Tharpe (DEATH PENALTY) v. Upton
Filing
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ORDER on Procedural Default and Exhaustion. Ordered by Judge C. Ashley Royal on 8/18/2011. (lap)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
KEITH THARPE,
Petitioner
VS.
:
:
:
:
:
NO. 5:10‐CV‐433 (CAR)
:
CARL HUMPHREY, Warden,
:
:
Respondent
:
____________________________________:
ORDER
Pursuant to the February 25, 2011 Scheduling Order (ECF No. 24), the parties have
briefed the issues of procedural default and exhaustion.
I. PROCEDURAL DEFAULT AND EXHAUSTION
The procedural default rule provides that Aa state prisoner seeking federal habeas
corpus relief, who fails to raise his federal constitutional claim in state court, or who
attempts to raise it in a manner not permitted by state procedural rules is barred from
pursuing the same claim in federal court.@ Alderman v. Zant, 22 F.3d 1541, 1549 (11th Cir.
1994). Thus, the procedural default rule comes into play in two contexts. First, if a
petitioner fails to exhaust his state remedies by neglecting to raise an issue on appeal or in
any state habeas petition, and “it is obvious the unexhausted claim would be procedurally
barred in state court due to a state‐law procedural default,” the federal court will treat the
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issue as procedurally defaulted. See Snowden v. Singletary, 135 F.3d 732, 736 (11th Cir.
1998); Putman v. Turpin, 53 F. Supp. 2d 1285, 1292 (M.D. Ga. 1999), aff=d, 268 F.3d 223 (11th
Cir. 2001)(explaining that Awhen it is clear that the unexhausted claims would be barred in
state court due to a state‐law procedural default, federal courts >can . . . treat those claims
now barred by state law as no basis for federal habeas relief=@) (quoting Snowden, 135 F.2d
at 736). Second, the procedural default rule also provides that A[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, 81
F.3d 1015, 1022 (11th Cir. 1996) (citing Harris v. Reed, 489 U.S. 255 (1989)); Coleman v.
Thompson, 501 U.S. 722, 729‐30 (1991) (explaining that A[t]he [adequate and independent
state ground] doctrine applies to bar federal habeas when a state court declined to address
a prisoner=s federal claims because the prisoner had failed to meet a state procedural
requirement@); Conner v. Hall, No. 10‐10928, 2011 U.S. App. LEXIS 13793 (11th Cir. July 7,
2011).
A federal court cannot review a procedurally defaulted claim Aunless a petitioner
can show cause for the failure to properly present the claim and actual prejudice, or that the
failure to consider the claim would result in a fundamental miscarriage of justice.@
Conner, 2011 U. S. App. LEXIS 13793 at *23 (citing Wainwright v. Sykes, 433 U.S. 72, 81‐82
(1977)).
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A finding of cause Amust ordinarily turn on whether the petitioner can show that
some objective factor external to the defense impeded counsel=s efforts to comply with the
procedural rule.@ Putman, 53 F. Supp. 2d at 1292 (citing Murray v. Carrier, 477 U.S. 478
(1986)). If a petitioner relies on cause to excuse a procedural default, he must also show
actual prejudice. Because a petitioner must show both, Aa finding by the court that one
prong has not been met alleviates the need to analyze the claim under the other prong.@
Id. (citing United States v. Frady, 456 U.S. 152, 167‐75 (1982)). In relation to prejudice,
courts have explained that a petitioner Amust shoulder the burden of showing, not merely
that the errors at his trial created a possibility of prejudice, but that they worked to his
actual and substantial disadvantage, infecting his entire trial with error of constitutional
dimensions.@ Frady, 456 U.S. at 170; Ward v. Hall, 592 F.3d 1144, 1178 (11th Cir. 2010).
Finally, Ain extraordinary cases, a federal court may grant a habeas petition without
a showing of cause and prejudice to correct a fundamental miscarriage of justice.@ Jones v.
Campbell, 436 F.3d 1285, 1304 (2006) (citing Murray v. Carrier, 477 U.S. 478 (1986)). The
Eleventh Circuit has stated as follows regarding what is necessary to prove a fundamental
miscarriage of justice:
To excuse a default of a guilt‐phase claim under [the fundamental
miscarriage of justice] standard, a petitioner must prove Aa constitutional
violation [that] has probably resulted in the conviction of one who
is actually innocent.@ To gain review of a sentencing‐phase
claim based on manifest injustice, a petitioner must show that Abut for
constitutional error at his sentencing hearing, no reasonable juror
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could have found him eligible for the death penalty under [state] law.@
Hill, 81 F.3d at 1023 (citations omitted).
