Tharpe v. Warden

• Decision Date: 25 August 2016
• Docket Number: No. 14–12464,14–12464
• Parties: Keith Tharpe, Petitioner–Appellant, v. Warden, Respondent–Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

834 F.3d 1323

Keith Tharpe, Petitioner–Appellant,

v.Warden, Respondent–Appellee.

No. 14–12464

United States Court of Appeals, Eleventh Circuit.

Date Filed: August 25, 2016

Brian Kammer, Kirsten Salchow, Georgia Resource Center, Atlanta, GA, for Petitioner–Appellant.

Richard W. Tangum, Beth Attaway Burton, Sabrina Graham, Attorney General's Office, Atlanta, GA, for Respondent–Appellee.

Before TJOFLAT, MARCUS, and WILSON, Circuit Judges.

TJOFLAT

, Circuit Judge:

This is the latest iteration in a series of challenges brought by Keith Leroy Tharpe to the sentence of death he received in 1991 for kidnapping his wife and kidnapping and murdering Jaquelin Freeman, his sister-in-law. After decades of litigation and having exhausted his opportunities for relief on direct and collateral review in the Georgia courts, Tharpe now appeals the District Court's denial of his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254

. Our review is limited to the following two issues: First, whether Tharpe's trial counsel provided ineffective assistance of counsel in violation of the Sixth Amendment. See

Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Second, whether Tharpe is intellectually disabled and thus ineligible for the death penalty under the Eighth Amendment. See

Atkins v. Virginia , 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002). With the benefit of thorough briefing and oral argument, we conclude that Tharpe has failed to make either showing.

I.

A.

Twenty-six years ago, Tharpe murdered Jaquelin Freeman, his sister-in-law, by shooting her multiple times with a shotgun. The Georgia Supreme Court recounts the circumstances of the killing as follows:

Tharpe's wife left him on August 28, 1990 and moved in with her mother. Following various threats of violence made by the defendant to and about his wife and her family, a peace warrant was taken out against him, and the defendant was ordered not to have any contact with his wife or her family. Notwithstanding this order, Tharpe called his wife on September 24, 1990 and argued with her, saying if she wanted to “play dirty,” he would show her “what dirty was.”

On the morning of the 25th, his wife and her sister-in-law met Tharpe as they drove to work. He used his vehicle to block theirs and force them to stop. He got out of his vehicle, armed with a shotgun and apparently under the influence of drugs, and ordered them out of their vehicle. After telling the sister-in-law he was going to “f––– you up,” he took her to the rear of his vehicle, where he shot her. He rolled her into a ditch, reloaded, and shot her again, killing her.¹

Tharpe then drove away with his wife. After unsuccessfully trying to rent a motel room, Tharpe parked by the side of the road and raped his wife. Afterward, he drove to Macon, where his wife was to obtain money from her credit union. Instead she called the police.

Tharpe v. State , 262 Ga. 110, 416 S.E.2d 78, 79–80 (1992)

.

Following a nine-day trial in Jones County, Georgia, lasting from January 2 to January 10, 1991, Tharpe was found guilty of malice murder and two counts of kidnapping with bodily injury. At sentencing, as during the guilt-innocence stage of the trial, counsel presented to the jury an image of Tharpe as a good person who had been temporarily overcome with the emotional distress of being left by his wife. Thirteen witnesses including Tharpe; his mother, Naomi Tharpe; his sister, Audrey Pope; his cousin, Laverne Shermer; his wife, Migrisus; two of his daughters; and some of his friends testified on Tharpe's behalf. These witnesses portrayed Tharpe as a good son, a good husband, a good father, a good student, and a good friend, and asked the jury to spare Tharpe's life. Although the State introduced some evidence of Tharpe's criminal history, the jury did not learn about other aspects of Tharpe's troubled past, including his difficult and abusive upbringing, his history of substance abuse, and his low intellectual functioning.

The jury voted unanimously to impose the death penalty. The jury found three statutory aggravating factors pursuant to O.C.G.A. § 17–10–30(b)(2)

and (b)(7) : the murder was committed while Tharpe was engaged in the commission of another capital felony, the kidnapping with bodily injury of the victim, Jaquelin Freeman; the murder was committed while Tharpe was engaged in the commission of another capital felony, the kidnapping with bodily injury of Tharpe's wife, Migrisus Tharpe; and the murder was outrageously or wantonly vile, horrible, or inhuman because it involved an aggravated battery to the victim. Tharpe moved for a new trial on January 19, 1991. The trial court denied his motion on August 15, 1991. On direct appeal, the Georgia Supreme Court affirmed Tharpe's conviction and death sentence on March 17, 1992. The United States Supreme Court denied certiorari on October 19, 1992. Tharpe v. Georgia , 506 U.S. 942, 113 S.Ct. 383, 121 L.Ed.2d 292 (1992).

