VIRGINIA:
      In the Supreme Court of Virginia held at the Supreme Court
Building in the City of Richmond, on Friday, the 2nd day of March,
2012.


PRESENT: KINSER, C.J., LEMONS, GOODWYN and MILLETTE, JJ., and
CARRICO, LACY and KOONTZ, S.JJ.


Thomas Alexander Porter,                                   Petitioner,

against         Record No. 091615

Warden of the Sussex I State Prison,                       Respondent.



               Upon a Petition for a Writ of Habeas Corpus

     Upon consideration of the petition for a writ of habeas corpus

filed August 10, 2009, the respondent's motion to dismiss, the

petitioner's opposition to the motion to dismiss, the respondent's

supplemental motion to dismiss, the petitioner's opposition to the

supplemental motion to dismiss, and the respondent's reply to

petitioner's opposition, as well as the criminal, appellate, and

habeas records in this case, the Court is of the opinion that the

motion to dismiss should be granted and the writ should not issue.

     Thomas Alexander Porter was convicted in the Circuit Court of the

City of Norfolk of capital murder, use of a firearm in the commission

of a felony, and grand larceny.     The jury found the aggravating factor

of "future dangerousness" and fixed Porter's sentence at death for the

capital murder conviction and 22 years' imprisonment for the non-

capital offenses.   The trial court imposed the sentences fixed by the

jury.   This Court affirmed petitioner's convictions and upheld the
sentence of death in Porter v. Commonwealth, 276 Va. 203, 215, 661

S.E.2d 415, 419 (2008), cert. denied, 556 U.S. 1189 (2009).

                                 CLAIM (I)

     In Claim (I), petitioner alleges he was denied the right to a

fair trial by an impartial jury because Juror T, who served as a juror

during petitioner's trial, failed to disclose during voir dire that

Juror T's brother was employed as a deputy sheriff in Chesapeake,

Virginia.    When asked by defense counsel if he had any family members

involved in law enforcement, Juror T stated only that he had a nephew

who was a police officer in Arlington County, where the case was being

tried after a change of venue from the City of Norfolk.   Petitioner

alleges that Juror T's service was affected because the victim was a

law enforcement officer.   Petitioner contends that Juror T found the

victim's wife to be a powerful witness and that he found her testimony

moving and emotional precisely because Juror T's brother is a deputy

sheriff.    Petitioner alleges that due to Juror T's concealment of his

brother's service as a Chesapeake law enforcement officer, petitioner

was unable to conduct meaningful voir dire as to the juror's potential

prejudice.

     The Court holds that it can consider Claim (I), but it is without

merit.   The record, including the trial transcript and the affidavits

provided in support of the petition for a writ of habeas corpus,

demonstrates that Juror T did not disclose his brother's service as a

Chesapeake law enforcement officer during voir dire or at any time

prior to the conclusion of petitioner's direct appeal. Thus, this

                                     2
constitutional claim could not have been raised at trial or on direct

appeal and is ripe for consideration.

     In determining whether to grant a new trial based on an

allegation that a juror was dishonest during voir dire, this Court

applies the two-part test enunciated in McDonough Power Equipment,

Inc. v. Greenwood, 464 U.S. 548 (1984), which states that

     to obtain a new trial in such a situation, a party must
     first demonstrate that a juror failed to answer honestly a
     material question on voir dire, and then further show that a
     correct response would have provided a valid basis for a
     challenge for cause. The motives for concealing information
     may vary, but only those reasons that affect a juror's
     impartiality can truly be said to affect the fairness of a
     trial.

Id. at 556.

     In this case, defense counsel, Joseph A. Migliozzi, Jr., asked

the jurors, "But is anyone here, or a member of your close personal

family, worked in law enforcement in any capacity as a volunteer or an

employee?" Several prospective jurors, including Juror T, raised hands

in response.   The entirety of the exchange with Juror T was as

follows:

     [JUROR T]: My nephew is an Arlington County police officer.
     MR. MIGLIOZZI: Your nephew?
     [JUROR T]: Yes.
     MR. MIGLIOZZI: In this county here?
     [JUROR T]: Yes.
     MR. MIGLIOZZI: Do you think, with that being the case, that
     that would impair your ability to sit on this jury and
     render a fair and impartial verdict in this case?
     [JUROR T]: No.

Upon receiving Juror T's negative response, counsel moved on to the

next prospective juror.   The record demonstrates that Juror T answered


                                    3
truthfully that he had a nephew who was an Arlington County Police

Officer, Arlington County being the jurisdiction where the case was

being tried following a change of venue, and that he was not asked,

nor did he have the opportunity to answer, if he had any additional

relationships with law enforcement officers.   Thus, petitioner has

failed to demonstrate that Juror T failed to answer honestly a

material question during voir dire.

                              CLAIM (II)

     In Claim (II), petitioner alleges the Commonwealth failed to

disclose exculpatory information as required by Brady v. Maryland, 373

U.S. 83 (1963), and presented false testimony or allowed it to go

uncorrected in violation of Napue v. Illinois, 360 U.S. 264 (1959),

and Giglio v. United States, 405 U.S. 150 (1972).

     As the Court has stated previously:

          In Brady[], the United States Supreme Court held that
     "the suppression by the prosecution of evidence favorable to
     an accused upon request violates due process where the
     evidence is material either to guilt or to punishment,
     irrespective of the good faith or bad faith of the
     prosecution." Id. at 87. Whether evidence is material and
     exculpatory and, therefore, subject to disclosure under
     Brady is a decision left to the prosecution. Pennsylvania
     v. Ritchie, 480 U.S. 39, 59 (1987). Inherent in making this
     decision is the possibility that the prosecution will
     mischaracterize evidence, albeit in good faith, and withhold
     material exculpatory evidence which the defendant is
     entitled to have under the dictates of Brady. If the
     defendant does not receive such evidence, or if the
     defendant learns of the evidence at a point in the
     proceedings when he cannot effectively use it, his due
     process rights as enunciated in Brady are violated. United
     States v. Russell, 971 F.2d 1098 (4th Cir. 1992); United
     States v. Shifflett, 798 F. Supp. 354 (1992); Read v.
     Virginia State Bar, 233 Va. 560, 564-65, 357 S.E.2d 544,
     546-47 (1987).

