             Case: 17-14027    Date Filed: 08/10/2018   Page: 1 of 13


                                                                        [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
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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).

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      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

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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).

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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
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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.

      Additionally, the Pena-Rodriguez rule is not a watershed rule of criminal

procedure that would satisfy Teague’s second exception. This exception “is

extremely narrow, and it is unlikely” that any class of rules satisfying it has “yet to

emerge” since Teague. Schriro v. Summerlin, 542 U.S. 348, 352, 124 S. Ct. 2519,

2523 (2004) (quotation omitted). “[T]he paradigmatic example of a watershed rule

of criminal procedure is the requirement that counsel be provided in all criminal

trials for serious offenses.” Gray v. Netherland, 518 U.S. 152, 170, 116 S. Ct.


      1
          Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S. Ct. 817 (1938).
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2074, 2085 (1996) (citing Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792

(1963)). “[R]ules that regulate only the manner of determining the defendant’s

culpability are procedural,” and thus apply retroactively to collateral proceedings

only if they are exceedingly rare “watershed[s]” akin to Gideon. Schriro, 542 U.S.

at 353, 124 S. Ct. at 2523. In light of this exceedingly high bar, even Tharpe

himself does not argue that Pena-Rodriguez’s rule is such a watershed.

      Because a state court in October 1992 would not have felt that the rule

announced in Pena-Rodriguez was required by then-existing precedent, and

because the Pena-Rodriguez rule is neither a new substantive rule that places

primary conduct beyond the power of criminal law nor a watershed rule of criminal

procedure, Teague bars Tharpe’s claim. See Tharpe, 138 S. Ct. at 551 (Thomas, J.,

dissenting) (“[N]o reasonable jurist could argue that Pena-Rodriguez applies

retroactively on collateral review.”). This alone would be enough reason to deny

Tharpe’s motion for a COA and accordingly his motion for reconsideration.

However, there exists a second, independent reason: Tharpe failed to show cause

for his procedural default.

                                          II.

      The procedural default rule is clear. It provides that “[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

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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). A federal court cannot

review a procedurally defaulted claim unless the petitioner can show cause for the

failure to properly present the claim and actual prejudice. Wainwright v. Sykes,

433 U.S. 72, 87, 97 S. Ct. 2497, 2506–07 (1977). “To establish ‘cause’ for a

procedural default, a petitioner must demonstrate that some objective factor

external to the defense impeded the effort to raise the claim properly in the state

court.” Wright v. Hopper, 169 F.3d 695, 703 (11th Cir. 1999). “[A]llegations

[supporting cause and prejudice] must be factual and specific, not conclusory.”

Harris v. Comm’r, Ala. Dep’t of Corr., 874 F.3d 682, 691 (11th Cir. 2017)

(quoting Chavez v. Sec’y, Fla. Dep’t of Corr., 647 F.3d 1057, 1061 (11th Cir.

2011)).

      The Georgia courts have unambiguously held that Tharpe’s juror racial bias

claim was procedurally defaulted. The Superior Court of Butts County ruled that

“even if [Tharpe] had admissible evidence to support his claim of juror

misconduct, this Court finds that the claims are procedurally defaulted as [Tharpe]

failed to raise them at the motion for new trial or on appeal.” Tharpe v. Hall, No.

93-V-144, at 102 (Ga. Super. Ct. Dec. 1, 2008). After Tharpe returned to state

court following Pena-Rodriguez, the Superior Court again held that Tharpe’s claim

“is still procedurally defaulted.” Pet’r’s Mot. for Recons. Ex. A at 4. Again, the

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Supreme Court of Georgia refused to review the claim. Id. Ex. B. Since Tharpe’s

juror racial bias claim was procedurally defaulted, and since the Supreme Court of

the United States held that Barney Gattie’s affidavit would permit jurists of reason

to dispute whether Tharpe demonstrated prejudice, see Tharpe, 138 S. Ct. at 546,

the only question is whether Tharpe arguably proved cause.

      To prove cause, Tharpe alleged only, and at the highest order of abstraction,

that “trial counsel [was] ineffective in failing to raise meritorious claims on appeal,

and that trial counsel’s ineffectiveness constitutes cause to excuse any procedural

default.” He alleged no specific facts. Indeed, he alleged nothing at all. The state

court rejected the argument as a bare, conclusory assertion. The District Court

agreed, noting “[p]etitioner, unfortunately, fails to provide any details regarding

[the] allegation . . . that his trial and appellate attorneys were ineffective[, thereby

establishing] cause to overcome [his] defaults.” Tharpe v. Humphrey, No. 5:10-

CV-433, at 9 (M.D. Ga. Aug. 18, 2011). Because Tharpe’s attempt to show cause

is wholly unsubstantiated, he has failed to make the requisite showing of cause to

overcome his procedural default. See Tharpe, 138 S. Ct. at 552 (Thomas, J.,

dissenting) (“[N]o reasonable jurist could argue that Tharpe demonstrated cause

for his procedural default.”).




