United States District Court, E.D. Virginia, Richmond Division
R. Spencer Senior U.S. District Judge.
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. The matter is before the Court on
Porter's Motion to Alter or Amend Judgment Pursuant to
Federal Rule of Civil Procedure 59(e) ("Rule 59(e)
Motion/' ECF No. 100). For the reasons set forth below,
the Rule 59(e) Motion will be DENIED.
Standard for Relief Under Rule 59(e)
of a judgment after its entry is an extraordinary remedy
which should be used sparingly." Pac. Ins. Co. v.
Am. Nat'l Fire Ins. Co., 148 F.3d 396, 403 (4th Cir.
1998) (citation omitted) (internal quotation marks omitted).
The United States Court of Appeals for the Fourth Circuit
recognizes three grounds for relief under Rule 59(e):
"(1)to accommodate an intervening change in
controlling law; (2) to account for new evidence not
available at trial; or (3) to correct a clear error of law or
prevent manifest injustice." Hutchinson v.
Staton, 994 F.2d 1076, 1081 (4th Cir. 1993) (citing
Weyerhaeuser Corp. v. Koppers Co., 771 F.Supp. 1406,
1419 (D. Md. 1991); Atkins v. Marathon LeTourneau
Co., 130 F.R.D. 625, 626 (S.D.Miss. 1990)). Porter
contends that he is entitled to Rule 59(e) relief because the
Court committed a clear error of law. Porter is wrong.
Memorandum Opinion and Order entered on August 21, 2014, the
Court granted Respondent's Motion to Dismiss the §
2254 Petition. See Porter v. Davis, No.
3:12-CV-550-JRS, 2014 WL 4182677, at *1 (E.D. Va. Aug. 21,
2014). Porter appealed. 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 a juror  in his case was 'actually
biased, ' in violation of his right to trial by an
impartial jury." Id. (citing Smith v.
Phillips, 455 U.S. 209, 215 (1982)). The Fourth Circuit
noted that, "[b]ecause the district court did not
resolve [the actual bias] claim, its decision was not a final
order over which we have jurisdiction" and remanded the
matter to this Court. Id.
the voir dire at Porter's trial, venire persons were
asked: "[I]s anyone here, or a member of your close
personal family, worked in law enforcement in any capacity as
a volunteer or an employee?" Porter v. Zook,
No. 3:12CV550, 2016 WL 1688765, at *2 (E.D. Va. Apr. 25,
2016) (alteration in original) (citation omitted). Juror
Treakle readily volunteered that his "nephew is an
Arlington County police officer." Id. (citation
omitted). Porter's actual bias claim is based upon his
discovery on state habeas that Juror Treakle also had a
brother, Pernell Treakle, who was employed as a "Deputy
Sheriff with the Chesapeake Sheriffs Office in Chesapeake,
Virginia and had been employed in that position" at the
time of Porter's trial. Id. at *4 (citation
omitted). Specifically, after his conviction and direct
appeal, Maryl Sattler and Dawn Davidson, members of
Porter's state habeas team, interviewed Juror Treakle.
Id. During the state habeas proceeding, Porter
submitted an affidavit from Sattler memorializing the
conversation with Juror Treakle. Id. The Sattler
Affidavit stated in pertinent part:
Ms. Davison asked Mr. Treakle which of the witnesses made the
greatest impression on him during the trial. Without
hesitation, Mr. Treakle replied that he found the
officer's wife (Treva Reaves) to be a very powerful
witness. He indicated that he found her testimony moving and
very emotional for him because his brother is a sheriffs
officer in Norfolk.  We were very surprised by this statement
because we had read his voir dire prior to the interview and
Mr. Treakle had never said anything about this brother. When
Ms. Davison asked for clarification, Mr. Treakle repeated
that this brother works for the sheriffs department
"down in Norfolk." Mr. Treakle said sitting through
Mrs. Reaves's testimony had been difficult for him. He
expressed sympathy for law enforcement officers, and
emphasized that they put their lives on the line every day
for the community.