                                      4
                                 . . . .

          Exculpatory evidence is material if there is a
     reasonable probability that the outcome of the proceeding
     would have been different had the evidence been disclosed to
     the defense. "A reasonable probability" is one which is
     sufficient to undermine confidence in the outcome of the
     proceeding. United States v. Bagley, 473 U.S. 667, 682
     (1985); Robinson v. Commonwealth, 231 Va. 142, 151, 341
     S.E.2d 159, 164 (1986).

Muhammad v. Warden, 274 Va. 3, 4, 646 S.E.2d 182, 186 (2007) (quoting

Muhammad v. Commonwealth, 269 Va. 451, 510, 619 S.E.2d 16, 49-50

(2005) (quoting Bowman v. Commonwealth, 248 Va. 130, 133, 445 S.E.2d

110, 111-12 (1994))), cert. denied, 552 U.S. 1319 (2008).

     Furthermore, this Court has previously held that, "[i]n order to

find that a violation of Napue occurred[,] . . . we must determine

first that the testimony [at issue] was false, second that the

prosecution knew of the falsity, and finally that the falsity affected

the jury's judgment." Teleguz v. Commonwealth, 273 Va. 458, 492, 643

S.E.2d 708, 729 (2007), cert. denied, 552 U.S. 1191 (2008).

                                   (A)

     In Claim (II)(A), petitioner alleges the Commonwealth was

required to, but did not, disclose that a prosecution witness, Jim

Downey, was under arrest for a probation violation that exposed him to

a 17 year prison sentence at the time he testified at petitioner's

trial.   Petitioner contends that the Commonwealth failed to disclose

that the prosecutor pursuing the probation violation charges against

Downey was the same prosecutor who elicited Downey's testimony at

petitioner's trial, and that Downey was arrested on the same day that

                                    5
he provided testimony in petitioner's trial, and then later released

on his own recognizance.

     Because the information regarding Downey's arrest was available

to petitioner via public records in existence at the time of his

direct appeal, the Court holds that Claim (II)(A) is barred because

this non-jurisdictional issue could have been raised on direct appeal

and, thus, is not cognizable in a petition for a writ of habeas

corpus.   Slayton v. Parrigan, 215 Va. 27, 29, 205 S.E.2d 680, 682

(1974), cert. denied, 419 U.S. 1108 (1975).

                                   (B)

     In Claim (II)(B), petitioner alleges the Commonwealth failed to

disclose to him that Simone Coleman, a prosecution witness,

contradicted the claim of Selethia Anderson, another prosecution

witness, of having seen the shooting occur.   Relying on an affidavit

by Coleman, petitioner argues that Anderson's testimony that she was

sitting on her front porch when she saw the police vehicle arrive,

watched as petitioner approached the officer and shot him, and

observed petitioner run towards his parked vehicle and point his gun

in her direction, causing her to flee inside with her baby, was

subject to impeachment by Coleman's statement that she lived in the

same apartment and did not see anyone sitting on the porch during the

same time frame.

     The Court need not resolve questions related to whether this

information was material because the Court holds that the evidence was

not favorable to petitioner, as it did not contradict the testimony of

                                    6
Selethia Anderson and, therefore, failure to disclose was not a

violation of Brady.    In order to show a violation of Napue, petitioner

must show that Anderson's testimony was false, that the prosecution

knew of the falsity, and that the falsity affected the jury's

judgment.    Napue, 360 U.S. at 269-71.    See Teleguz, 273 Va. at 491-92,

643 S.E.2d at 729.

     The record, including the trial transcript and Coleman's

affidavit, demonstrates that Anderson was sitting on her front porch

and saw a police vehicle pull up and park across the street.     Anderson

witnessed petitioner shoot the officer, and then retreated to her home

when she saw petitioner move toward his vehicle and point a gun in her

direction.     Coleman's trial testimony and affidavit demonstrate that

she noticed the police vehicle pulling up the road as she was "coming

out of [her] home and starting to cross 28th Street."     After Coleman

walked down the street, she glanced back and witnessed petitioner

shoot the police officer.    Coleman ran away from the shooting, but

then returned to her apartment after she saw the petitioner flee.      The

witnesses' testimony supports the inference that Anderson entered and

exited the porch in between the time that the porch would have been

visible to Coleman as she exited her apartment and walked down the

street.     Furthermore, Coleman's affidavit states only that she "most

likely" would have noticed if Anderson had been sitting on the porch

when Coleman exited the building.

                                     (C)

     In Claim (II)(C), petitioner alleges the Commonwealth was

                                      7
required to, but did not, disclose information regarding previous

incidents of the victim's unprofessional conduct as a Baltimore,

Maryland police officer.   Petitioner contends the Commonwealth did not

provide exculpatory evidence regarding a 1994 incident in which

Officer Reaves handcuffed a suspect on the ground and slashed the

tires of the suspect's bicycle.   During this incident, a bystander,

George Hite, objected and was arrested for disorderly conduct.    A

fellow Baltimore police officer swept Hite's legs out from under him,

causing Hite to hit his head resulting in Hite's death.   In a

subsequent civil lawsuit, Officer Reaves stated he believed his fellow

officer had acted appropriately, although eyewitnesses contradicted

Reaves' version of events.

