Keith Tharpe v. Warden

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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 14-12464
Argument Calendar
________________________
D.C. Docket No. 5:10-cv-00433-CAR
KEITH THARPE,
Petitioner - Appellant,
versus
WARDEN,
Respondent - Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Georgia
________________________
(August 25, 2016)
Before TJOFLAT, MARCUS, and WILSON, Circuit Judges.
TJOFLAT, Circuit Judge:
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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 28 U.S.C. § 2254. Our review is
limited to the following two issues: First, whether Tharpe’s trial counsel provided
ineffective assistance of counsel in violation of the Sixth Amendment. See
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).
Second, whether Tharpe is intellectually disabled and thus ineligible for the death
penalty under the Eighth Amendment. See Atkins v. Virginia, 536 U.S. 304, 122 S.
Ct. 2242, 153 L. Ed. 2d 335 (2002). With the benefit of thorough briefing and oral
argument, we conclude that Tharpe has failed to make either showing.
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
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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, 416 S.E.2d 78, 79–80 (Ga. 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
1
The wife could not remember if the sister-in-law had been shot twice or three times.
However, the autopsy established that the victim had been shot three times—once in the arm,
once in the chest and once in the head.
3
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daughters; and some of his friends testified on Tharpe’s behalf. These witnesses
portrayed Tharpe as a good son, a good husband, a good father, a good student, and
a good friend, and asked the jury to spare Tharpe’s life. Although the State
introduced some evidence of Tharpe’s criminal history, the jury did not learn about
other aspects of Tharpe’s troubled past, including his difficult and abusive
upbringing, his history of substance abuse, and his low intellectual functioning.
The jury voted unanimously to impose the death penalty. The jury found
three statutory aggravating factors pursuant to O.C.G.A. § 17-10-30(b)(2) and
(b)(7): the murder was committed while Tharpe was engaged in the commission of
another capital felony, the kidnapping with bodily injury of the victim, Jaquelin
Freeman; the murder was committed while Tharpe was engaged in the commission
of another capital felony, the kidnapping with bodily injury of Tharpe’s wife,
Migrisus Tharpe; and the murder was outrageously or wantonly vile, horrible, or
inhuman because it involved an aggravated battery to the victim. Tharpe moved
for a new trial on January 19, 1991. The trial court denied his motion on August
15, 1991. On direct appeal, the Georgia Supreme Court affirmed Tharpe’s
conviction and death sentence on March 17, 1992. The United States Supreme
Court denied certiorari on October 19, 1992. Tharpe v. Georgia, 506 U.S. 942,
113 S. Ct. 383 (Mem), 121 L. Ed. 2d 292 (1992).
4
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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 (Mem), 178 L. Ed. 2d 491(2010).
On November 8, 2010, Tharpe filed his second petition for writ of habeas
corpus, this time pursuant to 28 U.S.C. § 2254, in the United States District Court
for the Middle District of Georgia. After granting Tharpe’s motions to appoint
counsel and to proceed in forma pauperis, the District Court denied Tharpe’s
motions to conduct discovery and hold an evidentiary hearing. The Court then
denied Tharpe’s habeas petition on March 6, 2014, and Tharpe’s motion to alter
and amend judgment on May 8, 2014.
In its order of March 6, 2014, the District Court issued a Certificate of
Appealability (“COA”) on the following issue:
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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 (2002) is
contrary to, or involved an unreasonable 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
2
To the extent Tharpe is challenging trial counsel’s conduct during the guilt–innocence
phase of his trial, his argument to this effect is wholly subsumed by his Strickland and Atkins
theories that (1) counsel performed a constitutionally inadequate investigation into Tharpe’s
mental-health status, (2) counsel unreasonably selected a good-character defense over a
diminished-capacity defense, and (3) Tharpe is intellectually disabled and thus ineligible for the
death penalty. Because we reject those theories, we likewise reject Tharpe’s argument that his
trial counsel failed to uncover or present an intellectual-disability defense during the guilt–
innocence phase of his trial.
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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
3
Throughout this opinion we will use the term “intellectual disability” to refer to what
was previously known as “mental retardation,” in line with the Supreme Court’s change in usage
that in turn reflects a change adopted in the latest edition of the Diagnostic and Statistical Manual
of Mental Disorders (“the DSM-5”) put out by the American Psychiatric Association. See Hall
v. Florida, 572 U.S. __, __, 134 S. Ct. 1986, 1990, 188 L. Ed. 2d 1007 (2014).
4
In addition to Tharpe’s ineffective-assistance-of-counsel and intellectual-disability
claims for relief, Judge Winegarden also denied on the merits Tharpe’s claim of juror
misconduct.
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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, rape, kidnapping, aggravated
assault, battery and aggravated battery, theft, and forgery; and, following his time
in the District Attorney’s Office had been lead defense counsel in three capital
trials, none of which led to the death penalty being imposed. Geeter had also
worked in the District Attorney’s Office, during which time he tried between seven
and twelve criminal cases before a jury as well as more than one hundred fifty civil
bench trials. In private practice, Geeter’s caseload was 60 to 70 percent criminal
work, which included murder cases. Both Newberry and Geeter had spent a
majority of their professional lives working in the Ocmulgee Judicial Circuit,
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which was where Tharpe was tried. Both Newberry and Geeter had worked under
District Attorney Joe Briley, who prosecuted Tharpe’s trial.
