Tharpe v. Warden

898 F.3d 1342
CourtCourt of Appeals for the Eleventh Circuit
DecidedAugust 10, 2018
DocketNo. 17-14027-P
StatusPublished
Cited by10 cases

This text of 898 F.3d 1342 (Tharpe v. Warden) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Tharpe v. Warden, 898 F.3d 1342 (11th Cir. 2018).

Opinion

BY 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. ----, 138 S.Ct. 545, 199 L.Ed.2d 424 (2018) ; Tharpe v. Warden , 834 F.3d 1323 (11th Cir. 2016) ; Tharpe v. State , 262 Ga. 110, 416 S.E.2d 78 (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, 197 L.Ed.2d 107 (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, 111 L.Ed.2d 193 (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, 103 L.Ed.2d 334 (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, 137 L.Ed.2d 771 (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, 167 L.Ed.2d 1 (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, 185 L.Ed.2d 149 (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).

*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 , 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

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Bluebook (online)
898 F.3d 1342, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tharpe-v-warden-ca11-2018.