     Another incident of Officer Reaves' alleged unprofessional

conduct occurred in 2001, when he allegedly engaged in a pursuit of a

dirt bike in contravention of police policy.   When Officer Reaves

caught up to the dirt bike, the driver lost control of the bike, was

thrown into a utility pole and died of head injuries. Petitioner

argues that evidence regarding these incidents would have undermined

the Commonwealth's assertions that Officer Reaves was not aggressive,

bolstered petitioner's defense that Officer Reaves drew his gun and

pointed it at petitioner without provocation, and created a reasonable

probability that at least one juror would have concluded the

Commonwealth did not establish "future dangerousness" during the

sentencing phase.

     The Court need not resolve questions related to whether this

                                    8
information was material because the Court holds that the evidence was

not known to the Commonwealth.   The record, including a 2009 Freedom

of Information Act response from the Assistant City Attorney for the

City of Norfolk and the affidavit of Philip Evans II, Deputy

Commonwealth's Attorney for the City of Norfolk, demonstrates that the

Commonwealth did not possess any information concerning the 1994 or

2001 incidents.   Furthermore, pursuant to Brady, there is no

obligation to produce information available to the defendant from

other sources, including diligent investigation by the defense.     See

Fullwood v. Lee, 290 F.3d 663, 686 (4th Cir. 2002); Cherrix v.

Commonwealth, 257 Va. 292, 302-03, 513 S.E.2d 642, 649, cert. denied,

528 U.S. 873 (1999).

                                   (D)

     In Claim (II)(D), petitioner contends that the Commonwealth

failed to disclose that Juror T had a brother who was a deputy sheriff

in the City of Chesapeake.

     The Court finds that Claim (II)(D) is without merit.   The record,

including the affidavits of the Deputy Commonwealth's Attorney and

petitioner's counsel, demonstrates that the Commonwealth received the

venire list the day before petitioner's trial, and petitioner's

counsel received it the day of trial.    The venire list provided no

indication that Juror T had a brother who was a deputy sheriff in

another jurisdiction.   Thus, petitioner has not established that the

Commonwealth possessed any additional information that was not

provided to petitioner.   Moreover, the record does not show that the

                                    9
Commonwealth knew Juror T's brother was employed as a deputy sheriff.

     Petitioner argues that all of the allegedly exculpatory evidence

must be considered in its totality when determining the materiality of

the evidence. Petitioner is correct that when considering materiality,

we consider suppressed evidence as a whole, not item by item. See

Workman v. Commonwealth, 272 Va. 633, 645, 636 S.E.2d 368, 375 (2006);

Kyles v. Whitley, 514 U.S. 419, 436 (1995).     However, we do not reach

the issue of materiality unless we first determine that the evidence

was not available to petitioner, or is favorable to the accused

because it is exculpatory or because it may be used for impeachment.

Workman, 272 Va. at 644-45, 636 S.E.2d at 374; Muhammad, 274 Va. at

13, 646 S.E.2d at 191.    The allegedly withheld evidence in Claim

(II)(B) was not favorable to the accused.     Furthermore, the evidence

in Claims (II)(C) and (II)(D) was as available to the petitioner as it

was to the Commonwealth.    For these reasons, we will not address the

issue of materiality, and we further hold that Claims (II)(B),

(II)(C), and (II)(D) are without merit.

                                CLAIM (III)

     In several portions of Claim (III), petitioner alleges counsel

were ineffective for failing to investigate Porter's childhood and

educational history.    Counsel Joseph A. Migliozzi, Jr., executed an

affidavit on September 8, 2009 recounting counsel's recollections that

the investigation was conducted and that counsel made strategic

choices concerning additional investigation based upon the information

counsel had received.    Counsel was unable, however, to provide much

                                    10
detail because counsel's notes had been retained by the Office of the

Capital Defender, which would not allow counsel to review the files

citing privilege on behalf of petitioner.   This Court ruled that

petitioner had waived his privilege with respect to counsel's notes

and had waived the work product protection as to materials relating to

petitioner's claims that counsel had failed to investigate

petitioner's childhood and educational history.   The circuit court

subsequently reviewed the materials in camera and ordered that certain

documents be turned over to the respondent for review by counsel.

     In his supplemental motion to dismiss, the respondent relies on a

second affidavit also executed by counsel on August 2, 2011 and

reasserts the motion for production of counsel's files in their

entirety and contends that although the files confirmed the existence

of extended interviews with Bernice Porter and Cora Gaston and twelve

separate interviews with school officials, counsel was unable to

provide further details because of the redacted nature of the notes he

received.   Relying on counsel's assertion that the files confirm

counsel's earlier recollection of his investigation and strategic

choices and noting that petitioner has provided no evidence that such

recollection is inaccurate, the Court denies respondent's latest

motion for the production of counsel's files and holds that the record

is sufficient for the Court to address petitioner's claims.

                                   (A)

     In Claim (III)(A), petitioner alleges he was denied the effective

assistance of counsel because counsel failed to request and obtain a

                                   11
jury instruction on the lesser-included offense of first-degree

murder.    Petitioner asserts that without proof of the gradation

element that the killing was for the purpose of interfering with the

law enforcement officer's official duties, the killing of an officer

is no more than first-degree murder.     Petitioner testified that

Officer Reaves grabbed petitioner's arm and pointed a gun at

petitioner without provocation.    Petitioner contends that this

testimony was corroborated in part by Reggie Copeland and Melvin

Spruill, and established that petitioner believed Officer Reaves was

not acting in his official capacity as a law enforcement officer at

the time of the shooting.   Petitioner argues counsel's failure to

request the instruction was not strategic because counsel fought for

instructions on other lesser offenses, and there was more than a

scintilla of evidence to support granting the first-degree murder

instruction.