The United States Supreme Court explained that when a Petitioner maintains that a
miscarriage of justice due to Aactual innocence@ will result from a district court’s failure to
review a procedurally defaulted claim, the court Amust first address all nondefaulted claims
for comparable relief and other grounds for cause to excuse the procedural default.@
Dretke v. Haley, 541 U.S. 386, 394 (2004). AThis sequencing requirement was designed by
the Supreme Court as a means of avoiding the >threshold legal questions that often
accompany claims of actual innocence= when a default can be excused on some simpler
ground or full relief can be granted on a nondefaulted claim.@ Randy Hertz & James S.
Liebman, Federal Habeas Corpus Practice and Procedure ' 26.4 (6th ed. 2011)(quoting
Dretke, 541 U.S. at 394).
Petitioner asserts that Aeven if the Court finds [Petitioner=s] claims to be defaulted
and that [Petitioner] has not established adequate cause for the default and actual
prejudice, the merits of a defaulted claim must still be heard when not to would present a
fundamental miscarriage of justice.@ (Pet’r Br. at 2, ECF No. 29). To any extent that
Petitioner maintains a miscarriage of justice due to Aactual innocence,@ he has not shown
such at this stage. However, the Court will, in accordance with Dretke, delay ruling on the
issue until it has reviewed both Petitioner and Respondent=s briefs on the nondefaulted
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claims and made its determination regarding these claims.
II. PROCEDURAL DEFAULT AND EXHAUSTION ISSUES RELATING TO
PETITIONER=S CLAIMS FOR RELIEF
A. Claims that Respondent alleges are not exhausted
Respondent maintains that the following claims, contained in the Petition for Writ of
Habeas Corpus by a Person in State Custody, are not exhausted:
In a portion of Claim One of the instant petition, Petitioner alleges ineffective
assistance of counsel in that trial counsel failed adequately to challenge the
trial court’s allegedly improper excusal of unspecified jurors for hardship
reasons, failed adequately to challenge the trial court’s allegedly improper
voir dire of potential jurors and failed adequately to challenge the district
attorney=s (sic) allegedly improper voir dire;
In a portion of Claim One of the instant petition, Petitioner alleges ineffective
assistance of counsel in that counsel failed to be adequately aware of relevant
law which would have enabled counsel to make proper and timely objections;
In a portion of Claim Two of the instant petition, Petitioner alleges that the
prosecution improperly used its peremptory strikes to systematically exclude
jurors on the basis of gender;
In a portion of Claim Two of the instant petition, Petitioner alleges that the
jury bailiff=s (sic) and/or sheriff=s deputies and/or other State agents who
interacted with jurors engaged in improper communications with jurors
which deprived Petitioner of a fair trial and reliable sentencing;
In a portion of Claim Three of the instant petition, Petitioner alleges juror
misconduct in that there was improper communication with jury bailiffs;
In a portion of Claim Four of the instant petition, Petitioner alleges that the
trial court erred in failing to strike for cause juror Robin Knight whose sister
and brother‐in‐law had been murdered and several of whose family members
were in law enforcement;
In a portion of Claim Four of the instant petition, Petitioner alleges that the
trial court erred in phrasing his voir dire questions in a manner which
suggested to jurors who gave neutral responses that they were or should be in
favor of the death penalty;
In a portion of Claim Four of the instant petition, Petitioner alleges that the
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trial court erred in his rulings on motions to challenge prospective jurors for
cause based on their stated biases;
In a portion of Claim Four of the instant petition, Petitioner alleges that the
trial court engaged in improper voir dire;
In a portion of Claim Four of the instant petition, Petitioner alleges that the
trial court erred in failing to grant Petitioner=s motion for mistrial on the basis
of evidence that the Sheriff=s Department had sought to bring pro‐death
venire members to court for voir dire;
In a portion of Claim Four of the instant petition, Petitioner alleges that the
trial court erred in failing to curtail the State=s burden shifting argument on its
own motion and failed to grant the defense motion for mistrial following such
argument;
In a portion of Claim Four of the instant petition, Petitioner alleges that the
trial court erred in failing to require the State to disclose certain items of
unspecified evidence of an exculpatory or impeaching nature to the defense;
In a portion of Claim Five of the instant petition, Petitioner alleges that the
trial court erred in failing to give a voluntary manslaughter charge to the jury
despite evidence which allegedly could have been found consistent with
provocation; and
In a portion of Claim Seven of the instant petition, Petitioner alleges that the
proportionality review performed by the Georgia Supreme Court is
constitutionally infirm in general and as applied.
(Answer‐Response on Behalf of Resp=t to Petition for Writ of Habeas Corpus at 9‐10, ECF
No. 9).