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                               *       *        *

      For the foregoing reasons, we deny Keith Tharpe’s motion for

reconsideration of the April 3, 2018 Order denying a COA.

      MOTION FOR RECONSIDERATION DENIED.




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WILSON, Circuit Judge, specially concurring:

      I am persuaded that Mr. Tharpe’s application for a COA should be denied

because Peña-Rodriguez1 does not apply retroactively under the Teague 2 analysis.

      After working through the first two steps of Teague’s framework, it is clear

that Tharpe cannot show that existing precedent dictated Peña-Rodriguez. Thus,

Tharpe’s only other available option is to claim that Peña-Rodriguez meets one of

the two exceptions to Teague’s bar—the second exception, declaring that it is a

new watershed rule of criminal procedure, being the most plausible. This

exception, though, is extremely narrow and has not been used to this day. See

Schriro v. Summerlin, 542 U.S. 348, 352 (2004) (The exception is reserved for

“only a small set of watershed rules of criminal procedure implicating the

fundamental fairness and accuracy of the criminal proceeding. . . . [A] new

procedural rule [being] fundamental in some abstract sense is not enough; the rule

must be one without which the likelihood of an accurate conviction is seriously

diminished. . . . [However] [t]his class of rules is extremely narrow, and it is

unlikely that any has yet to emerge.” (internal citations and quotation marks

omitted)). Again, this avenue is so rare that, as the Order points out, even Tharpe

himself has not made this argument.



      1
          Peña-Rodriguez v. Colorado, 580 U.S. ___, 137 S. Ct. 855 (2017).
      2
          Teague v. Lane, 489 U.S. 288, 109 S. Ct. 1060 (1989).
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      In addition, I disapprove of the lackadaisical treatment of Mr. Gattie’s

original affidavit. The statements and beliefs contained in the affidavit were not

“offhand comments” by any means. See Tharpe v. Warden, No. 17-14027-P, slip

op. at 5–7 (11th Cir. Sep. 21, 2017) (laying out the district court’s reasoning

regarding Mr. Gattie’s affidavit which was easily disavowed by the Supreme Court

in Tharpe v. Sellers, 583 U.S. ___, ___, 138 S. Ct. 545, 545–46 (2018)). To the

contrary, Gattie’s repugnant comments were rife with racial slurs; deeply seeded

views regarding integration, interracial marriage, and the like; a comment inquiring

whether black people even had souls; and even an explicit statement that the

juror’s decision to sentence Tharpe to death was at least, in part, based on race.3


      3
          The juror in question, Juror Gattie, said the following in his affidavit:


                        I . . . knew the girl who was killed, Mrs. Freeman. Her
                husband and his family have lived in Jones [C]ounty a long time.
                The Freemans are what I would call a nice Black family. In my
                experience I have observed that there are two types of black
                people. 1. Black folks and 2. Niggers. For example, some of them
                who hang around our little store act up and carry on. I tell them,
                “nigger, you better straighten up or get out of here fast.” My wife
                tells me I am going to be shot by one of them one day if I don’t
                quit saying that. I am an upfront, plainspoken man, though. Like I
                said, the Freemans were nice black folks. If they had been the type
                Tharpe is, then picking between life or death for Tharpe wouldn’t
                have mattered so much. My feeling is, what would be the
                difference. As it was, because I knew the victim and her husband’s
                family and knew them all to be good black folks, I felt Tharpe,
                who wasn’t in the “good” black folks category in my book, should
                get the electric chair for what he did. Some of the jurors voted for
                death because they felt that Tharpe should be an example to other
                blacks who kill blacks, but that wasn’t my reason. The others
                wanted blacks to know they weren’t going to get away with killing
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      Over the long course of this procedurally complex case, it is easy to gloss

over our improper treatment of Mr. Gattie’s original affidavit, but it is something

that I want to acknowledge. Absent intervention from the Supreme Court, it seems

that we would have approved of the idea that Mr. Gattie’s affidavit would not have

amounted to prejudice. I do not stand by that idea, or our court’s treatment of the

affidavit. As a factual matter, the statements contained therein clearly indicate a

reliance on racial animus to convict or sentence a defendant.




             each other. After studying the Bible, I have wondered if black
             people even have souls. Integration started in Genesis. I think they
             were wrong. For example, look at O.J. Simpson. That white
             woman wouldn’t have been killed if she hadn’t have married that
             black man.
                                             13
