme Court of Virginia relied upon the McDonough test to reject Porter's juror bias claim:
Porter v. Warden ofSussex I State Prison, 722 S.E.2d 534, 539 (Va. 2012) (emphasis added). The Supreme Court of Virginia did not address whether Bruce Treakle was actually biased in connection with the juror bias claim.
Porter, however, also raised a separate ineffective assistance of counsel claim with respect to Bruce Treakle. Specifically, Porter claimed that "he was denied the effective assistance of counsel because counsel failed to raise the claim that Juror Twas biased due to his brother's employment as a law enforcement officer at trial and on direct appeal." Id. at 549. The Supreme Court of Virginia rejected this claim, noting it satisfied
Id. (emphasis added). In finding that Porter provided no admissible evidence of bias, the Supreme Court of Virginia apparently relied upon "the general rule that the testimony of jurors should not be received to impeach their verdict, especially on the ground of their own misconduct." Caterpillar Tractor Co. v. Hulvey, 353 S.E.2d 747, 750-51 (Va. 1987) (citing Phillips v. Campbell, 104 S.E.2d 765, 767-68 (Va. 1958)).
Respondent's argument that Porter failed to exhaust his juror bias claim is limited to a discussion of the general jurisprudence regarding exhaustion. (Resp't's Br. 2-5, ECF No. 95.) Respondent fails to cite to any particularly persuasive authority for the proposition that Porter's citation of law and facts in his state habeas petition with respect to the issue of actual bias was inadequate to exhaust his actual bias claim. Moreover, the relevant authority demonstrates that Porter satisfied the exhaustion requirement with respect to his actual bias claim. See Fullwood v. Lee, 290 F.3d 663, 676 n.4 (4th Cir. 2002) (concluding that petitioner satisfied the exhaustion requirement with respect to his actual bias claim when, in state court, petitioner "framed the issue primarily as one of juror misconduct based on the jurors' purportedly untruthful affirmations during voir dire").
The deferential standard of review found in 28 U.S.C. § 2254(d) only applies to claims that were "adjudicated on the merits in State court proceedings." 28 U.S.C. § 2254(d). Nevertheless, where, as here, a state court resolves the merits of the substantive constitutional claim in the context of ineffective assistance of counsel, such a ruling constitutes an adjudication on the merits of the separate substantive constitutional claim for purposes of 28 U.S.C. § 2255(d). See Sturgeon v. Chandler, 552 F.3d 604, 612 (7th Cir. 2009) (concluding that because the state court held that "no bona fide doubt existed about [petitioner's] competency to stand trial and therefore he had not established either prong of . . . Strickland. . . . The court could not have decided the same `bona fide doubt' question any differently in the context of [petitioner's] due-process claim, so the merits were effectively reached"); accord Albrecht v. Horn, 485 F.3d 103, 116 (3d Cir. 2007). Specifically, the Supreme Court of Virginia adjudicated the merits of Porter's actual bias claim when it found that "petitioner has provided no admissible evidence that Juror Twas biased against petitioner as a result of his brother's employment." Porter, 722 S.E.2d at 549.
With respect to Porter's allegation concerning Juror Treakle, this Court stated in pertinent part:
Porter v. Davis, 3:12-CV-550-JRS, 2014 WL 4182677, at *11-12 (E.D. Va. Aug. 21, 2014) (alterations in original) (emphasis added).
The Supreme Court has held "that the remedy for allegations ofjuror partiality is a hearing in which the defendant has the opportunity to prove actual bias." Smith v. Phillips, 455 U.S. 209, 215 (1982). Contrary to Porter's suggestion, Smith does
Tracey v. Palmateer, 341 F.3d 1037, 1044 (9th Cir. 2003) (citation omitted). "In deciphering what due process requires, [the courts] distinguish[] between an extraneous contact that may have affected a jury's ability to remain fair and impartial and an intrinsic influence from a juror's pre-existing bias." United States v. McClinton, 135 F.3d 1178, 1186 (7th Cir. 1998).
