PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 14-5

THOMAS ALEXANDER PORTER,

Petitioner - Appellant,

v.

DAVID ZOOK, Warden, Sussex I State Prison,

Respondent - Appellee.

Appeal from the United States District Court for the Eastern 

District of Virginia, at Richmond. James R. Spencer, Senior 

District Judge. (3:12-cv-00550-JRS)

Argued: September 16, 2015 Decided: October 20, 2015 

Before SHEDD, THACKER, and HARRIS, Circuit Judges.

Dismissed and remanded by published opinion. Judge Harris wrote 

the opinion, in which Judge Shedd and Judge Thacker joined.

ARGUED: Dawn Michele Davison, VIRGINIA CAPITAL REPRESENTATION 

RESOURCE CENTER, Charlottesville, Virginia, for Appellant. 

Matthew P. Dullaghan, OFFICE OF THE ATTORNEY GENERAL OF 

VIRGINIA, Richmond, Virginia, for Appellee. ON BRIEF: Robert 

Lee, Lindsey Layer, VIRGINIA CAPITAL REPRESENTATION RESOURCE 

CENTER, Charlottesville, Virginia; Brian K. French, NIXON 

PEABODY, LLP, Boston, Massachusetts; Trey Kelleter, VANDEVENTER 

BLACK, LLP, Norfolk, Virginia, for Appellant. Mark R. Herring, 

Attorney General of Virginia, OFFICE OF THE ATTORNEY GENERAL OF 

VIRGINIA, Richmond, Virginia, for Appellee. 
2

PAMELA HARRIS, Circuit Judge:

Thomas Alexander Porter appeals from a district court order 

dismissing his petition for a writ of habeas corpus under 28 

U.S.C. § 2254. Among 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. See Smith v. Phillips, 455 U.S. 209, 215

(1982). Because the district court did not resolve that claim, 

its decision was not a final order over which we have 

jurisdiction. Accordingly, we must dismiss Porter’s appeal and 

remand for adjudication of Porter’s actual bias claim.

I.

In 2005, Porter shot and killed police officer Stanley 

Reaves in Norfolk, Virginia. On the afternoon of the murder, 

Porter and another man were at the apartment of a female 

acquaintance, along with her two daughters and other family 

members, attempting to purchase marijuana. Officer Reaves was 

called to the scene after Porter began to brandish a semiautomatic pistol and threatened to shoot the women in the 

apartment. When Officer Reaves confronted Porter just outside 

the apartment, Porter drew his pistol, then concealed on his 
3

person, and shot Officer Reaves three times. Porter then took 

Officer Reaves’s pistol and fled.1

After a month-long manhunt led to his capture, Porter was 

indicted in the Circuit Court of the City of Norfolk on multiple 

charges. The most serious was a charge of capital murder, for 

the intentional killing of a police officer in order to 

interfere with the performance of his official duties. See Va. 

Code § 18.2-31.6. 

As was to be expected, Officer Reaves’s senseless killing 

provoked widespread mourning and outrage in Norfolk and the

surrounding communities. The killing also generated extensive 

media coverage, both during the manhunt for Porter and after his 

apprehension and indictment. Citing concerns about the ability 

to empanel an impartial jury in Norfolk, Porter filed a motion 

for a change of venue, to which the Commonwealth consented. The 

Norfolk court granted the motion and transferred Porter’s trial

to the Circuit Court of the County of Arlington.

Porter ultimately was convicted of three counts, including 

capital murder. At the sentencing phase, the jury found the 

 1 The facts surrounding Porter’s crime and the extensive 

proceedings related to this case are detailed in the decision of 

the Supreme Court of Virginia affirming Porter’s conviction and 

sentence, Porter v. Commonwealth, 661 S.E.2d 415 (Va. 2008), as 

well as the decision of the district court dismissing Porter’s 

petition for federal habeas relief, Porter v. Davis, No. 3:12-

CV-550-JRS, 2014 WL 4182677 (E.D. Va. Aug. 21, 2014). 
4

aggravating factor of future dangerousness, see Va. Code § 19.2-

264.2, and sentenced Porter to death for capital murder. Porter 

appealed his capital conviction and death sentence, and the 

Supreme Court of Virginia affirmed both. Porter then filed a 

petition for state habeas post-conviction relief in the Supreme 

Court of Virginia, which dismissed the petition. 

