Barnett v. Roper

• Decision Date: 20 September 2018
• Docket Number: No. 16-1467,16-1467
• Citation: 904 F.3d 623
• Parties: David BARNETT Petitioner - Appellee v. Don ROPER Respondent - Appellant
• Court: U.S. Court of Appeals — Eighth Circuit

904 F.3d 623

David BARNETT Petitioner - Appellee

v.Don ROPER Respondent - Appellant

No. 16-1467

United States Court of Appeals, Eighth Circuit.

Submitted: March 15, 2018

Filed: September 20, 2018

Counsel who presented argument on behalf of the appellant was Michael Joseph Spillane, AAG, of Jefferson City, MO.

Counsel who presented argument on behalf of the appellee was Elizabeth Unger Carlyle, of Kansas City, MO. The following attorney(s) appeared on the appellee brief; Richard H. Sindel, of Clayton, MO., Kathryn Parish, of Saint Louis, MO., Paula Kay Harms, AFPD, of Phoenix, AZ.

Before WOLLMAN, SHEPHERD, and ERICKSON, Circuit Judges.

ERICKSON, Circuit Judge.

Don Roper, the Superintendent of the Potosi Correctional Center in Mineral Point, Missouri, appeals from the district court’s¹ judgment granting David Barnett’s application for habeas corpus relief from his death sentence pursuant to 28 U.S.C. § 2254. Roper asserts that the district court erred: (1) in treating the decision in Martinez v. Ryan, 566 U.S. 1, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012) as an extraordinary circumstance justifying a reopening of the case; (2) in finding ineffective assistance of counsel at the postconviction phase of the underlying proceedings; and (3) in finding ineffective assistance of counsel at the penalty phase of the trial. After carefully considering the claims as applied to the particular circumstances of Barnett’s case, we affirm.

I. Background and Procedural History

On February 4, 1996, David Barnett broke into the home of his grandparents, Clifford and Leona Barnett, while they were attending church activities. State v. Barnett, 980 S.W.2d 297, 301 (Mo. 1998). When his grandparents returned home, he murdered them by stabbing each of them several times and kicking his grandfather in the head. Id. The details surrounding the murders, which are not in dispute, are described in the district court’s memorandum opinion and are accepted as true. Barnett v. Roper, No. 4:03-cv-00614, 2015 WL 13662176, at *1-2 (E.D. Mo. Aug. 18, 2015) (quoting State v. Barnett, 980 S.W.2d at 301 ). In March 1997, a jury convicted Barnett of two counts of first degree murder, one count of first degree robbery, and two counts of armed criminal action. At the close of the penalty phase, the jury returned capital verdicts for each of the murders. In reaching the death penalty, the jury found four aggravating circumstances related to Clifford Barnett’s murder and three related to the murder of Leona Barnett. Barnett was sentenced to death on the murder counts and three consecutive life sentences on the robbery and armed criminal counts. 980 S.W.2d at 301. The Missouri Supreme Court affirmed the convictions. Id.

Barnett sought post-conviction relief under Rule 29.15 of the Missouri Rules of Criminal Procedure, raising eight allegations of ineffective assistance of counsel. Barnett v. State, 103 S.W.3d 765, 768 (Mo. 2003). Barnett’s allegations included a claim that his penalty-phase trial counsel failed "to investigate and provide the jury with information about Barnett’s biological mother, her family, and the environmental and genetic factors that affected his development." Id. at 770. Barnett claimed, and continues to claim, "that a great deal of mitigating evidence was available for counsel to utilize at trial, but went unutilized because counsel failed to exercise due diligence in search for it." Id. The Missouri Supreme Court affirmed the lower court’s denial of Barnett’s motion on the ground that it was insufficiently pled. The supreme court stated:

Barnett’s life history, as set forth in the post-conviction motion, was over 25 pages, and 22 pages were dedicated to listing the hundreds of witnesses and organizations that were capable of providing proof of Barnett’s life history. The motion court found, however, that the 25-page narrative of Barnett’s life history did not connect a specific portion of the narrative to a particular witness, did not allege that counsel was informed of their existence, and did not state that any of the witnesses were available to testify.

Id. In agreeing with the lower court’s finding that the motion was deficient, the supreme court cited precedent which "held that ‘[w]here the pleadings consist only of bare assertions and conclusions, a motion court cannot meaningfully apply the Strickland standard for ineffective assistance of counsel.’ " Id. (alteration in original) (quoting Morrow v. State, 21 S.W.3d 819, 824 (Mo. 2000) ). Because the supreme court found the pleadings so inadequate as to be unreviewable, it held that the failure of the motion court to appoint counsel was not error, recognizing that there is "no constitutional right to counsel in a post-conviction proceeding." 103 S.W.3d at 773 (citing State v. Hunter, 840 S.W.2d 850, 871 (Mo. 1992) ).