When substantial extraneous contacts may have affected a jury's ability to be fair, due process mandates a hearing. Id. (citing Willard v. Pearson, 823 F.2d 1141, 1148 (7th Cir. 1987)); see Hurst v. Joyner, 757 F.3d 389, 398-400 (4th Cir. 2014) (alteration in original) (remanding for an evidentiary hearing, when, during trial for a capital defendant, juror "asked her father where she `could look in the Bible for help and guidance in making [her] decision for between life and death'" and he directed her to an "undetermined `eye for an eye' verse, which she consulted in private the night before returning the verdict"), cert. denied, 135 S.Ct. 2643 (2015); Barnes v. Joyner, 751 F.3d 229, 244 (4th Cir. 2014) (holding that "a defendant is entitled to a hearing when he or she presents a credible allegation of communications or contact between a third party and a juror concerning the matter pending before the jury"), cert. denied, 135 S.Ct. 2643 (2015). The foregoing rule favoring post-trial hearings "applies only to prejudicial extraneous contacts, not to preexisting juror bias." United States v. Benabe, 654 F.3d 753, 780 (7th Cir. 2011) (citing McClinton, 135 F.3d at 1186; Artis v. Hitachi Zosen Clearing Inc., 967 F.2d 1132, 1141 (7th Cir. 1992)); Robinson v. Polk, 438 F.3d 350, 363-64 (4th Cir. 2006) (emphasizing the importance of distinguishing between internal and external influences upon a jury);
In support of his claim that Bruce Treakle was actually biased, Porter directs the Court to evidence of publicity and public outrage regarding Porter's crimes in the Tidewater area. (See Porter Br. 2 (citation omitted).) However, Porter fails to submit any plausible allegations that Bruce Treakle heard or saw anything about Porter's crimes prior to the trial. Indeed, the record affirmatively shows that Bruce Treakle and the other persons on his venire had not heard anything about Porter's case. (SH 1202.) Accordingly, the record conclusively demonstrates that Bruce Treakle was not actually biased because of some external contact.
Porter contends that Bruce Treakle's affinity for his brother "impacted Treakle's perception of the evidence and his ultimate decisions to convict and sentence Porter to death." (Porter Reply 2, ECF No. 96.) As the evidentiary cornerstone of this claim, Porter relies upon Bruce Treakle's post-verdict comments that, inter alia, "he found the officer's wife (Treva Reaves) to be a very powerful witness," (SH 6215), and Treakle's explanation that he found Treva Reaves's "testimony moving and very emotional for him because his brother is a sheriff's officer in Norfolk." (SH 6215.) However, as explained more fully below, none of the above statements may be used to establish Juror Treakle's purported bias. See Fed. R. Evid. 606(b). "[T]he `firmly established' general rule is that juror testimony may not be used to impeach a jury verdict. . . . The only exception to this rule is for external influence. . . ." Robinson, 438 F.3d at 365 (citations omitted). Indeed, as explained below, Porter's pursuit of this evidence from Bruce Treakle frustrates the very purpose of Federal Rule of Evidence 606(b).
Rule 606(b)(1) provides, in pertinent part: "During an inquiry into the validity of a verdict . . . a juror may not testify about . . . the effect of anything on that juror's or another juror's vote; or any juror's mental processes concerning the verdict or indictment. The court may not receive a juror's affidavit or evidence of a juror's statement on these matters." Fed. R. Evid. 606(b)( 1) (emphasis added).
