Published on: Monday, January 8, 2018

Georgia death row inmate Keith Tharpe would have been executed on September 26, 2017 at 7 p.m. but for a stay from the United State Supreme Court.  Today, after nine relists, the Court issued a per curiam opinion in Tharpe v. Sellers, No. 17-6075 (Jan. 8, 2018), vacating the judgement of the Eleventh Circuit and remanding the case for further consideration of whether Tharpe is entitled to a certificate of appealability (COA). 

In state post-conviction, Tharpe’s postconviction counsel conducted juror interviews and discovered that one of his jurors, Barney Gattie, was racially biased.  Tharpe’s counsel obtained an affidavit from Gattie that stated, among other things:

In my experience, there are two types of black people: 1. Black folks and 2. Niggers . . . . Because I knew the victim and her husband’s family and knew them all to be good black folks, I felt Tharpe, who wasn’t in the ‘good’ black folks category in my book, should get the electric chair for what he did. . . . After studying the Bible, I have wondered if black people even have souls.

Although Gattie’s affidavit was admitted into the state court record in 1998, the state habeas court later held that the affidavit was inadmissible under Georgia’s no-impeachment rule.  Further, the state habeas court held the claim was defaulted because it was not raised on direct appeal.

Tharpe reasserted his juror misconduct claim in his federal habeas petition in 2010, but the federal court concluded the claim was procedurally defaulted and eventually denied his petition.  While Tharpe was preparing his petition for certiorari after the Eleventh Circuit affirmed the district court’s denial of habeas relief, the Supreme Court decided Buck v. Davis, 137 S. Ct 759 (2017) (recognizing that the possibility that someone “may have been sentenced to death because of his race” was an “extraordinary circumstance” warranting relief from judgment under Fed. R. Civ. P. 60(b)), and Pena-Rodriguez v. Colorado, 137 S. Ct. 855 (2017) (holding that a state’s no-impeachment rule may not bar consideration of evidence “that racial animus was a significant motivating factor in [a] juror’s vote to convict).   

While his certiorari petition from the denial of heabes relief was still pending, Tharpe filed a motion for relief from judgment pursuant to Rule 60(b) in the District Court based on Buck and Pena-Rodriguez.  The district court denied relief finding that Pena-Rodriguez was not retroactive and that the claim was procedurally barred and denied a COA.  The next day the State of Georgia issued a warrant for Tharpe’s execution.  On appeal, the Eleventh Circuit held that the district court did not abuse its discretion in denying Tharpe’s Rule 60(b) motion.  The Eleventh Circuit also ruled that a COA should not issue to review the ruling because Tharpe had not “made a substantial showing of the denial of a constitutional right” because, “[a]s the Butts County Superior Court and the District Court found, Tharpe failed to demonstrate that Barney Gattie’s behavior ‘had a substantial and injurious effect or influence on the jury’s verdict” or that “jurists of reason would find it debatable whether the district court was correct was correct in its procedural ruling.”  Also, the Court said if Tharpe is correct and Pena-Rodriquez applies retroactively, he is free to exhaust that claim in state court.  Judge Wilson concurred separately noting that he would have granted a COA if the claim was exhausted.

In a per curiam opinion, the Supreme Court vacated the Eleventh Circuit’s judgment.  The Court emphasized that the Eleventh Circuit’s decision “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 a substantial and injurious effect or influence on the jury’s verdict.’’” Although the state court’s factfinding that “Gattie’s vote to impose the death penalty was not based on Tharpe’s race” is a “factual determination [that] is binding on federal courts . . . in the absence of  clear and convincing evidence to the contrary,” the Court said it’s view of the record “compels a different conclusion” than that reached by the Eleventh Circuit.  Stressing the sworn affidavit of Gattie quoted above, the Court concluded: “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.”  Significantly, and as relevant to the standard for issuing a COA, “[a]t the very least, jurists of reason could debate whether Tharpe has shown clean and convincing evidence that the state court’s factual determination was wrong.  The Eleventh Circuit erred when it concluded otherwise.”  The Court expressed no opinion about other issues which may be relevant to Tharpe’s COA, such as whether the district court abused its discretion in not granting Tharpe’s Rule 60(b) motion.  Justice Thomas, joined by Justices Alito and Gorsuch, dissented.

Mr. Tharpe is represented by Brian Kammer and Marcy Widder at the Georgia Resource Center.  The Training Division provides resources to federal capital trial and capital habeas counsel at