After the conclusion of state court proceedings, Porter 

filed the federal habeas petition that is the subject of this 

appeal, seeking relief under 28 U.S.C. § 2254 and raising close 

to twenty different claims. The Warden of Sussex I State 

Prison, where Porter is incarcerated, moved to dismiss. The

district court granted the Warden’s motion and entered an order 

dismissing Porter’s petition. The court also issued Porter a 

certificate of appealability, and this timely appeal followed.

II.

A.

The parties to this appeal have not questioned our 

jurisdiction. But before we consider the merits of an appeal, 

we have an independent “obligation to verify the existence of 

appellate jurisdiction.” Palmer v. City Nat’l Bank, of W. Va., 

498 F.3d 236, 240 (4th Cir. 2007). And that jurisdiction 

generally is limited to appeals from “final decisions of the 

district courts,” 28 U.S.C. § 1291 — decisions that “end[] the 
5

litigation on the merits and leave[] nothing for the court to do 

but execute the judgment.” Miller v. Simmons, 814 F.2d 962, 964 

(4th Cir. 1987) (quoting Coopers & Lybrand v. Livesay, 437 U.S. 

463, 467 (1978)).

“Ordinarily, a district court order is not ‘final’ until it 

has resolved all claims as to all parties.” Fox v. Baltimore 

City Police Dep’t, 201 F.3d 526, 530 (4th Cir. 2000) (emphasis 

added). In making that assessment, we look to substance, not 

form. Regardless of the label given a district court decision, 

if it appears from the record that the district court has not 

adjudicated all of the issues in a case, then there is no final 

order. See Witherspoon v. White, 111 F.3d 399, 402 (5th Cir. 

1997); C.H. ex rel. Hardwick v. Heyward, 404 F. App’x 765, 768

(4th Cir. 2010) (unpublished) (“[A] district court mislabeling a 

non-final judgment ‘final’ does not make it so.” (quoting 

Stillman v. Travelers Ins. Co., 88 F.3d 911, 914 (11th Cir. 

1996))).

The same rule applies in habeas cases. See Prellwitz v. 

Sisto, 657 F.3d 1035, 1038 (9th Cir. 2011) (dismissing habeas 

appeal for lack of jurisdiction where district court failed to 

adjudicate all claims); United States v. Blakely, 101 F. App’x 

905, 905–06 (4th Cir. 2004) (unpublished) (same). And just as 

the label attached to a district court order does not end our 

inquiry into finality, the issuance of a certificate of 
6

appealability cannot by itself establish that the district court 

actually has resolved every claim between the parties.

In short, even if a district court believes it has disposed 

of an entire case, we lack appellate jurisdiction where the 

court in fact has failed to enter judgment on all claims. 

Witherspoon, 111 F.3d at 402; Hardwick, 404 F. App’x at 767–68. 

That is what has happened here. Because the district court did 

not rule on Porter’s claim of actual juror bias, we must dismiss 

this appeal for want of jurisdiction.

B.

Among the myriad issues raised in Porter’s § 2254 petition

are two related but distinct claims, each alleging a violation 

of the right to trial by an impartial jury. Though their 

factual predicates differ slightly, both rest at least in part 

on the failure of one of Porter’s jurors, Bruce Treakle, to 

disclose at voir dire that he had a brother who, like the victim 

in this case, was a law-enforcement officer, serving in a 

jurisdiction immediately adjacent to Norfolk, Virginia.