     The Court holds that Claim (III)(A) satisfies neither the

"performance" nor the "prejudice" prong of the two-part test

enunciated in Strickland v. Washington, 466 U.S. 668, 687 (1984).     The

record, including the trial transcript and the September 8, 2009

affidavit of counsel, demonstrates that counsel made a strategic

decision not to request a jury instruction that was not supported by

the evidence.   Porter testified that he knew there was a warrant out

for his arrest, that he knew he was carrying a firearm although he was

a convicted felon, and that he saw Officer Reaves in his police

uniform.   Although Porter also testified that he was not thinking

                                    12
about the warrant and that he thought Officer Reaves was "pulling a

gun on him," accepting petitioner's testimony as true, and viewing the

evidence in the light most favorable to him, nothing supports a

finding that Porter reasonably believed the officer was not engaged in

the execution of official duties at the time of the shooting.

Furthermore, central to petitioner's defense was counsel's argument

that petitioner did not premeditate his action.   Therefore, a first-

degree murder instruction, which would necessarily include the element

of premeditation, would have been inconsistent with counsel's theory.

Counsel's strategic decision to not request a first-degree murder

instruction was reasonable under counsel's theory of the case.    Thus,

petitioner has failed to demonstrate that counsel's performance was

deficient or that there is a reasonable probability that, but for

counsel's alleged error, the result of the proceeding would have been

different.

                                    (B)

     In Claim (III)(B), petitioner alleges he was denied the effective

assistance of counsel because counsel failed to emphasize Reggie

Copeland's testimony that he saw petitioner exit the apartment

building as Copeland ran up to Officer Reaves, who had parked in front

of the apartment building.   Petitioner asserts this testimony directly

conflicted with the testimony of Latoria Arrington, and of other

witnesses in the apartment, that petitioner did not leave the

apartment until she said, "Why is Reggie talking to the police

officer?"    According to petitioner, Copeland's testimony, when viewed

                                    13
with the petitioner's testimony, was sufficient to cast doubt on the

prosecution's argument that petitioner knew he would be confronting a

police officer when he left the apartment.     Petitioner continues that

despite the fact that the timing sequence was critical, his counsel

only argued to the jury that Arrington and the other apartment

occupants could not have seen out of the window due to the positioning

of the blinds.   Petitioner contends that counsel failed to emphasize

that Copeland's "far more powerful and credible" testimony undermined

Arrington's credibility, and created reasonable doubt that Reaves was

killed for the purpose of interfering with his official duties.

     The Court holds that Claim (III)(B) satisfies neither the

"performance" nor the "prejudice" prong of the two-part test

enunciated in Strickland.   The record, including the trial transcript

and the September 8, 2009 affidavit of counsel, demonstrates that

counsel reasonably chose to pursue a trial strategy of attacking the

credibility of the Commonwealth's witnesses, Reggie Copeland and

Latoria Arrington.   Furthermore, petitioner's own statement

established that he saw Officer Reaves on the sidewalk before the

shooting, which would support the Commonwealth's argument that

petitioner chose to confront Officer Reaves.    Thus, petitioner has

failed to demonstrate that counsel's performance was deficient or that

there is a reasonable probability that, but for counsel's alleged

error, the result of the proceeding would have been different.

                                   (C)

     In Claim (III)(C), petitioner alleges he was denied the effective

                                   14
assistance of counsel because counsel failed to adequately challenge

the authenticity of the third jailhouse letter that petitioner

allegedly wrote to a fellow inmate indicating that he shot Officer

Reaves because petitioner believed a warrant for his arrest existed,

and he did not want to return to jail.   Petitioner asserts that

counsel should have obtained an expert in handwriting analysis to

opine that someone other than petitioner wrote the note.

     The Court holds that Claim (III)(C) satisfies neither the

"performance" nor the "prejudice" prong of the two-part test

enunciated in Strickland.   The record, including the trial transcript,

demonstrates that petitioner's counsel objected to the admission of

the third jailhouse letter based on a lack of foundation, and the

court overruled the objection.   Petitioner has failed to establish

that a handwriting expert would have opined that petitioner did not

write the letter.   Henry Chatman, the recipient of the letter,

testified that he understood the letter came from petitioner.     No

evidence, other than petitioner's testimony, suggested the letter was

not authentic.   The affidavit of Nancy McCann, a document and

handwriting examiner, submitted by petitioner, does not support

petitioner's contention that he did not write the letter.   McCann

states only that "it cannot be conclusively determined through the

application of accepted methods and techniques" that petitioner wrote

the disputed letter.   In fact, petitioner's counsel had obtained the

services of an expert handwriting examiner, and after reviewing the

expert's possible testimony, counsel made a strategic decision to not

                                   15
call the expert.   Thus, petitioner has failed to demonstrate that

counsel's performance was deficient or that there is a reasonable

probability that, but for counsel's alleged error, the result of the

proceeding would have been different.

                                    (D)

     In Claim (III)(D), petitioner alleges he was denied the effective

assistance of counsel because counsel failed to conduct an adequate

investigation into petitioner's childhood and present important

mitigating evidence regarding the abuse petitioner received as a

child.   Petitioner asserts counsel should have presented evidence that

he was physically beaten by his caregivers and grew up amidst

neighborhood and family violence.   Petitioner contends that counsel

conducted only cursory interviews with petitioner's mother and other

adults in his life as he grew up, and did not follow up on evidence of

physical abuse.    Petitioner further asserts counsel's failure resulted

in depriving his mental health expert of information crucial to his

evaluation, and undermined confidence in the jurors' sentencing phase

decisions because they were not provided with a proper context for

understanding petitioner's behavior.