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. 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.
5
The resources that Newberry and Geeter reviewed included Stephen Bright’s manual
“Defending a Capital Case in Georgia,” William Daniel’s Georgia Criminal Trial Practice, and
Criminal Trial Practice.
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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. 6
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.
6
Judge Winegarden also found, notwithstanding Tharpe’s contrary assertions, that
Newberry and Geeter had researched the kidnapping charges as to both Migrisus Tharpe and
Jaquelin Freeman.
10
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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
7
Tharpe and his wife disagreed only as to whether Tharpe had shot his sister-in-law two
or three times. Contrary to his account, the autopsy report revealed that Tharpe had shot Jaquelin
Freeman three times.
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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,
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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 73 8 on the WAIS-R as indicating that Tharpe had “borderline intellectual
functioning” but was “not mentally retarded.”
The State had its own psychologist, Dr. Robert Storms, evaluate Tharpe. Dr.
Storms likewise concluded that Tharpe “exhibited no signs of mental retardation”
based on that evaluation, though Dr. Storms concluded that the results from the test
he administered were invalid because they indicated Tharpe was malingering.
Both Dr. Moore and Dr. Storms described Tharpe as “mean,” with Dr. Moore
going so far as to call Tharpe a “mean son of a bitch.” Based on Dr. Moore’s and
Dr. Storms’s conclusions and impressions concerning Tharpe, which may have
proven aggravating rather than mitigating had they been presented to the jury,
Newberry and Geeter decided to forgo a mental-health defense.
8
Based on calculation errors on two subparts, Dr. Moore originally scored Tharpe’s test
as a 74 but later rescored Tharpe’s test as a 73.
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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. 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 9 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
9
The Georgia Code, having adopted the usage of the DSM III, retains the term “mental
retardation” in O.C.G.A. § 17-7-131(a)(3). As noted above, we will use the term “intellectual
disability” to describe that condition.
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O.C.G.A. § 17-7-131(a)(3). What follows are Judge Winegarden’s relevant factual
findings and legal conclusions.
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. Glen King, the
10
Dr. Crown’s work in capital cases is not unfamiliar to this Court. Perhaps in part
because of this familiarity, Tharpe relies more heavily on the testimony of Dr. Zimmerman than
that of Dr. Crown. See, e.g., Reaves v. Sec’y, Fla. Dep’t of Corr., 717 F.3d 886, 895 (11th Cir.
2013) (“Dr. Crown, a neuropsychologist, conducted a battery of tests on Reaves and concluded
that he suffered from organic brain damage in a neural region associated with understanding the
long-term consequences of immediate behavior. He did not know the origin, cause, or timing of
the brain damage.”); Lawrence v. Sec’y, Fla. Dep’t of Corr., 700 F.3d 464, 472 (11th Cir. 2012)
(“Crown added that he had evaluated Lawrence for competency at some point after Lawrence’s
arrest in May 1998, at least a year before the penalty phase was conducted in the instant murder
trial. He concluded that Lawrence was not competent at that time either, but he acknowledged
that two other psychologists, Dr. Bingham and Dr. Larson, had also evaluated Lawrence in
October 1998 and both had found Lawrence to be competent.”); Ponticelli v. Sec’y, Fla. Dep’t of
Corr., 690 F.3d 1271, 1287 (11th Cir. 2012) (“Doctor[] Crown . . . conducted only limited
research. Crown admitted that he had evaluated Ponticelli seven years after the murders and that
he had never been qualified as an expert in neurology in any court of law. He testified that his
opinion was based entirely on neuropsychological tests that he had conducted on Ponticelli and
that he had not considered other materials or testimony, including testimony about how Ponticelli
appeared to exercise executive type reasoning on the night of the murders.”); Suggs v. McNeil,
609 F.3d 1218, 1230 (11th Cir. 2010) (noting, in reference to Dr. Crown, that “a reasonable jury
is likely to have been highly skeptical of a penalty-phase expert who, according to his own
testimony, testifies ‘in many’ habeas proceedings and ‘usually . . . on behalf of the defense’ and
who would have testified for Suggs about intellectual ‘efficiency.’” (alteration in original)); Pace
v. McNeil, 556 F.3d 1211, 1217, 1224 n.22 (11th Cir. 2009) (“Dr. Crown testified that Pace was
of average intelligence but his ‘intellectual efficiency’ was significantly diminished such that he
had the problem-solving abilities of a thirteen-year old child. Dr. Crown added that drug
addiction increased the likelihood that a person with Pace's intellectual capabilities would engage
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State’s expert. Dr. Zimmerman in 1998 and Dr. King in 2007 each administered to
Tharpe a WAIS-III test that yielded a score below 70 (a score of 66 and 67
respectively). Given the conflicting scores of the pre- and post-trial testing and
because a sub-70 score on an I.Q. test does not alone entail a finding of intellectual
disability under Georgia law, Judge Winegarden moved on to the other two
requirements for establishing intellectual disability: impairment in adaptive
behavior and the time at which any such impairment manifested.
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
in antisocial behavior. . . . We agree as well with the [Florida] [S]upreme [C]ourt that the
testimony of . . . Dr. Crown was unconvincing.”).
