Opposition Brief — In Re Charles Russell Rhines, Petitioner

UNITED STATES DISTRICT COURT

DISTRICT OF SOUTH DAKOTA

WESTERN DIVISION

CHARLES RUSSELL RHINES, 5:00-CV-05020-KES

Plaintiff,

ORDER DENYING MOTION TO

vs, AMEND THE JUDGMENT AND

DENYING MOTION TO STRIKE

DARIN YOUNG, Warden, South Dakota

State Penitentiary;

Defendant.

Petitioner, Charles Rhines, moves the court to alter or amend its

judgment. Respondent, Darin Young, resists the motion. Respondent also

moves to strike certain exhibits from the record. Rhines resists the motion. For

the following reasons, the court denies the motion to alter or amend the

‘judgment and denies the motion to strike.

BACKGROUND

The procedural history of this case is set forth more fully in the court’s

February 16, 2016 order granting summary judgment in favor of respondent

and denying Rhines’s federal habeas petition. See Docket 305, The following

facts are relevant to the pending motions:

Rhines is a capital inmate at the South Dakota State Penitentiary in

Sioux Falls, South Dakota. He was convicted of premeditated first-degree

murder for the death of Donnivan Schaeffer and of third-degree burglary of a

Dig’Em Donuts Shop in Rapid City, South Dakota. Ajury found that Rhines

APPENDIX 112

should be subject to death by lethal injection, and a state circuit court judge

imposed the sentence. On February 16, 2016, this court granted respondent’s

motion for summary judgment and denied Rhines’s federal petition for habeas

corpus. Docket 305, The court entered judgment in favor of respondent on the

samé day. Docket 306.

I, Rhines’s Rule 59(e) Motion

LEGAL STANDARD

Federal Rule of Civil Procedure 59(e} was adopted to clarify a district

court’s power to correct its own mistakes within the time period immediately

following entry of judgment. Norman v. Ark. Dep't of Educ., 79 F.3d 748, 750

(8th Cir. 1996} (citing White v. N.H. Dep't of Empl. Sec., 455 U.S. 445, 450

(1982)). “Rule 59(e) motions serve the limited function of correcting ‘manifest

errors of law or fact or to present newly discovered evidence.’” United States v.

Metro. St. Louis Sewer Dist., 440 F.3d 930, 933 (8th Cir. 2006). “Such motions

cannot be used to introduce new evidence, tender new legal theories, or raise

arguments which could have been offered or raised prior to entry of judgment.”

Id. The habeas context is no exception to the prohibition on using a Rule 59(e)

motion to raise new arguments that could have and should have been made _

before the court entered judgment. Bannister v. Armontrout, 4 F.3d 1434, 1440

| (8th Cir. 1993). The Rule “is not intended to routinely give litigants a second

bite at the apple, but to afford an opportunity for relief in extraordinary

circumstances.” Dale & Selby Superette & Deli v. United States Dep't of Agric.,

838 F. Supp. 1346, 1348 (D. Minn. 1993); see also 11 Cherles Alan Wright &

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APPENDIX 113

Arthur R. Miller, Federal Practice & Procedure, Federal Rules of Civil Procedure §

2810.1 (3d ed.) (‘However, reconsideration of a judgment after its entry is an

extraordinary remedy which should be used sparingly”). “A district court has

broad discretion in determining whether to grant or deny a motion to alter or

amend [a] judgment pursuant to Rule 59(e}[.]” Metro. St. Louis, 440 F.3d at 933.

DISCUSSION

A. Conflict of Interest

Rhines’s conflict of interest argument is based on his interpretations of

the Supreme Court’s Martinez v. Ryan, 1328. Ct. 1309 (2012) opinion. On

June 5, 2015, Rhines moved to hold his federal habeas proceeding in

abeyanice,! He argued that the stay was necessary so that he could investigate

potential ineffective assistance of trial counsel claims premised on the Martinez

decision. On August.5, 2015, the court concluded that Martinez did not apply

to him and denied Rhines’s motion for several reasons. Docket 272. As one

reason for denying Rhines’s motion, the court found that Rhines received

independent counsel between his initial-review collateral proceeding and his

federal habeas proceedings.’ Thus, there was no conflict of interest that

interfered with Rhines’s federal habeas counsel.

1 The court lifted the earlier stay on Rhines’s federal habeas proceeding

on February 4, 2014. Docket 224. Respondent’s summary judgment motion

became ripe for review on November 26, 2014.

2 The court’s August 5, 2015 order traces the lineage of attorneys who

have represented Rhines throughout his state and federal proceedings. Docket

272 at 10-12, The court learned during oral argument on respondent’s

summary judgment motion that two other attorneys-Judith Roberts and Mark

Marshall-also represented Rhines during his second state habeas proceeding.

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Then on October 21, 2015, and two days prior to the oral argument.

hearing on respondent’s summary judgment motion, Rhines moved for

reconsideration of the court’s order denying his request for a stay as well as for

permission to amend his federal habeas petition. According to Rhines, the

court “fail{ed} to consider the unusual factual scenario that exists in Mr.

Rhines' case. Mr. Rhines has not simultaneously had ‘the benefit of effective,

independent counsel for the entire time that his case has been pending in

either state or federal court.” Docket 279 at 1. Rhines argued that the court’s

interpretation of Martinez and its analysis concerning the independence of his

counsel was wrong. The court concluded, among other things, however, that

Martinez did not apply and that Rhines was not entitled to relief. Docket 304 at

19-20,

Here, and like Rhines’s first motion for reconsideration, Rhines contends

that “this Court has failed to recognize the impact of [Martinez] and Trevino v.

Thaler, 133 S. Ct. 1911 (2013)” because several attorneys from the Federal |

Public Defenders’ Office (FPDO) represented Rhines during part of his second

state habeas proceeding and in his federal habeas proceeding. Docket 323 at 2;

Docket 340 at 1. Rhines contends that this partial overlap creates an

impermissible conflict of interest.