     The Court holds that Claim (III)(D) satisfies neither the

"performance" nor the "prejudice" prong of the two-part test

enunciated in Strickland.    The record, including the trial transcript,

demonstrates that counsel presented mitigating evidence to the jury

through testimony about the violent neighborhood in which petitioner

was raised, the abuse he observed his mother receive, the loss of a

                                    16
younger sibling, the lack of parental involvement and supervision, and

the learning and emotional difficulties petitioner experienced in

school.   Petitioner's mother, Bernice Porter, specifically denied that

any incidents of physical or sexual abuse of petitioner were ever

reported.    The affidavits of counsel demonstrate that counsel

investigated and interviewed numerous friends and family members, and

made the strategic decision not to call one of petitioner's caregivers

because she would not have made a good witness.     Thus, petitioner has

failed to demonstrate that counsel's performance was deficient or that

there is a reasonable probability that, but for counsel's alleged

error, the result of the proceeding would have been different.

                                    (E)
     In Claim (III)(E), petitioner alleges he was denied the effective

assistance of counsel because counsel failed to reasonably investigate

the Commonwealth's evidence of some of petitioner's prior convictions

and unadjudicated bad acts.    Petitioner contends that counsel was

unable to rebut this aggravating evidence because counsel did not

investigate these incidents and merely whispered questions about the

incidents to petitioner as the Commonwealth's witnesses were taking

the stand.    According to petitioner, a proper investigation would have

uncovered valuable mitigating information that would have explained

how petitioner was provoked prior to each incident and how petitioner

was punished afterwards.

     Regarding another incident, petitioner alleges he punched another

inmate in 1998 because the other inmate had attacked petitioner for no


                                    17
reason.   Petitioner alleges counsel failed to discover that

Corrections Officer Adkins' testimony of an incident in which

petitioner grabbed Adkins' shirt through the cell bars and banged

Adkins against the bars did not match Adkins' contemporaneous report

of the incident.   In addition, contrary to Adkins' testimony,

petitioner alleges that after the incident petitioner was mistreated

and punished.   Concerning another incident, petitioner alleges that an

inmate attacked by petitioner in 1997 had provoked petitioner by

bumping into him during a fight the inmate was having with two other

men, and by uttering "fighting words."

     Petitioner contends that counsel made petitioner's reaction

appear less reasonable by characterizing the "fighting words" as a

homosexual advance.   Petitioner also alleges counsel further failed to

ascertain that on February 15, 2007, petitioner did not "refuse to go

to court, saying he was not going to court without a fight."

Petitioner states that he had questioned deputies as to a change in

the strip search procedure, and that deputies responded by rushing the

cell, punching and kicking petitioner, shooting petitioner with "mace

balls," and pushing petitioner into an elevator wall.   Petitioner

alleges that counsel refused to take any action despite petitioner's

complaints and "failed to confront witnesses about the unprovoked and

unjustified quality of their actions."   Finally, petitioner contends

counsel failed to rebut the Commonwealth's argument that petitioner

ran away from police into a "stranger's house" by establishing that

petitioner lived in the townhouse with his mother.

                                   18
     The Court holds that Claim (III)(E) satisfies neither the

"performance" nor the "prejudice" prong of the two-part test

enunciated in Strickland.   Petitioner fails to allege how the

punishment or response petitioner may have received following each

event serves to mitigate petitioner's actions.   The record, including

the trial transcript and the September 8, 2009 affidavit of counsel,

demonstrates that counsel had investigators review the nearly 100

convictions and unadjudicated bad acts the Commonwealth intended to

rely on during the sentencing phase of trial and obtain as much

information as possible about each incident.   Counsel personally

visited Wallens Ridge and Red Onion State Prisons to obtain

information about the incidents that took place while petitioner was

an inmate at these facilities.    Counsel also cross-examined witnesses

about the incidents.   Counsel attempted to elicit testimony that a

guard had overheard the victim in the 1998 incident say something to

petitioner prior to the altercation, which the officer denied.

Counsel further elicited testimony that petitioner required medical

treatment after the 1998 incident.

     As to the Adkins incident, counsel specifically questioned Adkins

as to whether his testimony had changed from his initial report, and

Adkins clarified his testimony.   As to the 1997 incident, counsel

attempted to present evidence that the victim verbally provoked

petitioner, but the court sustained the Commonwealth's objection to

such testimony on the grounds that "words never justify an assault."

Counsel reasonably followed up with questions regarding whether the

                                     19
inmate ever made physical advances toward petitioner, in order to

demonstrate that petitioner had been provoked.    Counsel also pursued

this line of questioning because petitioner had told counsel that the

victim was "queer."

     As to the February 15, 2007 incident, counsel questioned the

testifying deputy as to whether the officers had changed the

procedures by which petitioner was searched to find out "if there was

any particular reason why this may have caused this event to take

place."   Further, the deputy testified that petitioner was physically

handled, by stating officers "took him down," held him against a wall

so he could not move, pushed him into his cell, and "forced him in

there hard."   Finally, petitioner cites no support in the record for

his assertion that he resided in the townhouse to which he fled during

a police chase.   Thus, petitioner has failed to demonstrate that

counsel's performance was deficient or that there is a reasonable

probability that, but for counsel's alleged error, the result of the

proceeding would have been different.

                                 (F)(1)

     In Claim (III)(F)(1), petitioner alleges he was denied the

effective assistance of counsel because counsel failed to present

accurate evidence of petitioner's experience in juvenile detention and

the conditions under which he resided.    Petitioner alleges "the

prosecution painted juvenile detention as offering Porter a wealth of

benefits that he rejected," and contends that counsel should have

established that the juvenile detention facilities were "violent,

                                   20
overcrowded, stressful, and unsanitary."    Relying on a 1992 report,

and affidavits from a former Norfolk Detention Center Supervisor and a

fellow inmate, petitioner alleges that treatment and rehabilitation

were impossible due to the conditions, and that the juveniles were in

the facilities, "first and foremost, for punishment."