11
At the time Judge Winegarden was writing, the American Association on Intellectual
and Development Disabilities was known as the American Association on Mental Retardation.
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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
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reviewing other aspects of Tharpe’s historical data, including his medical records,
school records, police records, and information contained in affidavits.12
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
12
In contrast to the range of materials relied on by Dr. King, Judge Winegarden found
that Dr. Zimmerman’s conclusion relied in large part on information relayed in affidavits from
Tharpe’s friends and family, which contradicted many of the affiants earlier statements at
sentencing and were found to be of dubious value.
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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
13
In the educational context, “social promotion” refers to “the promotion of a pupil to a
more advanced class based on his or her age or behaviour, despite a lack of appropriate academic
achievement.” Social Promotion, Oxford English Dictionary (2016).
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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 contrary evidence showing that Tharpe
was able to stick with his education for twelve years and graduate from high
school, even if he struggled to do so, and that he can perform everyday skills like
writing letters to his children and pen pals, reading time on a clock, correctly
calculating the amount of money needed to make a purchase, and accurately
keeping score when playing games, Judge Winegarden concluded that Tharpe
displayed adequate adaptive behavior in functional academics.
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
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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.
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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
14
In response to Dr. Zimmerman’s statement that “if I had an I.Q. score of 70 or below
one of the things I would look at is the person the kind of person that somebody comes and picks
them up and they cut grass, or are they the person that’s running the business,” Judge
Winegarden speculated that, “Perhaps Dr. Zimmerman presumes that anyone who works doing
manual labor, but does not run their own business, is mentally retarded.”
15
Judge Winegarden did find, however, that Tharpe had been fired from various
positions for non-performance-related reasons including Tharpe’s termination from a truck
center after he was picked up by the police and failed to either contact the truck center or ever
return to work. Moreover, as trial counsel’s notes reveal, one of Tharpe’s former supervisors had
reported that Tharpe displayed issues with rage and had brought firearms to the workplace.
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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 28
U.S.C. § 2254, which he later amended. The District Court denied Tharpe’s
§ 2254 petition. The District Court began its order denying relief by recounting the
factual underpinnings of Tharpe’s Strickland and Atkins claims 17 and laying out the
deferential standard of review owed by federal courts to the decisions of state
courts on collateral review. The District Court then rejected Tharpe’s claims as
follows.
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
16
The Georgia Supreme Court denied Tharpe a certificate of probable cause over the
dissent of then–Chief Justice Hunstein. Justice Thompson took no part in that decision.
17
Although Tharpe purported to claim in his briefing before the District Court that he
was not abandoning various other claims for relief, the District Court summarily denied relief on
all other grounds because Tharpe had failed to address those claims in detail and, in any event,
had failed to carry his burden of showing that the state courts’ adjudications on those claims
warrant reversal under the deference required by § 2254.
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unreasonable 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 prepared by prevailing parties,–. . . .
Nonetheless, 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 proposed 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).
Turning to the heart of Tharpe’s Strickland claim, the District Court held
that it was not unreasonable or contrary to clearly established federal law for Judge
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Winegarden to afford a greater, though not absolute, presumption of effective
assistance because Newberry and Geeter were experienced counsel and their
strategic decisions are accordingly due greater weight. See Chandler v. United
States, 218 F.3d 1305, 1316 (11th Cir. 2000) (en banc) (“When courts are
examining the performance of an experienced trial counsel, the presumption that
his conduct was reasonable is even stronger.”). The District Court also rejected
Tharpe’s argument that it was unreasonable for Judge Winegarden to conclude that
Newberry and Geeter had conducted a reasonable investigation when Tharpe’s
mental health had not been evaluated by Dr. Moore prior to jury selection. The
District Court held that Judge Winegarden’s conclusion was not unreasonable
because Newberry and Geeter had begun other aspects of their mitigation
investigation prior to jury selection, had received Dr. Storms’s evaluation that
Tharpe was not intellectually disabled and had been malingering prior to trial, and
had decided to proceed to trial quickly to ensure that Migrisus Tharpe and other
witnesses would still be willing to testify on Tharpe’s behalf.
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 39825
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(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, 386 S.E.2d 339 (Ga. 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
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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.
2.
The District Court likewise held that Judge Winegarden’s order denying
Tharpe’s Atkins intellectual-disability claim was neither contrary to nor an
unreasonable 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
18
The District Court, giving his order the “benefit of the doubt” required by § 2254’s
deferential standard, concluded that Judge Winegarden had not, as Tharpe contended, understood
Georgia’s law governing intellectual disability to require a diagnosis before age 18. Rather, the
District Court read the order as stating only that the lack of such a diagnosis was “compelling
evidence” that Tharpe had not shown impairment manifested during the developmental period.
In any event, the “real dispute among the experts” was whether Tharpe could demonstrate
significant deficiencies in adaptive behavior.
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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 O.C.G.A. § 17-7-131(c)(3).
Although Tharpe contended that Georgia’s intellectual-disability standard is
unconstitutional under the Eighth and Fourteenth Amendments to the United States
Constitution, contrary precedent from the Georgia Supreme Court and the Eleventh
Circuit bound the District Court. See Hill v. Humphrey, 662 F.3d 1335, 1360–61
(11th Cir. 2011) (en banc); Stripling v. State, 711 S.E.2d 665, 668 (Ga. 2011)
(citing Head v. Hill, 587 S.E.2d 613 (Ga. 2003)).