The names of those attorneys did not appear on the federal docket.

3 Rhines also moved for permission to file a supplemental summary

judgment brief to include the arguments that Rhines sought to add to his

federal habeas petition. The court denied the request. :

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Capital petitioners such as Rhines have a statutory.right to counsel, and

the court may upon motion appoint substitute counsel if the “interests of

justice” so require. Martel v. Clair, 132 S. Ct. 1276, 1286-87 (2012). The FPDO

was appointed as co-counsel for Rhines.in 2009. Docket 184. Rhines never

moved for the FPDO’s substitution.* Thus, ‘the issue of whether Rhines was

entitled to substitute counsel was not raised before this court. While Rhines

argued that the partial overlap between the attorneys who represented him

during part of his second state habeas proceeding and the conclusion of his

federal habeas proceeding created an impermissible conflict of interest, at no

time did Rhines move for substitute federal habeas counsel, and the court does

not believe an impermissible conflict of interest exists. Docket 272 at 12. The

court is satisfied that it did not base its decision on a manifest error of law or

fact. And the court has ‘twice analyzed and rejected Rhines’s contention that

Martinez otherwise applies to him, Because Rule 59(e) is not intended to give

litigants “a second bite at the apple,” it, likewise, is not intended to give them a

third. See Dale & Selby Superette, 838 F. Supp. at 1348. Thus, Rhines’s

conflict of interest argument fails.

B. Juror Bias and Impropriety

1. Actual and implied bias of jurors

Rhines contends that two jurors at his trial harbored anti-homosexual

biases against him, He argues that those biases infected his sentencing process

and caused the denial of his constitutional rights to an impartial jury, to due

4 Rhines returned to state court for his second state habeas proceeding

in 2005.

ss)

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process, to be free from the arbitrary imposition of the death penalty, and to

equal protection of the law.

Rhines did not raise previously his juror bias claim in any state or

federal proceeding. According to Rhines, the reason that this issue was not

presented earlier is because none of Rhines’s previous attorneys interviewed

the jurors from his trial. Some of the former jurors were interviewed recently,

and Rhines has secured their signed affidavits. Rhines argues that the

affidavits are “newly discovered evidence” under Rule 59(e) and asserts that the

court should amend its judgment accordingly in light of this new evidence.

Rhines’s argument fails, however, for several reasons. First, a motion

under Rule 59(e) cannot be used to “tender new legal theories; or raise

arguments which should have been offered or raised prior to entry of

judgment.” Metro. St. Louis, 440 F.3d at 933; see also Bannister, 4 F.3d at 1440

(“Bannister first raised the claim in the district court in a Rule 59(e) motion.

The district court correctly found that the presentation of the claim in a 59(e)

motion was the functional equivalent of a second [habeas] petition, and as such

was subject to dismissal as abusive”). Thus, Rhines’s juror bias claim should

have been raised at the outset of his habeas proceeding. See Docket 72

(directing Rhines “to include every known constitutional error or deprivation

entitling [him] to relief”). Second, a principal purpose of Rule 59(e) is to afford

courts the opportunity to correct their mistakes in the period immediately

5 Rhines’s federal habeas petition asserted that his right to an impartial

jury was violated because certain jurors were excluded based on their views of

the death penalty. See Docket 73.

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following the entry of the judgment. Norman, 79 F.3d at 750. But Rhines does

not explain how the court made a mistake regarding an issue that was never

before the court. Third, because Rhines did not raise his juror bias claim

during any of his state proceedings, this court cannot consider it. Baldwin v.

Reese, 541 U.S. 27, 29 (2004) ("Before seeking a federal writ of habeas corpus,

a state prisoner . .. must ‘fairly present’ his claim in each appropriate state

court”); Rucker v. Norris, 563 F.3d 766, 769 (8th Cir. 2009) (agreeing with the

district court that an “issue is procedurally barred because it was not fairly

present[ed}’ to the appropriate state court”) (alteration in original). And while

Rhines argues that each of his prior attorneys-including his initial-review

collateral proceeding attorney—failed to develop his juror bias claim, Rhines

cannot avail himself of the rule from Martinez because Rhines’s defaulted claim

is not a claim for ineffective assistance of trial counsel. Martinez, 132 S. Ct. at

1320.

As to Rhines’s newly discovered evidence argument, the court finds that

Rule 59(e) is applicable in this context. The Eighth Circuit applies the same

standard for Rule 59(e) motions based on newly discovered evidence as it does

6 In Holland v, Jackson, 542 U.S. 649, 652-53 (2004) the Supreme Court

held that a habeas petitioner must satisfy § 2254(e)(2) “when a prisoner seeks

relief based on new evidence without an evidentiary hearing.” But unlike this

case, the Holland case involved an exhausted claim rather than a new claim.

Id. at 650. Regardless, relief under § 2254(e)(2) also requires as a prerequisite

that the new evidence “could not have been previously discovered through the

exercise of due diligence.” 28 U.S.C. § 2254(e}(2)(A)(ii); Holland, 542 U.S. at

653.

APPENDIX 118

for Rule 60(b)}(2} motions.’ Miller v. Baker Implement Co.439 F.3d 407, 414

(8th Cir. 2006). “To prevail on this motion, [the movant is] required to show—

among other things—that the evidence proffered with the motion was

discovered after the court's order and that he exercised diligence to obtain the

evidence before entry of the order.” Anderson v. United States, 762 F.3d 787,

794 (8th Cir, 2014}, The evidence must also be admissible. Murdock v. United

States, 160 F.2d 358, 362 (8th Cir. 1947).

