Keith Tharpe v. Warden

Filing 9

ORDER: Motion for certificate of appealability filed by Appellant Keith Tharpe is DENIED. [8240538-2]; Motion to stay execution filed by Appellant Keith Tharpe is DENIED. [8241090-2] GBT, SM and CRW; Wilson, concurring.--[Edited 09/22/2017 by DLT]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
_______________________
No. 17-14027-P
________________________

KEITH THARPE,
Petitioner - Appellant,
versus
WARDEN, Georgia Diagnostic and
Classification Prison,
Respondent - Appellee.
_________________________
Appeal from the United States District Court
for the Middle District of Georgia
__________________________

Before TJOFLAT, MARCUS, and WILSON, Circuit Judges.
ORDER:
Petitioner Keith Tharpe is a Georgia prisoner awaiting execution for a
murder he committed on September 25, 1990. After the Supreme Court of Georgia
affirmed his conviction and death sentence and the denial of his motion for a new
trial, Tharpe v. State, 416 S.E.2d 78 (Ga. 1992), Tharpe petitioned the Butts
County Superior Court for a writ of habeas corpus. One of his claims, Claim Ten

of his amended petition, was that improper racial animus infected the deliberations
of the jury and thereby infringed his federal constitutional rights. Following an
evidentiary hearing at which Tharpe introduced the testimony of several members
of the jury, including Barney Gattie, the Court denied the claim on two grounds.
First, the claim was procedurally defaulted because Tharpe failed to raise it in his
motion for a new trial or on direct appeal, and his attempt to excuse the default due
to his counsel’s constitutionally ineffective assistance failed because he had neither
shown counsel’s performance to be deficient or prejudicial. Second, the juror’s
testimony was inadmissible to prove his claim of improper racial animus.
After the Superior Court denied habeas relief, Tharpe applied to the
Supreme Court of Georgia for a certificate of probable cause to appeal. 1 His
application was denied.
On November 8, 2010, Tharpe petitioned the United States District Court for
the Middle District of Georgia for a writ of habeas corpus pursuant to 28 U.S.C. §
2254. In Claim Three of his amended petition, Tharpe alleged that juror
misconduct rendered his murder conviction and death sentence constitutionally
infirm. 2 The District Court rejected Claim Three as procedurally defaulted. 3

1

The application did not seek the Supreme Court’s review of Claim Ten of
Tharpe’s amended petition.
2

Claim Three reads as follows:
Claim Three: Misconduct On The Part Of The Jurors Violated
Petitioner's Rights Under The Fifth, Sixth, Eighth And

2

Tharpe had the burden of overcoming the default by establishing cause and
prejudice or a miscarriage of justice, but failed. As the District Court stated,
Petitioner fails to specifically address any of the claims that the state
habeas court found were procedurally defaulted. He states, without
further explanation, that his trial and appellate attorneys were
ineffective and this should constitute cause to overcome the defaults.
It is true that ineffective assistance of counsel can constitute an
“external impediment” satisfying the “cause” requirement to
overcome a default. Coleman v. Thompson, 501 U.S. 722, 753‐55
(1991). Petitioner, unfortunately, fails to provide any details regarding
this allegation. Therefore, at this time, the Court finds that Petitioner
has not established that his counsels’ ineffectiveness constituted cause
to overcome the procedural defaults of the above‐described claims.
Likewise, Petitioner has failed to show actual prejudice.

Fourteenth Amendments To The United States Constitution.
Misconduct on the part of the jurors included, but was not limited to,
improper consideration of matters extraneous to the trial, improper racial attitudes
which infected the deliberations of the jury, false or misleading responses of
jurors on voir dire, improper biases of jurors which infected their deliberations,
improper exposure to the prejudicial opinions of third parties, improper
communications with third parties, improper communication with jury bailiffs,
improper ex parte communications with the trial judge, and improperly
prejudging the guilt/innocence and penalty phases of Petitioner's trial. See e.g.,
Spencer v. Georgia, 500 U.S. 960 (1991) (Kennedy, J., concurring in denial of
cert.) (racial epithets used in jury room); McCleskey v. Kemp. 481 U.S. 279
(1987) (racial animus of decision makers); Moore v. State, 172 Ga.App. 844,
324 S.E.2d 760 (1984) (jury consideration of extraneous legal research);
Jones v. Kemp, 706 F.Supp. 1534 (N.D.Ga. 1989) (jury consideration of
extraneous religious information); Turner v. Louisiana, 379 U.S. 466 (1965)
(improper communications with bailiffs); Rushen v. Spain, 464 U.S. 114 (1983)
(improper communications with trial judge); United States v. Scott, 854 F.2d 697,
700 (5th Cir. 1988) (failure to respond truthfully on voir dire); Radford v. State,
263 Ga. 47 (1993) (improper communications with bailiffs); Turpin v. Todd, 268
Ga. 820 (1997) (same).
3