During voir dire, Porter’s attorney asked potential jurors 

whether they or members of their “close personal family” had

“worked in law enforcement in any capacity as a volunteer or an 

employee.” Treakle raised his hand, and when called on, 

explained that his nephew was a police officer in Arlington, 

Virginia, where the trial was being held. Porter’s attorney 
7

asked Treakle whether this relationship would affect his ability 

to be fair and impartial, and Treakle responded that it would 

not. The attorney moved on to other prospective jurors, and 

Treakle did not mention any additional relatives in law 

enforcement. 

As the district court explained, however, the record 

reflects that Treakle has a second and closer relative, a 

brother, who also worked in law enforcement, as a deputy sheriff 

in Chesapeake, Virginia, which borders Norfolk. That fact came 

to light only after Porter’s direct appeal, when Porter’s 

counsel and a law student volunteer interviewed Porter’s jurors. 

According to an affidavit submitted by the law student, Treakle 

explained that the trial testimony of Officer Reaves’s widow had 

been “moving and very emotional for him because his brother is a 

sheriff’s officer in Norfolk.”2 J.A. 2198. After “express[ing] 

sympathy for law enforcement officers” who “put their lives on 

the line every day for the community,” Treakle declined to speak 

further to Porter’s counsel.

With this as his core factual predicate, Porter raises two 

separate claims regarding juror bias in his § 2254 petition. 

One focuses exclusively on Treakle’s conduct during voir dire, 

 2 A subsequent affidavit from Treakle’s brother, Pernell, 

clarified that Pernell Treakle actually was a deputy sheriff in 

Chesapeake, Virginia, at all times relevant to this case. 
8

and invokes McDonough Power Equipment, Inc. v. Greenwood, 464 

U.S. 548 (1984). McDonough, as we have explained, “set[s] forth 

a particularized test for determining whether a new trial is 

required in the context of juror deceit during voir dire.” 

Jones v. Cooper, 311 F.3d 306, 310 (4th Cir. 2002). Under that 

test, the bar for juror misconduct is set high: Relief may be 

granted only if a “juror fail[s] to answer honestly a material 

question,” McDonough, 464 U.S. at 556, and a juror’s failure to 

elaborate on a response that is factually correct but less than 

comprehensive may not meet this standard where no follow-up 

question is asked. See, e.g., Billings v. Polk, 441 F.3d 238, 

245 (4th Cir. 2006) (McDonough provides for relief “only where a 

juror gives a dishonest response to a question actually posed, 

not where a juror innocently fails to disclose information that 

might have been elicited by questions counsel did not ask”); 

Fitzgerald v. Greene, 150 F.3d 357, 363-64 (4th Cir. 1998) (no 

McDonough claim where juror whose granddaughter had been 

molested answered that no member of his family had been “raped” 

because attorney limited question to rape and did not ask 

follow-up question about molestation). Applying that standard, 

the district court dismissed Porter’s McDonough claim, finding 

that the state court reasonably held that Treakle “did not 

volunteer false information” in a way that implicates McDonough
9

when he failed to advise of a second relative in law 

enforcement.

Porter’s second claim is different: Relying in part but 

not entirely on what he alleges was Treakle’s dishonesty at voir 

dire, Porter also invokes Smith v. Phillips, 455 U.S. 209 

(1982), and claims that Treakle was not a fair and impartial 

juror. This claim of “actual bias” (sometimes called “bias in 

fact”) is, as we have made clear, distinct from a McDonough

claim. “The McDonough test is not the exclusive test” for 

identifying bias, and while a McDonough claim requires a showing 

of juror misconduct, an actual bias claim may succeed 

“regardless of whether the juror was truthful or deceitful.” 

Jones, 311 F.3d at 310; see also Fitzgerald, 150 F.3d at 364 

(considering McDonough and actual bias claims independently). 

And of special relevance here, one factor that may give rise to 

distinct concerns about actual bias is a personal relationship 

that colors a juror’s perspective on a case, see Fields v. 