In response to these allegations of nonexhaustion, Petitioner withdrew all of the
claims except two that are contained in portions of Claims Three and Four of the current
federal habeas corpus petition. (Reply to Resp’t Answer‐Response at 3, ECF No. 22).
First, Petitioner states that in his direct appeal he raised the portion of Claim Four
regarding whether the trial court erred in failing to grant his motion for mistrial on the
basis of evidence that the Sheriff=s Department sought to bring pro‐death venire members
to court for voir dire. A review of the record reveals that Petitioner did make this claim in
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his Brief of Appellant and Enumeration of Errors on direct appeal to the Georgia Supreme
Court. (Resp=t Ex. 21 at 19‐20, ECF No. 12‐6). Moreover, the Georgia Supreme Court
addressed this issue and upheld the trial court’s decision to deny Petitioner=s motion for
mistrial. Tharpe v. State, 262 Ga. 110, 111 (1992). Therefore, this issue has been
exhausted.
Second, with respect to claims alleging that the jurors participated in unauthorized
communications with bailiffs, sheriff=s deputies, and other State Agents (a portion of Claim
Three), Petitioner states that he raised these issues in his Consolidated First Amended
Petition for Writ of Habeas Corpus. (Reply to Resp=t Answer/Response at 3, ECF No. 22).
The record reveals that Petitioner, during his state habeas proceedings, did allege that
jurors engaged in Aimproper communications with third parties.@ (Resp=t Ex. 36 at 16, ECF
No. 13‐8). The state habeas court found this claim to be procedurally defaulted. (Resp=t
Ex. 107 at 5, ECF No. 19‐10).
In conclusion, the only claim listed above that may be reviewed by this Court is the
portion of Claim Four in which Petitioner alleges that the trial court erred in failing to grant
his motion for mistrial on the basis of evidence that the Sheriff=s Department had sought to
bring pro‐death venire members to court for voir dire. The other claims were either
withdrawn by Petitioner or, in the case of Petitioner=s allegations of the jurors’ improper
communications, procedurally defaulted.
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B. Claims that Respondent maintains are procedurally defaulted
Respondent bears the burden of demonstrating that a procedural default has
occurred. Gordon v. Nagles, 2 F.3d 385, 388 n.4 (11th Cir. 1993). Respondent alleges that
numerous portions of Claims Two, Three, and Four are procedurally defaulted.
(Answer‐Response on Behalf of Resp=t to Petition for Writ of Habeas Corpus at 12‐16, ECF
No. 9). To support some of these assertions, Respondent provides specific cites to the
voluminous record. Specifically, Respondent has shown exactly where in the record the
state court found the following claims were procedurally defaulted: (1) the portion of
Claim Two in which Petitioner alleges that the State suppressed information favorable to
the defense at both phases of the trial (Resp=t Ex. 107 at 5, ECF No. 19‐10); (2) the portion of
Claim Two in which Petitioner alleges that the State unconstitutionally interfered with the
defense investigation of Petitioner=s case (Resp=t Ex. 107 at 6, ECF No. 19‐10); (3) the portion
of Claim Two in which the Petitioner alleges that State refused to allow Petitioner full
pretrial discovery of information (Resp=t Ex. 107 at 6, ECF No. 19‐10); (4) Claim Three,
wherein Petitioner alleges various juror misconduct (Resp=t Ex. 107 at 5, 98‐104, ECF No.
19‐10); (5) the portion of Claim Four in which Petitioner alleges that the trial court failed to
ensure that Petitioner=s jury was sequestered in such a way as to avoid contact with
prejudicial publicity and hostility to the defendant, and to avoid communications with
third parties (Resp=t Ex. 107 at 6, ECF No. 19‐10); (6) the portion of Claim Four in which
Petitioner alleges that the trial court improperly allowed prejudicially excessive and
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unnecessary security measures (Resp=t Ex. 107 at 6, ECF No. 19‐10); and (7) the portion of
Claim Four in which the Petitioner alleges that the trial court failed to strike for cause
several venirepersons whose attitudes towards the death penalty would have prevented or
substantially impaired their performance as jurors (Resp=t Ex. 107 at 5‐6, ECF No. 19‐10).
The Court has reviewed these claims and the record, including the Butts County
Superior Court=s December 1, 2008 Order denying habeas relief, and finds that the state
court clearly held these particular claims were procedurally defaulted. Because Athe last
state court to review the claim[s] clearly and expressly state[d] that its judgment rest[ed] on
a procedural bar,@ this Court may not review the claims unless Petitioner, who bears the
burden of overcoming the default, can establish cause and prejudice, or a miscarriage of
justice. Hill, 81 F.3d at 1022 (citing Harris v. Reed, 489 U.S. 255 (1989)); Gordon, 2 F.3d at
388 n.4.