“The [Butts County Superior Court] clearly held the[] claim[ ] [was] procedurally
defaulted.”

3

Tharpe requested the District Court to issue a certificate of appeal (“COA”),
see 28 U.S.C. § 2253(c), but not as to Claim Three. The Court granted the
certificate on an ineffective assistance claim, and we expanded the certificate to
include the question of whether Tharpe was intellectually disabled such that
executing him would be unconstitutional. On appeal, we affirmed the District
Court’s judgment. Tharpe v. Warden, 834 F.3d 1323 (11th Cir. 2016), cert.
denied, 137 S. Ct. 2298 (2017).
On June 21, 2017, Tharpe moved the District Court pursuant to Federal Rule
of Civil Procedure 60(b)(6) to reopen his § 2254 case
due to extraordinary circumstances triggered by recent Supreme Court
decisions, Pena-Rodriguez v. Colorado, 136 S. Ct. 1513 (2017), and
Buck v. Davis, 137 S. Ct. 759 (2017), which allow him now to
overcome the procedural default and prevail on his claim that a juror’s
racial bias impermissibly influenced the imposition of his death
sentence.
Tharpe alleged that it was likely that “juror [Barney Gattie] who harbored
profound racial animus against African Americans voted to impose the death
penalty . . . because of his race.” Acknowledging that the District Court, in
denying his § 2254 petition, had denied Claim Three as procedurally defaulted and
that he had not sought a COA to appeal the denial, Tharpe contended that PenaRodriguez established that the juror testimony he presented to the Butts County
Superior Court, which the Court rejected as inadmissible, is now admissible and
that the decision applies retroactively in post-conviction proceedings.
4

Consequently, he argued that the District Court should exercise the discretion
accorded it under Rule 60(b)(6) and reopen his case in the interest of justice.
The District Court denied Tharp’s motion. First, applying Teague v. Lane,
489 U.S. 288, 109 S. Ct. 1060, 103 L. Ed. 2d 334 (1989), the Court concluded that
Pena-Rodriguez is not retroactive and therefore does not apply in the postconviction context. Second, assuming that Pena-Rodriguez is retroactive, the
Court presumed the correctness 4 of the Butts County Superior Court’s finding that
Tharpe had procedurally defaulted Claim Three and had failed to “establish cause
and prejudice to overcome the default.” And “[b]ecause [that Court’s] procedural
default analysis comport[ed] with the analysis required by Pena-Rodriguez, the
[District] Court fail[ed] to see how Pena-Rodriguez changes the outcome.”
The District Court rejected Tharpe’s argument that the Superior Court’s
default analysis failed to comply with that required by Pena-Rodriguez, by noting
that in Pena-Rodriguez, the Supreme Court “left discretion to the state trial court to
determine if a juror’s statement indicated he relied on racial animus to convict or
sentence a defendant.” As the Supreme Court described in Pena-Rodriguez,
[n]ot every offhand comment indicating racial bias or hostility will
justify setting aside the no‐impeachment bar to allow further judicial
inquiry. For the inquiry to proceed, there must be a showing that one
or more jurors made statements exhibiting overt racial bias that cast
serious doubt on the fairness and impartiality of the jury’s
deliberations and resulting verdict. To qualify, the statement must
4

See 28 U.S.C. § 2254(e)(1).

5

tend to show that racial animus was a significant motivating factor in
the juror’s vote to convict. Whether the threshold showing has been
satisfied is a matter committed to the substantial discretion of the trial
court in light of all the circumstances, including the content and
timing of the alleged statements and the reliability of the proffered
evidence.
137 S. Ct. at 869. The District Court further described the differences between
Tharpe’s case and Pena-Rodriguez as follows.

