honor and may please the court i proposed to focus the argument today on the two related but distinct claims alleging juror partiality and a third brady claim alleging to stay concealed evidence that support you it's important to realize with all of these claims that they were dismissed as a matter of law that mr porter's never had an opportunity to develop facts in support of his claims or to confront evidence that was contrary evidence was considered in his claims or to have any of those claims resolved their disputes and those facts resolved the actual bias claim your honor the first one i'd like to discuss and remain and the district admissible evidence that the jury was biased and then applied that finding from the claim in which it was made to the overlooked substantive claim alleging juror bias and the  that if you took that finding and applied it to the smith against phillips claim that the state court would have to have dismissed the claim as a matter of law and that belief is wrong as a matter of  virginia in virginia we cite the case kerns against paul and the petitioner need not present at miscible evidence in order to be entitled to a hearing on claims of juror bias or misconduct so the presumption or the application that the district court made is patiently wrong as a matter of virginia law could not provide a basis for presuming in a junk adjudication on the merits and without an adjudication on the merits of the unanimous supreme court decision in johnson against williams applies and mr porter is entitled to an unencumbered opportunity to have his claim heard in federal court and a smith against phillips hearing as wasn't wasn't in the discretion of the district court as to whether or not to hold and evidence hearing hearing yes it was ok so what what standard do we use to review that now considered in the in the courts the nova addressing of this moreover it never even cited smith against phillips it never applied its you know abbreviated finding to the standard in smith and finally it certainly didn't apply the motion to dismiss standard and presume true porter's well played allegations and reasonable inferences there from it simply seem to have conducted its own hearing without the the parties in assigned certain credibility the district court doesn't know dirt trickled never seen him never had any interaction with him and certainly we never had any opportunity to could you could look at the record i'm a determination from the record and said that was an honest answer to the question no and certainly no no no  mean he could do that you might think he was wrong to do it but why couldn't the judge do that i don't go i've looked at the record and answer the question was i asked and it was answered straight forwardly you may not think that applies in this case  you there has to be an evidentiary hearing in every case no no your honor no sun your answer to me seems would be the other way that it is possible for that to happen your i don't mean to suggest that he's a bit of a hearing in every case but but we are here on a motion to dismiss stand for our allegations are presumed true and the facts here are that juror treacle was told about the circumstances of the of this crime who the victim was where the crime took place etc and and then are and so the remedy here under johnson is an unencumbered opportunity to have his claim heard and under smith against phillips it's a hearing at which questions of actual bias can actually be addressed and findings can be made your honor and as you point out actual bias one to show knowledge of his brother concealment of his brother during for dear and also as an answer to the question if his brother had been  trial testimony while he's listening to evidence but more importantly that the application of that information would come from the question you know what would have happened if you if if this question had been revealed when he was listening to the to the testimony you think six zero six he just doesn't so you could it doesn't apply until you get to the part that's your that's your answer that it's because he's referring in time to the part where he was processing the evidence and not the part where he made up his mind it yes you're right it shows that the again it shows knowledge of his brother concealment and then he's thinking of his brother during the trial and no more than that not that not saying that you know the part about him being very emotional having big impact on it i think six zero six b can control that but that part of the affidavit still could come in to show knowledge concealments and awareness of his brother during the trial thinking about his brother i don't know what else to do you have to show that there was a problem one else is there many people think about things you bring my goodness then after almost every honor we're not i don't want to make more of this affidavit than that is on its face i think we're not claiming that the affidavit is the only piece of evidence that would be presented at the hearing the evidence need to be needs to be developed of bias and asking well let me put it this way i don't think you can dismiss or deny this claim without allowing mr porter an opportunity to develop evidence of bias i think i have evidence pretty strong but i don't want to bore this court state court by assigning a technical interpretation of the question to the juror and then finding that there was no opportunity whatsoever for the juror to respond and supplement that answer with whether le you that a different question was actually i asks which would be tell us any and all lower force one officers in your family maybe not the way you would like the question to be answered but why wasn't that the the the the context and manner in which the voir dire was conducted and the second is the nature of the of the question itself so the first the this war dear was a very open inviting forty year further acts to raise their hands to answer questions they also raise their hands to ask questions of council they raise their hands and ask questions to the council to clarify the questions that they were being know that and that may be true but that doesn't mean somebody is dishonest if they don't do that well in this in this context you're out of the idea that there was no other opportunity to respond to this question jurors raised questions and said you know i forgot to answer in this earlier question your weinberg said i told you that my wife and i were lawyers but i forgot to mention to you that my brother