Tharpe v. Sellers

Cite as: 583 U. S. ____ (2018) 1
Per Curiam
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
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 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 deter-
mination that Gattie’s presence on the jury did not preju-
dice him. See Tharpe v. Warden, No. 5:10–cv–433 (MD
Ga., Sept. 5, 2017), App. B to Pet. for Cert. 19.
Tharpe sought a certificate of appealability (COA). The
Eleventh Circuit denied his COA application after decid-
ing that jurists of reason could not dispute that the Dis-
trict Court’s procedural ruling was correct. See Tharpe v.
Warden, 2017 WL 4250413, *3 (Sept. 21, 2017). The Elev-
enth 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 sub-
stantial and injurious effect or influence in determining
the jury’s verdict.’ ” Ibid. (quoting Brecht v. Abrahamson,
507 U.S. 619, 637 (1993)).
2 THARPE v. SELLERS
Per Curiam
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 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 pro-
duced a sworn affidavit, signed by Gattie, indicating Gat-
tie’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). Gat-
tie’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.
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 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
Cite as: 583 U. S. ____ (2018) 3
Per Curiam
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.
We 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.
It is so ordered.
Cite as: 583 U. S. ____ (2018) 1
THOMAS, J., dissenting
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 Ap-
peals: 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 point-
less 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 judg-
ments. 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 vaca-
tur 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
2 THARPE v. SELLERS
THOMAS, J., dissenting
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 depo-
sitions, 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 Free-
man 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 evi-
dence, 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 commit-
ting two other capital felonies—the aggravated kidnapings
of his wife and Freeman—and that the murder was outra-
Cite as: 583 U. S. ____ (2018) 3
THOMAS, J., dissenting
geously 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 result-
ing 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 affi-
davit 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 evi-
dence 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
4 THARPE v. SELLERS
THOMAS, J., dissenting
“were deceiving and misrepresented what they stood for.”
Id., at 5.
A state postconviction court presided over Gattie’s depo-
sition. 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 con-
sumed “[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
Cite as: 583 U. S. ____ (2018) 5
THOMAS, J., dissenting
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 pro-
cedurally 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 estab-
lished 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.
6 THARPE v. SELLERS
THOMAS, J., dissenting
Colorado, 580 U. S. ___ (2017), as extraordinary circum-
stances 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 proce-
dural rule that does not apply retroactively on federal
collateral review. App. B to Pet. for Cert. 6–14. It alter-
natively deferred to the state court’s finding that Tharpe
could not prove cause or prejudice to overcome his proce-
dural default. Id., at 18–21. After the depositions of
Gattie and ten other jurors, the state court credited Gat-
tie’s testimony that he did not vote for death based on
race. Id., at 21. The District Court deferred to that credi-
bility 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 re-
view 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 sub-
stantial showing of the denial of a constitutional right.’ ”
Cite as: 583 U. S. ____ (2018) 7
THOMAS, J., dissenting
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 substan-
tial 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 Elev-
enth 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.
——————
1 The Eleventh Circuit also held that Tharpe had not exhausted his
Pena-Rodriguez claim in state court. 2017 WL 4250413, *4.
8 THARPE v. SELLERS
THOMAS, J., dissenting
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 constitu-
tional 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 rested on both cause and prejudice—as the Eleventh
Circuit explained earlier in its opinion, quoting the Dis-
trict 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. Han-
sen, 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
Cite as: 583 U. S. ____ (2018) 9
THOMAS, J., dissenting
their authorized judgments for inconsequential imperfec-
tion 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,
10 THARPE v. SELLERS
THOMAS, J., dissenting
353 (2004), it cannot be a substantive rule.2 And Tharpe
does not even attempt to argue that Pena-Rodriguez estab-
lished 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 deci-
sion. Nor could a reasonable jurist debate the cause ar-
gument that Tharpe raises here. In his reply brief in
support of certiorari in this Court, Tharpe argues that he
——————
2 Moreover, because the state court considered Tharpe’s evidence of
racial bias anyway, despite Georgia’s no-impeachment rule, no reason-
able jurist could argue that Pena-Rodriguez presents an extraordinary
circumstance that entitles Tharpe to reopen his judgment under Rule
60(b). He has already received the benefit of the rule announced in
Pena-Rodriguez.
3 Even if Tharpe could show that Pena-Rodriguez is retroactive under
Teague and could overcome his procedural default, no reasonable jurist
could argue that he has stated a valid juror-bias claim on the merits.
The state court concluded that his claim failed in the absence of any
admissible evidence to support it. See Tharpe v. Warden, No. 93–cv–
144 (Super. Ct. Butts Cty., Ga., Dec. 1, 2008), App. F to Pet. for Cert.
102. To obtain federal habeas relief, Tharpe must show that this
merits decision “was contrary to, or involved an unreasonable applica-
tion of, clearly established Federal law, as determined by the Supreme
Court of the United States.” 28 U.S. C. §2254(d)(1). Since the state
court issued its decision nearly a decade before Pena-Rodriguez, no
reasonable jurist could argue that the state court’s decision was con-
trary to clearly established law at “the time the state court render[ed]
its decision.” Cullen v. Pinholster, 563 U.S. 170, 182 (2011) (internal
quotation marks omitted).
Cite as: 583 U. S. ____ (2018) 11
THOMAS, J., dissenting
did not have to raise his claim of juror bias on direct ap-
peal. Reply Brief 7–8. But Tharpe never raised this ar-
gument 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 dis-
trict 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, 263, n. 7 (1978).
With all this deference, no reasonable jurist could de-
bate 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
12 THARPE v. SELLERS
THOMAS, J., dissenting
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. In-
stead, 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 review-
ing 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, 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 rea-
sonable 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.
Cite as: 583 U. S. ____ (2018) 13
THOMAS, J., dissenting
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 busi-
ness of ceremonial handwringing, I respectfully dissent.