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Barrett v. United States

United States District Court, E.D. Oklahoma

March 28, 2019

KENNETH EUGENE BARRETT, Petitioner/Defendant,
UNITED STATES OF AMERICA, Respondent/Plaintiff.


          Ronald A. White, United States District Judge.

         Before this court is the Report and Recommendation of the magistrate judge in which the magistrate judge found that petitioner's counsel were deficient in their performance, which ultimately prejudiced petitioner. As a result, the magistrate judge recommended that the petitioner be given a new sentencing hearing on Count III, intentionally killing a state law enforcement officer in the commission of a drug trafficking crime. Both the petitioner and the government have filed objections to the report and recommendation. See, Dkt. #s 470 and 471.

         Statement of the Case

         On November 17, 2005, petitioner was convicted of three counts, including: Count I: using and carrying a firearm during and in relation to drug trafficking crimes and possessing a firearm in furtherance of such drug trafficking offenses, resulting in death, in violation of 18 U.S.C. § 924(c)(1)(A) and (j); Count II: using and carrying a firearm during and in relation to a crime of violence and possessing a firearm in furtherance of such crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A) and (j); and Count III, intentionally killing, during the commission of a drug trafficking crime, a state law enforcement officer, engaged in the performance of his official duties, in violation of 21 U.S.C. § 848(e)(1)(B). The jury returned verdicts of life in prison without the possibility of release on Counts I and II and a death sentence on Count III. Petitioner was sentenced, on December 15, 2005, in accordance with the jury verdicts. The court ordered the sentences to run consecutively. Additionally, petitioner was ordered to pay a special assessment of $100 on each count for a total assessment of $300.

         Petitioner filed a direct appeal and the Tenth Circuit Court of Appeals affirmed the judgment. United States v. Barrett, 496 F.3d 1079 (10th Cir. 2007) (Barrett I). Thereafter, petitioner sought collateral relief pursuant to 28 U.S.C. § 2255, which was denied by this court on August 16, 2012. Dkt. # 214. On August 19, 2015, the Tenth Circuit affirmed in part and reversed in part, holding:

We REVERSE and REMAND Defendant's 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. In all other respects we AFFIRM.

United States v. Barrett, 797 F.3d 1207, 1232 (10th Cir. 2015) (Barrett IT).

         On March 8, 2017, the case was referred to the magistrate judge pursuant to 28 U.S.C. § 636(b)(1)(B) for an evidentiary hearing and for findings and recommendation. The assigned magistrate judge heard evidence on March 27-30, 2017, June 12-13, 2017, and June 26, 2017.[1]At the hearing, petitioner called eleven (11) witnesses and introduced forty-four (44) exhibits. The respondent called three (3) witnesses and introduced forty-three (43) exhibits. Thereafter, the parties were given until July 31, 2017 to file proposed findings of fact and conclusions of law. On August 10, 2018, the magistrate judge issued a report and recommendation that concluded "... [trial] counsel were deficient in their performance, which ultimately prejudiced the Defendant, and that the Defendant is therefore entitled to relief under 28 U.S.C. § 2255 and to a new sentencing hearing." Dkt. # 467 at 34. The court granted an extension of time to file objections and objections were timely filed. See, Dkt. #s 470 and 471.

         Standard of Review

         Because this matter was referred to the magistrate judge to conduct an evidentiary hearing, Rule 72(b) of the Federal Rules of Civil Procedure required any party that disagreed with the magistrate judge's report and recommendation to file "specific written objections" to the report. Under Rule 72(b)(3), this court must make a de novo determination of any part of the report or specified proposed findings or recommendations to which an objection was made. See also, 28 U.S.C. § 636(b)(1)(C). This court is not required to conduct another hearing to review the magistrate judge's findings or credibility determinations. Goffman v. Gross, 59 F.3d 668, 671 (7th Cir. 1995) (citing United States v. Raddatz, 447 U.S. 667, 675 (1980)). Rather, the district court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1)(C); Fed.R.Civ.P. 72(b)(3). Thus, it is clear that "[t]he authority-and the responsibility-to make an informed, final determination . . . remains with the [district court] judge." Raddatz, 447 U.S. at 681 (citing Mathews v. Weber, 423 U.S. 261, 271 (1976)).

