United States v. Barrett

• Decision Date: 19 August 2015
• Docket Number: No. 12–7086.,12–7086.
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Kenneth Eugene BARRETT, Defendant–Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

797 F.3d 1207

UNITED STATES of America, Plaintiff–Appellee

v.Kenneth Eugene BARRETT, Defendant–Appellant.

No. 12–7086.

United States Court of Appeals, Tenth Circuit.

Aug. 19, 2015.

David B. Autry, Oklahoma City, OK, (Heather E. Williams, Federal Defender, Joan M. Fisher and Tivon Schardl, Assistant Federal Defenders, Sacramento, CA, with him on the briefs) for Defendant–Appellant.

Jeffrey B. Kahan, Trial Attorney, United States Department of Justice, Washington, D.C., (David A. O'Neil, Acting Assistant Attorney General, Washington, D.C., Mark F. Green, United States Attorney, and Christopher J. Wilson, Assistant United States Attorney, Muskogee, OK, with him on the brief) for Plaintiff–Appellee.

Before KELLY, HARTZ, and MATHESON, Circuit Judges.

Opinion

HARTZ, Circuit Judge.

Defendant Kenneth Barrett was sentenced to death after being convicted in federal court on two counts of felony murder and one count of intentionally killing a state law-enforcement officer. We affirmed on direct appeal. See United States v. Barrett, 496 F.3d 1079 (10th Cir.2007). Defendant then filed a motion for relief under 28 U.S.C. § 2255, which the district court denied. See Barrett v. United States, No. 6:09–civ–105–JHP, 2012 WL 3542609 (E.D.Okla. Aug. 16, 2012) (unpublished). We granted a certificate of appealability (COA) enabling him to appeal on several of his claims of ineffective assistance of counsel. See 28 U.S.C. § 2253(c)(1)(B) (requiring COA to appeal denial of § 2255 motion). Exercising jurisdiction under 28 U.S.C. § 2255(d), we now consider the merits of those claims and affirm on all but one. Because Defendant may be entitled to relief on his contention that his trial attorneys were ineffective by failing to investigate and present evidence of his background and mental health for the trial's penalty phase, we reverse and remand for an evidentiary hearing on this issue.

I. BACKGROUND

A. The Offenses

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.” R., Vol. 5 pt. 1 at 629.

The Tact Team devised its plan to secure Defendant's residence: Two white Broncos and a marked patrol car with its emergency lights activated, each containing two troopers, would approach Defendant's residence single-file from the east while three troopers in another patrol car would approach the fence south of Defendant's residence. A fifth vehicle would drive to a trailer occupied by Defendant's mother, which was west of the house, to provide security and protect her. The six troopers approaching from the east would enter and secure the residence. Of the three troopers approaching from the south, one would stay at the fence to provide sniper cover and the other two would apprehend anyone fleeing west from the residence.

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. The second Bronco and 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.” Id. at 700. The gunfire intensified as the vehicle drew closer. Hamilton was struck in the face with glass or bullet fragments.

Meanwhile, the troopers coming from the south arrived at the fence. Two of them scaled it and headed toward the residence. They saw Defendant's son, Toby Barrett, outside the residence and ordered him to get on the ground. Toby eventually complied. The gunfire erupted either shortly before or while they were shouting at Toby. After Toby was handcuffed he yelled for his father.

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 “flash-bang” stun grenade out the window, which temporarily stopped the gunfire. Id. at 707. 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.

B. Procedural History

The same day as the shootings, Defendant was charged by information in Oklahoma state court with one count of first-degree murder and three counts of shooting with intent to kill. After several amendments the final information charged him with one count of first-degree murder (for Eales's death), one count of shooting with intent to kill (for shooting Hamilton), and two counts of discharging a firearm with intent to kill (for shots fired at two other troopers). His first state trial resulted in a hung jury. In 2004 he was retried and found not guilty on the two counts of discharging a firearm with intent to kill but guilty on two lesser-included offenses—namely, manslaughter, instead of first-degree murder, and assault and battery with a dangerous weapon, instead of shooting with intent to kill. He was sentenced to 30 years in prison.

On September 23, 2004, Defendant was charged with various federal drug and murder offenses in the United States District Court for the Eastern District of Oklahoma. A superseding indictment charged him with three offenses: (1) causing Eales's death in the course of using a firearm in furtherance of a drug-trafficking offense, see 18 U.S.C. § 924(c)(1)(A), (j) ; (2) causing Eales's death in the course of using a firearm in furtherance of a crime of violence, see id.; and (3) intentionally killing Eales during a federal drug offense while Eales was engaged in, and on account of, the performance of his official duties, see 21 U.S.C. § 848(e)(1)(B). The government sought the death penalty on each count. On November 4, 2005, a jury found him guilty on all three counts, and thereafter recommended life imprisonment on the first two and death on the third. The judge imposed the recommended sentence. On direct appeal we affirmed the convictions and sentence. See Barrett, 496 F.3d 1079. The Supreme Court denied Defendant's petition for certiorari. See Barrett v. United States, 552 U.S. 1260, 128 S.Ct. 1646, 170 L.Ed.2d 359 (2008).

Defendant then moved for relief under 28 U.S.C. § 2255. The district court denied the motion and declined to issue a COA. See Barrett, 2012 WL 3542609, at *94. Defendant then sought a COA from this court. We granted a COA on seven issues related to ineffective assistance of counsel:

1. “Whether trial counsel provided ineffective assistance in the guilt phase by failing to present an expert as to whether the police tactics employed during the search warrant's execution would have identified the police as law-enforcement personnel”;

2. “Whether trial counsel provided ineffective assistance in the guilt phase by failing to present a crime-scene expert”;

3. “Whether trial counsel provided ineffective assistance in the guilt phase by failing to investigate and present mental-health evidence”;

4. “Whether trial counsel provided ineffective assistance in the guilt phase by failing to seek an instruction concerning the credibility of drug-addict witnesses”;

5. “Whether trial counsel provided ineffective assistance in the guilt phase by failing to seek an instruction on the defense's theory of the case”;

6. “Whether appellate counsel provided ineffective assistance by not raising the trial court's refusal to give a lesser-included-offense instruction”; and

7. “Whether trial counsel provided ineffective assistance in the penalty phase by failing to develop mitigation evidence.”

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