Keith THARPE, Petitioner-Appellant, v. WARDEN, Respondent-Appellee.
No. 14-12464
United States Court of Appeals, Eleventh Circuit.
Date Filed: 08/25/2016
834 F.3d 1323
Before TJOFLAT, MARCUS, and WILSON, Circuit Judges.
AFFIRMED.
Richard W. Tangum, Beth Attaway Burton, Sabrina Graham, Attorney General‘s Office, Atlanta, GA, for Respondent-Appellee.
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
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
The jury voted unanimously to impose the death penalty. The jury found three statutory aggravating factors pursuant to
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
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 un-reasonable 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,
The trial judge appointed Newberry and Geeter as co-counsel to represent Tharpe in the fall of 1990. In preparation for trial, Newberry and Geeter consulted with other attorneys, including defense attorneys in the Ocmulgee Judicial Circuit who had experience with death-penalty cases, and reviewed several practitioner resources for trying a capital case.5 Although “there was no official division of duties” assigned between co-counsel, Newberry and Geeter unofficially divvied up the responsibilities for investigating witnesses and filing motions. Both Newberry and Geeter, either together or individually, spoke with each witness at some point.
At the beginning of their investigation, Newberry and Geeter met with District Attorney Briley, who discussed the State‘s trial strategy and allowed them to review and copy his case file under Briley‘s “open file policy” for death-penalty cases.6 Newberry and Geeter also received a copy of the State‘s witness list and were referred to investigators in the Sheriff‘s Office and the Georgia Bureau of Investigation familiar with the murder of Jaquelin Freeman. Newberry and Geeter interviewed each of those investigators and everyone on the State‘s witness list. They also visited the crime scene twice and reviewed investigative and autopsy reports, photos, and physical evidence held by the District Attorney‘s Office and the Georgia Bureau of Investigation. As a result of their investigative efforts, Newberry and Geeter were able to challenge other lesser charges that the State was pursuing against Tharpe on the theory that Tharpe had been “over-indicted” under a “shot gun approach.” These efforts led to the State ultimately withdrawing an armed-robbery charge.
In advance of trial, Newberry and Geeter attempted to reach a plea bargain with District Attorney Briley and moved the trial court to bar the State from seeking the death penalty. Newberry and Geeter met with Tharpe “numerous times” throughout their investigation, conferring with him about “every detail of the case.” According to testimony elicited during one of the five evidentiary hearings, Newberry and Geeter had found Tharpe to be sufficiently capable to participate in his defense, including in making strategic decisions.
In part because Tharpe‘s account of the murder closely paralleled that of his wife, Migrisus Tharpe, the only living witness,7 Newberry and Geeter decided that it would be best to have Tharpe remain silent during the guilt-innocence phase of the trial and testify only at the sentencing phase. This decision was the result of a strategy focused on portraying Tharpe as a man overcome by emotion and passion, based on the rationale that the jury might thus be inclined to find Tharpe guilty of voluntary manslaughter instead of malice murder. In line with this mitigation strategy, Newberry and Geeter decided to present Tharpe as a generally respectable and sympathetic figure who nevertheless made a mistake as a result of an emotionally charged domestic situation. They concluded that their chosen approach to seek the jury‘s mercy was the best, perhaps only, tack available under the circumstances known to them at the time—a conclusion that Newberry and Geeter also defended with the benefit of hindsight.
Anticipating that the State would challenge this image of Tharpe‘s character, Newberry and Geeter conducted an investigation to assess the strength of various mitigation theories. Meeting with family and friends whom Tharpe had referred them to, Newberry and Geeter were told that Tharpe was a “smart” and friendly man who had been well-behaved during his childhood, a high-school graduate who had earned “good grades” and ran track, a good worker who would pick up available work jobs, and a husband who had maintained a marriage for eleven years. Newberry and Geeter also discovered that Tharpe had a criminal history including a conviction as a “habitual violator” for various traffic offenses that included driving under the influence, a history of substance abuse, and an unstable work history. Many of the potential witnesses Tharpe had identified were hesitant to testify on his behalf, with the exceptions of his mother and his aunt. Newberry and Geeter feared that if they did not proceed to trial quickly, the nature of Tharpe‘s crime would further diminish the potential witnesses’ willingness to provide mitigating testimony; most notable in this regard was Migrisus Tharpe‘s willingness to testify. Neither Tharpe himself nor the witnesses he identified suggested to Newberry and Geeter during their investigation either that Tharpe had been abused or neglected in the past or that Tharpe‘s upbringing had been anything but positive. Based on their experience and judgment, Newberry and Geeter concluded that offering evidence of Tharpe‘s alcohol abuse and unstable work history would do more harm than good with the jury.
