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In re Barrett

United States Court of Appeals, Tenth Circuit

November 7, 2016

In re: KENNETH EUGENE BARRETT, Movant.

         D.C. No. 6:09-CV-00105-JHP, E.D. Okla.

          Before KELLY, HARTZ, and MATHESON, Circuit Judges.

          ORDER

          Harris L Hartz, Circuit Judge.

         A federal jury convicted Defendant Kenneth Eugene Barrett of three capital offenses arising out of a shootout when law-enforcement officers came to his home to serve arrest and search warrants. We affirmed the convictions and his death sentence on direct appeal. See United States v. Barrett, 496 F.3d 1079 (10th Cir. 2007) (Barrett I). The district court then denied relief on his motion under 28 U.S.C. § 2255. On appeal we affirmed the denial except that we reversed and remanded for further proceedings on a claim of ineffective assistance of counsel at the trial's penalty phase. See United States v. Barrett, 797 F.3d 1207, 1211-12 (10th Cir. 2015) (Barrett II), cert. denied, Barrett v. United States, 2016 WL 1046930 (Oct. 3, 2016).

         Defendant now seeks authorization to file a second § 2255 motion challenging his convictions on the basis of "a Single Claim, namely, that the continuous, pervasive egregious prosecutorial and police misconduct in this case including altering, fabricating and destroying evidence, misrepresentation of the facts by omission and commission through lying, perjury, suborning perjury, planting evidence, witness intimidation and presentation of and reliance on junk science is a violation of due process." Mot. for Pre-Filing Authority, at 1-2. In his reply to the government's response to his motion for authorization he states that "[t]he heart of the claim presented here is the declaration of confidential informant, Charles Sanders, " Reply at 3, in which Sanders makes assertions contrary to his trial testimony and to statements allegedly made by him in support of the search warrant for Defendant's home.

         The statutory provision Defendant invokes in support of authorization requires him to make a prima facie showing that his proposed § 2255 motion contains "newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found [him] guilty of the [challenged] offense[s]." 28 U.S.C. § 2255(h)(1); see also id. § 2244(b)(3)(C). We hold that he has not met that standard. His conviction is still well supported by eyewitness accounts of law-enforcement officers, the testimony of multiple acquaintances of Defendant, and physical evidence at the scene of the crime.

         I. BACKGROUND

         The following excerpt from this court's opinion on appeal from the denial of Defendant's first § 2255 motion describes the events underlying his convictions:

In January 1999 a warrant was issued for Defendant's arrest for failure to appear at a state criminal trial on drug charges. That September an agent for Oklahoma's District 27 Drug Task Force learned from a confidential informant that Defendant had methamphetamine at his residence. The confidential informant also told the agent that Defendant had promised to kill any officer who came to arrest him and that he was operating his drug business at night because of his belief that law enforcement could not execute a search warrant at night. The agent obtained a no-knock, day-or-night search warrant for Defendant's residence. Viewing the execution of the two warrants as high-risk, he obtained assistance from the Oklahoma Highway Patrol Tactical Team (the Tact Team).
On the evening of September 23 three troopers surveilled Defendant's residence in a white, unmarked Ford Bronco. Travis Crawford, Defendant's cousin, was with him at the time. According to Crawford, Defendant saw a white vehicle pass by and recognized it as belonging to law enforcement, but he said that he did not care and that he "was going out in a blaze of glory."
. . .
Shortly after midnight on September 24 the Tact Team met with members of the Task Force, who planned to follow two minutes after the Tact Team. The Tact Team then began to execute its plan. The lead Bronco approaching from the east was driven by Trooper John Hamilton with Trooper David "Rocky" Eales as passenger. Its emergency lights were not on. [A] second Bronco and [a] patrol car followed closely behind. The patrol car and perhaps the second Bronco had emergency lights on. As the vehicles drove toward the residence, the lead Bronco began receiving gunfire at "approximately head level, middle of the windshield." The gunfire intensified as the vehicle drew closer. Hamilton was struck in the face with glass or bullet fragments.
. . .
The lead Bronco continued to receive gunfire until it reached the residence. The driver, Hamilton, ducked between the bucket seats. The passenger, Eales, exited and was shot three times while attempting to get behind the Bronco. Hamilton threw a "flashbang" stun grenade out the window, which temporarily stopped the gunfire. He exited the Bronco and was shot in the shoulder as he moved toward Eales, who was lying face-down. Trooper Ricky Manion joined him behind the vehicle. Hamilton saw Defendant standing in his doorway holding a rifle, and Manion saw him entering the house. Hamilton fired two shots at Defendant that missed, but Manion shot him through a window and hit his legs. Defendant was dragged out to the front yard. He tried to move his hand toward the front of his body, where he had a pistol in his waistband, but he was subdued and the gun removed.
Eales was fatally wounded. An autopsy indicated that one of the three bullets entered his upper back, broke four ribs, and perforated his left lung and aorta.
Later investigation showed that 18 bullets struck the lead Bronco and that Defendant probably fired 19 shots from a Colt Sporter .223 rifle (there were 72 rounds remaining in a set of three magazines taped together to hold 90 rounds, and one could have been in the chamber to start). A search of the premises revealed several firearms, including two that were loaded, and various items used to manufacture methamphetamine. A later search of Defendant's clothes at a police laboratory revealed $2120.10 in cash and plastic bags holding red phosphorus, an ingredient for manufacturing methamphetamine.

