                 Cite as: 586 U. S. ____ (2019)            1

                   SOTOMAYOR
                  Statement of, J., concurring
                                SOTOMAYOR   , J.

SUPREME COURT OF THE UNITED STATES
    KEITH THARPE v. BENJAMIN FORD, WARDEN
   ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED
  STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
             No. 18–6819. Decided March 18, 2019

   The petition for a writ of certiorari is denied.
   Statement of JUSTICE SOTOMAYOR respecting the denial
of certiorari.
   Petitioner Keith Tharpe is a Georgia inmate on death
row. For years, Tharpe, who is black, has asked state and
federal courts to consider his claim that a white member of
the jury that sentenced him to death was biased against
him because of his race. Tharpe has presented a signed
affidavit from the juror in question, who stated, among
other things, that “ ‘there are two types of black people: 1.
Black folks and 2. Niggers,’ ” and that Tharpe, “ ‘who
wasn’t in the “good” black folks category in [his] book,
should get the electric chair for what he did.’ ” Tharpe v.
Sellers, 583 U. S. ___, ___ (2018) (per curiam) (slip op., at
2). Nevertheless, Tharpe has never received a hearing on
the merits of his racial-bias claim.
   The petition that the Court denies today does not turn
on the merits of that claim, and I concur in the denial of
Tharpe’s petition. I write because I am profoundly trou-
bled by the underlying facts of this case.
                              I
  More than seven years after he was sentenced to death,
Tharpe’s attorneys uncovered evidence that a white mem-
ber of his jury, Barney Gattie, harbored racist views at the
time of the trial. In a sworn statement, Gattie made
“repugnant comments . . . rife with racial slurs . . . and
even an explicit statement that [his] decision to sentence
Tharpe to death was[,] at leas[t] in part, based on race.”
2                     THARPE v. FORD

                   SOTOMAYOR
                  Statement of, J., concurring
                                SOTOMAYOR   , J.

Tharpe v. Warden, 898 F. 3d 1342, 1348 (CA11 2018)
(Wilson, J., concurring). Tharpe sought postconviction
relief in state court, arguing that racial bias tainted the
jury’s deliberations in his case.
   To this day, Tharpe’s racial-bias claim has never been
adjudicated on its merits. The Georgia state court and the
Federal District Court denied Tharpe’s requests for post-
conviction relief on procedural grounds. Tharpe moved to
reopen the federal proceedings in light of “ ‘extraordinary
circumstances,’ ” Gonzalez v. Crosby, 545 U. S. 524, 536
(2005), but the District Court denied that motion. Tharpe
requested a certificate of appealability (COA) from the
United States Court of Appeals for the Eleventh Circuit,
but the court denied his request after concluding that he
had not made an adequate showing that Gattie’s racial
bias affected the jury’s verdict. Tharpe, 583 U. S., at ___
(slip op., at 2). This Court disagreed, explaining that
Tharpe had “present[ed] a strong factual basis for the
argument that Tharpe’s race affected Gattie’s vote for a
death verdict.” Ibid. We remanded for further consideration.
   On remand, the Court of Appeals again denied Tharpe’s
request for a COA. It held that the District Court did not
arguably abuse its discretion in denying Tharpe’s motion
to reopen because two different threshold obstacles barred
Tharpe’s claim. First, the court held that Tharpe’s juror-
bias claim could not go forward because the claim relied on
a later decided case, Pena-Rodriguez v. Colorado, 580
U. S. ___ (2017), which the court concluded does not apply
retroactively. 898 F. 3d, at 1345–1346. Second, the court
decided that Tharpe had not established cause for his
procedural default in state court—i.e., he had not given a
sufficient justification for failing to raise the juror-bias
claim in a motion for a new trial or in his direct appeal.
Specifically, the court rejected as unsubstantiated
Tharpe’s allegation that counsel’s ineffectiveness was to
blame for his not having raised the racial-bias claim sooner.
                 Cite as: 586 U. S. ____ (2019)            3

                   SOTOMAYOR
                  Statement of, J., concurring
                                SOTOMAYOR   , J.