Newberry and Geeter also explored the possibility that Tharpe may have had a viable mental-health defense by investigating whether Tharpe had suffered from various mental-health disorders or sustained a serious head injury. To that end, they had Tharpe evaluated by Dr. Archer Moore, a psychologist whom Newberry had previously retained as an expert witness in another murder trial. Dr. Moore evaluated Tharpe based on an interview and a battery of tests that were designed to identify Tharpe‘s general intellectual functioning and the possible existence of organic brain damage. Those tests included the Wechsler Adult Intelligence Scale Revised test (“the WAIS-R test“), the Bender Visual Motor Gestalt Test, the Rorshach test, and the House-Tree-Person test. Dr. Moore described Tharpe‘s score of 738 on the WAIS-R as indicating that Tharpe had “borderline intellectual functioning” but was “not mentally retarded.”
Considering Newberry and Geeter‘s investigation and mitigation efforts under the circumstances known to them at the time and in line with the great deference due trial counsel‘s informed strategic decisions under Strickland, Judge Winegarden concluded that Tharpe had failed to prove either ineffective performance or prejudice.
2.
As to Tharpe‘s Atkins intellectual-disability claim, Judge Winegarden concluded that Tharpe had failed to establish beyond a reasonable doubt that Tharpe was intellectually disabled and thus ineligible for the death penalty as a matter of Georgia law. Judge Winegarden began by citing Georgia‘s three-part test for establishing intellectual disability.9 That test, which was borrowed from the third edition of the Diagnostic and Statistical Manual of Mental Disorders (“the DSM III“) put out by the American Psychiatric Association, defines intellectual disability as the status of someone having (1) “significantly subaverage general intellectual function ... [, which] is generally defined as an IQ of 70 or below,” (2) that “result[s] in or [is] associated with impairments in adaptive behavior” and (3) “manifestation of this impairment during the developmental period.” See
As discussed above, both Tharpe‘s own psychological expert and the State‘s, Dr. Moore and Dr. Storms, concluded before trial that Tharpe had borderline intellectual functioning but was not intellectually disabled. During the habeas proceedings, three other mental-health experts evaluated Tharpe: Dr. Marc Zimmerman and Dr. Barry Crown,10 Tharpe‘s experts, and Dr.
Turning to Tharpe‘s adaptive behavior—how well Tharpe was able to meet common demands of daily life and how well Tharpe was able to meet the expectations of personal independence for a person in like circumstances—Judge Winegarden looked to the following categories of adaptive behavior identified by the American Association on Intellectual and Development Disabilities11: (1) communication, (2) self-care, (3) home living, (4) social skills, (5) community use, (6) self-direction, (7) health and safety, (8) functional academics, (9) leisure, and (10) work. Dr. Zimmerman, Tharpe‘s expert, found significant deficiencies in five categories, home living, social skills, functional academics, self-direction, and work, and therefore concluded that Tharpe was intellectually disabled; Dr. King, the State‘s expert, found that Tharpe did not have significant deficiencies in any category, and thus concluded that Tharpe was not intellectually disabled.
Tharpe challenged Dr. King‘s conclusion that Tharpe is not intellectually disabled on several grounds. Judge Winegarden considered and rejected the argument that the test on which Dr. King was relying, the ABAS-II, is inappropriate for evaluating subjects who are incarcerated because, in the ABAS-II manual, there is explicit recognition that the test is appropriate for use in prisons. Judge Winegarden also considered and rejected arguments that Dr. King‘s assessment was unreliable because Tharpe may have been lying in his responses to “look good” by adopting a “cloak of competence” and that Dr. King‘s assessment was unreasonable because it relied solely on the ABAS-II. Dr. King testified that during the interview portion of the ABAS-II Tharpe admitted on numerous occasions that he was unable or unlikely to engage in certain behavior and that Tharpe appeared responsive and varied his answers throughout. In addition to the ABAS-II, Judge Winegarden found that Dr. King had arrived at his conclusion by reviewing other aspects of Tharpe‘s historical data, including his medical rec-
Judge Winegarden identified several inconsistencies in Dr. Zimmerman‘s conclusions about the deficiencies in Tharpe‘s adaptive behavior. As to home living, Judge Winegarden found that—contrary to Dr. Zimmerman‘s conclusion that Tharpe could act only “upon direction“—testimony from Tharpe and his friends and family established that Tharpe was, at least at times, independently able to cook, clean, operate small appliances, perform assorted household chores, take care of his children, make minor automotive repairs, write checks, deliver payments, shop for groceries, pass a driver‘s test, follow directions, and obey the rules and standards required of prisoners in Georgia.