The “circumstances” presented in Tharpe’s case are dissimilar from those in
Pena‐Rodriguez. Id. In Pena‐Rodriguez, two jurors came forward
immediately following the trial to report another juror’s overtly racist
remarks made during deliberations. Id. at 861. The Court stated that “not
only did [the] juror . . . deploy a dangerous racial stereotype to conclude
petitioner was guilty . . . he also encouraged other jurors to join him in
convicting on that basis.” Id. at 870. No juror came forward following
Tharpe’s trial to complain about the deliberations. There is absolutely no
indication that Gattie, or anyone else, brought up race during the jury
deliberations. It was more than seven years later, and possibly when he was
intoxicated, that Gattie made his racist statement. Appearing before the state
habeas court for his deposition, Gattie testified that the statement had been
misconstrued and he provided a second statement in which he stated his vote
to impose the death penalty had nothing to do with race. ECF No. 15‐17 at
14. After attending the depositions of eleven jurors, including Gattie, the
state habeas court apparently credited this statement when it found Gattie
had not relied on racial stereotypes or animus to sentence Tharpe. See
Consalvo v. Sec’y for the Dep’t of Corr., 664 F.3d 842, 845 (11th Cir. 2011)
(“Determining the credibility of witnesses is the province and function of the
state courts, not a federal court engaging in habeas review.”). Given this
analysis, the Court finds that Tharpe has not shown a reasonable probability
of a different outcome under Pena‐Rodriguez.
We review the denial of a Rule 60(b)(6) motion for abuse of discretion.

Lambrix v. Secretary, Fla. Dep’t. of Corr., 851 F.3d 1158, 1170 (11th Cir. 2017).
A district court abuses its discretion if it applies the wrong legal standard or bases
6

its decision on findings of fact that are clearly erroneous. We conclude that the
Court applied the correct legal standard and based its decision on findings of fact
not clearly erroneous.
Turning to the question of whether a COA should issue pursuant to 28
U.S.C. § 2253(c), we assume for purposes of this case that Pena-Rodriguez is
retroactive and applies in this post-conviction proceeding, and ask whether Tharpe
has “made a substantial showing of the denial of a constitutional right.” We
conclude that he has not. As the Butts County Superior Court and the District
Court found, Tharpe failed to demonstrate that Barney Gattie’s behavior “had
substantial and injurious effect or influence in determining the jury’s verdict.”
Brecht v. Abrahamson, 507 U.S. 619, 637, 113 S. Ct. 1710, 1722, 123 L. Ed. 2d
353 (1993) (quoting Kotteakos v. United States, 328 U.S. 750, 776, 66 S. Ct. 1239,
1253, 90 L. Ed. 1557 (1946)). Nor has Tharpe shown that “jurists of reason would
find it debatable whether the district court was correct in its procedural ruling.”
Slack v. McDonald, 529 U.S. 473, 484, 120 S. Ct. 1595, 1604, 146 L. Ed. 2d 542
(2000). Accordingly, this Court declines to issue a COA. 5
In addition to the foregoing, there is another reason for denying a COA in
this case. Tharpe’s Pena-Rodriguez claim has not been exhausted in the Georgia
courts. If Tharpe is correct that Pena-Rodriguez applies retroactively in post-

5

We also deny Tharpe’s motion for stay of execution.

7

conviction proceedings and thus gives rise to a constitutional claim he could not
have brought to the Butts County Superior Court, he is now free to pursue the
claim in state court.

8

WILSON, Circuit Judge, concurring:
If Tharpe’s claim had been properly exhausted in state court, I would grant
Tharpe’s certificate of appealability (COA) on the issues of (1) whether, in light of
Pena-Rodriguez v. Colorado, 580 U.S. ___, 137 S. Ct. 855 (2017) and Buck v.
Davis, 580 U.S. ___, 137 S. Ct. 759 (2017), a juror’s improper consideration of
race tainted the imposition of his death sentence, and (2) whether Teague v. Lane,
489 U.S. 288, 109 S. Ct. 1060 (1989) bars Pena-Rodriguez’s retroactive
application. Tharpe’s claims make a “substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2). While I ultimately agree that his
COA should be denied, it is only to the extent that I agree that it has not been
properly exhausted. In my opinion, the denial should be without prejudice so as to
allow Tharpe a chance to re-file after it is properly litigated in Georgia state court.
I would also grant the motion for a stay of execution. Therefore, I concur in the
result.

9