Barrett II, 797 F.3d at 1211-12 (citations omitted).

         Defendant was initially prosecuted by the state. After his first state trial ended with a hung jury, he was convicted of manslaughter and assault and battery with a deadly weapon. See Barrett I, 496 F.3d at 1086. Defendant was then prosecuted federally and convicted of three offenses: using and carrying a firearm during and in relation to drug-trafficking crimes, resulting in the death of a state law-enforcement officer, see 18 U.S.C. § 924(c)(1)(A), (j); using and carrying a firearm during and in relation to the killing of a state law-enforcement officer engaged in or on account of the performance of official duties, see id.; and intentionally killing, during the commission of a drug-trafficking crime, a state law-enforcement officer engaged in the performance of his official duties, see 21 U.S.C. § 848(e)(1)(B). See Barrett I, 496 F.3d at 1082. He was sentenced to life imprisonment without the possibility of parole on the two § 924(c) convictions and to death on the § 848(e) offense. See id. We affirmed his convictions and sentences on direct appeal. See id.

         Defendant's initial motion for relief under § 2255 failed in all respects but one. On appeal from the denial of the motion, we reversed and remanded his death sentence "for the district court to hold an evidentiary hearing on whether the performance of trial counsel was deficient in not investigating Defendant's background and mental health and whether Defendant suffered prejudice from any deficiency during the penalty phase of his trial." Barrett II, 797 F.3d at 1232. Proceedings in the district court were abated pending disposition of a petition for certiorari in the United States Supreme Court, see Barrett v. United States, E.D. Okla. No. 09-CIV-105-JHP, Doc. 237 (Order filed Dec. 17, 2015); which was recently denied.

         II. SCOPE OF § 2255(h)(1) INQUIRY

         In determining whether to authorize the filing of a second § 2255 motion, our concern is not with the merits of Defendant's claim of prosecutorial misconduct but solely with whether he has proffered "newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found [him] guilty of the [challenged] offense[s]." 28 U.S.C. § 2255(h)(1); see Case v. Hatch, 731 F.3d 1015, 1028-30 (10th Cir. 2013). In our review, "we must consider all the evidence, old and new, incriminating and exculpatory, without regard to whether it would necessarily be admitted under rules of admissibility that would govern at trial." United States v. Williams, 790 F.3d 1059, 1077 (10th Cir.) (internal quotation marks omitted), cert. denied, 136 S.Ct. 604 (2015).[1] In particular, "[t]he legality of a search and admissibility of any seized evidence is not relevant to our analysis under . . . [§] 2255(h)(1)." Id. at 1081 n.17.[2] Defendant's challenges to the validity of the arrest and search warrants executed on the night of the shooting are therefore immaterial.