As to social skills, Judge Winegarden rejected as unsupported Dr. Zimmerman‘s conclusion that Tharpe‘s “largely incoherent” comments in conferences with the trial court demonstrated a significant deficiency in communication because Dr. Zimmerman admitted that he had not been present at those conferences, that he had not spoken to trial counsel about those conferences, and that the trial judge would likely have noticed if Tharpe‘s comments were incoherent (while there is no indication in the record that the judge noticed anything off about Tharpe‘s comments). Moreover, Judge Winegarden found that Tharpe reported being able to negotiate television-viewing schedules with his fellow inmates, maintaining a stable group of friends, consciously refraining from saying things that might hurt or embarrass others, and apologizing to others when he hurts their feelings. Family and friends testified that Tharpe has a “good heart” and was a “good friend“; he would help people if he saw their cars broken down on the side of the road; he would make friends with whom to fish and play cards; on occasion, he would bring fish he caught to an elderly friend; he remained married for eleven years; he would clean the house for his wife or take her out to dinners, movies, and parties; and he would buy his family Christmas presents and reward his children for good behavior.
As to functional academics, Dr. Zimmerman concluded that Tharpe‘s low I.Q. scores, low grades, and four instances of being “socially promoted”13 from one grade level to another demonstrate a significant deficiency of adaptive behavior. Judge Winegarden observed that the measure of an individual‘s competency in functional academics, which refer to the basic reading and mathematics skills needed for everyday life, cannot be captured by school records alone. Judge Winegarden further indicated that Tharpe‘s school records and the testimony about Tharpe‘s formal academic performance were too vague and imprecise to be of much use. Tharpe‘s school records are silent, for example, about why he had been “socially promoted,” and Tharpe offered only the affidavit of a former teacher who wrote that it was meant to “keep him with kids his own age.” Tharpe‘s presence in classes labelled “fundamental,” which may or may not have designated the lowest track offered, and affidavits from family and friends describing Tharpe as “slow” were similarly unilluminating. In light of con-
As to self-direction, Dr. Zimmerman concluded that Tharpe displayed a significant deficiency in this adaptive behavior largely because Tharpe exhibited behavior after he shot and killed Jaquelin Freeman suggestive of an excessive reliance on his wife. Specifically, according to Dr. Zimmerman, Tharpe relied on Migrisus Tharpe for driving directions and advice in dealing with the police after the killing. Judge Winegarden, in contrast, concluded that these aspects of Tharpe‘s behavior after the killing were taken “out of context” and, when the surrounding events are taken together, Tharpe‘s actions actually demonstrate a great deal of self-direction: Tharpe relayed his plans to see his wife and made arrangements to borrow the truck used in the commission of his crimes on the night before; Tharpe brought a loaded rifle and arrived at the specific point on his wife‘s route to work at the specific time she would be there; and, when trying to secure a motel room in which to sexually assault his wife, Tharpe had the foresight to advise Migrisus that they would need to keep two dollars as gas money for their return trip. Judge Winegarden noted that Dr. Zimmerman‘s analysis of Tharpe‘s purportedly excessive reliance on his wife failed to fully account for Tharpe‘s substance abuse and further found that other shortcomings, like Tharpe‘s general lack of budgeting habits and unwillingness to pay bills unless prompted, were not because Tharpe “could not do things without direction, but that he sometimes acted selfishly when it came to money and look[ing] out for his own desires.” Combined with evidence of his ability to function independently recounted above (including his ability to cook, clean, travel, shop for groceries, care for his children, and engage in simple commercial transactions), Tharpe‘s ability to secure his own employment on multiple occasions precluded a showing of a significant deficiency in self-direction.
Finally, as to work, Judge Winegarden rejected Dr. Zimmerman‘s conclusion that Tharpe‘s checkered history of low-skilled and short-term employment demonstrated significant deficiency.14 Judge Winegarden explained that Dr. Zimmerman had once again overlooked Tharpe‘s substance abuse as a potential cause for Tharpe‘s inconsistent work history, as well as other possible explanations such as Tharpe‘s low intellectual abilities, his correspondingly limited set of marketable skills, and the inherently unstable schedule of working in construction and similar fields based on availability. Judge Winegarden found no evidence in Tharpe‘s employment history that Tharpe had ever been fired for his inability to perform the work required of him.15
Accordingly, because there was not sufficient evidence of significant deficiencies in Tharpe‘s adaptive behavior and because there was no evidence in the record suggesting significantly sub-average intellectual functioning prior to age 18, Judge Winegarden concluded that Tharpe had failed to carry his burden to show that he is intellectually disabled even though “intellectual testing, alone, places [Tharpe] in the sub-average range of intellectual functioning as required for a finding of” intellectual disability.