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-assistance-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.
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Under the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), 19 federal courts reviewing habeas petitions from persons in state
custody pursuant to 28 U.S.C. § 2254 can grant relief only if the state court’s
adjudication on the merits20 “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 “was based on an
unreasonable determination of the facts in light of the evidence presented in the
State court proceeding.” 28 U.S.C. § 2254(d).21 With this standard in mind, we
19
AEDPA governs review for habeas petitions seeking relief in federal court that are
filed after April 24, 1996. As mentioned above, Tharpe filed his § 2254 petition on November 8,
2010.
20
As we have recently held, the adjudication on the merits we are reviewing in cases like
Tharpe’s is the Georgia Supreme Court’s denial of a certificate of probable cause. See Wilson v.
Warden, __ F.3d __, 2016 WL 4440381 (11th Cir. Aug. 23, 2016). Our analysis does not change
whether we analyze the decision of the Superior Court of Butts County or that of the Georgia
Supreme Court because we must affirm if there is any reasonable basis for doing so and Judge
Winegarden provided such a reasonable basis. See Harrington v. Richter, 562 U.S. 86, 98, 131
S. Ct. 770, 784, 178 L. Ed. 2d 624 (2011) (“Where a state court’s decision is unaccompanied by
an explanation, the habeas petitioner’s burden [under § 2254(d)] still must be met by showing
there was no reasonable basis for the state court to deny relief.”). For simplicity and clarity we
will therefore discuss only the reasoning given by Judge Winegarden, even though we are
actually reviewing the decision of the Georgia Supreme Court.
21
In its entirety, 28 U.S.C. § 2254(d) provides that:
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.
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review de novo a district court’s denial of relief of a § 2254 petition, as we do a
district court’s legal conclusions and resolutions of mixed questions of law and
fact. Jones v. GDCP Warden, 753 F.3d 1171, 1181 (11th Cir. 2014). We review
for clear error a district court’s findings of facts. Holsey v. Warden, Ga.
Diagnostic Prison, 694 F.3d 1230, 1256 (11th Cir. 2012). In circumstances like
those we face here—that is, when reviewing a district court’s denial of a § 2254
petition that did not involve any factual findings beyond those of the relevant state
court—a federal court of appeals is in the same position of reviewing the contested
state-court adjudication as was the district court.
Under § 2254(d), AEDPA provides for limited federal review of state
courts’ decisions in two respects. First, § 2254(d)(1) provides for federal review
for claims of state courts’ erroneous legal conclusions. As explained by the
Supreme Court in Williams v. Taylor, 529 U.S. 362, 120 S. Ct. 1495, 146 L. Ed. 2d
389 (2000), § 2254(d)(1) consists of two distinct clauses: a “contrary to” clause
and an “unreasonable application” clause. The “contrary to” clause allows for
relief only “if the state court arrives at a conclusion opposite to that reached by [the
Supreme] Court on a question of law or if the state court decides a case differently
than [the Supreme] Court has on a set of materially indistinguishable facts.” Id. at
413, 120 S. Ct. at 1523 (plurality opinion). The “unreasonable application” clause
allows for relief only “if the state court identifies the correct governing legal
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principle from [the Supreme] Court’s decisions but unreasonably applies that
principle to the facts of the prisoner’s case.” Id.Second, § 2254(d)(2) provides for federal review for claims of state courts’
erroneous factual determinations. Section 2254(d)(2) allows federal courts to grant
relief only if the state court’s denial of the petitioner’s claim “was based on an
unreasonable determination of the facts in light of the evidence presented in the
State court proceeding.” 28 U.S.C. § 2254(d)(2). The Supreme Court has not yet
defined § 2254(d)(2)’s “precise relationship” to § 2254(e)(1), which imposes a
burden on the petitioner to rebut the state court’s factual findings “by clear and
convincing evidence.” See Burt v. Titlow, 571 U.S. __, __, 134 S. Ct. 10, 15, 187
L. Ed. 2d 348 (2013); accord Brumfield v. Cain, 576 U.S. __, __, 135 S. Ct. 2269,
2282, 192 L. Ed. 2d 356 (2015). Whatever that “precise relationship” may be, “‘a
state-court factual determination is not unreasonable merely because the federal
habeas court would have reached a different conclusion in the first instance.’”
Titlow, 571 U.S. at __, 134 S. Ct. at 15 (quoting Wood v. Allen, 558 U.S. 290, 301,
130 S. Ct. 841, 849, 175 L. Ed. 2d 738 (2010)).
The significant deference under § 2254(d) owed by the federal courts to state
courts’ decisions is rooted in AEDPA’s commitment to comity, federalism, and the
finality of judgments. Because “state courts are the principal forum for asserting
constitutional challenges to state convictions,” § 2254(d)’s standard of review
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“stops short of imposing a complete bar on federal-court relitigation of claims
already rejected in state proceedings.” Harrington v. Richter, 562 U.S. 86, 102–
03, 131 S. Ct. 770, 786–87, 178 L. Ed. 2d 624 (2011). Federal courts may grant
habeas relief only when a state court blundered in a manner so “well understood
and comprehended in existing law” and “was so lacking in justification” that “there
is no possibility fairminded jurists could disagree.” Id. at 102–03, 131 S. Ct. at786–87. A petitioner must show that the state court’s decision was “‘objectively
unreasonable,’ not merely wrong; even ‘clear error’ will not suffice.” White v.
