Whether a juror's racial bias affected a death sentence

QUESTIONS PRESENTED FOR REVIEW Years after Petitioner’s trial, juror Barney Gattie, a white man, signed a sworn affidavit “indicating [his] view that ‘there are two types of black people: 1. Black folks and 2. Niggers’; that [Petitioner], ‘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 [Petitioner] 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.’” Tharpe v. Sellers, 138 S. Ct. 545, 546 (2018). Although this “remarkable affidavit” presents “a strong factual basis for the argument that [Petitioner’s] race affected Gattie’s vote for a death verdict,” id., no court has ever addressed the merits of Petitioner’s claim, first raised two decades ago, that Barney Gattie voted for death because Petitioner is black. At the time Petitioner’s counsel learned of Gattie’s racist views, Georgia law prohibited juror testimony “to impeach their verdict.” O.C.G.A. § 17-9-41. The state habeas court accordingly refused to consider Gattie’s statements and, having excluded that evidence, found that Petitioner had not shown cause and prejudice to excuse the procedural default of this claim. On federal habeas review, the district court echoed the state habeas court’s ruling. After this Court held, for the first time, in Pena-Rodriguez v. Colorado, 136 S. Ct. 1513 (2017), that noimpeachment rules may not bar consideration of juror testimony showing a verdict was likely motivated by racial bias, Petitioner sought to reopen this claim. In both state and federal proceedings brought in light of Pena-Rodriguez, the courts have continued to refuse to hear Petitioner’s claim that he was sentenced to death because of his race, despite this Court’s remand to the Eleventh Circuit for further consideration in Tharpe v. Sellers. This Court is likely Petitioner’s last resort to have this claim heard. The Eleventh Circuit’s latest rulings raise the following important questions: 1. Does Pena-Rodriguez apply retroactively to cases on collateral review? 2. The Eleventh Circuit first denied a certificate of appealability (“COA”) on the theory that no reasonable jurist could find that Petitioner was prejudiced by Gattie’s presence on the jury. After this Court found to the contrary and ordered further consideration, the Eleventh Circuit then denied a COA because it concluded that, while Petitioner did not learn of Gattie’s racist views prior to state habeas proceedings and thus could not have challenged his death sentence on that ground at trial or on direct appeal, PenaRodriguez had created a new claim that first had to be exhausted in state court. After Petitioner moved for reconsideration on the grounds that the Pena-Rodriguez claim was not new and, in any event, had already been exhausted, the Eleventh Circuit then determined that a COA was unavailable both because Petitioner had failed to overcome the procedural default of the claim and because Pena-Rodriguez is not retroactive. Particularly given the Eleventh Circuit’s constantly shifting rationale for denying a COA, did that court err in concluding that no reasonable jurist could debate whether Petitioner’s colorable claim — that his death sentence is invalid because a juror voted to impose it based on Petitioner’s race — together with this Court’s intervening decision in Pena-Rodriguez, constitute extraordinary circumstances under Fed. R. Civ. P. 60(b) that would warrant reopening Petitioner’s federal habeas proceeding to address the merits of that claim? ii