No. 6:09-CV-00105-JHP, E.D. Okla.
KELLY, HARTZ, and MATHESON, Circuit Judges.
L Hartz, Circuit Judge.
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).
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
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.
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
Barrett II, 797 F.3d at 1211-12 (citations omitted).
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.
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.
SCOPE OF § 2255(h)(1) INQUIRY
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). 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. Defendant's
challenges to the validity of the arrest and search warrants
executed on the night of the shooting are therefore
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.
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.
MATTERS ASSUMED BUT NOT DECIDED
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.
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). 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.
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.
Confidential Informant Sanders
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 ...