Id. On state habeas, the Supreme Court of Virginia
rejected Porter's actual bias claim because it found that
"petitioner has provided no admissible evidence that
Juror Twas biased against petitioner as a result of
his brother's employments Id. at *6 (quoting
Porter v. Warden of Sussex I State Prison,
722 S.E.2d 534, 549 (Va. 2012).
federal habeas, after the remand from the Fourth Circuit,
this Court observed that "[i]n 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.'" Id. (quoting Caterpillar
Tractor Co. v. Hulvey, 353 S.E.2d 747, 750-51 (Va.
1987)). In his Rule 59(e) Motion, Porter argues
that this "conclusion is contrary to the state court
record, extends Caterpillar to a situation it does
not govern, and ignores the well-established exception to the
rule against jurors impeaching their own verdict." (Rule
59(e) Mot. 3.) As explained below, Porter is wrong on all
counts and fails to demonstrate any error in the Court's
dismissal of Porter's actual bias claim.
insists that the Supreme Court of Virginia's conclusion
that Porter had not provided admissible evidence of actual
bias must have been based upon an erroneous interpretation of
Virginia's hearsay rules, rather than a rule precluding
the use of juror testimony to impeach a verdict. (Rule 59(e)
Mot. 4-6.) To support this argument Porter points to the fact
that, on state habeas, the Warden moved to strike the Sattler
Affidavit and other affidavits on hearsay grounds. (Rule
59(e) Mot. 4 (citations omitted).) Such an argument might be
persuasive if the Supreme Court of Virginia had granted the
Motion to Strike, but it did not. See Porter v. Warden of
Sussex I State Prison, 722 S.E.2d 534, 550 (Va. 2012).
Moreover, the Supreme Court of Virginia's statement that
it would "apply the appropriate evidentiary rules,
" id, to the affidavits tendered by Porter
supports the conclusion that its rejection of the Sattler
Affidavit was based on the well-established rule that, absent
a limited exception for extrinsic influences,  the testimony of
jurors should not be received to impeach their verdict.
Kasi v. Commonwealth, 508 S.E.2d 57, 67 (Va. 1998)
("Virginia has been more careful than most states to
protect the inviolability and secrecy of jury deliberations,
adhering to the general rule that the testimony of jurors
should not be received to impeach their verdict, especially
on the ground of their own misconduct." (citing
Jenkins v. Commonwealth, 423 S.E.2d 360, 370 (Va.
1992))); see Caterpillar Tractor Co., 353 S.E.2d at
751 (addressing the admissibility of juror testimony even
though defendant failed to make a contemporaneous objection,
the issue was only "mentioned in defendant's
appellate briefs" and the issue was not the focus of
defendant's "main argument" on appeal).
Porter has yet to demonstrate that the relevant portion of
the Sattler Affidavit is admissible under either Virginia or
federal law for the purpose of establishing actual bias. With
respect to Virginia law, Porter fails to direct the Court to
any instance where the Supreme Court of Virginia permitted
the introduction of similar evidence to impeach a juror
verdict. More to point, the Supreme Court of Virginia
concluded that the Sattler Affidavit was not admissible. That
conclusion ends the matter as far as admissibility under
Virginia law because "[i]t is beyond the mandate of
federal habeas courts ... to correct the interpretation by
state courts of a state's own laws." Sharpe v.
Bell, 593 F.3d 372, 383 (4th Cir. 2010) (citing
Cagle v. Branker, 520 F.3d 320, 324 (4th Cir.
Porter has not bothered to address, much less demonstrate
error in, the Court's conclusion that the relevant
portion of the Sattler's Affidavit was inadmissible under
Federal Rule of Evidence 606(b).See Porter, 2016 WL
1688765, at *10-13. Additionally, Porter fails to address or
demonstrate error in the Court's conclusion that he
ultimately failed to demonstrate actual bias on the part of
Juror Treakle. Id. at *13 ("[E]ven if the Court
could consider Bruce Treakle's post-verdict mental
impression of the trial evidence and decide the matter under
a denovo standard of review, no relief is
warranted because Treakle's innocuous statements do not
indicate that he was biased." (citing Bacon v.