On May 24, 2005, Barnett filed a petition for federal habeas relief in the United States District Court for the Western District of Missouri. He listed nineteen grounds for relief. Ground I alleged that the trial counsel was ineffective for failing "to investigate and present information about the petitioner’s mother and her family." Ground I alleged:

Respondent’s custody over the petitioner violates the Constitution of the United States in that trial counsel was constitutionally ineffective for failing to investigate and provide information about the petitioner’s background—specifically regarding his mother and her family—because this ruling denied the petitioner’s rights to due process of law, a fundamentally fair trial, the effective assistance of counsel, and freedom from cruel and unusual punishments under the Fifth, Sixth, Eighth and Fourteenth Amendments when although trial counsel investigated parts of the petitioner’s background and provided information to her expert witnesses, she did not pursue significant aspects of his background related to his mother and her family.

Recognizing that the state court disposed of the failure-to-investigate issue on procedural grounds, the district court addressed whether the procedural grounds were based on "independent and adequate state law." On August 24, 2006, the court denied habeas relief, deciding that it could not "say that the state court’s application of the procedural rule was ‘exorbitant.’ " The court issued a certificate of appealability on three of Barnett’s allegations, including Ground I, finding that Barnett had made a substantial showing because "among reasonable jurists, a court could resolve the issues differently."

On September 5, 2008, we affirmed the district court’s denial of habeas relief. We cited the rule that "[f]ederal courts will not review a state court decision that rests on ‘independent and adequate state procedural grounds.’ " Barnett v. Roper, 541 F.3d 804, 808 (8th Cir. 2008) (quoting Coleman v. Thompson, 501 U.S. 722, 729-30, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991) ). Specifically, we concluded "that Missouri’s procedural rule is firmly established and regularly applied and constitutes an independent and adequate ground that bars our review of Barnett’s claims" and the denial of his request for an evidentiary hearing. 541 F.3d at 810-11.

On June 29, 2012, Barnett moved for rule 60(b) relief from the judgment entered on August 24, 2006. In part, Barnett alleged: "In March of this year, the Supreme Court handed down its ruling in Martinez v. Ryan , 566 U.S. 1, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012), a case that has been termed by other courts as, ‘a remarkable development in the Court’s equitable jurisprudence.’ " On July 10, 2012, the court denied the motion, noting "that petitioner may not obtain federal habeas relief based on the ruling in Martinez because it is not a new rule of constitutional law that is retroactively available on collateral review."

On August 7, 2012, Barnett filed a rule 59(e) motion, asking the court to amend its judgment on the rule 60(b) motion and grant a hearing on the claims presented. With the exception of Ground I, the court denied the rule 59(e) motion. The court ordered an evidentiary hearing on the issue of whether Barnett received ineffective assistance of counsel at the penalty phase of his trial. After hearing nine days of evidence, the district court issued a 189-page memorandum opinion in which it concluded that Barnett established ineffective assistance of counsel "for failure to sufficiently investigate and present mitigating evidence during the penalty phase of his trial." In a judgment on August 18, 2015, the court granted Barnett’s application for habeas corpus and ordered the state of Missouri to sentence Barnett to life imprisonment without the possibility of parole or grant him a new penalty-phase trial within 180 days.

On September 15, 2015, Roper filed a rule 59(e) motion to alter or amend the August 2015 judgment, arguing that the court’s analysis contained "fundamental errors." The motion was denied. The court later amended the judgment to order resentencing within 180 days of the conclusion of appellate review.

Roper appeals the "MEMORANDUM AND ORDER" and the judgment granting habeas relief, as well as the order denying his rule 59(e) motion. We have jurisdiction under 28 U.S.C. § 1291.

II. The District Court’s Partial Grant of Barnett’s Rule 59(e) Motion

Roper initially asserts that it is "an error of law to treat the decision in Martinez v. Ryan , 566 U.S. 1, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012) as an extraordinary circumstance justifying reopening the case, despite numerous precedents rejecting that position." "Federal habeas courts reviewing convictions from state courts will not consider claims that a state court refused to hear based on an adequate and independent state procedural ground." Davila v. Davis, ––– U.S. ––––, 137 S.Ct. 2058, 2062, 198 L.Ed.2d 603 (2017). This bar may be overcome by establishing " ‘cause’ to excuse the procedural default and" demonstrating actual prejudice from the alleged error. Id."An attorney error does not...