Woodall, 572 U.S. __, __, 134 S. Ct. 1697, 1702, 188 L. Ed. 2d 698 (2014)
(quotation marks omitted). “If this standard is difficult to meet, that is because it
was meant to be.” Richter, 562 U.S at 102, 131 S. Ct. at 786.
III.
A.
Tharpe’s first theory of relief is that trial counsel deprived him of the Sixth
Amendment’s guarantee of effective assistance of counsel under Strickland v.
Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984),22 and that
Judge Winegarden’s legal conclusions and factual determinations to the contrary
22
The Sixth Amendment’s right to counsel in capital cases has been incorporated against
the States through the Due Process Clause of the Fourteenth Amendment for nearly a century.
See Powell v. Alabama, 287 U.S. 45, 71, 53 S. Ct. 55, 65, 77 L. Ed. 158 (1932).
32
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warrant reversal even when viewed through § 2254(d)’s deferential lens. Under
Strickland’s familiar two-part test, Tharpe must show that counsel’s performance
(1) “fell below an objective standard of reasonableness” and (2) “prejudiced the
defense.” 466 U.S. at 687–88, 104 S. Ct. at 2064. Considering “the variety of
circumstances faced by defense counsel” and “the range of legitimate decisions
regarding how best to represent a criminal defendant,” review of counsel’s
effectiveness is “highly deferential” to respect “the wide latitude counsel must
have in making tactical decisions.” Id. at 689, 104 S. Ct. at 2065. “[A]ll the
circumstances” must be viewed “from counsel’s perspective at the time” because it
is “all too easy” for a court “to second-guess” counsel’s decisions after an outcome
unfavorable to the defendant. Id. at 688–89, 104 S. Ct. at 2065. In order to
establish prejudice casting doubt on the reliability of the result and thus the
constitutionally assured fairness of the trial, the defendant “must show that there is
a reasonable probability that, but for counsel’s unprofessional errors, the result of
the proceeding would have been different.” Id. at 694, 104 S. Ct. at 2068. A
“reasonable probability” requires that “[t]he likelihood of a different result must be
substantial, not just conceivable.” Richter, 562 U.S. at 112, 131 S. Ct. at 792.
When a habeas petitioner in state custody raises a Strickland claim in federal
court, the commands of Strickland and § 2254(d) operate in tandem so that our
review is “doubly deferential.” Yarborough v. Gentry, 540 U.S. 1, 6, 124 S. Ct. 1,
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4, 157 L. Ed. 2d 1 (2003) (per curiam). In these cases, a federal court may grant
relief only if counsel’s representation fell below Strickland’s highly deferential
standard of objectively reasonable performance and the state court’s contrary
decision would be untenable to any fairminded jurist under § 2254(d)’s similarly
difficult-to-meet standard. Overcoming this double deference is therefore possible
only in the rare instance when it is overwhelmingly certain that both counsel and
the state court failed to carry out their respective roles with the requisite degree of
competence.
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
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reach whether, had counsel been ineffective, Tharpe would be able to make the
additional required showing 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 impairments
and other problems.” Based on the available evidence, the court erred by finding
that Tharpe’s “intellectual functioning 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
23
Because we hold that Tharpe has failed to carry his burden as to Strickland’s
performance prong, we need not reach Tharpe’s argument that Judge Winegarden misstated or
misapplied Strickland’s prejudice prong in the sentencing context. Cf. Wiggins v. Smith, 539
U.S. 510, 537, 123 S. Ct. 2527, 2543, 156 L. Ed. 2d 471 (2003) (“Had the jury been able to place
petitioner’s excruciating life history on the mitigating side of the scale, there is reasonable
probability that at least one juror would have struck a different balance.”).
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‘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
intoxicants 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 § 2254’s deferential lens, to upset—a
fairminded jurist could easily have concluded that Newberry and Geeter’s
investigation into Tharpe’s background constituted reasonable assistance of
counsel under the circumstances known to Newberry and Geeter at the time.
Newberry and Geeter each met with prosecutors, law-enforcement officials, former
employers, and friends and family who knew Tharpe, as well as meeting multiple
times with Tharpe himself. Through these interviews, Newberry and Geeter were
made aware of aspects of Tharpe’s history of substance abuse, which included a
conviction for violating Georgia’s habitual traffic violator law, and his unstable
24
“Shot house” is a slang term for an illicit bar where liquor is sold at low prices, often
by the shot.
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work history. As Judge Winegarden found, which was not an unreasonable factual
determination, Newberry and Geeter had not been made aware of, nor had they
been given any reason to suspect, the troubling account of Tharpe’s childhood now
presented as justifying relief—despite their having interviewed many of the
witnesses, including Tharpe and those close to him, who provided testimony at
sentencing that is now contradicted by those same witnesses’ testimony on state
collateral review. See, e.g., Williams v. Head, 185 F.3d 1223, 1237 (11th Cir.