Woodford, 309 F.3d 1095, 1103-06 (9th Cir. 2002) (remanding for 

hearing on actual bias where juror’s wife had been a victim of 

violent crime and district court had relied only on McDonough in 

rejecting bias claim) — including a relationship with a family 

member in law enforcement, see United States v. Scott, 854 F.2d 

697, 698–700 (5th Cir. 1988) (ordering new trial where juror’s 

failure to disclose that his brother was a deputy sheriff raised 
10

“a genuine prospect of actual bias,” regardless of whether 

juror’s voir dire answers were dishonest under McDonough).

As is to be expected, the thrust of Porter’s actual bias 

claim differs from that of his claim under McDonough. To show 

actual bias, Porter relies not only on Treakle’s conduct at voir 

dire, but also on the allegation that Treakle’s relationship 

with his brother actually “impacted his perception of the 

evidence and his participation in deciding Porter’s guilt and 

punishment,” as reflected by Treakle’s admission that he was 

especially moved by the testimony of Officer Reaves’s widow 

because his brother was a sheriff’s officer from the same area 

as Officer Reaves. Porter also draws on the fact that his trial 

was moved from Norfolk because of concerns about juror bias, and 

on the allegation that Chesapeake law enforcement was especially 

affected by the death of Officer Reaves (who lived with his 

family in Chesapeake and was killed in next-door Norfolk) and 

participated in the extended manhunt for Porter. All told, 

Porter argues, there is enough to support a finding that 

“Treakle was actually biased against him,” or, at a minimum, to 

entitle him to an evidentiary hearing on actual bias. J.A. 3699 

& n.3. 

The Warden, for his part, defends against Porter’s actual 

bias claim separately and on the merits in his motion to 

dismiss. Focusing on Treakle’s statements to Porter’s counsel, 
11

as alleged in the law-student affidavit, the Warden argues that 

bias in fact cannot be shown simply because Treakle responded 

favorably to the “obviously moving” testimony of Officer 

Reaves’s widow. 

Notwithstanding these arguments, the district court 

dismissed Porter’s petition without ruling on or seeming to 

recognize Porter’s actual bias claim. Instead, the portion of 

the court’s opinion devoted to juror bias addresses only the 

McDonough test for juror misconduct during voir dire, dismissing 

Porter’s McDonough claim for the reasons discussed above. It 

does not acknowledge a distinct actual bias claim, and it never 

passes on a central component of that claim: the law-student 

affidavit that has Treakle drawing a connection between his 

relationship with his brother and his response to certain trial 

testimony.3 

 3 The district court did observe that even if Treakle had 

“failed to answer honestly a material question” under McDonough, 

Porter would be unable to satisfy McDonough’s requirement that 

an honest answer “would have provided a valid basis for a 

challenge for cause,” 464 U.S. at 556, because he could not show 

that the trial court would have dismissed Treakle for “actual or 

implied bias.” The court went on, however, to consider only 

whether Porter’s allegations were sufficient to warrant an 

imputation of bias under the “doctrine of implied bias,” without 

any analysis of actual bias. Whether or not consideration of 

actual bias as a component of a McDonough claim suffices to 

dispose of a freestanding actual bias claim, no such 

consideration is apparent here.
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Our point here is not to fault the district court; Porter’s 

petition contains a multitude of claims, some of which have

multiple subparts, and it is easy to see how one “variation[]” 

of a juror bias claim, Jones, 311 F.3d at 310, could be 

overlooked. And we of course express no view as to the merits 

of Porter’s actual bias claim. But we are constrained to agree 

with Porter that the district court did not adjudicate his 

actual bias claim.

Because the district court failed to rule on Porter’s 

actual bias claim, it never issued a final decision on Porter’s 

habeas petition. We therefore lack jurisdiction and must 

dismiss Porter’s appeal. We remand the case to the district 

court so that it can decide Porter’s actual bias claim. On 

remand, the district court may consider any argument or defense 

properly raised by Porter or the Warden, and may conduct an 

evidentiary hearing or any other proceedings it deems necessary 

to resolve the claim. 

III.

We dismiss Porter’s appeal and remand to the district court 

for consideration of Porter’s actual bias claim. We express no 

opinion regarding the district court’s dismissal of Porter’s 

other claims.

DISMISSED AND REMANDED