Here, and regardless of whether the juror affidavits are admissible,

Rhines has had roughly twenty years to develop the evidence he now offers. In

fact, Rhines faults each of his attorneys for not developing this evidence

sooner. See, e.g., Docket 323 at 2 (“Beginning with trial counsel, counsel at

every stage of the prior proceedings have failed to interview the jurors”). But

Rhines’s allegations undermine the foundation of his motion. For Rhines to

prevail, he must show that this evidence could not have been discovered earlier

despite having exercised reasonable diligence to obtain it. Rhines, however,

asserts that the evidence should have been discovered earlier ifhis attorneys

were diligent. Rhines’s contention is the inverse of what Rule 60(b}{2) is

designed to address. He makes no showing that “he had been unable to

uncover the newly discovered evidence prior to the court’s summary judgment

ruling.” Miller, 439 F.3d at 414. Likewise, the decades-long period of delay

7 Rule 60(b)(2) provides that litigants may seek relief from a final

judgment or order based on “newly discovered evidence that, with reasonable

diligence, could not have been discovered in time to move for a new trial under

Rule 59(b).” Fed. R. Civ. P, 60(b)(2).

APPENDIX 119

while the evidence was obtainable indicates a lack of diligence. Holland v.

Jackson, 542 U.S. 649, 653 (2004) (rejecting an argument to present new

evidence because “i]t is difficult to see, moreover, how respondent could claim

due diligence given the 7-year delay”). “Because this evidence was available to

[Rhines], it should have been presented prior to the entry of judgment.” Metro.

St, Louis, 440 F.3d at 935,

Finally, to the extent that Rhines’s motion could be construed as a

motion to present new evidence related to issue IX.D of his federal habeas

petition,® the court’s conclusion is the same. Issue 1IX.D was adjudicated on the

merits in state court. Section 2254(d) and the rule in Pinholster limit this »

court’s review of a claim that was adjudicated on the merits in atate court to

the record that was before the state court. Cullen v. Pinholster, 563 U.S. 170,

181 (2011). Rhines’s juror affidavit evidence was not presented to or considered

by the state court that adjudicated the claim, Rhines cannot use Rule 59(e) to

circumvent § 2254(d) and Pinholster. Pitchess ‘uv. Davis, 421 U.S. 482, 489

(1975) (holding that the Federal Rules of Civil Procedure apply in § 2254

- proceedings to the extent that they are not inconsistent with any statutory

provisions). Consequently, this court cannot consider the evidence. Thus,

Rhines’s newly discovered evidence argument fails.

8 Issue LX.D alleged that Rhines’s trial attorneys were ineffective because

they failed to exclude evidence of Rhines’s homosexuality. See Docket 73.

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2, Juror consideration of extrinsic evidence and ex parte

contacts with the trial judge

Rhines argues that the jurors considered extrinsic evidence during the

course of his trial. According to Rhines, the jurors at some point discussed a

newspaper article that speculated about which of the jurors would serve as

alternates. Rhines also argues that the jurors had improper ex parte contact

with the trial judge when the judge allegedly told the jurors “that he would not

refer to them by name and that the defense could ask them to affirm that the

verdict as read was true.” Docket 323 at 7, Rhines contends that these

incidents violated his Sixth and Fourteenth Amendment rights.

This claim, like Rhines’s juror bias claim, was not raised previously in

any state or federal proceeding. For the reasons stated more fully in section

1.B.1, supra, the court denies Rhines’s motion to raise the claim for the first

time now and denies Rhines’s motion to present new evidence in support of the

claim.

3. Whether one of the jurors did not live in Pennington

County

Rhines's trial took place in Pennington County, South Dakota. Rhines

argues that one of the jurors actually lived in Meade County, rather than

Pennington County, and that the juror was thus ineligible to serve at Rhines's

trial. Rhines argues that this error violated his Sixth and Fourteenth

Amendment rights. a

This claim, like Rhines’s preceding arguments, was not raised previously

in any state or federal proceeding. For the reasons stated more fully in section

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1.B.1, supra, the court denies Rhines’s motion to raise the claim for the first

time now and denies Rhines’s motion to present new evidence in support of the

clairn.

C. Ineffective Assistance of Trial Counsel Claims

Rhines moves for reconsideration of the court's adjudication of issues

IX.A, IX.B, and IX. of his federal habeas petition. Those three issues all

concerned whether Rhines’s trial counsel's investigation and presentation of

mitigating evidence constituted ineffective assistance of counsel. Each claim

was considered and rejected in state court. This court concluded that Rhines

was not entitled to relief on any of his claims. See Docket 305 at 82-101.

1. Appropriate standard of review

Rhines challenges the legal standards used to adjudicate his ineffective

assistance of trial counsel claims. Ineffective assistance claims are governed

generally by Strickland v. Washington, 466 U.S. 668 (1984). The state court

cited and analyzed the Strickland test. Docket 204-1 at 21 (explaining the socalled “deficient performance” and “prejudice” prongs). The court applied that

test using the facts of the Strickland opinion and several other Supreme Court

decisions involving attorneys’ mitigation efforts for comparative purposes. See

id. at 19 (citing Burger v. Kemp, 483 U.S. 776 (1987| and Darden v. Wainwright,

477 U.S. 168 (1986). The state court determined that Rhines failed to show

that his attorneys’ performance was deficient and, therefore, it concluded that

Rhines was not entitled to relief.

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APPENDIX 122

This court set out in its order granting summary judgment in favor of

respondent the applicable standard of review in Rhines’s case. See Docket 305

at 8-11. That standard is established by § 2254. The court cannot grant relief

unless a state court’s adjudication of a claim is “contrary to, or involved an

unreasonable application of, clearly established Federal law” or unless the

decision is “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)(1)-(2).

Also, “a determination of a factual issue made by a State court shall be

presumed to be correct,” and the habeas petitioner “shall have the burden of

rebutting the presumption of correctness by clear and convincing evidence.”

28 U.S.C. § 2254(e)(1). The Supreme Court has elaborated on the application of

those provisions in numerous opinions, and this court’s order set forth those

principles. Docket 305 at 8-11.

The court also set forth the more specific standards.that apply when a

state court adjudicates an ineffective assistance claim. Id, at 82. The court

held:

In the context of § 2254, however, Rhines must overcome an

additional hurdle. This court’s task is to determine if the state

court’s decision involved an objectively unreasonable application of

the Strickland standard. See Knowles [v. Mirzayance,| 556 U.S.

