Barnett v. Quintana

Decision Date18 January 2019
Docket NumberCase No. 5:18-cv-00279
CourtU.S. District Court — Southern District of West Virginia
PartiesROBERT HERALD BARNETT, Petitioner, v. FRANCISCO QUINTANA, WARDEN, Respondent.
PROPOSED FINDINGS AND RECOMMENDATIONS

Pending before the Court are Petitioner's pro se Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2241, Petitioner's Motion to Add a Claim of Relief, and Respondent's Motion to Dismiss. (ECF Nos. 1, 11, 18). This matter is assigned to the Honorable Irene C. Berger, United States District Judge, and by Standing Order has been referred to the undersigned United States Magistrate Judge for the submission of proposed findings of fact and recommendations for disposition pursuant to 28 U.S.C. § 636(b)(1)(B). For the reasons that follow, the undersigned respectfully RECOMMENDSthat Respondent's Motion to Dismiss, (ECF No. 11), be GRANTED as to the claims contained in Petitioner's initial Petition for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241, (ECF No. 1); and that these claims be DISMISSED, with prejudice. The undersigned further RECOMMENDS that the District Court GRANT Petitioner's Motion to Add a Claim of Relief, (ECF No. 18); TRANSFER that claim, as set forth in Petitioner's Addendum to his Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241, (ECF No. 13), to the United States Court of Appeals for the Sixth Circuit ("Sixth Circuit") pursuant to 28 U.S.C. § 1631 and 28 U.S.C.A. § 2255(h); and DISMISS this action and remove it from the docket of the Court.

I. Relevant Background

On April 3, 2009, in the Eastern District of Kentucky, Petitioner was indicted for using a facility of interstate commerce with the intent of arranging a murder-for-hire in violation of 18 U.S.C. § 1958(a) ("Count One"); causing another to travel in interstate commerce with the intent of arranging a murder-for-hire in violation of 18 U.S.C. § 1958(a) ("Count Two'); knowingly transferring firearms, with knowledge that such firearms would be used to commit the crimes of violence outlined in Counts One and Two, in violation of 18 U.S.C. § 924(h) ("Count Three"); using and carrying firearms during and in relation to the above crimes of violence in violation of 18 U.S.C. § 924(c)(1) ("Count Four"); knowingly and unlawfully possessing a machine gun in violation of 18 U.S.C. § 922(o)(1) ("Count Five"); knowingly possessing a firearm having a removed serial number in violation of 18 U.S.C. § 922(k) ("Count Six'); and knowingly possessing two unregistered firearm silencers in violation of 26 U.S.C. § 5861(d) ("Counts Seven and Eight"). United States v. Barnett, Case No. 5:09-cr-00067-JMH-EBA-1 (E.D. Ky. Sept. 28, 2010) at ECF No. 13 (hereafter Barnett I). On August 7, 2009, Petitioner was chargedin a superseding indictment with five additional counts, including soliciting another to kill an agent of the Bureau of Alcohol, Tobacco, Firearms and Explosives, ("ATF"), in violation of 18 U.S.C. § 373 ("Counts Nine and Eleven"); soliciting another to kill a person with intent to prevent testimony of the person at trial, in violation of 18 U.S.C. § 373 ("Counts Ten and Twelve'); and knowingly and corruptly persuading another person with intent to influence the testimony of the person at trial in violation of 18 U.S.C. § 1512(b)(1) ("Count Thirteen"). Barnett I, at ECF No. 24.

On June 10, 2011, following a three-day trial, a jury found Petitioner guilty of Counts One through Eight, not guilty of Counts Nine through Twelve, and guilty of Count Thirteen of the indictment. Id. at ECF Nos. 42-45. Petitioner's sentencing hearing was held before United States District Judge Karl S. Forester in the Eastern District of Kentucky on September 22, 2010. Id. at ECF No. 55. On September 28, 2010, Judge Forester entered an order sentencing Petitioner to 120-months imprisonment on Counts One, Two, Three, Five, Seven, Eight, and Thirteen, which were to run concurrently to a 60-months sentence on Count Six, and consecutively to a 360-months sentence on Count Four, for a total sentence of 480-months imprisonment. Petitioner was additionally sentenced to three years of supervised release. Id. at ECF No. 58.

Petitioner filed a notice of appeal on October 8, 2010. Id. at ECF No. 60. In March 2011, Petitioner filed a series of pro se motions including a Motion to Produce Pleadings; Freedom of Information Act Request; Motion for Re-Hearing In [sic] Banc; Motion for Enlargement of Time to File Additional Pleadings; Motion to Amend Pleadings and Exhibits; Motion for Production of Documents; Motion for Appointment of Counsel; and a Motion for the Return of Property. Id. at ECF Nos. 67-73, 76. This flurry of filing activity appears to have been spurred by Petitioner's growing dissatisfaction with his attorney'sperformance and lack of communication, and Petitioner's mistaken belief that his appeal had been closed. Barnett I, at ECF No. 77. Judge Forester entered an order informing Petitioner that his appeal was still pending, and that the time for filing briefs had not yet been set. Id. Consequently, Judge Forester dismissed Petitioner's motions for lack of subject matter jurisdiction. Id. In June 2011, Petitioner was assigned a new appellate attorney. Id. at ECF No. 83.