     The Court holds that Claim (III)(F)(1) satisfies neither the

"performance" nor the "prejudice" prong of the two-part test

enunciated in Strickland.   The record, including the trial transcript,

demonstrates that the Commonwealth argued that petitioner was

committed to several juvenile detention centers, which included "all

the services that can be offered."    Further, petitioner does not

allege that he was denied any specific support services.    To the

contrary, the affidavit submitted by petitioner from Lanett W.

Brailey, a teacher at one of the juvenile correctional centers in

which petitioner resided, indicates that petitioner was recommended

for, and received, special education classes.    Petitioner fails to

allege how the sentencing outcome would have been different had

counsel presented information concerning the general conditions of

these facilities.   Thus, petitioner has failed to demonstrate that

counsel's performance was deficient or that there is a reasonable

probability that, but for counsel's alleged error, the result of the

proceeding would have been different.

                                 (F)(2)

     In Claim (III)(F)(2), petitioner alleges he was denied the

effective assistance of counsel because counsel failed to present

                                     21
evidence of the conditions under which petitioner lived while in

prison, which would have given a context to jurors for his prison

behavior and shown that he acted in the interest of self-preservation.

Petitioner contends that counsel should have presented evidence that

petitioner lived for four years in stressful and inhumane conditions,

and that inmates at Wallens Ridge and Red Onion State Prisons were

subjected to being beaten, electrically shocked, and strapped to a

bed.    Petitioner argues that guards frequently called inmates,

including petitioner, by racial slurs.    Specifically, petitioner

claims that guards harassed him due to his religious beliefs and

because he had a female friend of a different race.     According to

petitioner, prisoners were often punished severely for even minor

infractions.

       The Court holds that Claim (III)(F)(2) satisfies neither the

"performance" nor the "prejudice" prong of the two-part test

enunciated in Strickland.    Other than his claims that he was verbally

abused because of his relationship with a woman of another race and

his religious beliefs, petitioner does not allege that the evidence he

contends counsel should have proffered was related to petitioner's

individual experience.    This Court has held that "evidence regarding

the general nature of prison life" is not admissible even if used to

rebut the aggravating factor of future dangerousness.     Bell v.

Commonwealth, 264 Va. 172, 201, 563 S.E.2d 695, 714 (2002)(internal

quotation marks and alteration omitted), cert. denied, 537 U.S. 1123

(2003).    Furthermore, petitioner fails to allege how the sentencing

                                    22
outcome would have been different had the jury understood that

petitioner's violent acts in prison were fueled by petitioner's

alleged need to act in the interest of self-preservation given the

general nature of prison life or petitioner's having been taunted.

Thus, petitioner has failed to demonstrate that counsel's performance

was deficient or that there is a reasonable probability that, but for

counsel's alleged error, the result of the proceeding would have been

different.

                                 (F)(3)

     In Claim (III)(F)(3), petitioner alleges he was denied the

effective assistance of counsel because counsel failed to present

evidence of petitioner's successful adaptation to prison life.

Petitioner asserts that he was well regarded by fellow inmates who

considered him to be generous and able to avoid trouble.   Petitioner

received a report from a counselor at Red Onion that he was a

satisfactory worker as a "Houseman," and was a respectful employee.

Petitioner contends that this information, had it been presented to

jurors, would have lessened his moral culpability and tended to show

that he did not pose a future danger to society if sentenced to life

imprisonment.

     The Court holds that Claim (III)(F)(3) satisfies neither the

"performance" nor the "prejudice" prong of the two-part test

enunciated in Strickland.   During the penalty phase, counsel argued

that petitioner's incarceration for life was appropriate because

petitioner had been in the penitentiary for seven years and had

                                   23
incurred only two infractions, and that in all of his previous

convictions he had either pleaded guilty or cooperated against a co-

defendant.   Petitioner has not established that additional testimony

from fellow inmates, who would be subject to cross-examination, or the

admission of one prison record indicating that in an annual review

petitioner received a satisfactory work report, but also stating that

petitioner needed to "abstain from socially inappropriate behavior,"

would have increased the likelihood of the jury sentencing petitioner

to life imprisonment.   Thus, petitioner has failed to demonstrate that

counsel's performance was deficient or that there is a reasonable

probability that, but for counsel's alleged error, the result of the

proceeding would have been different.

                                   (G)
     In Claim (III)(G), petitioner alleges he was denied the effective

assistance of counsel because counsel failed to adequately investigate

petitioner's educational history and present the mitigating factors

that would have been revealed by such investigation.   In Claim

(III)(G)(1), petitioner asserts counsel should have presented evidence

that petitioner's previous teachers and social workers identified

petitioner's mother and great aunt as disinterested and uninvolved.

Petitioner contends that he had special needs in his early educational

development and he did not receive stability and security from his

home life.   In Claim (III)(G)(2), petitioner asserts counsel should

have presented evidence that his early educational experience was

disrupted by his chaotic home life in which he was frequently


                                   24
transferred to different schools and different homes.   Petitioner

contends that his unstable situation resulted in his lack of a genuine

chance to succeed in school, and that counsel was unable to

effectively rebut the Commonwealth's assertions that petitioner was

solely responsible for his shortcomings, because counsel presented

some school records, but failed to call as witnesses, former educators

who remembered petitioner's positive behavior and character.    In Claim

(III)(G)(3), petitioner asserts counsel should have presented evidence

that petitioner was identified in his early school years as needing

special education and psychological services.   In Claim (III)(G)(4),

petitioner asserts counsel failed to adequately investigate

petitioner's disciplinary notices in school, and such investigation

would have shown petitioner's conduct was a manifestation of his

"handicapping condition," not malicious intent.   Petitioner contends

that had counsel accurately presented information regarding his

educational experiences, the evidence would have rebutted the

Commonwealth's contentions that petitioner rejected efforts to help

him, and would have humanized him by showing that his difficulties

were the predictable product of his disabilities, not evil or malice.