[111,] 122 {[(2009)]. Because the Strickland standard itself is

deferential to counsel’s performance, and because this court’s

review of the state court’s decision.under § 2254 is also deferential,

the standard of review applied to Rhines’s ineffective assistance

claims is ‘doubly deferential.’ Id. at 123. Consequently, ‘the

question is not whether counsel’s actions were reasonable. The

question is whether there is any reasonable argument that counsel

satisfied Strickland’s deferential standard.’ Harrington v. Richter,

562 U.S. 86, 105 (2011); see also Pinholster, 131.S.< Ct. at 1403

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APPENDIX 123

(noting the petitioner must demonstrate that the state court's

determination regarding both prongs was unreasonable to be

entitled to relief). seh.

Id. This court concluded that the state court’s resolution of Rhines’s ineffective

assistance claims was reasonable and that Rhines was not entitled to relief.

Here, Rhines argues that the state court’s interpretation of the Strickland

test was wrong. He argues that the state court’s appraisal of the “deficient

performance” prong was not exacting enough of counsel’s performance. Rhines

also argues that the state court’s description of the “prejudice” prong was

incomplete, And Rhines argues that this court’s review of the state court’s

decision was based on an improper standard.

Rhines, however, already received an opportunity to.challenge-and he

did challenge-the state court’s analysis. See Docket 232. at 80-96 (Rhines’s

summary judgment brief). Rule 59 is not a vehicle for re-litigating old matters

or advancing arguments that should have been made before. Metro. St. Louis,

440 F.3d at 933. Rhines cites in support of his “deficient performance”

argument the Supreme Court's decisions in Strickland, Wiggins v. Smith, 539

U.S. 510 (2003), Williams v. Taylor, 529 U.S. 362 (2000}, and Rompilla v.

Beard, 545 U.S. 374 (2005). This court previously considered and rejected the

same argument Rhines raises now. The court stated:

While Rhines erie that Williams and Wiggens were controlling

and dispositive, the Supreme Court has explained that Strickland

is the appropriate standard that courts should apply to resolve

ineffective assistance claims. Pinholster, 131 S. Ct. at 1406-07

(rejecting argument that Williams, Wiggins, and Rompilla v. Beard,

545 U.S. 374 (2005) impose a duty to investigate in every case).

Likewise, the Court cautioned against ‘attributing strict rules to

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APPENDIX 124

this Court’s recent case law.’ Id. at 1408.

Docket 305 at 97. The court is satisfied that it did not make a manifest error

concerning this issue.

As to Rhines’s prejudice argument, the state court described the

prejudice prong as requiring a showing of “actual prejudice.” Docket 204-1 at

21. Rhines argues that the state court should have included the Supreme

Court’s further explanation that prejudice requires “a reasonable probability

that, but for counsel’s errors, the result of the proceeding would have been

different. Areasonable probability is a probability sufficient to undermine the

confidence in the outcome.” Strickland, 466 U.S. at 694. A defendant must

satisfy both Strickland prongs, however, and a court can adjudicate them in

either order if the defendant fails to establish one. Jd. at 697. The state court

never reached the prejudice inquiry because it concluded that Rhines’s

attorneys rendered reasonably competent assistance. This court agreed with

the state court. Thus, even assuming the state court’s description. of the

prejudice prong was objectively unreasonable-which it was not-the error would

not affect the outcome of Rhines’s case. The court is satisfied that it did not

make a manifest error. concerning this issue.

Regarding Rhines’s argument that this court applied the incorrect

standard of review to the state court’s decision, Rhines does not identify the

standard the court should have applied. Rhines cites primarily to various cases

involving the review of ineffective assistance claims in the first instance. The

Supreme Court has explained, however, that the “doubly deferential” standard

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APPENDIX 125

eee ee me cere te er eee ot rere re werrerer 8 Saupe mee ee me mp me

under § 2254(d) applies when a federal court reviews a state court’s

adjudication of an ineffective assistance claim on the merits. The court finds no

manifest error with its decision. Thus, Rhines is not entitled to relief.

2, Mitigation investigation

The bulk of Rhines’s motion contends that his trial attorneys failed to

properly investigate and present mitigating evidence. His arguments can be

grouped broadly into five areas where, according to Rhines, his attorneys

should have investigated further: (1) Rhines’s family; (2) Rhines’s military

history; (3) Rhines’s jail and criminal records; (4) Rhines’s mental health; and

(5) Rhines’s family history of exposure to neurotoxins.

Each area highlighted by Rhines, with the exception of the neurotoxins

issue, was investigated by his trial attorneys. See Docket 204-1 at 16-19

(noting “Rhines'[s] counsel did investigate possible mitigation evidence. They

investigated by talking to Rhines, his family and friends, reviewing his military

service records, his schooling, employment history, [and] psychiatric and

psychological examinations and found that there was very little mitigating

evidence to be found or presented.”). Like Rhines’s standard of review

~ argument, Rhines had the opportunity to contest-and did contest-the state

court’s determinations concerning his attorneys’ efforts and their strategy.

Docket 232 at 80-93. This court rejected those arguments.and. concluded that

Rhines was not entitled to habeas relief. Here, Rhines devotes many pages of

his reconsideration brief to re-litigating his mitigation claims. But Rhines

cannot use Rule 59(e) to re-litigate old matters or advance new arguments that

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APPENDIX 126

should have been made before. Metro. St. Louis, 440 F.3d at 933. And

bookending those arguments with conclusory language that this court’s

decision was unreasonable is an insufficient basis to justify relief. The court

finds no manifest error with its decision. Thus, Rhines’s claims will not be

Tevisited.