C.
After the Supreme Court of Georgia denied Tharpe a certificate of probable cause16 and the Supreme Court of the United States declined to grant certiorari, Tharpe next petitioned the District Court for a writ of habeas corpus pursuant to
1.
The District Court held that Judge Winegarden‘s order denying Tharpe‘s Strickland ineffective-assistance-of-counsel claim was neither contrary to nor an un-reasonable application of clearly established federal law and did not involve an unreasonable determination of the facts. The District Court rejected, as foreclosed by precedent, Tharpe‘s preliminary argument that Judge Winegarden had almost verbatim, and thus improperly, relied on the State‘s proposed order in issuing his own order. See Anderson v. City of Bessemer City, 470 U.S. 564, 572, 105 S.Ct. 1504, 1510-11, 84 L.Ed.2d 518 (1985) (“We, too, have criticized courts for their verbatim adoption of findings of fact pre-pared by prevailing parties, . . . . None-theless, our previous discussions of the subject suggest that even when the trial judge adopts proposed findings verbatim, the findings are those of the court and may be reversed only if clearly erroneous.“); Rhode v. Hall, 582 F.3d 1273, 1281-82 (11th Cir. 2009) (per curiam) (rejecting the argument that a state court‘s habeas order adopting the State‘s pro-posed order “verbatim” in a capital case is not entitled to deference under § 2254). Likewise, the District Court rejected Tharpe‘s argument that Judge Winegarden‘s order was unreasonable because it failed to cite any post-Strickland precedent from the Supreme Court of the United States. See Williams v. Taylor, 529 U.S. 362, 390-91, 120 S.Ct. 1495, 1511-12, 146 L.Ed.2d 389 (2000) (noting that “[i]t is past question” that Strickland itself, rather than subsequent applications of Strickland, provide the governing standard).
The District Court also considered and rejected a host of cases that, according to Tharpe, dictate the outcome of the required Strickland analysis into Newberry and Geeter‘s mitigation efforts during their investigation and at trial: Sears v. Upton, 561 U.S. 945, 130 S.Ct. 3259, 177 L.Ed.2d 1025 (2010) (per curiam), Porter v. McCollum, 558 U.S. 30, 130 S.Ct. 447, 175 L.Ed.2d 398 (2009) (per curiam), Rompilla v. Beard, 545 U.S. 374, 125 S.Ct. 2456, 162 L.Ed.2d 360 (2005), Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003), Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000), Ferrell v. Hall, 640 F.3d 1199 (11th Cir. 2011), Lawhorn v. Allen, 519 F.3d 1272 (11th Cir. 2008), and Fleming v. Zant, 259 Ga. 687, 386 S.E.2d 339 (1989). The District Court found each of these cases to be factually and legally distinguishable from Tharpe‘s, if not completely irrelevant. Unlike the cases listed above, in which counsel performed an unreasonably limited investigation by ignoring certain “red flags” about a habeas petitioner‘s upbringing or mental-health status, the District Court observed that the record before it showed that Newberry and Geeter undertook a meaningful investigation and thereafter developed a mitigation strategy in line with what they discovered; neither Tharpe nor the friends and family to whom Newberry and Geeter were referred by Tharpe suggested that Tharpe had had a troubled or deprived background, and the evidence that was later elicited to this end during evidentiary hearings on state collateral review consisted largely of testimony from witnesses that contradicted those same witnesses’ testimony at sentencing. The District Court also held that the record showed, contrary to Tharpe‘s position, that Newberry and Geeter engaged in a “cost benefit analysis” of all the evidence available to them at the time before deciding to portray Tharpe as an otherwise good man who succumbed to his emotions in shooting Jaquelin Freeman—a strategic choice whose force may have been undercut had Newberry and Geeter simultaneously tried to diminish Tharpe‘s culpability by introducing his substance abuse, his low intellectual functioning, and his unstable work history.
As a result, the District Court concluded that Judge Winegarden‘s denial of Tharpe‘s Strickland claim was not contrary to, or an unreasonable application of, clearly established federal law.