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 Aexternal
impediment@ satisfying the Acause@ 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
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procedural defaults of the above‐described claims. 1 Likewise, Petitioner has failed to
show actual prejudice.
Regarding the procedural default of his claims brought pursuant to Brady v.
Maryland, 373 U.S. 83 (1963) (portions of Claim Two), Petitioner states that Awhether there
is cause and prejudice to overcome procedural default . . . turns on the merits of Petitioner=s
. . . Brady claims.@ (Pet=r Br. at 2, ECF No. 34). It is clear that Brady claims can be
procedurally defaulted and that the state habeas court held Petitioner=s claims were so
defaulted. Strickler v. Greene, 527 U.S. 263 (1999); (Resp=t Ex. 107 at 5‐6, ECF No. 19‐10). In
accordance with the briefing schedule, this was Petitioner=s opportunity to establish cause
and prejudice to overcome this default.2 However, Petitioner explains that he Adid not
intentionally withhold any arguments@ regarding cause and prejudice to overcome this
default. (Pet=r Br. at 2, ECF No. 34). Instead, he explains that A[t]he issue of whether there
is cause and prejudice to overcome procedural default [of his Brady claims] . . . turns on the
merits of Petitioner=s . . . Brady claims.@ (Pet=r Br. at 2, ECF No. 34).
The underlying Brady claims and the cause and prejudice analysis necessary to
The Court assumes that Petitioner plans to address his ineffective assistance of counsel
claims on the merits in his final merits brief that will be submitted in accordance with the February
25, 2011 Scheduling Order. Therefore, after reviewing those briefs, the Court will determine if it
must reconsider any of its findings that Petitioner failed to establish cause for the procedural
defaults
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The parties consented to and requested Aseparate briefing of procedural issues and the final
merits.@ (Unopposed Mot. for Scheduling Order and Proposed Order at 2, ECF No. 23). Therefore,
Petitioner should certainly be aware that this was his opportunity to present any argument he has
regarding procedural default.
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overcome procedural default are coextensive. The United States Supreme Court has
explained as follows:
Brady, we reiterate, held that Athe 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.@ . . . [T]he three components or essential
elements of a Brady prosecutorial misconduct claim [are]: AThe evidence at
issue must be favorable to the accused, either because it is exculpatory, or
because it is impeaching; that evidence must have been suppressed by the
State, either willfully or inadvertently; and prejudice must have ensued.@
A[C]ause and prejudice@ in this case Aparallel two of the three components of
the alleged Brady violation itself.@ Corresponding to the second Brady
component (evidence suppressed by the State), a petitioner shows Acause@
when the reason for his failure to develop facts in state‐court proceedings was
the State’s suppression of the relevant evidence; coincident with the third
Brady component (prejudice), prejudice within the compass of the Acause and
prejudice@ requirement exists when the suppressed evidence is Amaterial@ for
Brady purposes. . . . Thus, if [a petitioner] succeeds in demonstrating Acause
and prejudice,@ he will at the same time succeed in establishing the elements
of his . . . Brady . . . claim.
Banks v. Dretke, 540 U.S. 668, 691 (2004) (citations omitted);
Because the elements of the underlying Brady claim and the analysis necessary to
satisfy the cause‐and‐prejudice test to overcome procedural default are identical, Petitioner
apparently thought it appropriate to wait until the merits briefing to address the issue.
Respondent requests the Court to Adeny any request to argue or brief these claims at a later
date.@ (Resp=t Br. at 14, ECF No. 30). Because the parties specifically requested to brief
the issues of procedural default and cause and prejudice before addressing the merits, the
Court is reluctant to allow any future argument on this issue. However, given the serious
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nature of these proceedings, and given the coextensive nature of the underlying Brady
claims and the cause and prejudice analysis, the Court will allow Petitioner to address the
issues in his final merits brief.
III. CONCLUSION
For the reasons set forth above, the Court finds that Petitioner has withdrawn all of
the claims that Respondent alleges are not exhausted, except for portions of Claims Three
and Four. The portion of Claim Four in question was exhausted and may be reviewed by
this Court under 28 U.S.C. § 2254(d). The portion of Claim Three is procedurally
defaulted. Similarly, all of the Claims set forth on page 8‐9 of this Order are procedurally
defaulted and, at this stage in the litigation, Petitioner has not established any applicable
exception to excuse the defaults.
In submitting future briefs to the Court, the parties are to adhere to the briefing
schedule announced in the February 25, 2011 Scheduling Order. (ECF No. 24).
SO ORDERED, this 18th day of August 2011.
lnb
S/ C. Ashley Royal
C. ASHLEY ROYAL, JUDGE
UNITED STATES DISTRICT COURT
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