Tharpe v. Warden
Opinion of the Court
*1344This facts and procedural history of this case have been exhaustively described in numerous opinions and orders. See, e.g., Tharpe v. Sellers , 583 U.S. ----,
We have been made aware that Keith Tharpe exhausted his juror racial bias claim in Georgia state courts. See Tharpe v. Sellers , No. S18W0242 (Ga. Nov. 2, 2017); Tharpe v. Sellers , No. S18W0242 (Ga. Sept. 26, 2017). But he is not entitled to a COA for two distinct reasons. First, his claim arises from the rule announced in Pena-Rodriguez v. Colorado , 580 U.S. ----,
I.
Federal habeas corpus review "serves to ensure that state convictions comport with the federal law that was established at the time petitioner's conviction became final." Sawyer v. Smith ,
Teague 's three steps, as instructed by the Supreme Court, are as follows. First, the court must determine the date on which the defendant's conviction became final.
The third step of Teague 's analysis, though, is to determine if such an exception applies. Only two possible exceptions exist: (1) for new substantive rules that place "certain kinds of primary, private individual conduct beyond the power" of criminal law, or (2) for new "watershed rules of criminal procedure." Teague ,
*1345Working our way through Teague , Tharpe's conviction became final on October 19, 1992, the date on which the Supreme Court denied certiorari. See Bond v. Moore ,
If anything, clearly-established precedent held just the opposite. In Tanner v. United States , the Supreme Court explained that "[b]y the beginning of [the twentieth] century, if not earlier, the near-universal and firmly established common-law rule in the United States flatly prohibited the admission of juror testimony to impeach a jury verdict."
The Supreme Court endorsed the no-impeachment rule's breadth in McDonald v. Pless , when it noted that "a change in the [no-impeachment] rule would open the door to the most pernicious arts and tampering with jurors[,] ... would be replete with dangerous consequences[,] ... and no verdict would be safe."
During an inquiry into the validity of a verdict or indictment, a juror may not testify about any statement made or incident that occurred during the jury's deliberations; the effect of anything on that juror's or another juror's vote; or any juror's mental processes concerning the verdict or indictment. The court may not receive a juror's affidavit or evidence of a juror's statement on these matters.
See Pena-Rodriguez ,
Before Pena-Rodriguez , the Supreme Court twice addressed whether the no-impeachment rule contained a constitutional exception.
Since Pena-Rodriguez established a new rule that was neither "dictated" nor "apparent to all reasonable jurists" at the time of Tharpe's conviction, we must determine whether it fits within one of Teague 's two retroactivity exceptions. We conclude it does not. First, the rule announced in Pena-Rodriguez is not a substantive one because it neither "decriminalizes a class of conduct nor prohibits the imposition of capital punishment on a particular class of persons." Lambrix ,
Because the inquiry into whether a rule is substantive under Teague is utterly distinct from whether it is substantive under Erie , no reasonable jurist could accept Tharpe's argument. Rather, the rule in Pena-Rodriguez is plainly procedural in nature; it regulates only the manner of determining the defendant's culpability and concerns a procedural mechanism by which to challenge a jury verdict. It does not satisfy Teague 's first exception for retroactivity.
Additionally, the Pena-Rodriguez rule is not a watershed rule of criminal procedure that would satisfy Teague 's second exception. This exception "is extremely narrow, and it is unlikely" that any class of rules satisfying it has "yet to emerge" since Teague . Schriro v. Summerlin ,
Because a state court in October 1992 would not have felt that the rule announced in Pena-Rodriguez was required by then-existing precedent, and because the Pena-Rodriguez rule is neither a new substantive rule that places primary conduct beyond the power of criminal law nor a watershed rule of criminal procedure, Teague bars Tharpe's claim. See Tharpe ,
II.
The procedural default rule is clear. It provides that "[f]ederal courts may not review a claim procedurally defaulted under state law if the last state court to review the claim states clearly and expressly that its judgment rests on a procedural bar, and the bar presents an independent and adequate state ground for denying relief." Hill v. Jones ,
The Georgia courts have unambiguously held that Tharpe's juror racial bias claim was procedurally defaulted. The Superior Court of Butts County ruled that "even if [Tharpe] had admissible evidence to support his claim of juror misconduct, this Court finds that the claims are procedurally defaulted as [Tharpe] failed to raise them at the motion for new trial or on appeal." Tharpe v. Hall , No. 93-V-144, at 102 (Ga. Super. Ct. Dec. 1, 2008). After Tharpe returned to state court following Pena-Rodriguez , the Superior Court again held that Tharpe's claim "is still procedurally defaulted." Pet'r's Mot. for Recons. Ex. A at 4. Again, the Supreme Court of Georgia refused to review the claim.