The District Court likewise held that Judge Winegarden‘s order denying Tharpe‘s Atkins intellectual-disability claim was neither contrary to nor an un-reasonable application of clearly established federal law and did not involve an unreasonable determination of the facts. The District Court, noting Dr. Zimmerman‘s and Dr. King‘s dueling conclusions about Tharpe‘s adaptive behavior, held that Judge Winegarden‘s factual determinations concerning Tharpe‘s adaptive behavior were not unreasonable in light of the record.18 Significant to the District Court‘s analysis, Georgia‘s standard for establishing intellectual disability in the death-penalty context required Tharpe to prove that he was intellectually disabled, including that he suffered significant deficiencies in adaptive behavior, beyond a reasonable doubt. See
The District Court thus denied Tharpe‘s Atkins claim as well. At the end of its order denying Tharpe‘s § 2254 petition, the District Court issued a COA capturing part of Tharpe‘s Strickland ineffective-as-sistance-of-counsel claim. As mentioned above, this Court later granted Tharpe‘s request to amend the COA to expand the scope of Tharpe‘s Strickland claim and include his Atkins intellectual-disability claim as well.
II.
Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA“),19 federal courts reviewing habeas petitions from persons in state custody pursuant to
Under
Second,
III.
A.
When a habeas petitioner in state custody raises a Strickland claim in federal court, the commands of Strickland and
Tharpe identifies two aspects of trial counsel‘s performance that he believes warrant relief. First, Tharpe faults his trial counsel for failing to conduct an adequate investigation into his mental-health status, his history of substance abuse, and the circumstances of his upbringing. Second, Tharpe argues that his trial counsel were ineffective because, whether or not counsel‘s investigation was adequate, counsel‘s presentation of the available mitigating evidence during the penalty phase of Tharpe‘s trial was deficient. Because we conclude that Tharpe has failed to show that Judge Winegarden‘s conclusion that trial counsel‘s performance constituted anything but effective assistance under Strickland was contrary to, or an unreasonable application of, clearly established law and because that conclusion was not based upon unreasonable factual determinations, we do not reach whether, had counsel been ineffective, Tharpe would be able to make the additional required show-ing of prejudice.23
1.
Tharpe first challenges Judge Winegarden‘s legal conclusions and factual determinations regarding the adequacy of trial counsel‘s investigation into his mental-health status, substance abuse, and upbringing. Specifically, Tharpe contests the conclusion that trial counsel‘s performance was not objectively unreasonable because they made only a “cursory and superficial background investigation,” relied on their “ignorance of the law” in their search for mitigating evidence, and ignored “critical ‘red flags’ pointing to life-long mental im-pairments and other problems.” Based on the available evidence, the court erred by finding that Tharpe‘s “intellectual function-ing was never in doubt” and he “was a well-adjusted member of society portraying no symptoms of intellectual disability or other mental problems.” Had trial counsel conducted a meaningful investigation, Tharpe maintains, they would have discovered that Tharpe had been “raised in a ‘shot house’ among alcoholics by his violently abusive mother”24; that Tharpe “suffers from significant cognitive and intellectual deficits as well as organic brain damage,” which “likely resulted from Mr. Tharpe‘s exposure to brain damaging in-toxicants in utero“; that Tharpe began drinking at an early age, getting drunk to the point of passing out by the time he was ten years old; and that Tharpe performed poorly academically and socially as a result. Trial counsel‘s allegedly inadequate investigation thus fell below the Sixth Amendment‘s performance standard under Strickland.
We disagree. Based on the factual record—which we see no reason, and certainly no reason sufficient under
Moreover, Tharpe was evaluated by two mental-health experts during the investigation: Dr. Storms, the State‘s expert, and Dr. Moore, the expert retained by Newberry and Geeter. Neither Dr. Storms nor Dr. Moore concluded that Tharpe was intellectually disabled, only that Tharpe had borderline intellectual functioning. They also referred to Tharpe variously as “mean” and “a mean son of a bitch.” It is true that Dr. Moore made his evaluation of Tharpe only after jury selection had be-gun. But having Dr. Moore‘s evaluation take place relatively late in the investigation was itself a function of Newberry and Geeter‘s strategic choice to proceed to trial in an expedited fashion to avoid the loss of mitigation witnesses’ testimony, most notably that of Migrisus Tharpe, the only other witness to the murder of Jaquelin Freeman and herself a victim of Tharpe‘s crimes. And it is these sort of in-the-trenches strategic decisions that are precisely “the sort of calculated risk that lies at the heart of an advocate‘s discretion.” Gentry, 540 U.S. at 9, 124 S.Ct. at 6. Taking all this together, Judge Winegarden did not unreasonably conclude that Newberry and Geeter‘s investigation satisfied the standard of adequate counsel in line with Strickland demanded by the Sixth Amendment.