1999) (“An attorney does not render ineffective assistance by failing to discover
and develop evidence of childhood abuse that his client does not mention to him.”).
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 begun. 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
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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
25
Nor do the cases supplied by Tharpe as supplemental authority show that Judge
Winegarden’s conclusions were unreasonable. In Hardwick v. Secretary, Florida Department of
Corrections, we held that there had been a showing of ineffective assistance under Strickland
regarding counsel’s investigation in a capital case when counsel “was aware of a number of red
flags” concerning his client’s life circumstances yet “did not conduct a life-history investigation
or follow up on any leads” or attempt to undertake “even a rudimentary mitigation
investigation.” 803 F.3d 541, 552–54 (11th Cir. 2015). Similarly, in Cooper v. Secretary,
Department of Corrections, we held counsel’s investigation to be ineffective under Strickland in
a capital case when counsel “unreasonably decided to end the background investigation after
only talking to” the defendant, the defendant’s mother, and one mental-health expert, and when
counsel was aware that the defendant had been violently abused by his father yet counsel failed
to contact the defendant’s siblings or otherwise engage in further investigative efforts. 646 F.3d
1328, 1351–52 (11th Cir. 2011). Because Newberry and Geeter’s investigative efforts were far
more capable than, and materially different from, those of counsel in Hardwick and Cooper,
those cases are relevant here only so far as they help frame the Strickland inquiry generally.
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collateral review, had ignored certain “red flags” in their investigation. Neither
Rompilla nor Wiggins, however, support Tharpe’s assertion.
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 courthouse 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
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situations, where a defense lawyer is not charged with knowledge that the
prosecutor 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 enquiry.” 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 informed tactical decision about how the
lawyers’ 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
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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
upbringing (though not the defendant’s sexual abuse), counsel did not retain a
forensic social worker to create a social-history report, which was standard among
capital practitioners in Maryland at the time, despite having funds available to do
so, and conducted no further investigation. See id. at 523–25, 123 S. Ct. at 2536–
37. The record revealed that counsel’s “failure to investigate thoroughly resulted
from inattention, not reasoned strategic judgment” because, “until the day before
sentencing,” counsel maintained that they would be putting on a mitigation defense
if the trial court granted counsel’s motion to bifurcate the penalty phase.26 Id. at
526, 123 S. Ct. at 2537–38. Because “strategic choices made after less than
complete investigation are reasonable precisely to the extent that reasonable
professional judgments support the limitations on investigation,” counsel’s failure
to fully apprise themselves of potentially mitigating aspects of the defendant’s life
26
Wiggins elected to be tried by a judge during the guilt-innocence phase of his trial.
Wiggins, 539 U.S. at 514–15, 123 S. Ct. at 2532. Counsel’s main trial strategy in Wiggins at the
penalty phase, which was conducted before a jury, was to argue to the jury that someone other
than the defendant was principally responsible for the crime that the judge had found the
defendant guilty of committing; after the trial court denied the motion to bifurcate proceedings,
counsel declined to present a serious case for mitigation. See Wiggins, 539 U.S. at 515–16, 526,
123 S. Ct. at 2532, 2538 (observing that “counsel put on a halfhearted mitigation case, taking . . .
[a] ‘shotgun’ approach”).
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history was unreasonable in the face of such obvious indications. Id. at 527–28,
123 S. Ct. 2538–39 (quotation marks omitted) (quoting Strickland, 466 U.S. at690–91, 104 S. Ct. at 2066). The Wiggins Court ended its analysis of Strickland’s
performance prong by “emphasiz[ing] that Strickland does not require counsel to
investigate every conceivable line of mitigating evidence no matter how unlikely
the effort would be to assist the defendant at sentencing.” Id. at 533, 123 S. Ct. at
2541. As with Rompilla, the obvious and material differences between Wiggins
and Tharpe’s case preclude Wiggins from being controlling here.
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 professional conduct under the
unique circumstances 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 circumstances 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
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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 informed 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 upbringing,” 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 route of mitigation under the
circumstances confronting counsel, Tharpe argues, Judge Winegarden
unreasonably applied Strickland when he concluded that trial counsel’s
performance had been constitutionally adequate.
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
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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 relevant 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 presented 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 (2011)
(Kozinski, C.J., dissenting))). The uncertainty about these sorts of tradeoffs is
especially salient because presenting the evidence that Tharpe now contends
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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 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 cannot 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 reviewed directly after the State’s
27
To the extent Tharpe is also citing Sears, Porter, and Williams for the proposition that
his counsel’s mitigation investigation was unreasonable, we reject Tharpe’s reliance on those
cases for the same reason we rejected his reliance on Rompilla and Wiggins: Tharpe has simply
failed to show, under the factual circumstances presented here, “red flags” Newberry and Geeter
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collateral proceedings and thus did not invoke § 2254’s deferential lens, the Court
held there was a constitutionally inadequate investigation that “should have, at the
very least, called into question the reasonableness of [counsel’s mitigation] theory”
and remanded to the state court for a determination under “the proper prejudice
inquiry,” which is not categorically limited to instances when counsel presents
“only ‘little or no mitigation evidence.’” See 561 U.S. at 953–54, 130 S. Ct. 3265–
66.28 In Porter, the Court concluded that counsel had failed to present an adequate
case for mitigation when counsel unreasonably “failed to uncover and present any
evidence of Porter’s mental health or mental impairment, his family background,
or his military service,” which would have been substantial mitigation evidence.
