PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE ELEVENTH CIRCUIT
petition for a writ of certiorari is denied.
of JUSTICE SOTOMAYOR respecting the denial of certiorari.
Keith Tharpe is a Georgia inmate on death row. For years,
Tharpe, who is black, has asked state and federal courts to
consider his claim that a white member of the jury that
sentenced him to death was biased against him because of his
race. Tharpe has presented a signed affidavit from the juror
in question, who stated, among other things, that
"'there are two types of black people: 1. Black
folks and 2. Niggers, '" and that Tharpe,
"'who wasn't in the "good" black folks
category in [his] book, should get the electric chair for
what he did.'" Tharpe v. Sellers, 583
U.S.___, ___ (2018) (per curiam) (slip op., at 2).
Nevertheless, Tharpe has never received a hearing on the
merits of his racial-bias claim.
petition that the Court denies today does not turn on the
merits of that claim, and I concur in the denial of
Tharpe's petition. I write because I am profoundly
troubled by the underlying facts of this case.
than seven years after he was sentenced to death,
Tharpe's attorneys uncovered evidence that a white member
of his jury, Barney Gattie, harbored racist views at the time
of the trial. In a sworn statement, Gattie made
"repugnant comments . . . rife with racial slurs . . .
and even an explicit statement that [his] decision to
sentence Tharpe to death was[, ] at leas[t] in part, based on
race." Tharpe v. Warden, 898 F.3d 1342, 1348
(CA11 2018) (Wilson, J., concurring). Tharpe sought
postconviction relief in state court, arguing that racial
bias tainted the jury's deliberations in his case.
day, Tharpe's racial-bias claim has never been
adjudicated on its merits. The Georgia state court and the
Federal District Court denied Tharpe's requests for
postconviction relief on procedural grounds. Tharpe moved to
reopen the federal proceedings in light of
"'extraordinary circumstances, '"
Gonzalez v. Crosby, 545 U.S. 524, 536 (2005), but
the District Court denied that motion. Tharpe requested a
certificate of appealability (COA) from the United States
Court of Appeals for the Eleventh Circuit, but the court
denied his request after concluding that he had not made an
adequate showing that Gattie's racial bias affected the
jury's verdict. Tharpe, 583 U.S., at ___ (slip
op., at 2). This Court disagreed, explaining that Tharpe had
"presented] a strong factual basis for the argument that
Tharpe's race affected Gattie's vote for a death
verdict." Ibid. We remanded for further
remand, the Court of Appeals again denied Tharpe's
request for a COA. It held that the District Court did not
arguably abuse its discretion in denying Tharpe's motion
to reopen because two different threshold obstacles barred
Tharpe's claim. First, the court held that Tharpe's
juror-bias claim could not go forward because the claim
relied on a later decided case, Pena-Rodriguez v.
Colorado, 580 U.S.___ (2017), which the court concluded
does not apply retroactively. 898 F.3d, at 1345-1346. Second,
the court decided that Tharpe had not established cause for
his procedural default in state court-i.e., he had
not given a sufficient justification for failing to raise the
juror-bias claim in a motion for a new trial or in his direct
appeal. Specifically, the court rejected as unsubstantiated
Tharpe's allegation that counsel's ineffectiveness
was to blame for his not having raised the racial-bias claim
sooner. Id., at 1347. Tharpe seeks this Court's
petition for a writ of certiorari asks us to decide only
whether the Court of Appeals' procedural rulings were
correct, not whether his juror-bias claim has merit. Tharpe
"faces a high bar in showing that jurists of reason
could disagree whether the District Court abused its
discretion in denying his motion" to reopen.
Tharpe, 583 U.S., at ___ - ___ (slip op.,
at 2-3). And for Tharpe's claim to proceed, he must
overcome both of the Court of Appeals' independent
reasons for denying him a CO A. In other words, even setting
aside whether Pena-Rodriguez is retroactive, he
would have to establish that he arguably showed sufficient
cause to excuse his procedural default.
little likelihood that we would reverse the Court of
Appeals' factbound conclusion that Tharpe did not make
that showing. Before this Court, Tharpe argues that he could
not have raised his racial-bias claim in a motion for new
trial or on direct appeal because he did not know- indeed,
could not have known-of the predicate facts of the claim at
that time. Pet. for Cert. 35. If preserved, that argument
would have force. But Tharpe did not make this argument
before the District Court until a footnote in his reply brief
in the Federal Rule of Civil Procedure 60(b)(6) proceedings,
see Reply to Brief in Opposition 12-13 (listing the reply
brief as the earliest point at which this argument was made),
and the District Court did not address it, see App. D. to
Pet. for Cert. Given this preservation issue and the
deference due to the District Court, the Court of Appeals
reasonably focused on the ineffective-assistance argument
that Tharpe did previously present to the District Court in
deciding that Tharpe had not made the requisite showing of
cause. See 898 F.3d, at 1347.
therefore concur in the Court's decision to deny
Tharpe's petition for certiorari. As this may be the end
of the road for Tharpe's juror-bias claim, however, we
should not look away from the magnitude of the potential
injustice that procedural barriers are shielding from
has uncovered truly striking evidence of juror bias. Gattie,
the juror at issue, signed an affidavit reflecting his
"view that 'there are two types of black people: 1.
Black folks and 2. Niggers'; that Tharpe, 'who
wasn't in the "good" black folks category in
[his] book, should get the electric chair for what he
did'; that '[s]ome of the jurors voted for death
because they felt Tharpe should be an example to other blacks
who kill blacks, but that wasn't [his] reason'; and
that, '[a]fter studying the Bible, [he] ha[d] ...