None of the cases cited by Tharpe in his briefing to this court,25 which are specific applications of Strickland to materially different factual circumstances, are to the contrary. Tharpe cites Rompilla v. Beard, 545 U.S. 374, 125 S.Ct. 2456, 162 L.Ed.2d 360 (2005), and Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003), for the proposition that Newberry and Geeter, by failing to uncover the full circumstances of Tharpe‘s upbringing later adduced on state collateral review, had ignored certain “red flags” in their investi-
As Justice Souter reminds us in the beginning of his decision for the court in Rompilla, the reasonableness standard of Strickland‘s performance prong is analyzed “as if one stood in counsel‘s shoes” and accordingly “spawns few hard-edged rules.” 545 U.S. at 381, 125 S.Ct. at 2462. Depending on the circumstances, counsel may fail to make an adequate mitigation investigation either by conducting no meaningful investigation at all or by unreasonably failing to follow up on certain leads despite conducting an otherwise-reasonable investigation. Thus, counsel in Rompilla were held to have conducted an inadequate investigation despite having interviewed the defendant, five members of the defendant‘s family, and three mental-health experts because counsel failed to examine the defendant‘s prior conviction for rape and assault, a “readily available” public document located “at the very court-house where” the defendant‘s trial would be held. See id. at 381-84, 125 S.Ct. at 2462-64. Counsel‘s failure to investigate the defendant‘s prior conviction was unreasonable because that conviction could serve as an “aggravator” under Pennsylvania‘s death-penalty law and counsel knew, as evidenced in a “plea letter” written by counsel, that prosecutors planned to seek the death penalty on the basis of that conviction. Id. at 383-84, 125 S.Ct. at 2464; see also id. at 390, 125 S.Ct. at 2467 (“Other situations, where a defense lawyer is not charged with knowledge that the pros-ecutor intends to use a prior conviction in this way, might well warrant a different assessment.“). Notably, the Rompilla Court did not address whether other asserted failings of counsel—the failure to investigate the defendant‘s school records, criminal history as a juvenile, and history of substance abuse when the testimony of the witnesses interviewed by counsel may have required further investigation—except to say “that there is room for debate about trial counsel‘s obligation to follow at least some of those potential lines of inquiry.” Id. at 383, 125 S.Ct. at 2463; see also id. at 395, 125 S.Ct. at 2470 (O‘Connor, J., concurring) (highlighting that counsel‘s failure to investigate the defendant‘s prior conviction “was not the result of an in-formed tactical decision about how the law-yers’ time would best be spent“). Given the obvious and material differences between the dispositive facts of Rompilla and those present here, Rompilla is not controlling of Tharpe‘s case.
Tharpe‘s reliance on Wiggins is similarly misplaced. In Wiggins, the Supreme Court held that defense counsel‘s investigation into the violent and sexual abuse inflicted upon the defendant during childhood fell below the objective standard of reasonableness required by the Sixth Amendment. Counsel‘s investigation “drew from three sources“: the report of a psychologist who conducted a battery of tests on the defendant, the defendant‘s presentence investigation report, and the defendant‘s foster-care records from the Baltimore City Department of Social Services. Wiggins, 539 U.S. at 523, 123 S.Ct. at 2536. Despite evidence in those records showing the defendant‘s deprived and troubled upbring-ing (though not the defendant‘s sexual abuse), counsel did not retain a forensic social worker to create a social-history re-port, which was standard among capital practitioners in Maryland at the time, de-spite having funds available to do so, and conducted no further investigation. See id. at 523-25, 123 S.Ct. at 2536-37. The record
Nor does the rationale underlying Rompilla and Wiggins support Tharpe‘s argument; indeed, the core of Strickland, and thus of Rompilla and Wiggins as well—ensuring counsel‘s broad discretion in making strategic decisions about representation within the range of reasonable pro-fessional conduct under the unique circum-stances and challenges presented by the case under review—directly undermines that argument. Tharpe has failed to identify, either in briefing or when pressed at oral argument, what “red flags” requiring further investigation concerning Tharpe‘s background should have been seen by Newberry and Geeter under the circum-stances as they knew or reasonably should have known them to be at the time of their investigation. Instead, Tharpe merely conflates the existence of a contrary picture of Tharpe‘s upbringing developed ex post on collateral review with Newberry and Geeter‘s therefore-inadequate ex ante actions. Though Newberry and Geeter surely could have investigated Tharpe‘s background even further than they did, as will always be true for any lawyer not blessed with unlimited time and resources, the record shows that both the scope and content of their investigation were the result of in-formed strategic decisions.
