KEITH THARPE v. ERIC SELLERS, WARDEN
No. 17-6075
SUPREME COURT OF THE UNITED STATES
January 8, 2018
583 U. S. ____ (2018)
PER CURIAM
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
PER CURIAM.
Petitioner 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
Tharpe 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)).
Our 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 Tharpe v. Warden, No. 93-cv-144 (Super. Ct. Butts Cty., Ga., Dec. 1, 2008), App. F to Pet. for Cert. 102. And that factuаl determination is binding on federal courts, including this Court, in the absence of clear and convincing evidence to the contrary. See
The 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
We therefore grant Tharpe‘s motion to proceed in forma pauperis, grant the petition for certiorari, vacаte the judgment of the Court of Appeals, and remand the case
It is so ordered.
JUSTICE THOMAS, with whom JUSTICE ALITO and JUSTICE GORSUCH join, dissenting.
If bad 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.
One 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 theirs.
Thе 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 Jaquelin Freeman, who was also blaсk, who is ignored by the majority, and who was murdered by Tharpe 27 years ago. I respectfully dissent.
I
The 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.
A
Keith 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 kidnaped and raped his wife, leaving Freeman‘s body lying in the ditch. Freeman‘s husband found her a short time later, while driving their children to school.
A jury convicted Tharpe of malice murder and two counts of aggravated kidnaping. After hearing the evidence, the jury needed less than two hours to return a unanimous sentence of death. As aggravating factors, the jury found that Tharpe murdered Freeman while committing two other capital felonies—the aggravated kidnapings of his wife and Freeman—and
B
More than seven years after his trial, Tharpe‘s lawyers interviewed one of his jurors, Barney Gattie. The resulting affidavit stated that Gattie knew Freeman, and that her family was “what [he] would call a nice [b]lack family.” Tharpe v. Warden, No. 5:10-cv-433 (MD Ga., Sept. 5, 2017), App. B to Pet. for Cert. 15. The affidavit continued that, in Gattie‘s view, “there are two types of black people: 1. Black folks and 2. Niggers.” Ibid. Tharpe “wasn‘t in the ‘good’ black folks category,” according to the affidavit, and if Freeman had been “the type Tharpe is, then рicking between life and death for Tharpe wouldn‘t have mattered so much.” Id., at 16. But because Freeman and her family were “good black folks,” the affidavit continued, Gattie thought Tharpe “should get the electric chair for what he did.” Ibid. Gattie‘s affidavit went on to explain that “[a]fter studying the Bible,” he had “wondered if black people even have souls.” Ibid. The affidavit also noted that some of the other jurors “wanted blacks to know they weren‘t going to get away with killing each other.” Ibid.
A couple of days later, the State obtained another affidavit from Gattie. In that second affidavit, Gattie stated that he “did not vote to impose the death penalty because [Tharpe] was a black man,” but instead because the evidence presented at trial justified it and because Tharpe showed no remorse. Record in No. 5:10-cv-433 (MD Ga., June 21, 2017) (Record), Doc. 77-3, p. 2. The affidavit explained that Gattie had consumed “seven or more beers” on the afternoon he signed the first affidavit. Ibid. Although he had signed it, he “never swore to [it] nor wаs [he] ever asked if [the] statement was true and accurate.” Id., at 3. He also attested that many of the statements in the first affidavit “were taken out of context and simply not accurate.” Ibid. And he felt that the lawyers who took it “were deceiving and misrepresented what they stood for.” Id., at 5.
A state postconviction court presided over Gattie‘s deposition. Gattie again testified that, although he signed the affidavit, he did not swear to its contents. Gattie also testified that when he signed the affidavit he had consumed “[m]аybe a 12 pack, [and] a few drinks of whiskey, over the period of the day.” Id., Doc. 15–8, p. 80. Tharpe‘s lawyers did not question Gattie about the contents of his first affidavit at the deposition. They instead spent much of the deposition asking Gattie unrelated questions about race, which the state court ruled irrelevant—like whether he was familiar with Uncle Tom‘s Cabin or whether his granddaughter would play with a black doll. The lawyers’ failure to address the contents of Gattie‘s first affidavit troubled the state court. Just before it permitted Gattiе to leave, the court advised Tharpe‘s lawyers that it might “totally discoun[t]” Gattie‘s first affidavit, and it again invited them to ask Gattie questions about its contents. Id., at 105. Tharpe‘s lawyers declined the opportunity.
The state court also heard deposition testimony from ten of Tharpe‘s other jurors and received an affidavit from the eleventh. None of the jurors, two of whom were black, corroborated the statements in Gattie‘s first affidavit about how some of the jurors had considered race. The ten jurors who testified all said that race played no role in the jury‘s deliberations. The eleventh juror did not mention any consideration of race either.