See 558 U.S. at 40–44, 130 S. Ct. at 453–56. And in Williams, the Court held
counsel’s mitigation strategy unreasonable when counsel “did not fulfill their
obligation to conduct a thorough investigation of the defendant’s background” and
thus failed to uncover the defendant’s “nightmarish childhood,” leading counsel to
ignore available evidence of the defendant’s mitigating life circumstances. See
529 U.S. at 395–96, 120 S. Ct. at 1514–15.
unreasonably failed to glimpse during their investigation or what more they reasonably should
have done.
28
On remand, the Georgia Supreme Court unanimously held that the petitioner in Sears
failed to demonstrate prejudice under Strickland. Sears v. Humphrey, 751 S.E.2d 365, 395 (Ga.
2013).
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In Sears, Porter, and Williams, then, counsel’s mitigation theory was
unreasonably chosen (or, in the case of Sears, potentially unreasonably chosen)
precisely because counsel had failed to conduct a constitutionally adequate
investigation, which precluded counsel from conscientiously selecting among the
available mitigation theories. Among other relevant differences between those
cases and Tharpe’s, it is of critical import here that Newberry and Geeter first
conducted a reasonable investigation before finally settling 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 § 2254(d) does not require us to defer to Judge Winegarden’s contrary legal
29
Like the Sixth Amendment’s right to counsel, the Eighth Amendment’s protections
against cruel and unusual punishment have been incorporated against the States through the
Fourteenth Amendment. See Robinson v. California, 370 U.S. 660, 666, 82 S. Ct. 1417, 1420, 8
L. Ed. 2d 758 (1962).
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conclusions and factual determinations. Tharpe begins this part of his argument by
pointing us to the standardized testing suggesting that his I.Q. score falls
somewhere between a 73 and a 66 and to testimony elicited on state collateral
review suggesting that Tharpe’s impairments in adaptive functioning manifested
prior to age 18. As mentioned above, Georgia’s death-penalty law requires that
Tharpe also show beyond a reasonable doubt impairments in his adaptive behavior
to prove that he is intellectually disabled. See O.C.G.A. § 17-7-131(a)(3). And
this panel, no less than the District Court, is bound by the Eleventh Circuit’s en
banc ruling upholding the constitutionality of that aspect of Georgia’s death-
penalty law, at least for purposes of AEDPA review. See Hill v. Humphrey, 662
F.3d 1335, 1360–61 (11th Cir. 2011) (en banc). Accordingly, we will limit our
review to the heart of the matter: whether Judge Winegarden unreasonably
concluded that Tharpe had failed to prove beyond a reasonable doubt that Tharpe
suffers from significant deficiencies in his adaptive behavior.30
Regarding his adaptive behavior, Tharpe now argues that “the evidence
before the state court overwhelmingly supported a finding of significant adaptive
deficits in at least two of the ten enumerated areas”: functional academics and
30
To be sure, the State also maintains that Judge Winegarden reasonably concluded that
Tharpe had failed to prove beyond a reasonable doubt that any impairment in Tharpe’s adaptive
behavior had manifested prior to age 18.
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work.31 As to functional academics, Tharpe points to evidence introduced on state
collateral review allegedly showing that, “[a]lthough [he] completed the twelfth
grade,” he struggled throughout his school career; that some of his teachers
labelled him “slow” and testified that he had been repeatedly “socially promoted”
from one grade to the next; that Tharpe was enrolled in “slow-tracked” vocational
programs in high school; and that Tharpe “functions at approximately a 6th grade
level.” As to work, Tharpe claims that his employment had generally been of short
duration and low skill, and that he “never progressed beyond rudimentary
employment skills.”
Tharpe also argues that Judge Winegarden 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 determinations were unreasonable because Dr.
King, the State’s mental-health expert who examined 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
31
By narrowing his focus to these two enumerated categories of adaptive behavior,
functional academics and work, Tharpe is implicitly abandoning Dr. Zimmerman’s conclusions
that he also suffered from significant decencies in home living, social skills, and self-direction.
Because we agree that Tharpe has correctly recognized that these grounds would not be availing
if pressed, we need not address them further.
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upon Mr. Tharpe’s day-to-day adaptive functioning skills.” In contrast, Dr.
Zimmerman relied on affidavits of Tharpe’s friends and family; Tharpe’s school,
work, and medical records; other mental-health experts’ findings; and excerpts of
Tharpe’s testimony before the trial court. Tharpe also maintains 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 testimony 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 patients in prison or those who display evidence of intellectual
disability or low intellectual functioning.32 Tharpe argues that Judge Winegarden’s
reliance on Dr. King despite Dr. Oakland’s testimony about the ABAS-II,
testimony which Judge Winegarden did not explicitly address in his order denying
Tharpe habeas relief, taken together with the other evidence elicited from the
evidentiary hearings on state collateral review, could reasonably support only the
conclusion that Tharpe had proven that he suffers from significant impairments in
his adaptive behavior.