         Defendant suggests that the alleged invalidity of the warrants undermined the executing officers' authority and thus is relevant to his innocence because he was charged with killing a law-enforcement officer "engaged in, or on account of, the performance of such officer's official duties." 21 U.S.C. § 848(e)(1)(B). But executing warrants is undeniably a part of an officer's official duties. Defendant cites no authority for the proposition that killing an officer executing a warrant does not violate the federal law under which he was prosecuted if the warrant is later found to be invalid. And we have held that improper service of a summons (by an IRS agent) "would not mean that . . . [the agent] was somehow acting outside his official duties" when assaulted by the defendant, in violation of 18 U.S.C. § 111. United States v. Young, 614 F.2d 243, 244 (10th Cir. 1980) (citing holding in United States v. Heliczer, 373 F.2d 241 (2d Cir. 1967), "that an agent who has made an arrest does not lose his official capacity . . . simply because the arrest be subsequently adjudged unlawful" (internal quotation marks omitted)). Thus, Defendant's warrant-related arguments are irrelevant to whether we should authorize his second § 2255 motion.

         Also irrelevant are Defendant's complaints about various misconduct of law-enforcement officers in the execution of the warrants. He does not demonstrate any connection between his allegations-that Oklahoma Highway Patrol (OHP) personnel unreasonably relied on dubious warrants, used excessive force against him after he was shot, and delayed his medical treatment after the incident-and his alleged innocence of the crimes for which he was convicted. Equally irrelevant are his allegations that OHP officers engaged in intimidating conduct during the state trials that preceded his federal prosecution. Those allegations are not tied to anything that occurred during his federal prosecution.

         III. MATTERS ASSUMED BUT NOT DECIDED

         Before assessing the motion for authorization, we note two issues that we are not resolving. First, we assume without deciding that evidence can be "newly discovered" under § 2255(h)(1) even if Defendant was not diligent in discovering it. Some courts have observed that § 2255(h)(1) does not have an explicit diligence requirement while 28 U.S.C. § 2244(b)(2)(B)(i) requires that "the factual predicate for the claim could not have been discovered previously through the exercise of due diligence." See United States v. MacDonald, 641 F.3d 596, 610 & n.7 (4th Cir. 2011); United States v. Lopez, 577 F.3d 1053, 1061 & n.6 (9th Cir. 2009). But a diligence requirement in § 2244(b)(2)(B)(i) needed to be expressly stated because the provision does not use the term of art newly discovered evidence, which is commonly understood to include a diligence requirement. See, e.g., United States v. Jordan, 806 F.3d 1244, 1252 (10th Cir. 2015) (construing the term newly discovered evidence in Fed. R. Crim. P. 33(a), (b)(1)), cert. denied, 136 S.Ct. 1700 (2016); see also Restatement (Second) of Judgments § 74 (relief from judgment requires reasonable diligence in discovering the ground for relief). At least one circuit has expressly read a diligence requirement into § 2255(h)(1). See Herrera-Gomez v. United States, 755 F.3d 142, 147-48 (2d Cir. 2014). We leave resolution of the issue for another day. Even affording Defendant the benefit of all the evidence he contends is newly discovered, regardless of any lack of diligence on his part in failing to obtain it sooner, he still has not made the showing necessary to warrant authorization of his proposed § 2255 motion.

         Second, we need not resolve whether the "evidence as a whole" that we consider under § 2255(h)(1) includes posttrial evidence that is not newly discovered. We have no precedent directly addressing the matter. Again, however, we can leave the issue to a future panel of this court. Defendant's newly discovered evidence, even buttressed with all the other trial and posttrial evidence to which he refers, is not sufficient to meet the innocence standard in § 2255(h)(1).[3] We therefore deny authorization without deciding whether a defendant may rely on previously discovered posttrial evidence to bolster a request for authorization based on other newly discovered evidence.

         IV. DEFENDANT'S SHOWING

         At the outset it is important to emphasize two points to put Defendant's allegations in context. First, Defendant has never contended, now or at his trial, that someone other than he shot Trooper Eales. The core of his defense is that he did not know he was shooting at law-enforcement officers and, secondarily, that there was insufficient evidence of his manufacture and distribution of methamphetamine to support the search warrant for his home and the drug element of two of his offenses. Second, much of the evidence Defendant now relies on, particularly in seeking to undermine the testimony of various officers and experts presented by the prosecution, was available to his trial counsel-who evidently considered some of it not worth raising to impeach the witnesses. And, of course, the evidence that was used in this way did not persuade the jury to reject the prosecution's case.

         A. Confidential Informant Sanders

         Defendant states that the heart of his motion for authorization is the newly obtained recantation of confidential informant Sanders. We assume the recantation is "newly discovered." In his reply to the government's response to his motion for authorization, Defendant states that his investigator "attempted to interview Mr. Sanders in a timely ...


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