A fairminded jurist could, as Judge Winegarden did, reasonably conclude that their investigation was reasonable.
2.
Tharpe next challenges trial counsel‘s mitigation strategy at the penalty phase, regardless of the adequacy of trial counsel‘s investigation. Tharpe points us again to his “traumatic and deprived upbring-ing,” his “early introduction to alcohol,” and his “family[‘s] history of intoxicant abuse and addiction.” Had these aspects of his identity and life experience been shared with the jury, they could have garnered sympathy and diminished Tharpe‘s perceived culpability. Because it was unreasonable for trial counsel to forgo this
We decline Tharpe‘s invitation to second-guess Newberry and Geeter‘s decision of how to proceed with the mitigation presentation to the jury at sentencing. That decision, which we concluded above was informed by a reasonable investigation, is “virtually unchallengeable.” See Strickland, 466 U.S. at 690, 104 S.Ct. at 2066 (“[S]trategic choices made after thorough investigation of law and facts rele-vant to plausible options are virtually unchallengeable.“). Newberry and Geeter sought to portray Tharpe as a good guy who made a mistake at an emotionally fraught time but who nonetheless deserved the jury‘s mercy. The efficacy of that approach may well have been diminished had Newberry and Geeter simultaneously pre-sented testimony portraying Tharpe as an alcoholic with low intellectual functioning and a troubled past. Instead of crediting Tharpe‘s unfortunate circumstances as making him less culpable in the murder of Jaquelin Freeman, the jury could have concluded instead that Tharpe was not willing to accept responsibility for his actions, thus sinking Tharpe‘s credibility and undermining both the good-character defense and the diminished-capacity defense. Cf. Cullen v. Pinholster, 563 U.S. 170, 197, 131 S.Ct. 1388, 1407-08, 179 L.Ed.2d 557 (2011) (“The current infatuation with ‘humanizing’ the defendant as the be-all and end-all of mitigation disregards the possibility that this may be the wrong tactic in some cases because experienced lawyers conclude that the jury simply won‘t buy it.” (quotation marks omitted) (quoting Pinholster v. Ayers, 590 F.3d 651, 692 (9th Cir. 2009) (en banc), rev‘d, 563 U.S. 170, 131 S.Ct. 1388, 179 L.Ed.2d 557 (2011) (Kozinski, C.J., dissenting))). The uncertainty about these sorts of tradeoffs is especially salient because presenting the evidence that Tharpe now contends Newberry and Geeter unconstitutionally failed to present may have also exposed the jury to Tharpe‘s history of substance abuse, his unstable work history, and Dr. Storms‘s and Dr. Moore‘s impressions of Tharpe as “mean” and a “mean son of a bitch“—exposure that, on balance, may have done more harm to the image of Tharpe as a person of good character than would be outweighed by any corresponding diminishment of his culpability. Cf. Williams v. Taylor, 529 U.S. 362, 396, 120 S.Ct. 1495, 1514, 146 L.Ed.2d 389 (2000) (holding counsel‘s performance inadequate for failing to present “comparatively voluminous amount of [mitigation] evidence” when that failure was not “justified by a tactical decision“). Though it is true that Newberry and Geeter‘s chosen mitigation strategy did not achieve the desired result, we can-not say that it was unreasonable solely for that reason.
The Supreme Court‘s decisions in Sears v. Upton, 561 U.S. 945, 130 S.Ct. 3259, 177 L.Ed.2d 1025 (2010) (per curiam), Porter v. McCollum, 558 U.S. 30, 130 S.Ct. 447, 175 L.Ed.2d 398 (2009) (per curiam), and Williams v. Taylor are not to the contrary.27 In Sears, which the Court re-viewed directly after the State‘s collateral proceedings and thus did not invoke
In Sears, Porter, and Williams, then, counsel‘s mitigation theory was unreason-ably chosen (or, in the case of Sears, po-tentially unreasonably chosen) precisely because counsel had failed to conduct a constitutionally adequate investigation, which precluded counsel from conscien-tiously selecting among the available miti-gation theories. Among other relevant dif-ferences between those cases and Tharpe‘s, it is of critical import here that Newberry and Geeter first conducted a reasonable investigation before finally set-tling on a mitigation strategy.