32
Tharpe also points, on appeal, to a book Dr. Oakland co-authored, arguing that the
ABAS-II may be useful for purposes other than establishing the level of a person’s adaptive
behavior if administered to persons who are incarcerated or to those who display signs of
intellectual disability or low intellectual function.
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Whether Tharpe merely has borderline intellectual functioning or whether
Tharpe is fully intellectually disabled and thus ineligible for the death penalty for
purposes of Atkins ultimately boils down to a question of degree as to the extent of
the deficiencies in Tharpe’s adaptive behavior. And the mental-health experts who
have examined Tharpe have been divided in their conclusions. Dr. Moore and Dr.
Storms, who examined Tharpe before trial, both concluded that Tharpe was not
intellectually disabled. So did Dr. King, who examined Tharpe on state collateral
review. In contrast, Dr. Crown and Dr. Zimmerman, who also examined Tharpe
on state collateral review, concluded that Tharpe was intellectually disabled. Of
course, the mere existence of a division in expert opinion does not necessarily
preclude Tharpe from having established that he is intellectually disabled beyond a
reasonable doubt, as Tharpe rightly contends. To make that determination, we
must assess the content and basis of these experts’ opinion in light of the evidence
in the record. And there is insufficient evidence presented here to establish that
Judge Winegarden’s conclusion that Tharpe did not suffer from significant
deficiencies in adaptive behavior was unreasonable.
Limiting our review of Tharpe’s adaptive behavior to the categories of
functional academics and work, as Tharpe now suggests we should, there is
sufficient evidence in the record for a fairminded jurist to conclude that Tharpe did
not suffer significant deficiencies. As to functional academics, we note that there
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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 independently 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 terminated from a
position for an inability to perform the work required of him, while there is
evidence suggesting that his admittedly unstable work history resulted, at least in
part, from Tharpe’s substance abuse and issues with rage. And this evidence 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
administered 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 conclusions, he largely neglects to
mention the shortcomings identified by Judge Winegarden in the dueling testimony
of Tharpe’s preferred expert, Dr. Zimmerman. Dr. Zimmerman’s conclusion that
Tharpe is intellectually disabled stems largely from witnesses’ testimony in
affidavits generated for evidentiary hearings on state collateral review, much of
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which may be deemed of dubious value as significant portions of the testimony
directly contradict those witnesses’ statements at sentencing. Judge Winegarden
found similarly dubious many of Dr. Zimmerman’s conclusions about Tharpe’s
adaptive behavior, including Dr. Zimmerman’s conclusions about Tharpe’s
abilities in functional academics and work. For example, Judge Winegarden
faulted Dr. Zimmerman for relying too heavily on considerations such as grades,
I.Q. scores, and vague statements largely devoid of context such as those from
non-experts describing Tharpe as “slow,” as having been “socially promoted,” and
as having been enrolled in “fundamental” classes, while at the same time ignoring
evidence of Tharpe’s ability to function independently outside a formal academic
context. Judge Winegarden also faulted Dr. Zimmerman for overweighting the
short-term and low-skilled nature of Tharpe’s employment history because Dr.
Zimmerman failed to address other potentially causal explanations for Tharpe’s
employment history such as Tharpe’s history of substance abuse, his generally low
level of intellectual functioning, and his limited qualifications. Given all this, we
agree that the record shows that Tharpe suffered some degree of impairment in his
adaptive behavior due to his low intellectual functioning and history of substance
abuse. We do not agree, however, that Tharpe has shown, as he must to overcome
the deference demanded by § 2254, that these deficiencies are so significant that no
fairminded jurist could reasonably conclude that Tharpe had failed to prove beyond
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a reasonable doubt that his impaired behavior qualified him as intellectually
disabled for purposes of Georgia’s death-penalty law.33
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 28 U.S.C. § 2254. The judgment of the District Court is
AFFIRMED.
33
The relevant supplemental authority provided by Tharpe, Brumfield v. Cain, 576 U.S.
__, 135 S. Ct. 2269, 192 L. Ed. 2d 356 (2015), is not to the contrary. In Brumfield, a five-
member majority of the Supreme Court held that it was unreasonable for purposes of § 2254 for
a state trial court to have concluded that a post-Atkins petitioner had not shown the “reasonable
doubt” required by Louisiana law to merit an evidentiary hearing as to the petitioner’s possible
intellectual disability when the record showed that the petitioner had a “low birth weight,” had
been “placed in special education classes at an early age” and “was suspected of having a
learning disability,” and had been committed to “mental health facilities at a young age” where
he had been administered “antipsychotic and sedative drugs.” See id. at __, 135 S. Ct. at 2280–
81. The circumstances facing the Court in Brumfield are far afield from those we face here.
Most obviously, Tharpe is not seeking an evidentiary hearing to determine whether he is
intellectually disabled in the first place; Tharpe is instead contesting Judge Winegarden’s
conclusion that he is not intellectually disabled, a conclusion reached only after multiple such
hearings had been held. Cf. id. at __, 135 S. Ct. at 2281 (“It is critical to remember, however,
that in seeking an evidentiary hearing, Brumfield was not obligated to show that he was
intellectually disabled, or even that he would likely be able to prove as much. Rather, Brumfield
needed only to raise a ‘reasonable doubt’ as to his intellectual disability to be entitled to an
evidentiary hearing.”).
54