C
Tharpe sought state postconviction relief. One of his claims was that “improper
The state court rejected this claim for two reasons. First, Tharpe could not prove juror misconduct because Georgia law did not allow parties to impeach a jury verdict with post-trial testimony from jurors. Tharpe v. Warden, No. 93-cv-144 (Super. Ct. Butts Cty., Ga., Dec. 1, 2008), App. F to Pet. for Cert. 99–101. Second, Tharpe had procedurally defaulted his claim because he had failed to raise it on direct appeal, and he could not establish cause and prejudice to overcome that default. Id., at 102. Tharpe‘s allegation of ineffective assistance of counsel was insufficient to establish cause because he had “failed to establish the requisite deficiency or prejudice.” Ibid. And Tharpe failed to establish prejudice because the state court credited Gattie‘s testimony that he had not relied on race when voting to sentence Tharpe. Id., at 102–103.
D
Tharpe then raised his juror-bias claim in a federal petition for a writ of habeas corpus. The United States District Court for the Middle District of Georgia denied his claim as procedurally defaulted. The District Court acknowledged that ineffective assistance of counsel can provide cause to overcome a procedural default, but it explained that Tharpe “fail[ed] to provide any details regarding this allegation.” 2017 WL 4250413, *2. The District Court concluded that Tharpe “ha[d] not established that his counsels’ ineffectiveness constituted cause to overcome the procedural defaul[t]” and that he “failed to show actual prejudice.” Ibid.
Tharpe did not seek a COA on his juror-bias claim. The United States Court of Appeals for the Eleventh Circuit affirmed the District Court‘s decision, Tharpe, 834 F. 3d 1323, and this Court denied certiorari, Tharpe v. Sellers, 582 U. S. ____ (2017).
In June 2017, Tharpe moved to reopen his federal habeas proceedings under
The District Court denied Tharpe‘s motion. It first explained that Pena-Rodriguez announced a new procedural rule that does not apply retroactively on federal collateral review. App. B to Pet. for Cert. 6–14. It alternatively deferred to the state court‘s finding that Tharpe could not prove cause or prejudice to overcome his procedural default. Id., at 18–21. After the depositions of Gattie and ten other jurors, the state court credited Gattie‘s testimony that he did not vote for death based on race. Id., at 21. The District Court deferred to that credibility determination, and nothing in Pena-Rodriguez undermined that determination. App. B to Pet. for Cert. 19–21.
The Eleventh Circuit denied a COA. It explained that the District Court had concluded
Shortly before his execution, Tharpe filed a petition for a writ of certiorari and a stay application with this Court. We issued a stay.
II
To obtain a COA, Tharpe must show “that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right” and “that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Id., at 484. The Court is not willing to say that Tharpe can satisfy this standard. See ante, at 3 (“It may be that, at the end of the day, Tharpe should not receive a COA“). Instead, its opinion makes two moves. First, it “read[s]” the decision bеlow as resting “solely” on Tharpe‘s “fail[ure] to show prejudice” to overcome his procedural default. Ante, at 1. It does not read the decision as reaching cause, and it declines to consider that or any other alternative reason to affirm the Eleventh Circuit. See ante, at 1–2. Second, the Court holds, contrary to the Eleventh Circuit, that jurists of reason could debate whether Tharpe has proven prejudice. See ante, at 2. Neither of the Court‘s moves is justified.
A
1
The majority misreads the decision below as resting “solely” on prejudice. See ante, at 1. The Eleventh Circuit addressed cause as well.
The Eleventh Circuit first held that Tharpe had failed to make a “substantial showing of the denial of a constitutional right,” explaining that he had “failed to demon-strate that ... Gattie‘s behavior ‘had substantial and injurious effect or influence in determining the jury‘s verdict.‘” 2017 WL 4250413, *3 (quoting Brecht, supra, at 637). Then the Eleventh Circuit alternatively held that Tharpe had not “shown that ‘jurists of reason would find it debatable whether the district court was correct in its procedural ruling.‘” 2017 WL 4250413, *3 (quoting Slack, supra, at 484). The “procedural ruling” of the District Court
Even if its reading were tenable, the Court does not explain why the strong medicine of a summary disposition is warranted here. Summary decisions are “rare” and “usually reserved by this Court for situations in which ... the decision below is clearly in error.” Schweiker v. Hansen, 450 U. S. 785, 791 (1981) (Marshall, J., dissenting). The majority‘s reading of the decision below is not the better one, much less the clearly correct one. By adopting the least charitable reading of the Eleventh Circuit‘s decision, the majority “disrespects the judges of the courts of appeals, who are appointed and confirmed as we are.” Wellons v. Hall, 558 U. S. 220, 228 (2010) (Scalia, J., dissenting). This Court should not “vacate and send back their authorized judgments for inconsequential imperfection of opinion—as though we were schoolmasters grading their homework.” Ibid. In fact, “[a]n appropriately self-respecting response to today‘s summary vacatur would be summary reissuance of the same opinion,” ibid., with a sentence clarifying that the Eleventh Circuit agrees with the District Court‘s decision on cause.
2
Putting aside its misreading of the decision below, the Court inexplicably declines to consider alternative grounds for affirmance. The Court acknowledges that our review “is certainly not limited to grounds expressly addressed by the court whose decision is under review.” Ante, at 3. But the Court does not explain why it nonetheless limits itself to the question of prejudice. The Court‘s self-imposed limitation is inexcusable given that Tharpe‘s collateral challenges to his sentence have lasted 24 years, the Court‘s failure to consider alternative grounds has halted an imminent execution, the alternative grounds were reached below, several of them were briefed here, and many of them are obviously correct. In fact, the District Court identified two grounds for denying Tharpe relief that no reasonable jurist could debate.
