Tharpe v Sellers

Tharpe sought review of the 11th Circuit’s denial of his request for a certificate of appealabilty. The court, with three justices dissenting, vacated and remanded per curium. The Court held that jurists could debate whether Tharpe was prejudiced here as a jurist could find prejudice based on the affidavit of a juror that he wondered if black people, including Tharpe, have souls and that he did not consider Tharpe a good black person and thus denial based on no prejudice was inappropriate here. Thomas, joined by Alito and Gorsuch, dissented arguing that the 11th Circuit offered additional grounds to deny the certificate, the legal basis for Tharpe’s motion to reopen is not retroactive and thus cannot be a basis for relief and there is no factual basis to excuse the procedural default here and the affidavit relied upon by the majority was rebutted by a second affidavit and deposition testimony from the juror in question and deposition testimony by 10 other jurors as found by the state courts here and that determination was entitled to deference.