The court will, however, address several specific issues raised in Rhines’s

motion. For example, Rhines cites a number of affidavits signed by individuals

who, like the jurors, were also recently interviewed. See, 6.9., Docket 323-8

(signed March 15, 2016); Docket 323-9 (signed March 11, 2016); Docket 323-

10 (signed March 15, 2016). Rhines references these affidavits in support of his

arguments that the court’s decision was erroneous. Rhines’s ineffective

assistance of counsel claims were.each adjudicated on the nein in state

court. Rhines has not shown that these contemporary affidavits, or similar

evidence containing the same substance, were ever presented to or considered

by the state court. Thus, this court cannot consider the affidavits. Pirholster,

563 U.S. at 181. .

As for Rhines’s neurotoxins argument, it is a theory that Rhines

advanced in his October 21, 2015 motion to amend his federal habeas petition.

See Docket 2811 at 3-5. Rhines asserted that his trial attorneys as part of their

mitigation efforts should have investigated whether Rhines was exposed to

pesticides and other toxins while he was growing up in McLaughlin, South

Dakota, Rhines argued that that exposure could have caused him to develop

various neurological disorders. He claimed that the failure of his trial attorneys

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to pursue this area of inquiry suggested that their mitigation efforts were

deficient. And Rhines moved to buttress his argument with affidavits from

three experts who reviewed Rhines’s case file and records. See

Docket 281-1, -2, and -3. Those experts made their own findings and

conclusions concerning Rhines, his background, his mental health, and the

effectiveness of Rhines’s trial counsel’s mitigation efforts. . |

This court denied Rhines’s motion to amend his federal habeas petition

to include his new theory and evidence. Rhines’s ineffective assistance claims

were each adjudicated on the merits in state court. This court held that the

rule in Pinholster prevented Rhines from “bolster|ing] his exhausted ineffective

assistance claims with new evidence that was not presented to or considered

by the state court.” Docket 304 at 18. The court, for similar reasons, denies

Rhines’s motion to present these arguments and this evidence as part of his

reconsideration motion.

In sum, Rhines has not identified any manifest error with the court’s

judgment concerning his ineffective assistance claims. Thus, Rhines is not

entitled to relief.

D. Jury Note and Juror Confusion

Rhines moves for reconsideration of the court's adjudication of Issue IX.E

of his federal habeas petition. Issue IX.E alleged that Rhines’s trial attorneys

were ineffective due to the way they handled a note from the jurors. The state

court denied Rhines’s claim, and this court concluded that Rhines was not

entitled to relief. Docket 305 at 106-08.

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APPENDIX 128

Here, Rhines attempts to re-litigate Issue IX.E. He invokes arguments

that either were made or should have been made before and also cites evidence

that was not presented to the state court that adjudicated his claim. Rhines’s

argument suffers the same infirmities as those discussed in sections LA-C,

supra. The court is satisfied that its decision did not involve any manifest error.

Thus, Rhines's ineffective assistance claim will not be revisited.

Rhines has failed to justify altering or amending the court’s judgment.

Thus, Rhines’s Rule 59(e) motion is denied.

II. Respondent’s Motion to Strike

Respondent moves the court to strike various exhibits from the court’s

docket. These exhibits consist of affidavits and other documents that the court

determined that it cannot consider because, for example,'Rhines did not

present the evidence to any state court for consideration. Cf. Pinholster, 563

U.S. at 181, Rhines, nonetheless, cited to some of those same exhibits in his

Rule 59(e) motion, and respondent asserts that Rhines may continue to do so

on appeal. Thus, respondent asks the court to excise the exhibits from the

docket.

The court will not strike the exhibits. Respondent has not shown that he

will be prejudiced by the continued presence of the exhibits on the court’s

docket. Thus, the motion is denied.

CONCLUSION

Rhines has not shown any manifest error with the court’s decision. Thus,

he is not entitled to relief. Respondent has not shown that the various exhibits

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should be struck from the court’s docket. Therefore, the exhibits will remain.

Thus, it is

ORDERED that Rhines’s motion to alter or amend the judgment (Docket

323) is denied. |

IT IS FURTHER ORDERED that respondent’s motion to strike (Docket

324) is denied. |

Dated July 5, 2016.

BY THE COURT:

/s/Karen ©. Schreier.

KAREN E. SCHREIER

UNITED STATES DISTRICT JUDGE

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APPENDIX 130

Case 5'10-cv-00433-CAR Document 95 Filed 09/05/17 Page 1 of 23

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF GEORGIA

MACON DIVISION

KEITH THARPE,

Petitioner,

VS.

CIVIL ACTION NO. 5:10-CV-433 (CAR)

WARDEN, Georgia Diagnostic and

Classification Prison,

Respondent.

ORDER

Petitioner Keith Tharpe moves this Court to reopen his 28 U.S.C. § 2254. action

pursuant to Fed. R. Civ. P. 60(b)(6). ECF No. 77. For reasons discussed below, the

Court denies his motion.'

IL BACKGROUND AND PROCEDURAL HISTORY

Tharpe’s wife left him and moved in with her parents. Tharpe v. State, 262 Ga.

110, 110-11, 416 S.E.2d 78, 79 (1992). Following various threats of violence, Tharpe was

ordered not to have any contact with her or her family. Id. Instead of obeying the

order, he intercepted his wife and sister-in-law on the morning of September 25, 1990

when they were on their way to work. Id. He forced the women to stop their car and,

armed with a shotgun, escorted his sister-in-law to the rear of the car where he shot her.

Id. After rolling her into a ditch, he reloaded the shotgun, and shot her again. id.

1 Also pending is Tharpe’s motion for leave to file excess pages. ECF No. 94. This

motion is GRANTED.

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V

Tharpe then drove away with his wife and raped her. Id. When he took his wife to a

credit union to make her obtain money, she called the police. Id. Tharpe was arrested

and charged with malice murder and two counts of kidnapping with bodily injury. Id.

Following a nine-day trial, he was convicted on all counts and sentenced to death for the

murder of his sister-in-law. Id.