is also a lawyer so i wanted to know that before so a lawyer said they had saw a lawyer said that yeah i got the question but i'm a lawyer let me tell you a lawyer you should ask a little more broadly and maybe absolute more broad right but i'm good that's commendable but i think sometimes what happens is and what they say no reason to respond is how the conversation followed you have a nephew who's i think it was a nephew who's a police officer can you be fair yeah sure to be fair and move on i mean i don't really what you wish it happened would have it the lawyer said tell me any and all people you related to who are law enforcement officers and then once within a page of transcript the next answer was a person who gave a multiple person answer said my father in law's assistant u s attorney i have two friends who are correctional officers in connecticut  conducted mineo twelve thirteen years worth people don't ask precise questions and sometimes jurors there's sometimes jurors will think the next day and go you know it dawned on me that i actually know that person to family or something but the point is that it make the person the juror dissed honest i don't know what that means either you tom might be oh i have no i don't think  the war dear that veneer members were given the details of this crime the the chargers the victim the location right in knew his brother was in law enforcement from the neighboring location he concealed that from the court and from the parties on forty year and then when once he was on the juror he revealed to the jurors on forty here i think that's evidence of bias i think that's evidence of of dishonesty and i think here what we're talking about is whether whether this technical interpretation of the question is reasonable to sort of say five jersey gave answers to the questions regarding referring to their brothers and this is something that your trickle sat and heard all of this as the standard is that what the best answer is the standard is that you could it be fear is that is the question is there any reason that i might think you couldn't be fair there's something question to question is is there any reason you think you couldn't but the court clearly looks at those questions as opportunities to respond in kind of way to court counted that that catchall question as an opportunity is it is a response actually like no it is i've been waiting for you to mention connally i mean it wasn't it wasn't it almost on all fours where this i can't remember exactly what the question was but something like you know anyone involved in this trial and the jury gives one person but not a second per yes it's the exact same thing they answer technically honestly i do know that one person they don't mention the other person and they don't clarify when they get the open ended question at the end failure to recognize these circumstances as satisfying the first prong up mcdonough was unreasonable that was the decision is what happens at the second prong that's my question for you just assuming for a moment and without judging the question but as could get past the first prong of mcdonough what happens at the second problem are you just back to needing a hearing to show that there would have been prejudice that would have justified excusing this juror i think i think we're at the same point where this claim could not be dismissed or denied without a hearing based on that that point i believe that the the question there is whether there is a valid for cause challenge that's the question under the second product and that would be with that be th head he said his brother was on the police force you think as a matter of law he would have to have been dismissed i think just to put a fine point on your honor because i know  that simply the fact of being a law enforcement may not be a bass no that's not what my question was i said the fact that he had a brother who's in lower enforcement of the facts of this case had that men stated do you think that fact itself as a matter of law would have disqualify the juror in the context of this case yes because of the location of the two what if he'd said my brother is there but i absolutely can be fair that would be that wouldn't could not be a basis for dismissing this claim as a matter of law well no no no could the judge would if he said that he said my brother it answers the question as fully as you want him to said my brother is o the neighboring police force and then he's asked of course to follow up question got that now in light of that can you be fair in this case and he goes absolutely can now in the standard that he would have to be dismissed you think he would have to be dismissive of those things that's a valid question is a valid basis for for cause challenge in virginia this is a standard applied by the just report michael williams but there's any reasonable doubt b that's all about the change of venue is a general discussion of the environment and dissent is that doesn't mean that an individual person can't be fair but does that mean that it is not for the judge to decide in light of the that your client is entitled to a hearing under the mcdonough claim you think you're entitled to relief without a hearing we do but we don't think the claim could be denied without a hearing and the hearing would be into whether if he had responded honestly  have been a valid basis yes ok yes i'd like to ask very briefly the brady claim and and say here we know there's a straight this is a straightforward brady claim we know that officer reese was convicted or found guilty of malicious destruction by an internal police investigation we know the his application to the norfolk police required him to reporting disciplinary actions we know he had a personnel file we know when when he arrived in norfolk he was not allowed to take place in the certified officer training prior program that would have provided for an abbreviated training only three months and he could be on the out on the street earning full wages but instead he was made to serve the full six month period at the academy plus an additional three months i see my time is up and i don't know if it has not let me say you reserved a little bit of time would you like to take some of that time right now a few minutes to make this argument so i consider it made it will be that you can't make it follow up the government's now i notice you're making that argument here so you will be able to finish your argument but do you want to take some time now or just reserve only make