PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE ELEVENTH CIRCUIT
Keith Tharpe moved to reopen his federal habeas corpus
proceedings regarding his claim that the Georgia jury that
convicted him of murder included a white juror, Barney
Gattie, who was biased against Tharpe because he is black.
See Fed. Rule Civ. Proc. 60(b)(6). The District Court denied
the motion on the ground that, among other things,
Tharpe's claim was procedurally defaulted in state court.
The District Court also noted that Tharpe could not overcome
that procedural default because he had failed to produce any
clear and convincing evidence contradicting the state
court's determination that Gattie's presence on the
jury did not prejudice him. See Tharpe v. Warden,
No. 5:10-cv-433 (MD Ga., Sept. 5, 2017), App. B to Pet. for
sought a certificate of appealability (COA). The Eleventh
Circuit denied his COA application after deciding that
jurists of reason could not dispute that the District
Court's procedural ruling was correct. See Tharpe v.
Warden, 2017 WL 4250413, *3 (Sept. 21, 2017). The
Eleventh Circuit's decision, as we read it, was based
solely on its conclusion, rooted in the state court's
factfinding, that Tharpe had failed to show prejudice in
connection with his procedurally defaulted claim,
i.e., that Tharpe had "failed to demonstrate
that Barney Gattie's behavior 'had substantial and
injurious effect or influence in determining the jury's
verdict.' " Ibid, (quoting Brecht v.
Abrahamson, 507 U.S. 619, 637(1993)).
review of the record compels a different conclusion. The
state court's prejudice determination rested on its
finding that Gattie's vote to impose the death penalty
was not based on Tharpe's race. See Thorpe v.
Warden, No. 93-cv-144 (Super. Ct. Butts Cty., Ga., Dec.
1, 2008), App. F to Pet. for Cert. 102. And that factual
determination is binding on federal courts, including this
Court, in the absence of clear and convincing evidence to the
contrary. See 28 U.S.C. §2254(e)(1). Here, however,
Tharpe produced a sworn affidavit, signed by Gattie,
indicating Gattie's 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 my 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 my reason";
and that, "[a]fter studying the Bible, I have wondered
if black people even have souls." App. B to Pet. for
Cert. 15-16 (internal quotation marks omitted). Gattie's
remarkable affidavit-which he never retracted- presents a
strong factual basis for the argument that Tharpe's race
affected Gattie's vote for a death verdict. At the very
least, jurists of reason could debate whether Tharpe has
shown by clear and convincing evidence that the state
court's factual determination was wrong. The Eleventh
Circuit erred when it concluded otherwise.
question of prejudice-the ground on which the Eleventh
Circuit chose to dispose of Tharpe's application- is not
the only question relevant to the broader inquiry whether
Tharpe should receive a COA. The District Court denied
Tharpe's Rule 60(b) motion on several grounds not
addressed by the Eleventh Circuit. We express no view of
those issues here. In light of the standard for relief from
judgment under Rule 60(b)(6), which is available only in
" 'extraordinary circumstances, ' "
Gonzalez v. Crosby, 545 U.S. 524, 536 (2005), Tharpe
faces a high bar in showing that jurists of reason could
disagree whether the District Court abused its discretion in
denying his motion. It may be that, at the end of the day,
Tharpe should not receive a COA. And review of the denial of
a COA is certainly not limited to grounds expressly addressed
by the court whose decision is under review. But on the
unusual facts of this case, the Court of Appeals' review
should not have rested on the ground that it was indisputable
among reasonable jurists that Gattie's service on the
jury did not prejudice Tharpe.
therefore grant Tharpe's motion to proceed in forma
pauperis, grant the petition for certiorari, vacate the
judgment of the Court of Appeals, and remand the case for
further consideration of the question whether Tharpe is
entitled to a COA.
is so ordered.
Justice Thomas, with whom Justice Alito and Justice Gorsuch
facts make bad law, then "unusual facts" inspire
unusual decisions. Ante, at 3. In its brief per
curiam opinion, the Court misreads a lower court's
opinion to find an error that is not there, and then refuses
to entertain alternative grounds for affirmance. The Court
does this to accomplish little more than a do-over in the
Court of Appeals: As it concedes, petitioner Keith Tharpe
faces a "high bar" on remand to obtain even a
certificate of appealability (COA). Ante, at 2.
might wonder why the Court engages in this pointless
exercise. The only possible explanation is its concern with
the "unusual facts" of this case, specifically a
juror affidavit that expresses racist opinions about blacks.
The opinions in the affidavit are certainly odious. But their
odiousness does not excuse us from doing our job correctly,
or allow us to pretend that the lower courts have not done
responsibility of courts is to decide cases, both usual and
unusual, by neutrally applying the law. The law reflects
society's considered judgments about the balance of
competing interests, and we must respect those judgments. In
bending the rules here to show its concern for a black
capital inmate, the Court must think it is showing its
concern for racial justice. It is not. Its summary vacatur
will not stop Tharpe's execution or erase the
"unusual fac[t]" of the affidavit. It will only
delay justice for Ja-quelin Freeman, who was also black, who
is ignored by the Thomas, J., dissenting majority, and who
was murdered by Tharpe 27 years ago. I respectfully dissent.
Court's terse opinion tells the reader that this case
involves a petitioner, a juror, an affidavit, and a prejudice
determination. But it involves much more than that. This case
also has a victim, a second affidavit, numerous depositions,
factfinding by a state court, and several decisions from
federal judges that provide multiple grounds for denying a
COA. I will briefly provide this omitted context.
Tharpe's wife, Migrisus, left him in 1990. Despite a
no-contact order, Tharpe called her and told her that if she
wanted to "'play dirty'" he would show her
"'what dirty was.'" Tharpe v.
Warden,834 F.3d 1323, 1325 (CA11 2016). The next
morning, Tharpe ambushed his wife and her sister, Jaquelin
Freeman, as they drove to work, pulling his truck in front of
their car and forcing them to stop. Tharpe aimed a shotgun at
the car and ordered his wife to get into his truck. He then
told Freeman that he was going to "'f- [her]
up'" and took her to the rear of his truck.
Ibid. Tharpe shot Freeman, rolled her body into a
ditch, reloaded, and shot her again, killing her. After
murdering Freeman, Tharpe ...