On March 17, 1993, Tharpe filed his first petition for writ of habeas corpus in the Superior Court of Butts County, Georgia. Tharpe amended his habeas petition twice, first on December 31, 1997, and then again on January 21, 1998. The Superior Court held evidentiary hearings on May 28, 1998; August 24, 1998; October 1–2, 1998; December 11, 1998; December 23, 1998; and July 30, 2007. The Superior Court ultimately issued a 105–page order denying relief on December 1, 2008. The Georgia Supreme Court denied Tharpe's application for a certificate of probable cause to appeal the Superior Court's denial of habeas corpus on April 19, 2010. The United States Supreme Court denied certiorari on November 29, 2010. Tharpe v. Upton , 562 U.S. 1069, 131 S.Ct. 655, 178 L.Ed.2d 491 (2010)

.

On November 8, 2010, Tharpe filed his second petition for writ of habeas corpus, this time pursuant to 28 U.S.C. § 2254

, in the United States District Court for the Middle District of Georgia. After granting Tharpe's motions to appoint counsel and to proceed in forma pauperis, the District Court denied Tharpe's motions to conduct discovery and hold an evidentiary hearing. The Court then denied Tharpe's habeas petition on March 6, 2014, and Tharpe's motion to alter and amend judgment on May 8, 2014.

In its order of March 6, 2014, the District Court issued a Certificate of Appealability (“COA”) on the following issue:

Whether the state habeas court's determination that Tharpe's trial counsel was not ineffective in the investigation and presentation of mitigation evidence was based on an unreasonable determination of the facts, or was contrary to, or involved an unreasonable application of, clearly established federal law.

Tharpe subsequently moved this Court to expand the COA to encompass two other issues. We granted both requested extensions, the first on July 30, 2014, and the second on December 30, 2014:

(1) Whether the Georgia court's decision that appellant is not exempt from execution under Atkins v. Virginia , 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002)

is contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

... resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

(2) Whether defense counsel rendered ineffective assistance of counsel in failing to present an intellectual disability defense at the guilt-innocence phase of his trial.²

Taking the issues before us on appeal together, Tharpe is requesting relief on a Sixth Amendment ineffective-assistance-of-counsel theory under Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)

, and an Eighth Amendment intellectual-disability theory³ under Atkins v. Virginia , 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002).

B.

Having laid out in broad strokes the procedural history of Tharpe's case, we turn now to the state collateral proceedings in more detail. Judge Richard T. Winegarden of the Superior Court of Butts County issued his order denying Tharpe's requested relief more than a decade after Tharpe filed his state habeas petition, during which time six separate evidentiary hearings were held. Judge Winegarden rejected most of the forty-one claims Tharpe raised in his second amended petition as barred by res judicata, procedurally defaulted, non-cognizable, or moot. Of Tharpe's remaining claims that reached merits determinations,⁴ we will discuss only the relevant Strickland

and Atkins findings and conclusions.

1. As to Tharpe's Strickland

ineffective-assistance-of-counsel claim, Judge Winegarden concluded that Tharpe had “failed to carry his heavy burden” because Tharpe could show neither the inadequacy of trial counsel's performance nor the attendant prejudice that Strickland requires. After laying out Strickland's familiar two-prong test, Judge Winegarden began by assessing whether Tharpe's trial counsel performed as “some reasonable lawyer at the trial could have acted, in the circumstances,” without violating the minimum guarantees of the Sixth Amendment. The following facts, drawn from the trial record and post-trial evidentiary hearings, informed that analysis.

At trial and on direct appeal, Tharpe had been represented by two veteran lawyers, Charles Newberry and Shane Geeter. At the time of Tharpe's trial, Newberry had previously served four years at the Ocmulgee District Attorney's Office, including three as Chief Assistant District Attorney; had tried between fifty and one hundred cases involving murder, robbery, rape, kidnapping, aggravated assault, battery and aggravated battery, theft, and forgery; and, following his time in the District Attorney's Office had been lead defense counsel in three capital trials, none of which led to the death penalty being imposed. Geeter had also worked in the District Attorney's Office, during which time he tried between seven and twelve...