First, no reasonable jurist could argue that Pena-Rodriguez applies retroactively on collateral review. Pena-Rodriguez established a new rule: The opinion states that it is answering a question “left open” by this Court‘s earlier precedents. 580 U. S., at ____ (slip op., at 13). A new rule does not apply retroactively unless it is substantive or a “watershed rul[e] of criminal procedure.” Teague v. Lane, 489 U. S. 288, 311 (1989) (plurality opinion). Since Pena-Rodriguez permits a trial court “to consider [certain] evidence,” 580 U. S., at ____ (slip op., at 17), and does not “alte[r] the range of conduct or the class of persons that the law punishes,” Schriro v. Summerlin, 542 U. S. 348, 353 (2004), it cannot be a substantive rule.2 And Tharpe does not even attempt to argue that Pena-Rodriguez
Second, no reasonable jurist could argue that Tharpe demonstrated cause for his procedural default. The only cause that Tharpe raised in state court was ineffective assistance of counsel. The state court rejected this claim because Tharpe presented only a conclusory allegation to support it. No reasonable jurist could debate that decision. Nor could a reasonable jurist debate the cause argument that Tharpe raises here. In his reply brief in support of certiorari in this Court, Tharpe argues that he did not have to raise his claim of juror bias on direct appeal. Reply Brief 7-8. But Tharpe never raised this argument in state court, so the state court did not err in failing to accept it. Nor did the District Court abuse its discretion in failing to address it, since Tharpe merely mentioned it in a footnote in his reply brief where he was explaining the state court‘s decision. And even if Tharpе‘s description of Georgia law is correct and relevant in a federal habeas proceeding, he offers no explanation for why he waited seven years after his trial to obtain Gattie‘s affidavit. See Fults v. GDCP Warden, 764 F. 3d 1311, 1317 (CA11 2014). In short, Tharpe has not offered a viable argument on cause in any court.
B
On the one issue it does address—prejudice—the Court falters again. Its conclusion that reasonable jurists could debate prejudice plows through three levels of deference. First, it ignores the deference thаt appellate courts must give to trial courts’ findings on questions of juror bias. See Skilling v. United States, 561 U. S. 358, 396 (2010) (“In reviewing claims [of juror bias], the deference due to district courts is at its pinnacle: ‘A trial court‘s findings of juror impartiality may be overturned only for manifest error‘” (quoting Mu‘Min v. Virginia, 500 U. S. 415, 428 (1991))). Then, it ignores the deference that federal habeas courts must give to state courts’ factual findings. See
With all this deferenсe, no reasonable jurist could debate the question of prejudice. The state court‘s finding that Tharpe “failed to show that any alleged racial bias of Mr. Gattie‘s was the basis for
But we are not reviewing the state court directly. Instead, the relevant question is whether a reasonable jurist could argue that the District Court abused its discretion by concluding that the state court‘s decision to credit Gattie‘s testimony has not been rebutted by clear and convincing evidence. Even if “[r]easonable minds reviewing the record might disagree about” the evidence, “on habeas review that does nоt suffice to supersede the [state] court‘s credibility determination.” Rice v. Collins, 546 U. S. 333, 341–342 (2006). And even if we might have made a different call, abuse-of-discretion review means we cannot “substitute [our] judgment for that of the district court.” Horne v. Flores, 557 U. S. 433, 493 (2009) (BREYER, J., dissenting). Under these standards, no reasonable jurist could argue that Tharpe rebutted the state court‘s decision by clear and convincing evidence, much less that the District Court‘s deference to the state court‘s credibility determination was an abuse of discretion.
III
The Court is cognizant of the weakness of Tharpe‘s claims. It openly anticipates that he will not be able to obtain a COA, which makes sense given the insurmountable barriers he faces on remand. Moreover, the Court‘s preliminary decision that reasonable jurists could debate prejudice says little about how a court of appeals could ever rule in Tharpe‘s favor on the merits of that question, given the multiple levels of deference that apply. At most, then, the Court‘s decision merely delays Tharpe‘s inevitable execution.
The Cоurt tries to justify its decision “on the unusual facts of this case.” Ante, at 3. But there is nothing unusual about deferring to a district court‘s decision to defer to a state court‘s credibility findings. This case involves a mine-run denial of a COA by a lower court on the eve of an execution, one that this Court routinely denies certiorari to address.
Today‘s decision can be explained only by the “unusual fac[t]” of Gattie‘s first affidavit. Ibid. The Court must be disturbed by the racist rhetoric in that affidavit, and must want to do something about it. But the Court‘s decision is no profile in moral сourage. By remanding this case to the Court of Appeals for a useless do-over, the Court is not doing Tharpe any favors. And its unusual disposition of his case callously delays justice for Jaquelin Freeman, the black woman who was brutally murdered by Tharpe 27 years ago. Because this Court should not be in the business of ceremonial handwringing, I respectfully dissent.