one very quick point there is some of your time i will let you do ok and this is related to the the state courts to decision to dismiss this claim as a matter of law and it based that claim on the prosecutors disclaimers a letter from the city of norfolk and the partially on the court's assessment of response and i'll file this the prosecutor's disclaimers never mentioned what the norfolk police department had said they couldn't provide a basis for third part was the the supreme court described what was in briefs personnel files even though those files had never been provided to the state court or any court or any of the parties in this case at any time so that's an permitting move to the brady claim he opened as well answer honestly the material question during war dear that finding an begun to dispose of the claim on those he's found to be dishonest in his answers in vor dear there is no claim as described for that the omission claimed in that case was that they had deliberately omitted a reference to one of the prosecution's key witnesses when they knew one of the other key witnesses in this case and this court found on that record that it was unreasonable leave that they could not about understood the question to have elicited a question about both in this case is slightly different it's not a question about witnesses or or that close relationship to the facts of the case it's really a question about relationship to family members and of its saying that the facts are different i mean the principle of convoys it isn't reasonable to hold that when a juror is as you know anyone who fits this description and offers of one of the two people the jury knows that that's not a dishonest answer i don't really see it turning on who those two people were it's that when someone says do you know anyone you're supposed to say everyone you know but what i'm suggesting conway turns on is this thing from this case on is the nature of the question and answer in the context of the record in qana why this court looked at the question the one answer that the lack of a second  answer and the relationship of that question of our dear to the merits of the case well this is not a does that claim witness here it's even more closely tied to the merits of the case because the question was whether a family member any family member was a law enforcement officer and the law enforcement officer in this case was the victim not just a witness so it's very closely to it's more closely tied to the merits of the case then arguably than conaway it it is not so closely tied to the merits of the case in  this in this in mr porter's claim i've already because it does not affect the evidence in the case it's a claim that most of how he would receive you have a name that the tally case is closer to the function of the jury because the question of passing on testimony which is the core function of the jury yes you're on the boards a jury is going to have to decide that witness's credibility and that witnesses a witness because what they have to say is important too and relevant to what the juror has to know whether or not that distinction holds up or not i take it that's where you go on with that argument that's the front end of the argument that the second distinction i see between this case and connally on is what is the second prong of mcdonough that had they answered honestly that would have been a challenge for cause not not a basis for a challenge for car use a lot of people even we all started talking about the first prong but i think there's pointed out really look at the second problem because you know he don't think you necessarily have to decide the first prong do you you should i think th suggest i don't believe it does here we have a unique perhaps not unique but we have a set of facts that allow us to look at this question a little differently than in some cases because we know from other witnesses possibly participated in the manhunt now what there is is evidence of every time they got a response to the head relative a law enforcement however close or close personal friend in law enforcement the only answer was given that relationship would you be able to stand impartial in this cause and they proved everyone who answered yes i would we know the answer he gave to the first question in this case that he would stand impartial knowing about the police officer nor the know we know that that was a sufficient answer to counsel counsel did not go into any probing question about any specifics of the royston shit once the relationship the only question was could they stand impartial they could he said he could he also said he would stand impartial i knew knew or no reason that he could not stand impartial when he was asked in the sum up question in the case mr lee cited in his rule twenty eight letter that  is taken by the federal courts to elicit any actual bias were there any it didn't listen any answer from him that he would be compromised or would not stand impartial because there no evidence that he could not stand impartial and the fact because that held the evidence that he could not stand impartial we don't we don't know that because he didn't answer that his brother was also in law enforcement he didn't answer that way he didn't answer that way i think it imposes more than the record supports to describe that is withholding the question as we pointed out he was more specific in his pleadings before he was in state a b s in describing the brothers job the brother was employed by the sheriff's office the brothers job was transporting prisoners at the jail the district court rejected that argument wright said there's just no way  juror reasonably could have believed that his brother didn't count as long foresman well the district court found that are under virginia law he was defined as law enforcement i thought the district court said something more like it would not be reasonable f i'm sorry i'm holding you up i just want to go back to this district court says that it is hard to believe that the juror could have not realized that such a position constituted law enforcement in any capacity and they're not relying on any statutory definition they're just saying that doesn't make any sense obviously the brother was a law enforcement that's the district court so do you think that's wrong you think that's a clearly erroneous finding inadvertent whether the district court was clearly erroneous and there was a misunderstanding about the definition of law enforcement that's what you do a hearing why are