A fairminded jurist could, as Judge Winegarden did, reasonably conclude that Newberry and Geeter‘s mitigation strategy was reasonable under the circumstances. As a result, we conclude that Tharpe has failed to show that he is entitled to relief on his Strickland ineffective-assistance-of-counsel theory.
B.
Tharpe‘s second theory of relief is that he is intellectually disabled for purposes of the Eighth Amendment and thus ineligible for the death penalty under Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002),29 and that
Tharpe also argues that Judge Winegar-den unreasonably credited the findings and conclusions of the State‘s mental-health expert while failing to sufficiently credit the findings and conclusions of Tharpe‘s experts. Tharpe argues that Judge Winegarden‘s credibility determina-tions were unreasonable because Dr. King, the State‘s mental-health expert who ex-amined Tharpe on state collateral review, based his report on his own and other mental-health experts’ findings but failed to “list any source, apart from Mr. Tharpe himself, which would shed light upon Mr. Tharpe‘s day-to-day adaptive functioning skills.” In contrast, Dr. Zimmerman relied on affidavits of Tharpe‘s friends and fami-ly; Tharpe‘s school, work, and medical rec-ords; other mental-health experts’ find-ings; and excerpts of Tharpe‘s testimony before the trial court. Tharpe also main-tains that Dr. King improperly relied on the ABAS-II test as part of his evaluation of Tharpe. In making this argument, Tharpe directs our attention to the testi-mony of Dr. Thomas Oakland, a co-author of the ABAS-II, providing that the test may fail to capture accurate results for purposes of establishing a person‘s level of adaptive behavior if administered on pa-tients in prison or those who display evi-dence of intellectual disability or low intel-lectual functioning.32 Tharpe argues that Judge Winegarden‘s reliance on Dr. King despite Dr. Oakland‘s testimony about the ABAS-II, testimony which Judge Wine-garden did not explicitly address in his order denying Tharpe habeas relief, taken together with the other evidence elicited from the evidentiary hearings on state col-lateral review, could reasonably support only the conclusion that Tharpe had prov-en that he suffers from significant impair-ments in his adaptive behavior.
Limiting our review of Tharpe‘s adaptive behavior to the categories of func-tional academics and work, as Tharpe now suggests we should, there is sufficient evi-dence in the record for a fairminded jurist to conclude that Tharpe did not suffer significant deficiencies. As to functional ac-ademics, we note that there is evidence showing, among other things, that Tharpe was able to graduate high school and that he can read, write, and perform the basic mathematical tasks required of daily life such as engaging in routine commercial transactions and taking measurements without the assistance of others. As to work, there is evidence showing that Tharpe was repeatedly able to indepen-dently find, secure, and ably perform work in a number of positions throughout his life. Notably, there is no evidence in the record showing that Tharpe was ever ter-minated from a position for an inability to perform the work required of him, while there is evidence suggesting that his ad-mittedly unstable work history resulted, at least in part, from Tharpe‘s substance abuse and issues with rage. And this evi-dence of Tharpe‘s adaptive abilities does not depend on either the extent of Judge Winegarden‘s reliance on the portion of Dr. King‘s testimony drawn from the ABAS-II test or whether Dr. King‘s use of the ABAS-II test was appropriately ad-ministered under the circumstances, issues which we need not decide.
Moreover, while Tharpe spends much of his argument targeting the allegedly insufficient basis for Dr. King‘s conclu-sions, he largely neglects to mention the shortcomings identified by Judge Wine-garden in the dueling testimony of Tharpe‘s preferred expert, Dr. Zimmer-man. Dr. Zimmerman‘s conclusion that Tharpe is intellectually disabled stems largely from witnesses’ testimony in affi-davits generated for evidentiary hearings on state collateral review, much of which may be deemed of dubious value as sig-nificant portions of the testimony directly contradict those witnesses’ statements at sentencing. Judge Winegarden found simi-larly dubious many of Dr. Zimmerman‘s conclusions about Tharpe‘s adaptive be-havior, including Dr. Zimmerman‘s con-clusions about Tharpe‘s abilities in func-tional academics and work. For example, Judge Winegarden faulted Dr. Zimmer-man for relying too heavily on consider-ations such as grades, I.Q. scores, and vague statements largely devoid of con-text such as those from non-experts de-
Accordingly, we reject Tharpe‘s Atkins intellectual-disability claim as well.
IV.
For the foregoing reasons, Tharpe has failed to show that he is entitled to the relief he seeks under
J.L. TJOFLAT
UNITED STATES CIRCUIT JUDGE
Notes
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim—
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) 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.