After his motion for new trial was denied, the Georgia Sispreme Court affirmed

Tharpe’s conviction and sentence on March 17, 1992. Id, at 110, 416 S.E.2d at 79.

Tharpe did not raise any issue of juror bias in his motion for new trial or on direct

appeal. The United States Supreme Court denied certiorari on October 19, 1992. ECF

No, 13-1.

Tharpe filed a Petition for Writ of Habeas Corpus in the Superior Court of Butts

County, Georgia on March 17, 1993, amended the Petition on December 31, 1997, and

amended it again on January 21, 1998. ECE Nos. 13-2; 13-8; 13-10. In claim ten of his

December 31, 1997 amended Petition, Tharpe argued that “improper racial animus...

infected the deliberations of the jury.” ECF No. 13-8 at 16.

en ET

—_

The state habeas court conducted évidentiary nenigs 9 May 28, 1998, August

ae

Mn,

i,

24, 1998, December 11, 1998, December 23, 1998, and July 30, 2007. ECF Nos. 14-1 to

14-7; 15-1 to 15-2; 15-13 to 15-17; 16-1 to 16-2; 17-1 to 18-11. At the May 28, 1998 hearing,

Tharpe tendered affidavits from jurors Margaret Bonner, ECF No. 14-3 at 4; Barney

Gattie, ECF No. 14-3 at 7; and James Stinson, ECF No. 14-3 at 36. Over two days in

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October 1998, the state habeas court presided while the parties deposed eleven of the

jurors who still resided in Georgia:? Bamey Gattie, Lucille Long, Charles Morrison, Sr.,

James Stinson, Jr., Joe Woodard, Jack Simmons, Margaret Bonner, Mary Graham, Ernest

Ammons, Martha Sandefur, and Poily Herndon. ECE Nos..15-6; 15-7; 15-8. At the

December 11, 1998 hearing, Tharpe tendered a juror affidavit from the twelfth juror,

Tracy Simmons, as well as affidavits from Georgia Resource Center employees

regarding their interactions with juror Barney Gattie. ECF No. 15-16 at 7, 10,17. On

that same date, Respondent tendered an affidavit from Barney Gattie. ECF No. 15-17 at

13.

The state habeas denied habeas relief in an order filed December 4, 2008. ECF

No. 19-10. The court found that the jurors’ testimony, including their affidavits and

depositions, were inadmissible. ECF No. 19-10 at 99. “Rurther, even if [Tharpe] had

admissible evidence to support his claim of juror misconduct,” the juror misconduct

claim was procedurally defaulted because Tharpe failed to raise it during his motion for

new trial or direct appeal. ECF No. 19-10 at 5, 102. Tharpe alleged ineffective

assistance of counsel as cause to overcome the default. ECF No. 13-8 at 17 n.10. The

state habeas court determined that Tharpe “failed to establish the requisite deficiency or

prejudice.” ECF No. 19-10 at 102.

Tharpe filed an Application for Certificate of Probable Cause to Appeal (“CPC

2 One juror, Tracy Simmons, no longer lived in Georgia, and he was not deposed. ECF

No. 15-8 at 7.

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Application”) in the Georgia Supreme Court, which was summarily denied. ECE Nos.

19-12; 19-15,

On November 8, 2010, Tharpe filed in this Court his Petition for Writ of Habeas

Corpus by a Person in State Custody, which he later amended. ECF Nos. 1; 25. In

claim three of his amended habeas petition, Tharpe alleged that improper racial

attitudes infected the jury deliberations. ECE No. 25 at 19-20. In his answer.to the

amended petition, Respondent alleged this portion of claim three was procedurally

defaulted? ECF No. 27 at 13. After the parties briefed exhaustion and procedural

default, ECF Nos. 29; 30; 34, the Court found that Tharpe’s- various claims of juror

misconduct were procedurally defaulted, and that Tharpe failed to show cause and

prejudice or a fundamental miscarriage of justice to overcome default. ECF No. 37 at

8-9,

After the parties briefed the merits of remaining claims, the Court denied

3 Ina footnote in his brief, Respondent for the first time argues that Tharpe “did not raise

this issue in his CPC [Application before the Georgia Supreme Court” and the claim is,

therefore, unexhausted. ECF No. 89 at7 n2. In prior proceedings before this Court,

Respondent never argued the claim was unexhausted. Instead, he argued that it was

“properly found by the state habeas corpus court to be procedurally defaulted.” ECF

No. 27 at 13. Even now, beyond the mere mention of exhaustion in a footnote,

Respondent does not argue that Tharpe’s juror bias claim is unexhausted. Instead, he

still clearly argues that the “claim remains procedurally defaulted.” ECF No. 89 at 16.

This Court has already ruled the claim is procedurally defaulted. ECF No. 37 at 8-9..

Consistent with the previous litigation in'this case and with the arguments Respondent

makes in his current brief, ECF No. 89 at 16-29, this Court treats Tharpe’s furor bias claim

as procedurally defaulted. See Hills v. Washington, 441 F.3d 1374, 1376-77 (11th Cir.

2006)

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Tharpe’s habeas corpus petition and granted a certificate of appealability (“COA”) on

one claim—“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.” ECF No. 65 at 57.

Tharpe moved to have the COA expanded, but he did not request a COA regarding any

of his juror misconduct claims. Tharpe v. Warden, No. 14-12464 (11th Cir. June 20, 2014).

The Eleventh Circuit denied relief on August 25, 2016. ECE-No. 75. Tharpe filed a

petition for writ of certiorari in the United Stated Supreme Court, which was denied on

June 26, 2017. ECF No. 82.

IL, ANALYSIS

Tharpe argues the Court should exercise its discretion to reopen his federal

habeas proceedings under Fed. R. Civ. P. 60(b)(6) to permit him to prove that his death

sentence was fatally tainted by the racist views of juror Barney Gattie, a claim the state

court and this Court previously found to be procedurally defaulted. ECE No. 77 at 15.