we sitting here trying to figure out whether this was a matter of inadvertence or an actual effort to kind of slide something that he was dishonest in concealing it is that it wasn't a false answer to this question for mcdonough purposes but that is different from and we've said this in several cases that is not the same thing as saying that this couldn't give rise to questions about whether there had been an effort to kind of answer technically but not fully it can be technically correct but not a complete answer i mean that's conway the supreme court said that millions resist we versus taylor w as another case where there was no finding in the state court which to which was oh deference on this issue and i suggest this is this is a different case because of that finding question then is whether he is would have given rise to a challenge for cause and or an answer is we can just this court can affirm the dismissed on the second problem of donna because he answered the only question that was ever put to jurors about relationship law enforcement challenge for a cause all that there must be a basis for a successful challenge because you understand the question i'm asking i think i do  which i think by by the language in the dawn of a valid basis i think they're asking for more than a formal ability to raise a challenge because i don't think you have to have one that  an automatic success but i think you have to have more than a technical right to raise the challenge because i think the court has to look into whether there is some substance to the challenge or in this case if he's already certified that he's not impartial because of his relationship it is not valid the trial judge maintained the right to decide whether it's right for calls all right isha and but there would be cases in which appeals court could go that clearly is a strike for cause and you were just wrong as a matter of law correct russia doesn't have to rise to that level because if it doesn't want to we do with the discretion that the trial judge has and striking for columns i think again the language in the gun of a valid basis for a challenge for cause puts the burden on the appellate court to look beyond the of whether he would have standing to make a challenge for cause and find if there is a substantial basis for the challenge because and i submit in this case there is not because of the answers he already gave to other questions morally so you then take it that had he been asked headed people been notified about his brother he would have been asked the fact that we now know you have a brother considering that brother in law enforcement in neighboring county considering that could you be fair in this trial that's what he would be asked yes and then you think that the answer that he gave tells us what answer he would have given us again i think the answer he gave combined with the answer he gave  don't know what the answers to those there's nothing in the record now about the answers and do we even know whether the brother participated in the man and i do not at all believe it's in the record that would be something hearing it was but that the man who actually took place in new york state was where he was hearing we could find out whether the brother was involved in any of that not we but the district court to find out did the district court consider any of the townson factors in determining whether or not to hold an evidentiary hearing it did not do so explicitly i don't believe but it did find that the record was sufficient in its view to any question why isn't the court required to consider those factors the court's required to consider first whether and under common pin holster it's required to consider first whether in light of twenty fifty four deference and reliance on the record the claim can be dismissed on that basis if it can then there is no basis for an evidentiary hearing on undercover and i just want to make sure i understood stager answer about whether the district court considered the towns and factors you said not explicitly but it either you would or surprise are you not i'm surprised that the towns in it is the focus of the district court's discussion on whether there was a post trial hearing gave what for a while now it's one of the focuses of the issues here but to answer the question of a complete the district court's reference to the standards for post trial hearing on b consider he argues the link between chesapeake and the other jurisdictions but he did the district or did find that the jury had been asked whether any of the publicity surrounding the i just have a question about the intersection of kind of this ineffective assistance of counsel claim with the question here of the question under actual bias right is just whether the defendant is entitled to a hearing but the question under ineffective assistance when you're trying to show prejudice you have to show that the outcome of the proceeding would have been different you basically have to show you would not only are you entitled to a hearing but you would prevail if you got that hearing so those would seem like two totally different questions to me  i don't know if i'm being clear but i don't understand or stand exactly what we can do with a finding that i don't think he's shown he was likely to prevail at a hearing when the question for us is whether he's entitled to a hearing in the first place you know what i'm saying  legal questions there were they're different but they are related question related and standards cigna different in a way that really matters and what that the district court also pointed out is that other than the dischord of course that didn't find the affidavit itself was evidence of bias but it would not be admissible we argue under six to six b at any sort of hearing in any case and mr  affidavits is the fact of the brothers employment and the definitely forced from a dollar question but under natural by a standard the mere fact that he was related to a sheriff's deputy does not show he was actual biased in the cause and so that the ibility of the affidavit we said in conaway there's language in conway suggesting that even if an affidavit wouldn't be admissible at the hearing you may be able to use it to show that you're entitled to a hearing and we said that it would be a classic catch twenty two if you have to submit admissible evidence to get an evidentiary hearing when the defendant is seeking a hearing because you can't get admissible evidence without subpoena power or discovery so why