Keith Tharpe v. Warden
834 F.3d 1323
| 11th Cir. | 2016Background
- In 1991 Keith Leroy Tharpe was convicted in Georgia of malice murder and two kidnappings for the shooting death of his sister‑in‑law; a jury sentenced him to death.
- Trial counsel (experienced local lawyers Newberry and Geeter) presented a mitigation strategy emphasizing Tharpe's good character and emotional distress after his wife left; they did not present extensive evidence of childhood abuse, long‑term substance abuse, or intellectual disability.
- Pretrial psychological testing (Dr. Moore and the State’s Dr. Storms) showed borderline intellectual functioning (WAIS scores ~73) and did not diagnose intellectual disability; later experts on collateral review produced mixed IQ results (some <70).
- On state habeas, Judge Winegarden conducted multiple evidentiary hearings, found counsel’s investigation and mitigation strategy reasonable under Strickland, and found Tharpe failed to prove intellectual disability (Georgia requires IQ, adaptive deficits, and manifestation before age 18 beyond a reasonable doubt).
- The federal District Court denied Tharpe’s 28 U.S.C. § 2254 petition; the Eleventh Circuit affirmed, applying AEDPA deference and holding Tharpe failed to show unreasonable application of Strickland or Atkins.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether counsel provided ineffective assistance by failing to investigate and present mitigation (Strickland performance) | Counsel failed to investigate Tharpe’s abusive childhood, prenatal exposure, substance abuse, and cognitive deficits; an adequate investigation would have revealed mitigating evidence | Counsel conducted a reasonable investigation, consulted experts, interviewed family/friends, and reasonably chose a character/emotion mitigation strategy; more probing would have risked exposing damaging material | Denied — state court reasonably found counsel’s investigation and strategic mitigation choice objectively reasonable under Strickland and AEDPA deference |
| Whether counsel’s mitigation presentation was constitutionally deficient (Strickland performance at sentencing) | Even if investigated, counsel unreasonably chose a good‑character defense over a full evidence‑based mitigation presentation | Counsel’s tactical choice was reasonable: presenting substance abuse/low IQ risked undercutting the intended sympathetic portrayal; strategic choices are highly deferential | Denied — strategy was a reasonable, informed tactical choice and not constitutionally deficient |
| Whether Tharpe is intellectually disabled and thus ineligible for execution (Atkins) | Post‑trial testing and collateral‑hearing testimony show IQ scores under 70 and adaptive deficits in functional academics and work, manifesting before age 18 | Experts were divided; state expert found insufficient adaptive‑behavior deficits; Georgia law requires proving adaptive deficits beyond a reasonable doubt and prior manifestation | Denied — state court reasonably concluded adaptive deficits were not proven beyond a reasonable doubt; AEDPA deference upheld that factual/legal conclusion |
| Whether AEDPA deference is overcome (§ 2254(d)) | State findings were unreasonable given the record and expert evidence; federal review should reverse on Strickland/Atkins grounds | State court rulings were supported by the record and by controlling precedent; federal courts must apply doubly deferential review | Denied — petitioner failed to show the state court’s decisions were contrary to or an unreasonable application of clearly established law or based on unreasonable factual determinations |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (establishes two‑prong ineffective assistance test)
- Atkins v. Virginia, 536 U.S. 304 (death penalty inapplicable to intellectually disabled defendants)
- Williams v. Taylor, 529 U.S. 362 (AEDPA § 2254(d) framework; "contrary to" and "unreasonable application")
- Harrington v. Richter, 562 U.S. 86 (deference under AEDPA; "objective unreasonableness" standard)
- Wiggins v. Smith, 539 U.S. 510 (counsel’s duty to investigate mitigation; unreasonable failures can violate Strickland)
- Rompilla v. Beard, 545 U.S. 374 (counsel ineffective for failing to investigate readily available prior‑conviction record that affected mitigation/aggravation)
- Porter v. McCollum, 558 U.S. 30 (counsel’s failures to present available mitigation can be prejudicial under Strickland)
- Sears v. Upton, 561 U.S. 945 (per curiam) (remand where investigation may have been constitutionally inadequate)
- Yarborough v. Gentry, 540 U.S. 1 (explains Strickland/AEDPA interaction; "doubly deferential" review)
- Cullen v. Pinholster, 563 U.S. 170 (limits federal habeas review of ineffective‑assistance claims and discusses mitigation strategy tradeoffs)
- Hill v. Humphrey, 662 F.3d 1335 (11th Cir. en banc) (upholding Georgia’s Atkins proof standard in AEDPA context)