                               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.
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    semi-

automatic       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




                                                  2
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


      1The 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).


                                   3
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

                                               4
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

                                       5
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

                                                  6
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.


                                           7
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



                                            8
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

                                                9
“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,

                                             10
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.


                                         11
         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

                                           12