Rule 60(6)(6) permits reopening a case for “any ..- reagan justifying relief from the

operation of the judgment.” But, “velief under Rule 60(b)(6) is available only in

‘extraordinary circumstances.” Buck v. Davis, 437 S. Ct. 759, 777 (2017) (quoting

Gonzalez v. Crosby, 545 U.S. 524, 535 (2005)). “Such circumstances .. . rarely occur in the

habeas context.” Gonzalez, 545 U.S. at 535.

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Tharpe contends his case should be reopened “due to extraordinary

circumstances triggered by recent Supreme Court decisions, Pena-Rodriguez v. Colorado,

137 S. Ct. 855 (2017), and Buck v. Davis, 137 S, Ct. 759 (2017).” ECF No. 77 at 1. But,

“Tslomething more than a ‘mere’ change in the law is necessary . . . to provide the

grounds for Rule 60(b)(6) relief.” Booker v. Singletary, 90 F.3d.440, 442 (11th Cir. 1996)

(quoting Ritter v. Smith, 811 F.2d 1398, 1401 (11th Cir. 1987)); Arthur v. Thomas, 739 F.3d

611, 631 (11th Cir. 2014) (citing Gonzalez, 545 US, at 535-38) (finding that “a change in

decisional law is insufficient to create the ‘extraordinary circumstance’ necessary to

invoke Rule 60(b)(6)”); Howell v. Sec’y Fla. Dep't of Corr., 730 F.3d 1257, 1260-61 (11th Cir.

2013) (same). The movant bears the burden of showing not only a change in the law,

but also “that the circumstances are sufficiently extraordinary to warrant relief.”

Booker, 90 F.3d at 442 (quoting Ritter, 811 F.2d at 1401).

Tharpe fails for two reasons to establish the extraordinary circumstances

necessary to reopen his case. First, Tharpe’s request for the Court to review his juror

bias claim in light of Pena-Rodriguez is barred by Teague v. Lane, 489 U.S. 288 (1989).

Second, this claim is procedurally defaulted and the state habeas court already reviewed

Gattie’s statement when it concluded Tharpe failed to establish cause and prejudice. to

overcome the default.

A. The new rule announced in Pena-Rodriguez does not apply to cases on

collateral review.

On March 6, 2017, the Supreme Court held:

8.

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[W]here a juror makes a clear statement that indicates he or she relied on

racial stereotypes or animus to convict a criminal defendant, the Sixth

Amendment requires that the no-impeachment rule give way in order to

permit the trial court to consider the evidence of the juror’s statement and

any resulting denial of the jury trial guarantee.

Pena-Rodriguez, 137 8. Ct. at 869. The issue is whether this recently-decided rule applies

to cases on collateral review.

“Federal habeas corpus serves to ensure that state convictions comport with the

federal law that was established at the time [a] petitioner’s conviction became final.”

Sawyer v. Smith, 497 U.S. 227, 239 (1990) (emphasis omitted). In Teague, the Court held

that “new constitutional rules of criminal procedure will not be applicable to those cases

which have become final before the new rules are announced.” 489 U.S. at 310-11.

“To apply Teague, a federal court engages in a three-step process.” Lamtbrix 0.

Singletary, 520 U.S. 518, 527 (1997). The first step is to determine when the defendant's

conviction became final. Id. Tharpe’s conviction was final on October 19, 1992, the

date on which the Supreme Court denied certiorari review. ECF No. 13-1; Bond v.

Moore, 309 F.3d 770, 773 (11th Cir. 2002) (stating that a conviction is final on the date the

Supreme Court denies certiorari).

Second, the Court “must survely] the legal landscape as it then existed and

determine whether a state court considering [the defendant's] claim at the time his

conviction became final would have felt compelled by existing precedent to conclude

that the rule [he] seeks was required by the Constitution.” Lambrix, 520 U.S. at 527

-7-

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Case 5:10-cv-00433-CAR Document 95 Filed 09/05/17 Page 8 of 23

(internal quotation marks and citations omitted). In other words, was the rule

announced in Pena-Rodriguez “dictated by then-existing precedent’? Id. (emphasis in

original).

Tharpe argues it was. ECF No. 93 at 5, Although Tharpe cites two Supreme

Court cases that existed at the time his conviction became final, neither addressed

whether the Sixth Amendment allows impeachment of a jury verdict. See Turner v.

Murray, 476 U.S. 28, 36-37 (1986) (holding that “a capital defendant accused of an

interracial crime is entitled to have prospective jurors informed of the race of the victim

and questioned on the issues of racial bias”); Rose v. Mitchell, 443 U.S. 545, 559 (1979)

(reaffirming that “discrimination in the selection of the grand jury remains a valid

ground for setting aside a criminal conviction,” but holding that the defendant failed to

“make out a prima facie case of discrimination in violation of the Equal Protection

Clause of the Fourteenth Amendment with regard to the selection of the grand jury

foreman”).

Tharpe also argues that “numerous lower courts have already considered claims

under Pena-Rodriguez in habeas proceedings.” ECF No. 93 at 6. But, none of these

courts found Pena-Rodriguez applicable; none addressed retroactivity; and in only one

case‘ did the respondent raise Teague. See Berardi v. Paramo, No. 15-55881, 2017 U.S.

App. LEXIS 13638, at “2 (9th Cir. July 27, 2017) (no mention of retroactivity but

4 This one case is Sears.v. Chatman, No. 1:10-cv-1983-WSD, 2017 WL 2644478 (N.D. Ga.

June 20, 2017), which is discussed below.

6

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upholding the state court’s denial of relief for Petitioner's juror bias claim); Young v.

Davis, 860 F.3d 318, 333-34 (5th Cir. 2017) (no mention of retroactively but declining to

extend Pena-Rodriguez and consider juror affidavits not presented to the state courts);

Sanders v. Davis, No. 1:92-cv-05471-LJO-SAB, 2017 U.S. Dist. LEXIS 92501, at *215 (ED.