doesn't that govern here now there may be sixty is broader than when the case is given to the jury for deliberations its any of his mental processes during the trial that six of sixty is meant to protect from further in take a moment to turn to the brady issue raised by mr lee if there is no other questions at this point on you the jury claims the prosecution and not disclosed and his claim that it was known to the prosecution depends in large part on two prongs that as far as i can tell were not raised in the state or s his claim that mr the officer reeves not participate in the review program shows that they knew something about his background which disqualified him for it and the claim based on the website that they would have investigated his prior but what the status quo really had before as you know it is a statement by the prosecution that they did not have any of this information and a statement from the  norfolk police department in response to a foyer claim that they did not have the information mr lee has given a different reading to the oil letter than the state court a district court and he can argue that but that doesn't mean that the reading the state court gave the oil letter was unreasonable which is the standard he has to overcome this point not only to prevail or to set it aside as to show it's wrong by clear and convincing evidence which is it j seven hundred seventy one referenced three broad request for information and said that the d apical department this was to the city generally not to the police department was how he dressed the foyer request apple department has no record response to requests for any background check or misconduct records for all three of tenure with baltimore police department saying that mr lee has argued different or potations that sentence but he's not shown that the interpretation given by the supreme court virginia is unreasonable that they have no records about this and didn't fact refer them to the baltimore police department for those records mr porter's petition though demonstrates your answer as he asked the wrong person no my answer is that the state does bring forth general relied reasonably on the state meant by the city of najaf ok and by the prosecutor that there were no records relating to any misconduct officer in baltimore and that therefore there were no such records in the prosecutions direct or constructive possession and therefore there was no brady violation all that any such record i'm not aware of any there all records in baltimore the boiler referred him to baltimore and that mr reeves is reeves which porter's state his petition shows that with a little diligence they were able to discover a fair amount of detail about we disputed whether they whether they show misconduct or what there's a different conclusion be drawn from them but clear the records about these two incidents that he's discussing with the baltimore police department he submitted some of them but he's also demonstrated in doing that that they were available to suggest to that because it's available on diligent investigation by the defense at trial it's not chargeable as a brady violation for failure disclose also argued that because to the brady from the wrap up because the evidence of these two incidents supposedly shows the character the defendant on a virginia law that would not be admissible in the absence of a having found there was no basis even believing this reporter's testimony for a claim of self defense it would not have been invisible at trial and he can't show any prejudice the brady material was breaking information was not material for all i'll be as brief as i can first of all i just wanted to mention for the court we did a quick check in the townsend factors were not mentioned by the district court in either its opinion dismissing the mcdon dismissing the actual bias claim as a matter of law secondly the michael williams decision mentioned by the court that provides a basis for finding the the state court decision to be unreasonable under d one  cate's the court directly addressed the application of a technical interpretation of the question within a mcdonagh claim and remanded for an evidentiary hearing so relying on a technical interpretation to dismiss a claim is a matter of law would be an unreasonable department does have information pertinent to the request that that mr porter make and but it said but it's protected by for you and we're not going to give it to you and then it and then it mentions this is that seven hundred seventy one you are then it it mentions two records that are records of the baltimore police departments background checks and the baltimore police department's misconduct records and says we don't have any background checks that the baltimore police department did or and we don't have their misconduct records if you want those go to baltimore we weren't asking for the baltimore records we were asking for records that were part of the background check that the norfolk police department did of officer reeves before accepting him as a as a law enforcement officer in in in norfolk  funded the question about like whether there was this records were available these baltimore police personnel records were not available to mr porter the information that we got we did get from from looking at the court records litigation and some of the litigation had some references to some of these investigations in it but we never got the records of the investigations themselves and were been deprived of any of that we could have got that if they were brady claim or they could go to trial with subpoena but that the information that we got was not the baltimore police records and that's still being concealed from us and i just had finally that the court addressed something very similar to this in the juniper case recently and this is the same the people investigators about their role in the trial after the fact i mean it if it's used at all it's only used to attack that you're all i just just real a notice that you we know that your court appointed and we acknowledge that thank you for your oh you did a fine job here for you thank your are ok before we thank you very much before we step down the panel want to take knowledge that we have and we actually have scribbled out a note to our selves up here were taken under devised an order from the code that you give all the students in a in the class so we'll let you know but thank you for bringing and thank you for bringing them here at this point will step down we coun