"To establish actual bias after a trial, a party must prove that a juror was not `capable and willing to decide the case solely on the evidence before [him]."` United States v. Sampson, 820 F.Supp.2d 151, 163 (D. Mass. 2011) (alteration in original) (quoting McDonough Power Equip., Inc v. Greenwood, 464 U.S. 548, 554 (1984)). "Determining whether a juror is biased or has prejudged a case is difficult, partly because the juror may have an interest in concealing his own bias and partly because the juror may be unaware of it." Smith v. Phillips, 455 U.S. 209, 221-22 (1982) (O'Connor, J., concurring). One may demonstrate that a juror was intrinsically biased by a combination of, inter alia: (1) the juror's admissions of bias on voir dire; (2) a juror's inaccurate or incomplete answers on voir dire; (3) non-juror evidence of bias; and, (4) an examination of the juror's actions during the trial. See, e.g., United States v. Lawhorne, 29 F.Supp.2d 292, 312 (E.D. Va. 1998). A court is not "obliged to hold an evidentiary hearing any time that a defendant alleges juror bias, regardless of whether he utilized the pre-trial procedures available for ensuring the jury's impartiality." Billings, 441 FJd at 245-46 (footnote omitted). "To justify a post-trial hearing involving the trial's jurors, the defendant must do more than speculate; he must show clear, strong, substantial and incontrovertible evidence . . . that a specific, non-speculative impropriety occurred." United States v. Wright, No. 96-4451, 1997 WL 693584, at *2 (4th Cir. Oct. 28, 1997) (omission in original) (quoting Tejada v. Dugger, 941 F.2d 1551, 1561 (1 lth Cir. 1991)). "[T]he Supreme Court has required a hearing [when] the source of potential bias was not discoverable on voir dire, either because a juror deliberately omitted material information in response to questions asked on voir dire or because the circumstances that potentially compromised the juror's impartiality did not arise until after the trial had begun." Billings, 441 F.3d at 246 n.4 (emphasis added) (citations omitted).
The record fails to plausibly suggest that Bruce Treakle "deliberately omitted material information in response to questions asked on voir dire." Id. (citations omitted). Defense counsel asked whether, "anyone here, or a member of your close personal family, worked in law enforcement in any capacity as a volunteer or an employee?" (SH 1225.) Bruce Treakle readily volunteered that he had a nephew who was a police officer in Arlington County, where the trial was being conducted. (SH 1225.) Bruce Treakle further assured defense counsel such a circumstance would not impair his ability to sit and render a fair and impartial verdict. (SH 1225-26.)
Porter faults Bruce Treakle for failing to also volunteer that he had another relative, a brother who worked in law enforcement for the Chesapeake Sheriff's Department. Trial counsel, however, did not ask Treakle, who was the first member of the venire to respond to the question, to identify every member of his family who had a connection to law enforcement. "[A] juror's failure to elaborate on a response that is factually correct but less than comprehensive" is not necessarily indicative of deceit where no follow-up question is asked. Porter v. Zook, 803 F.3d 694, 697 (4th Cir. 2015) (citing Billings, 441 F.3d at 245; Fitzgeraldv. Greene, 150 F.3d 357, 363-64 (4th Cir. 1998)). Moreover, the voir dire regarding the connection ofvenire members to law enforcement did not engage in any searching scrutiny of how each individual law enforcement relationship may play out with respect to the particular evidence to be introduced in Porter's case. Benabe, 654 F.3d at 781;
On the current record, it would be counterfactual to suggest that Bruce Treakle intentionally concealed his relationship with his brother Pernell to secure a place on Porter's jury. First, Bruce Treakle readily admitted that he had a close family relative in law enforcement. Second, Bruce Treakle freely admitted to Porter's habeas counsel that his brother Pernell worked in law enforcement.
In remanding this case, the Fourth Circuit observed that, regardless of whether Treakle acted honestly on voir dire, another "factor that may give rise to distinct concerns about actual bias is a personal relationship that colors a juror's perspective on a case." Porter, 803 F.3d at 698 (citing Fields v. Woodford, 309 F.3d 1095, 1103-06 (9th Cir. 2002); Scott, 854 F.2d at 698-700)). As Bruce Treakle did not intentionally conceal the fact that he had a brother who was a deputy sheriff, the mere fact of that relationship is not sufficient to warrant a further inquiry at this stage. Compare Scott, 854 F.2d at 698 (granting new trial where juror intentionally concealed that he had a brother in law enforcement in the jurisdiction that had investigated the crimes against the defendant) with Billings, 441 F.3d at 245 (concluding no need to conduct an evidentiary hearing with respect to juror bias based on preexisting contacts with prosecutor and defense counsel when the issue could have been explored on voir dire); see Fields v. Brown, 503 F.3d 755, 773 (9th Cir. 2007) (en banc) (internal quotation marks omitted) (citations omitted) ("Although we have recognized that bias may be implied where close relatives of a juror have been personally involved in a situation involving a similar fact pattern, we have never done so when the juror was honest on voir dire."). Perhaps if Pernell Treakle had been murdered or shot in the line of duty one could doubt Bruce Treakle's assurances that he could remain impartial in the trial of Porter for the capital murder of a police officer. See Fields, 309 F.3d at 1103-06 (remanding for evidentiary hearing where defendant was on trial for, inter alia, rape and abduction, and a juror's wife had been raped and abducted two years prior to trial). That, however, is not the case.
