Keith Tharpe v. Warden

Eleventh Circuit

Keith Tharpe v. Warden

Court of Appeals for the Eleventh Circuit·Decided August 10, 2018·No. 17-14027·Published

Opinion

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 17-14027-P

KEITH THARPE, Petitioner – Appellant,

versus

WARDEN, Respondent – Appellee.

Appeal from the United States District Court for the Middle District of Georgia

Before: TJOFLAT, MARCUS, and WILSON, Circuit Judges. BY THE COURT:

This 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. ___, 138 S. Ct. 545 (2018); Tharpe v. Warden, 834 F.3d 1323 (11th Cir. 2016); Tharpe v. State, 416 S.E.2d 78 (Ga. 1992). We write only to decide whether our

April 3, 2018 Order denying a certificate of appealability (“COA”) should be reconsidered. We conclude that it should not.

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. ___, 137 S. Ct. 855 (2017), and that rule does not apply retroactively. Second, he has failed to show cause to overcome his procedural default. For these two independent reasons—either of which, standing alone, would suffice to deny a COA—our decision denying his motion for COA is not due for reconsideration.

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, 497 U.S. 227, 239, 110 S. Ct. 2822, 2830 (1990). “[N]ew constitutional rules of criminal procedure will not be applicable to those cases which have become final before the new rules are announced.” Teague v. Lane, 489 U.S. 288, 310, 109 S. Ct. 1060, 1075 (1989). “To apply Teague, a federal court engages in a three-step process.” Lambrix v. Singletary, 520 U.S. 518, 527, 117 S. Ct. 1517, 1524 (1997).

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. Id. Second, the court “must survey the legal landscape as it then existed and determine whether a state court considering the defendant’s claim at the time his conviction became final would have felt compelled by existing precedent to conclude that the rule he seeks was required by the Constitution.” Id. (quotations and citations omitted) (emphasis added). If the legal rule forming the basis of the claim “was not dictated by precedent existing at the time the defendant’s conviction became final,” Whorton v. Bockting, 549 U.S. 406, 416, 127 S. Ct. 1173, 1181 (2007) (quotation omitted) (emphasis added), or if it would not have been “apparent to all reasonable jurists” at that time, Chaidez v. United States, 568 U.S. 342, 347, 133 S. Ct. 1103, 1107 (2013) (quotation omitted), then Teague precludes application of that rule on collateral review, absent an exception.

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, 489 U.S. at 311, 109 S. Ct. at 1075–76 (quotation omitted).

Working 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, 309 F.3d 770, 773 (11th Cir. 2002). It is immediately apparent that a claim grounded in Pena-Rodriguez v. Colorado, a decision handed down nearly twenty-five years later on March 6, 2017, will likely fail to clear Teague’s hurdles. Indeed, Pena-Rodriguez cannot apply to Tharpe’s habeas claim because, before Pena-Rodriguez, no precedent established that proof of a juror’s racial animus created a Sixth Amendment exception to the no-impeachment rule.

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.” 483 U.S. 107, 117, 107 S. Ct. 2739, 2745 (1987). And, as the Supreme Court noted in Pena-Rodriguez, “[a]t common law[,] jurors were forbidden to impeach their verdict, either by affidavit or live testimony.” 137 S. Ct. at 863 (citing Vaise v. Delaval, 1 T.R. 11, 99 Eng. Rep. 944 (K.B. 1785)).

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.” 238 U.S. 264, 268, 35 S. Ct. 783, 784–85 (1915) (quotations omitted).

Congress likewise embraced the no-impeachment rule by incorporating it into Federal Rule of Evidence 606(b)(1), which reads this way:

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, 137 S. Ct. at 864.

Before Pena-Rodriguez, the Supreme Court twice addressed whether the no-

impeachment rule contained a constitutional exception. Id. at 866–67 (citing Tanner, 483 U.S. at 125, 107 S. Ct. at 2750; Warger v. Shauers, 574 U.S. ___, 135 S. Ct. 521, 529 (2014)). Each time, the Supreme Court concluded it did not. Id. For that reason, Pena-Rodriguez was a “startling development” because “for the first time, the Court create[d] a constitutional exception to no-impeachment rules.” Id. at 875, 879 (Alito, J., dissenting).

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, 520 U.S. at 539, 117 S. Ct. at 1531 (quotation omitted). Tharpe nonetheless cited

Bradford v. Bruno’s, Inc., 94 F.3d 621, 622 (11th Cir. 1996), and Ungerleider v. Gordon, 214 F.3d 1279, 1282 (11th Cir. 2000), for the proposition that Pena- Rodriguez decreed a substantive rule. Yet those cases had nothing to do with either the no-impeachment rule or Teague retroactivity. Rather, they addressed whether wholly different state rules of evidence were substantive for purposes of the Erie doctrine.1 Bradford, 94 F.3d at 622; Ungerleider, 214 F.3d at 1282.

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.

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