To prove cause, Tharpe alleged only, and at the highest order of abstraction, that "trial counsel [was] ineffective in failing to raise meritorious claims on appeal, and that trial counsel's ineffectiveness constitutes cause to excuse any procedural default." He alleged no specific facts. Indeed, he alleged nothing at all. The state court rejected the argument as a bare, conclusory assertion. The District Court agreed, noting "[p]etitioner, unfortunately, fails to provide any details regarding [the] allegation ... that his trial and appellate attorneys were ineffective[, thereby establishing] cause to overcome [his] defaults." Tharpe v. Humphrey , No. 5:10-CV-433, at 9 (M.D. Ga. Aug. 18, 2011). Because Tharpe's attempt to show cause is wholly unsubstantiated, he has failed to make the requisite showing of cause to overcome his procedural default. See Tharpe ,
* * *
For the foregoing reasons, we deny Keith Tharpe's motion for reconsideration of the April 3, 2018 Order denying a COA.
MOTION FOR RECONSIDERATION DENIED.
WILSON, Circuit Judge, specially concurring:
I am persuaded that Mr. Tharpe's application for a COA should be denied because Peña-Rodriguez
After working through the first two steps of Teague 's framework, it is clear that Tharpe cannot show that existing precedent dictated Peña-Rodriguez. Thus, Tharpe's only other available option is to claim that Peña-Rodriguez meets one of the two exceptions to Teague's bar-the second exception, declaring that it is a new watershed rule of criminal procedure, being the most plausible. This exception, though, is extremely narrow and has not been used to this day. See Schriro v. Summerlin ,
In addition, I disapprove of the lackadaisical treatment of Mr. Gattie's original affidavit. The statements and beliefs contained in the affidavit were not "offhand comments" by any means. See Tharpe v. Warden , No. 17-14027-P, slip op. at 5-7,
Over the long course of this procedurally complex case, it is easy to gloss over our improper treatment of Mr. Gattie's original affidavit, but it is something that I want to acknowledge. Absent intervention from the Supreme Court, it seems that we would have approved of the idea that Mr. Gattie's affidavit would not have amounted to prejudice. I do not stand by that idea, or our court's treatment of the affidavit. As a factual matter, the statements contained therein clearly indicate a reliance on racial animus to convict or sentence a defendant.
Erie R.R. Co. v. Tompkins ,
Peña-Rodriguez v. Colorado , 580 U.S. ----,
Teague v. Lane ,
The juror in question, Juror Gattie, said the following in his affidavit:
I ... knew the girl who was killed, Mrs. Freeman. Her husband and his family have lived in Jones [C]ounty a long time. The Freemans are what I would call a nice Black family. In my experience I have observed that there are two types of black people. 1. Black folks and 2. Niggers. For example, some of them who hang around our little store act up and carry on. I tell them, "nigger, you better straighten up or get out of here fast." My wife tells me I am going to be shot by one of them one day if I don't quit saying that. I am an upfront, plainspoken man, though. Like I said, the Freemans were nice black folks. If they had been the type Tharpe is, then picking between life or death for Tharpe wouldn't have mattered so much. My feeling is, what would be the difference. As it was, because I knew the victim and her husband's family and knew them all to be good black folks, I felt Tharpe, who wasn't in the "good" black folks category in my book, should get the electric chair for what he did. Some of the jurors voted for death because they felt that Tharpe should be an example to other blacks who kill blacks, but that wasn't my reason. The others wanted blacks to know they weren't going to get away with killing each other. After studying the Bible, I have wondered if black people even have souls. Integration started in Genesis. I think they were wrong. For example, look at O.J. Simpson. That white woman wouldn't have been killed if she hadn't have married that black man.
Reference
- Full Case Name
- Keith THARPE v. WARDEN
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- Published