What is before the Court is Bruce Treakle' s honest, sworn assurance that he could remain impartial despite the fact that the case involved the murder of a police officer and he had a close relative who was a police officer. Porter v. Warden ofSussex I State Prison, 722 S.E.2d 534, 539 (Va. 2012) (observing "petitioner has failed to demonstrate that Juror T failed to answer honestly a material question during voir dire"). Porter insists that Bruce Treakle's assurance of impartiality has been called into question by his post-trial comments indicating that he was particularly moved by the testimony of Officer's Reaves widow. However, "[a]s is reflected in Federal Rule of Evidence 606(b), requests to impeach jury verdicts pursuant to post-trial contact with jurors generally are disfavored." United States v. Sanda/is, 14 F. App'x 287, 289 (4th Cir. 2001) (footnote omitted) (citing United States v. Gravely, 840 F.2d 1156, 1159 (4th Cir. 1998)). Thus, "when a party seeks to attack or support a verdict, Rule 606(b) prohibits all inquiry into a juror's mental process in connection with the verdict." United States v. Cheek, 94 F.3d 136, 143 (4th Cir. 1996) (citing Tanner v. United States, 483 U.S. 107, 117-22 (1987); Stockton v. Commonwealth, 852 F.2d 740, 743-44 (4th Cir. 1988)).
Porter insists that it is premature to require him to substantiate his actual bias claim with any admissible evidence. (Porter Reply !(citation omitted).) Rather, he contends that, at this stage, the disposition of his claim is governed by the standards applicable for a motion to dismiss and the Court must accept his "well-pleaded allegations as true, and . . . to draw all reasonable inferences in his favor." (Id. (quoting Conaway, 453 F.3d at 582). Porter's contention, while accurate, is woefully incomplete. Because Virginia adjudicated the merits of his actual bias claim, Porter was required to "allege facts sufficient to meet the exacting standard set forth in 28 U.S.C. § 2254(d). . . ." Townes v. Jarvis, 577 F.3d 543, 551 (4th Cir. 2009) (citing Bell v. Jarvis, 236 F.3d 149, 158 (4th Cir. 2000)). In assessing under 28 U.S.C. § 2254(d) whether a federal habeas petitioner's claim is subject to dismissal without an evidentiary hearing, this Court looks to the character of the evidence before the Supreme Court of Virginia. See Strong v. Johnson, 495 F.3d 134, 140 (4th Cir. 2007). For example, in Strong, the Fourth Circuit examined the Supreme Court of Virginia's rejection of a habeas petitioner's claim that "his lawyer ignored his instruction to appeal his state convictions." Id. at 136. The Fourth Circuit emphasized that the first step of the analysis was "to clarify what evidence was properly before the Supreme Court of Virginia." Id. at 139. The Fourth Circuit concluded the Supreme Court of Virginia was not required to consider unswom allegations or submissions not authorized by its rules. Id. at 139-41. Ultimately, the Fourth Circuit concluded that the Supreme Court of Virginia acted reasonably in rejecting the petitioner's claim "after considering Strong's conclusory (sworn) statement" and "his lawyers more detailed affidavit," which explained that after initially expressing a desire to appeal, after further discussion with counsel, Strong agreed not to appeal. Id. at 136.
Porter has failed to substantiate his claim with competent evidence that tends to show Bruce Treakle was biased. The prohibition of Rule 606(b) extends to the forecast of evidence in affidavits when assessing the necessity of an evidentiary hearing. See Bacon v. Lee, 225 F.3d 470, 485 (4th Cir. 2000) (concluding no evidentiary hearing was warranted regardingjuror bias claim where the forecasted evidence of juror bias pertained to racial jokes allegedly made during deliberations (citing Fed. R. Evid. 606(b); Tanner, 483 U.S. at 121; Gosier v. Welborn, 175 F.3d 504, 510-11 (7th Cir. 1999))). In Gosier, the federal habeas petitioner sought to impugn his state death sentence with an affidavit from a juror regarding the juror's failure to follow the trial court's instructions. 175 F.3d at 510. As the Seventh Circuit observed in rejecting a similar claim: "It would be altogether inappropriate for a federal court to entertain the kind of evidence [the petitioner] proffers just because this is a collateral attack, when neither a federal nor a state court allows a verdict to be challenged directly using evidence of this kind. His current effort to reconstruct the jury's deliberations is simply forbidden." Id. at 511.