         Government's objections to magistrate's findings

         The government does not object to the magistrate judge's finding regarding counsel's deficient performance in developing a mitigation strategy. Rather, the government objects to the prejudice analysis arguing that the magistrate judge failed to evaluate the credibility of petitioner's mental health evidence. Dkt. # 471. The government argues that the magistrate judge premised its prejudice finding solely on trial counsel's failure to present mental health evidence, as opposed to the absence of testimony by the petitioner's relatives. Id., at n. 2. Based upon the petitioner's substantial planning and premeditation of the murder, the government argues the evidence presented by petitioner at the evidentiary hearing would not have had an impact on the outcome of the trial. Thus, the government is actually arguing that the foregone mitigating evidence did not tip the scale in favor of a sentence less than death. In his response, petitioner argues the government's objections are fatally flawed because they are not specific enough.

         Legal Principles applicable to claims of ineffective assistance of counsel during penalty phase of trial

         Counsel's performance at the sentencing stage of a capital trial is governed by the principles enunciated in Strickland v. Washington, 466 U.S. 668 (1984). Thus, in order to prevail on this claim, petitioner must establish both deficient performance and prejudice. In order to establish that counsel's performance was deficient, the petitioner must establish that counsel made errors so serious that counsel was not functioning as 'counsel' guaranteed by the Sixth Amendment. Id., 466 U.S. at 687. During the second stage of trial, counsel's role is "to ensure that the adversarial testing process works to produce a just result under the standards governing the decision." Id., 466 U.S. at 686. The focus of the deficient prong is "not what is prudent or appropriate, but only what is constitutionally compelled." Breechen v. Reynolds, 41 F.3d 1343, 1365 (10th Cir. 1994).

         As recognized in this case by the Tenth Circuit, trial counsel's penalty-phase performance is evaluated "under the prevailing professional norms at the time of. . . trial [September 2005 in this case]." Barrett II, 797 F.3d at 1223. Counsel's duty is to undertake a reasonable investigation or make a reasonable decision that a particular investigation is unnecessary. Walker v. Gibson, 228 F.3d 1217, 1233 (10th Cir. 2000); Brecheen, 41 F.3d at 1366. In light of the extremely important role that mitigating evidence plays in the "just imposition of the death penalty, "[2] this court is required to apply close scrutiny when reviewing the performance of counsel at the sentencing stage. Battenfieldv. Gibson, 236 F.3d 1215, 1226 (10th Cir. 2001). At the same time, the "failure to present available mitigating evidence is not per se ineffective assistance." Hale v. Gibson, 227 F.3d 1298, 1315 (10th Cir. 2000) (quoting Brecheen, 41 F.3d at 1368). "In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments." Strickland, 466 U.S. at 691. Thus, an attorney '"is not required to investigate all leads' as long as the decision not to pursue a particular lead, or to pursue a particular lead only so far, is reasonable under the circumstances." Breechen, 41 F.3d at 1366; see also Strickland, 466 U.S. at 691 ("[C]ounsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.") Moreover, "the reasonableness of an attorney's investigation is dependent on the circumstances of the case." Smith v. Workman, 550 F.3d 1258, 1270 (10th Cir. 2008) (citing Walker, 228 F.3d at 1233).

