SUPREME COURT OF THE UNITED STATES
KEITH THARPE
v. ERIC SELLERS,
WARDEN
on petition for writ of certiorari to the
united states court of appeals for the eleventh circuit
No. 17–6075. Decided January 8, 2018
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.
The 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 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 that the murder was
outrageously or wantonly vile, horrible, or inhuman.
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 picking 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. Al- though he had signed it, he
“never swore to [it] nor was [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]aybe 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 Gattie
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 racial animus . . .
infected the deliberations of the jury.”
Tharpe v.
Warden, 2017 WL 4250413, *1 (CA11, Sept. 21, 2017).
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
ha- beas proceedings under Federal Rule of Civil Procedure 60(b).
He pointed to this Court’s recent decisions in
Buck v.
Davis, 580 U. S. ___ (2017), and
Pena-Rodriguez
v.
Colorado, 580 U. S. ___ (2017), as extraordinary
circumstances that entitled him to relief. According to Tharpe,
Buck established that extraordinary circumstances are
present when a defendant was sentenced due to his race and new law
provides an opportunity to consider the merits of his previously
defaulted, race-based sentencing claim.
Pena-Rodriguez
supplied that new law, Tharpe argued, because it held that a state
no-impeachment rule must yield when there is a “clear statement
that indicates [a juror] relied on racial stereotypes or animus to
convict a criminal defendant.” 580 U. S., at ___ (slip op., at
17).
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 in its first decision that
Tharpe failed to prove cause and prejudice. 2017 WL 4250413, *2.
The District Court had later rejected Tharpe’s Rule 60(b) motion
both because
Pena-Rodriguez was not retroactively applicable
on federal collateral review and because it “presumed the
correctness” of the state court’s finding that Tharpe failed to
“ ‘establish cause and prejudice.’ ” 2017 WL 4250413, *2.
The Eleventh Circuit then offered two reasons why Tharpe was not
entitled to a COA. First, Tharpe had not “ ‘made a substantial
showing of the denial of a constitutional right.’ ”
Id., at *3 (quoting 28 U. S. C. §2253(c)(2)). “As
the [state court] and the District Court found, Tharpe failed to
demonstrate that Barney Gattie’s behavior ‘had substantial and
injurious effect or influence in determining the jury’s
verdict.’ ” 2017 WL 4250413, *3 (quoting
Brecht v.
Abrahamson, 507 U. S. 619, 637 (1993) ). “Nor,” the
Eleventh Circuit continued, “has Tharpe 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 v.
McDaniel, 529 U. S. 473, 484
(2000) ).[
1]
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 below 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
demonstrate 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 rested on both cause and prejudice—as the Eleventh Circuit
explained earlier in its opinion, quoting the District Court at
length. See 2017 WL 4250413, *2. Indeed, neither party suggests
that the Eleventh Circuit’s decision did not reach cause, and both
parties briefed the issue to this Court. See Brief in Opposition
16–17; Reply Brief 7–8. The Court’s reading of the decision below
is untenable.
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 ear-
lier 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 established a
watershed rule of criminal procedure—a class of rules that is so
“narrow” that it is “ ‘unlikely that any has yet to
emerge.’ ”
Schriro,
supra, at 352 (quoting
Tyler v.
Cain, 533 U. S. 656, 667, n. 7 (2001) ;
alterations omitted). Nor could he. Not even the right to have a
jury decide a defendant’s eligibility for death counts as a
watershed rule of criminal procedure.
Schriro,
supra,
at 355–358.[
3]
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 Tharpe’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 that 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 ha- beas courts
must give to state courts’ factual findings. See 28
U. S. C. §2254(e)(1). Finally, it ignores the
deference that federal appellate courts must give to federal
district courts’ discretionary decisions under Rule 60(b). See
Browder v.
Director, Dept. of Corrections of Ill.,
434 U. S. 257 , n. 7 (1978).
With all this deference, 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 sentencing” him, App. F to Pet. for
Cert. 102, was supported by ample evidence. Gattie testified in his
second affidavit that he did not impose a death sentence because of
Tharpe’s race. He also denied having sworn to the first affidavit
and explained that he had consumed a substantial amount of alcohol
on the day he signed it. Gattie’s testimony was consistent with the
testimony of the other ten jurors deposed in front of the trial
court, each of whom testified that they did not consider race and
that race was not discussed during their deliberations. To be sure,
there was some evidence cutting the other way—most notably,
Gattie’s first affidavit. But the state court heard all of the
evidence, saw the witnesses’ demeanor, and decided to credit
Gattie’s testimony that he did not vote for the death penalty
because of Tharpe’s race. Even if we were reviewing the state court
directly, its finding would be entitled to substantial deference.
See
Skilling,
supra, at 396.
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 not suffice to
supersede the [state] court’s credibility determination.”
Rice v.
Collins, 546 U. S. 333 –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 insurmount- able 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 inevit-
able execution.
The Court tries to justify its decision “on the
unusual facts of this case.”
Ante, at 3. But there is
nothing un- usual 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 courage. 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.