Here, the Supreme Court of Virginia rejected Porter's actual bias claim because Porter "provided no admissible evidence that Juror Twas biased against petitioner as a result of his brother's employment." Porter, 722 S.E.2d at 549. Because Porter has failed to support his claim that Juror Treakle was actually biased with any significant admissible evidence, the Supreme Court of Virginia did not act unreasonably in rejecting this claim. See Fullwood, 290 F.3d at 682 (citation omitted) (observing that "a petitioner who seeks to invalidate a verdict that has already withstood challenges on direct review and state collateral review must introduce competent evidence that there was juror misconduct in the first place").
Moreover, even if the Court could consider Bruce Treakle's post-verdict mental impression of the trial evidence and decide the matter under a de novo standard of review, no relief is warranted because Treakle's innocuous statements do not indicate that he was biased. See Bacon, 225 F.3d at 485. Treakle merely admitted that he "found the officer's wife (Treva Reaves) to be a very powerful witness" and that "he found her testimony moving and very emotional for him because [ofJ his brother[`s]" employment. (SH 6215.) Treakle also "expressed sympathy for law enforcement officers, and emphasized that they put their lives on the line every day for the community." (SH 6215.)
"A juror's generally favorable impression oflaw enforcement does not necessarily amount to bias any more than does a juror's personal association with law enforcement." United States v. Umana, 750 F.3d 320, 342 (4th Cir. 2014) (citing United States v. LaRouche, 896 F.2d 815, 830 (4th Cir. 1990)), cert. denied, 135 S.Ct. 2856 (2015). Furthermore, the fact that Juror Treakle was moved by Mrs. Reaves's testimony because he had a sibling in law enforcement does not suggest that Juror Treakle disregarded his oath to ultimately decide the case on the law and the evidence. See United States v. Gumbs, 562 F. App'x 110, 115-16 (3d Cir. 2014) (concluding that district court did not err in failing to remove a juror who had cried when watching video of defendant sexually abusing an eight-year old victim); Miller v. Webb, 385 F.3d 666, 680 (6th Cir. 2004) (Gibbons, J., dissenting) ("Expressions of sympathy for a victim, without more, do not demonstrate actual bias where the juror has assured the court that she may decide the case fairly."); United States v. Jones, 716 F.3d 851, 857 (4th Cir. 2013) ("Because jurors will have opinions from their life experiences, it would be impractical for the Sixth Amendment to require that each juror's mind be a tabula rasa."). Moreover, the voir dire here thoroughly explored whether the jurors, including Treakle, could follow the Circuit Court's instructions and remain impartial in imposing a verdict, despite the fact that the case involved the capital murder of a police officer. Scott v. Mitchell, 209 F.3d 854, 879 (6th Cir. 2000) ("Allegations of jury bias must be viewed with skepticism when the challenged influence occurred before the jurors took their oath to be impartial."). Given Treakle's honest and forthright behavior, Porter has yet to forecast to the Court any evidence that plausibly suggests that Treakle did not remain impartial or follow the Circuit Court's instructions to decide the case on the law and evidence. See Williams, 529 U.S. at 440-41 Guror concealed prior legal relationship with the prosecutor and marriage to a prosecution witness); Conaway, 453 F.3d at 578 Guror concealed relationship to key prosecution witness and, prior to voir dire, expressed opinion that the defendant should die if he committed the crime). Accordingly, Porter's actual bias claim lacks merit and will be dismissed. The Court will deny a certificate of appeal ability.
An appropriate Final Order will accompany this Memorandum Opinion.
Porter v. Zook, 803 F.3d 694, 696 (4th Cir. 2015)