     The Court holds that Claim (III)(G) satisfies neither the

"performance" nor the "prejudice" prong of the two-part test

enunciated in Strickland.   The record, including the affidavits of

counsel, demonstrates that counsel thoroughly investigated

petitioner's school record, including conducting twelve separate

interviews with school officials in Norfolk and New Jersey.    The trial

                                   25
transcript demonstrates that counsel presented an extensive amount of

testimony and evidence relating to petitioner's educational challenges

and emotional and behavioral difficulties in school.    Counsel

presented testimony from seven teachers and one school psychiatrist

and submitted school records into evidence, including petitioner's

individual education plans and psychological reports.    The testimony

showed that petitioner was classified in school at various times as

learning disabled, emotionally disturbed, and neurologically impaired.

Three teachers testified that petitioner did not pose a behavioral

problem in school, but that he was immature, solitary, cried a lot,

never smiled, and needed special services.   One teacher, Katherine

Towler, stated that petitioner was cooperative during school testing

and was a willing student, but that his disabilities led to

frustration.   Another teacher, Grace Houchins, testified that

petitioner had "no village" to support him, and "was in a world almost

by himself."   Furthermore, Houchins had opined that, at the time

petitioner was in school, "necessary help now will help prevent much

sorrow down the road."

     Counsel introduced records of the school psychiatrist, which

showed the psychiatrist believed petitioner's emotional problems were

causing his academic issues.   The affidavit of counsel demonstrates

that counsel contacted "nearly all" of petitioner's living teachers in

Norfolk, and traveled to New Jersey to interview additional teachers

and principals.   In closing argument, counsel noted petitioner's

frequent school transfers and his long existing classification in

                                   26
school as emotionally disturbed.   Counsel argued the choices

petitioner made were derived from the circumstances he was exposed to

throughout his life, and that petitioner had no model to guide him and

no one to instruct him.   Petitioner does not identify any additional

non-cumulative mitigating evidence derived by his educational history

that he contends counsel failed to present.   Thus, petitioner has

failed to demonstrate that counsel's performance was deficient or that

there is a reasonable probability that, but for counsel's alleged

error, the result of the proceeding would have been different.

                                   (H)
     In Claim (III)(H), petitioner alleges he was denied the effective

assistance of counsel because counsel failed to offer expert mental

health evidence.   Petitioner asserts that counsel should have

presented testimony by Dr. Stejskal, petitioner's court appointed

defense psychologist, to show that petitioner's experiences of

childhood abandonment and abuse derailed his emotional and

psychological development.   Dr. Stejskal would have opined that

petitioner's adjustment was compromised by neuro-developmental

problems and his mother's unwillingness to provide him with proper

supervision and structure.   Petitioner contends that, had counsel

provided Dr. Stejskal's testimony, it would have rebutted the

Commonwealth's claim that petitioner's conduct was solely the result

of his "choices" rather than the outcome of circumstances over which

he had no control.

     The Court holds that Claim (III)(H) satisfies neither the


                                   27
"performance" nor the "prejudice" prong of the two-part test

enunciated in Strickland.     The record, including the September 8, 2009

affidavit of counsel, demonstrates that counsel made a strategic

decision not to present Dr. Stejskal's testimony because the

introduction of such evidence would have allowed the Commonwealth to

present damaging testimony from its own expert, Dr. Leigh D. Hagan.

Dr. Hagan's opinions would have contradicted and undercut Dr.

Stejskal's testimony, as Dr. Hagan's report stated that "while certain

factors of [petitioner's] childhood history were mitigating because

they were beyond his control, the much larger portion of the

defendant's life reflects his own independent decision making

capacity," and that "[t]he    way in which he used that capacity

compromised his character."    Counsel's decision to present evidence of

petitioner's emotional and neurological issues through his school

records and not present Dr. Stejskal's testimony prevented the

Commonwealth from submitting Dr. Hagan's opinions as rebuttal

evidence. Thus, petitioner has failed to demonstrate that counsel's

performance was deficient or that there is a reasonable probability

that, but for counsel's alleged error, the result of the proceeding

would have been different.

                                     (I)

     In Claim (III)(I), petitioner alleges he was denied the effective

assistance of counsel because counsel failed to discover and use

evidence of Officer Reaves' history of unprofessional conduct while he



                                     28
was a Baltimore City police officer. 1   Petitioner contends that counsel

should have requested Reaves' personnel file when Reaves' previous

performance was obviously relevant because the main factual dispute at

trial was whether Reaves approached petitioner forcefully and with his

gun drawn.   Petitioner contends that had the jury been presented with

such evidence, there is a reasonable probability that he would not

have been convicted of capital murder and at least one juror would

have found that "an aggravating factor was not proven beyond a

reasonable doubt or that death was not the most appropriate

punishment."

     The Court holds that Claim (III)(I) satisfies neither the

"performance" nor the "prejudice" prong of the two-part test

enunciated in Strickland.   Petitioner acknowledges that counsel was

not on notice of Reaves' alleged prior employment history.    Petitioner

fails to articulate how personnel records relating to Officer Reaves'

employment as a Baltimore police officer, which do not show any formal

disciplinary proceedings and do not reference any instances of Officer

Reaves inappropriately displaying or using his service weapon, would

have been relevant in bolstering petitioner's testimony that Officer

Reaves forcefully approached petitioner with his gun drawn.    Thus,

petitioner has failed to demonstrate that counsel's performance was

deficient or that there is a reasonable probability that, but for


     1
       In support of this claim, petitioner attempts to incorporate
"the availability, substance, and prejudice resulting from counsel's
omissions" from Claim (II)(C). The Court declines to consider these
allegations "by reference."
                                   29
counsel's alleged error, the result of the proceeding would have been

different.