Petitioner appealed his convictions and sentence on two grounds: (1) he argued that the District Court should have granted his motion for acquittal because insufficient evidence supported his convictions, and (2) the District Court violated his rights during the sentencing process under Federal Rule of Criminal Procedure 32. Id. at ECF No. 90. On June 29, 2012, the Sixth Circuit affirmed the District Court's judgment and sentence. Id. Specifically, the Sixth Circuit held that the evidence was sufficient to support a finding that Petitioner had the requisite intent to satisfy the elements of the murder-for-hire statute. Id. Acknowledging that Petitioner had "said at least once that he did not want [the victim] killed; rather, he just wanted his eyes, thumbs, and testicles removed," the Sixth Circuit nonetheless pointed out that Petitioner was aware that this type of mutilation would likely kill the victim, and, furthermore, had later explicitly instructed the hired killer to murder both the victim and the victim's son if he was present as a witness. Barnett I, at ECF No 90. The Sixth Circuit also found that Petitioner had not shown how he was prejudiced by the Government holding the sentencing hearing 33 days after Petitioner received the presentence report rather than the statutorily-required 35 days. Id. For these reasons, the Sixth Circuit denied the appeal and affirmed the judgment of the District Court. Id.

On September 27, 2013, Petitioner submitted his first Motion to Vacate, Set Aside,or Correct Sentence under § 2255. Id. at ECF No. 98. On February 3, 2015, Magistrate Judge Hanly Ingram submitted a Report and Recommendation proposing that Petitioner's § 2255 Motion be denied. United States v. Barnett, No. 5:09-CR-67-JMH-HAI, 2015 WL 927378, at *1 (E.D. Ky. Feb. 3, 2015) (hereafter Barnett II), report and recommendation adopted in part, rejected in part, No. 513-CV-07315-JMH-HAI, 2015 WL 5829646 (E.D. Ky. Oct. 2, 2015). Judge Ingram characterized Petitioner's Motion as asserting the following grounds for relief:

1. Ineffective assistance of counsel during plea negotiations and pre-trial stages.
2. Ineffective assistance of counsel for failure to move to suppress statements of witnesses under the Sixth Amendment.
3. Ineffective assistance of counsel for failure to argue that the United States manufactured federal jurisdiction.
4. Ineffective assistance of counsel for failure to raise a Second Amendment defense to the firearms charges.
5. That District Judge Forester usurped the role of the jury by finding that one of the firearms was a machine gun.
6. Ineffective assistance of counsel for failing to raise a defense that Defendant possessed the machine gun prior to 1986.
7. Ineffective assistance of appellate counsel for failure to raise a valid issue on appeal.
8. Ineffective assistance of counsel for failure to raise an entrapment defense.
9. Ineffective assistance of counsel for failure to "adequately raise that the fact that 'some state law' has been violated is an essential element of the murder for hire statute that must be found by the jury."
10. Ineffective assistance of counsel for failure to move to suppress all statements made during illegal wiretaps.

Barnett II, at *4 (internal citations omitted). Judge Ingram determined that anevidentiary hearing was not necessary, because Petitioner's "claims that his attorney guaranteed a victory at trial and that [Petitioner] could not be convicted on any of the charges as a matter of law" were "inherently incredible." Barnett II, at *6. Judge Ingram proceeded to reject Petitioner's remaining claims on the merits and declined to issue a certificate of appealability as "no reasonable jurist would find the assessments on the merits above to be wrong or debatable." Id. at *17-18.

The District Court, relying on a recent Sixth Circuit opinion, declined to adopt Judge Ingram's finding that an evidentiary hearing was not warranted on one of Petitioner's claims; that being, that his attorney had improperly dissuaded him from entering into a plea deal. The District Court ordered a hearing on that claim only. United States v. Barnett, No. 5:09-CR-67-JMH-HAI, 2015 WL 927374, at *3 (E.D. Ky. Mar. 3, 2015). Petitioner was assigned counsel for the evidentiary hearing, which was held on May 8, 2015. Barnett I, at ECF Nos. 158, 162. Following the evidentiary hearing, Judge Ingram again recommended that Petitioner's § 2255 Motion be denied as to all claims and that no certificate of appealability issue. United States v. Barnett, No. 513-CV-07315-JMH-HAI, 2015 WL 11711825, at *6 (E.D. Ky. Sept. 1, 2015). On October 2, 2015, the District Court adopted Judge Ingram's recommendation and denied Petitioner's § 2255 Motion....

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