Cal. June 15, 2017) (no mention of retroactivity but finding that juror statements on the

prejudicial effects of jury instructions were not admissible); Montes v. Macomber No.

15-cv-2377-H-BGS, 2017 U.S. Dist. LEXIS 54713, at "25 n3 (S.D. Cal. Apr. 10, 2017} (no

mention of retroactivity but explaining that “mtrinsic jury processes will not be

examined on appeal and cannot support reversal”); Anderson v. Kelley, No. 5:12-cv-279

(DPM), 2017 USS. Dist. LEXIS 48268, at *77 (E.D. Ark. Mar. 28, 2017) (no mention of

retroactivity but finding that evidence of the jurors’ thought processes could not be

considered); Cutro v. Stirling, No. 1:16-cv-2048-JFA, 2017 U.S. Dist. LEXIS 42903, at “56

n.26 (D.S.C. Mar. 23, 2017) (no mention of retroactivity but finding that juror affidavits

should not be considered); Richardson v. Kornegay, No. 5:16-he-02115-FL, 2017 U.S. Dist.

LEXIS 43080, at *25-29 (E.D.N.C. Mar. 24, 2017) (no mention of retroactivity but finding

juror statements inadmissible)? -Thus, these cases do not support Tharpe’s argument

5 In Richardson, a review of the docket located on the Federal Judiciary’s Public Access to

Court Electronic Records (“PACER”) shows that neither the petitioner nor the

respondent cited Pena-Rodriguez prior to the court's March 24, 2017 order. Richardson v.

Kornegay, 5:16-he-02115-FL, ECF Nos. 7, 12, 20, 21, 22, 23, 24, 28, 29, 31 (E.D.N.C.). In its

order, the court distinguished Pena-Rodriguez, finding that the juror statements offered in

Richardson did not indicate any juror relied on racial animus to convict the defendant

and, therefore, the statements could not be used to impeach the verdict. Richardson v.

-9-

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that Pene-Rodriguez applies to cases on collateral review. These courts simply did not

address the issue of retroactivity.

Tharpe argues that “[nJotably, in a capital case in the Northern District of

Georgia, the district court declined to accept the state’s retroactivity argument and

denied the claim on the merits.” ECF No. 93 at 7 (citing Sears v. Chatman, No.

1:10-cv-1983-WSD, 2017 U.S. Dist. LEXIS 94475, at “10 (ND. Ga. June 20, 2017)).6 A

review of thé-d ket in that case, however, reveals that the district court specifically

declined to reach the respondent’s Teague argument. Sears v. Chatman, 1:10-cv-1983,

ECE No. 49 at 18 1.8 (ND. Ga. May 9, 2016). The court ultimately determined that the

petitioner did not show the Georgia Supreme Court's denial of his juror coercion claim

\

\

was based on unreasonable facts or “was contrary to, or involved an unreasonable

application of clearly established Federal law.” Sears v. Chatman, a

1:10-cv-1983-WSD, 2017 WL 2644478, at “17 (N.D. Ga. June 20, 2017) (emphasis added).

Kornegay, No. 5:16-he-02115-FL, 2017 US. Dist. LEXIS 43080, at *29 (E.D.N.C. Mar. 24,

2017). Relying on Pena-Rodriguez, the petitioner recently filed a motion to alter or

amend judgment. Richardson v. Kornegay, 5:16-he-02115-FL, ECF No. 35 (E.D.N.C. Apr.

4, 2017). In response, the respondent argued that “Pena-Rodriguez prescribed a new

constitutional rule of criminal procedure” and, therefore, cannot “apply retroactively to

. [pletitioner’s case under Teague ... Richardson v. Kornegay, 5:16-hc-02115-FL, ECF No.

36 (E.D.N.C. Apr. 4, 2017). The court has not yet ruled on the petitioner's motion to

alter or amend judgment.

6 Tharpe provided the LEXIS citation for this order. For reasons unknown, LEXIS

shows “{t]he requested document is not available at this time ....” Therefore, the

Court has located the order on Westlaw and uses the following citation: Sears v.

Chatman, No. 1:10-cv-1983-WSD, 2017 WL 2644478 (N.D. Ga. June 20, 2017). For

background, the Court has reviewed the docket located on PACER and cites to that

when necessary.

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“TC}learly established Federal law’” means only the holdings of the Supreme Court's

cases in existence at the time the Georgia Supreme Court decided the claim. Id. at "g

(quoting 28 U.S.C. § 2254(d)(1)). pena-Rodrigued was not in existence at the time the

Georgia Supreme Court denied Sears’s juror coercion claim and the district court did not

apply Pena-Rodriguez to the claim. Therefore, neither Sears, nor any of the other cases

cited by Tharpe, supports his argument that the rule announced in Pena-Rodriguez was

dictated by existing precedent and, therefore, applies retroactively. |

Contrary to Tharpe’s arguments, this Court finds that the rule announced in

Pena-Rodriguez was not dictated by clearly established Supreme Court law. Instead,

Pena-Rodriguez was a clear break with long-standing precedent. See Tanner v. United

States, 483 U.S. 107, 117 (1987) (citations omitted) (stating that “[b]y the beginning of this

century, if not earlier, the near-universal and firmly established common-law rule in the

United States flatly prohibited the admission of juror testimony to impeach a jury

verdict”). As the Court pointed out in Pena-Rodriguez, “Talt common law jurors were

forbidden to impeach their verdict, either by affidavit or live testimony.” 137 S. Ct. at

863 (citing Vatse v. Delaval, 1 T.R. 11, 99 Eng. Rep. 944 (K.B. 1785)). This broad

no-impeachment rule was endorsed by the Supreme Court in McDonald v. Pless, 238 US.

264, 268 (1915) and by Congress in 1975 when it adopted the Federal Rules of Evidence,

specifically Rule 606(b). Pena-Rodriguez, 137S. Ct. at 864. Also, “{iJn the great majority

of jurisdictions, strong no-impeachment rules continue to be ‘viewed as both promoting

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