                                    (J)
     In Claim (III)(J), petitioner alleges that, if this Court holds

that the Brady claim raised in Claim (II)(D) is defaulted because

counsel should have raised it at trial and on direct appeal, he was

denied the effective assistance of counsel because counsel failed to

raise the claim that Juror T was biased due to his brother's

employment as a law enforcement officer at trial and on direct appeal.

Petitioner further contends that participation of a biased juror is a

"structural error" and prejudice is presumed.    See, e.g., Jackson v.

Warden, 271 Va. 434, 436, 627 S.E.2d 776, 781 (2006) (describing

"structural error" as "defying harmless error review").

     The Court holds that Claim (III)(J) satisfies neither the

"performance" nor the "prejudice" prong of the two-part test

enunciated in Strickland.    The record, including the trial transcript

and the September 8, 2009 affidavit of counsel, demonstrates that

counsel did not know that Juror T had a brother in law enforcement.

More importantly, petitioner has provided no admissible evidence that

Juror T was biased against petitioner as a result of his brother's

employment.   Petitioner has failed to demonstrate that counsel's

performance was deficient or that there is a reasonable probability

that, but for counsel's alleged error, the result of the proceeding

would have been different.

                                    (K)


                                    30
     In Claim (III)(K), petitioner alleges he was denied the effective

assistance of counsel because counsel failed to request that Officer

Reaves' gun holster be tested for fingerprints.   Petitioner asserts

such testing would have shown that petitioner's fingerprints were not

on the snap and thumb break of the holster, which would have supported

his testimony that Officer Reaves had already drawn his gun when

petitioner shot him, and undermined the Commonwealth's assertion that

petitioner took the gun from Officer Reaves' holster.

     The Court holds that Claim (III)(K) satisfies neither the

"performance" nor the "prejudice" prong of the two-part test

enunciated in Strickland.   Petitioner has failed to proffer any

evidence that, had fingerprint testing been done, it would have shown

the absence of his fingerprints on Officer Reaves' holster, or that

such evidence would have supported petitioner's version of the events.

Although the testimony at trial demonstrated that the holster snap

would have had to be released in order for the gun to be removed,

there was no evidence that unsnapping the device required a maneuver

that would leave a clear and identifiable fingerprint.   Thus,

petitioner has failed to demonstrate that counsel's performance was

deficient or that there is a reasonable probability that, but for

counsel's alleged error, the result of the proceeding would have been

different.

                                   (L)

     In Claim (III)(L), petitioner alleges he was denied the effective

assistance of counsel because counsel failed to renew and expand the

                                   31
motion to recuse the trial judge.      Petitioner also alleges that

counsel failed to object every time the trial judge engaged in acts of

bias against petitioner. 2

     The Court holds that Claim (III)(L) satisfies neither the

"performance" nor the "prejudice" prong of the two-part test

enunciated in Strickland.      The record, including the trial transcript

and the pretrial motions, demonstrates that counsel did file a motion

for the trial judge to recuse himself prior to trial based on the fact

that the judge was a former prosecutor whose office had prosecuted

petitioner for several offenses, including at least one that had been

admitted into evidence.      Counsel renewed the motion for recusal, on

different grounds, at the end of trial.        Petitioner has not alleged

what further actions counsel should have taken to object to the trial

judge's participation on this basis.       Thus, petitioner has failed to

demonstrate that counsel's performance was deficient or that there is

a reasonable probability that, but for counsel's alleged error, the

result of the proceeding would have been different.

                                  CLAIM (IV)

     In Claim (IV), petitioner alleges he was deprived of his due

process right to a fair trial because the trial judge had a

preexisting bias against petitioner based on the judge's former career

as a prosecutor.


     2
       In support of this claim, petitioner attempts to incorporate
petitioner's allegations in Claim (IV) that the trial court deprived
petitioner of his right to a fair trial. The Court declines to
consider these allegations "by reference."
                                      32
     The Court holds that Claim (IV) is barred because this non-

jurisdictional issue could have been raised at trial and on direct

appeal and, thus, is not cognizable in a petition for a writ of habeas

corpus.   Slayton, 215 Va. at 29, 205 S.E.2d at 682.

     Upon consideration whereof, petitioner's motion to supplement the

appendix, motions for production of documents and for appointment of

experts, and prayer for a plenary hearing are denied.

     Upon consideration of the respondent's "Motion to Strike Appendix

Entries," the petitioner's opposition and the respondent's reply, the

Court declines to strike the entries.   The Court will, however, apply

the appropriate evidentiary rules and the petitioner's assertions that

certain statements are not being offered for the truth of the matters

asserted when considering the admissibility of the exhibits and of any

statements contained in the exhibits.

     Upon consideration of the petitioner's "Motion to Strike the

Warden's Evidence Proffered with the Motion to Dismiss," the

respondent's opposition and the petitioner's reply, the Court denies

petitioner's motion to strike all of the Warden's evidence, holding

that the submission of affidavits is permissible pursuant to Code

§ 8.01-660.   The Court will, however, apply the appropriate

evidentiary rules and the respondent's assertions that certain

statements are not being offered for the truth of the matters asserted

when considering the admissibility of the exhibits and statements

contained therein.

     Accordingly, for the reasons stated, the petition is dismissed.

                                   33
This order shall be published in the Virginia Reports.

                         A Copy,

                              Teste:

                                       Patricia L. Harrington, Clerk




                             34