Id., at 1347. Tharpe seeks this Court’s review.
                                II
   Tharpe’s petition for a writ of certiorari asks us to de-
cide only whether the Court of Appeals’ procedural rulings
were correct, not whether his juror-bias claim has merit.
Tharpe “faces a high bar in showing that jurists of reason
could disagree whether the District Court abused its
discretion in denying his motion” to reopen. Tharpe, 583
U. S., at ___–___ (slip op., at 2–3). And for Tharpe’s claim
to proceed, he must overcome both of the Court of Appeals’
independent reasons for denying him a COA. In other
words, even setting aside whether Pena-Rodriguez is
retroactive, he would have to establish that he arguably
showed sufficient cause to excuse his procedural default.
   I see little likelihood that we would reverse the Court of
Appeals’ factbound conclusion that Tharpe did not make
that showing. Before this Court, Tharpe argues that he
could not have raised his racial-bias claim in a motion for
new trial or on direct appeal because he did not know—
indeed, could not have known—of the predicate facts of
the claim at that time. Pet. for Cert. 35. If preserved, that
argument would have force. But Tharpe did not make this
argument before the District Court until a footnote in his
reply brief in the Federal Rule of Civil Procedure 60(b)(6)
proceedings, see Reply to Brief in Opposition 12–13 (list-
ing the reply brief as the earliest point at which this ar-
gument was made), and the District Court did not address
it, see App. D. to Pet. for Cert. Given this preservation
issue and the deference due to the District Court, the
Court of Appeals reasonably focused on the ineffective-
assistance argument that Tharpe did previously present to
the District Court in deciding that Tharpe had not made
the requisite showing of cause. See 898 F. 3d, at 1347.
   I therefore concur in the Court’s decision to deny
Tharpe’s petition for certiorari. As this may be the end of
4                      THARPE v. FORD

                    SOTOMAYOR
                   Statement of, J., concurring
                                 SOTOMAYOR   , J.

the road for Tharpe’s juror-bias claim, however, we should
not look away from the magnitude of the potential injus-
tice that procedural barriers are shielding from judicial
review.
   Tharpe has uncovered truly striking evidence of juror
bias. Gattie, the juror at issue, signed an affidavit reflect-
ing his “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 [his] 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
[his] reason’; and that, ‘[a]fter studying the Bible, [he]
ha[d] wondered if black people even have souls.’ ” Tharpe,
583 U. S., at ___ (slip op., at 2) (quoting App. B to Pet. for
Cert. 15–16).
   These racist sentiments, expressed by a juror entrusted
with a vote over Tharpe’s fate, suggest an appalling risk
that racial bias swayed Tharpe’s sentencing. The danger
of race determining any criminal punishment is intolera-
ble and endangers public confidence in the law. See Buck
v. Davis, 580 U. S. ___, ___ (2017) (slip op., at 22). That
risk is especially grave here, where it may have yielded a
punishment that is unique in its “complete finality.”
Turner v. Murray, 476 U. S. 28, 35 (1986). When Tharpe
went on trial for his crimes, the Constitution promised
him the “fundamental ‘protection of life and liberty
against race or color prejudice.’ ” McCleskey v. Kemp, 481
U. S. 279, 310 (1987) (quoting Strauder v. West Virginia,
100 U. S. 303, 309 (1880)). There is strong evidence that
this promise went unfulfilled.
   It may be tempting to dismiss Tharpe’s case as an out-
lier, but racial bias is “a familiar and recurring evil.” Pena-
Rodriguez, 580 U. S., at ___ (slip op., at 15). That evil
often presents itself far more subtly than it has here. Yet
Gattie’s sentiments—and the fact that they went unex-
                 Cite as: 586 U. S. ____ (2019)          5

                  SOTOMAYOR
                 Statement of, J., concurring
                               SOTOMAYOR   , J.

posed for so long, evading review on the merits—amount
to an arresting demonstration that racism can and does
seep into the jury system. The work of “purg[ing] racial
prejudice from the administration of justice,” id., at ___
(slip. op., at 13), is far from done.