         Petitioner must also establish that any deficient performance prejudiced the defense. Strickland, 466 U.S. at 687. During the second stage of trial, a petitioner must show there is a reasonable probability that, absent the errors, the sentencer would have concluded, after balancing the aggravating and mitigating factors, that the death penalty was not warranted. Id., at 694. Put another way, deficient performance is prejudicial only where it is clear that "but for trial counsel's errors, there is a reasonable probability that the ultimate result would have been different." Washington v. Johnson, 90 F.3d 945, 953 (5th Cir. 1996). Thus, deficient performance in a capital sentencing proceeding prejudices the defendant if "there is a reasonable probability that one juror would have chosen a sentence other than death." Wood v. Carpenter, 907 F.3d 1279, 1290 (10th Cir. 2018) (quoting Matthews v. Workman, 511 F.3d 1175, 1190 (10th Cir. 2009)). "To assess that probability, [this court] must consider 'the totality of available mitigation evidence-both that adduced at trial, and the evidence adduced [at the evidentiary hearing]'-and 'reweig[h] it against the evidence in aggravation.'" Porter v. McCollum, 558 U.S. 30, 41 (2009) (quoting Williams v. Taylor, 529 U.S. 362, 397-398 (2000). See also, Littlejohn v. Royal, 875 F.3d 548, 552 (10th Cir. 2017).

         Legal Analysis

         A. Performance of counsel

         Since the government has not objected to the magistrate judge's finding that counsel's performance was deficient, this court adopts the magistrate judge's conclusion that trial counsel rendered constitutionally deficient performance in developing a mitigation strategy. In determining that trial counsel's performance was deficient, however, the magistrate judge stated that "federal trial counsel neither hired a mitigation or mental-health professional nor attempted to investigate themselves in any depth the [petitioner's] mental health or family background." Dkt. # 467 at p. 10. This court would like to correct this finding by noting that trial counsel did hire Jeanne Russell, Ed.D. (a licensed psychologist). While the scope of Russell's work for the federal trial was apparently limited to completing an updated risk assessment, based upon the information contained within Russell's 2003 report, [3] there can be no question that petitioner's federal trial counsel was, in fact, aware of the very information which petitioner has been relying upon to establish that counsel's investigation of his mental health and/or family history was not comprehensive and/or in-depth enough to uncover important mitigating evidence.[4]According to Russell's psychological evaluation, the petitioner was "not exhibiting symptoms of a major mental illness (i.e., Schizophrenia, Schizoaffective Disorder, Bi- Polar Disorder, or Major Depression)"[5] and while acknowledging that persons close to the petitioner had described symptoms they associated with mental illness and other records indicated a history of paranoia and impulsiveness, Russell opined these "behaviors appear exacerbated by drug use."[6] Moreover, in compiling this report, Russell reviewed all of the petitioner's mental health records and her report contained, among other information, a list of all of the records she had reviewed, a summary of petitioner's legal history, family history, education, relationships, employment history, medical and mental health history/treatment, and a significant substance abuse history. See Govt. Exh. # 34.

         In considering the reasonableness of counsel's actions, this court cannot rely on "hindsight;" but must examine the reasonableness of counsel's actions from '"counsel's perspective at the time' the investigative decisions [were] made." Rompilla v. Beard, 545 U.S. 374, 381 (2005) (quoting Strickland, 466 U.S. at 689). It seems axiomatic that an attorney should be able to rely on a mental health expert's prior opinion in determining the significance of a defendant's mental health records, including whether or not that defendant has a major mental illness; and then, based upon that opinion, decide to forego further mental health testing of that defendant. While none of the mental health professionals who had examined the petitioner prior to 2005 had ever diagnosed the petitioner with a major mental illness, see Govt. Exh. #s 4-6, 8-9, 11, 16, 34 and 35, petitioner's counsel did not actually consult with Russell prior to deciding to forgo any further mental health evaluations.[7] For this reason alone, this court agrees with the magistrate judge's conclusion that trial counsel's performance was deficient.

         B. Lack of prejudice

         This court finds, however, based upon the evidence presented at the evidentiary hearing, that petitioner was not prejudiced by counsels' performance. Simply because petitioner was able to obtain experts who described the petitioner as having mental health disorders so severe that he could not have rationally assisted his attorneys in the preparation of his defense, [8] does not mean the jury would have given much weight to that testimony in light of the evidence it heard over the course of the entire trial. That evidence was summarized by the Tenth Circuit Court of Appeals as follows:

Barrett had been aware for some time of the outstanding warrant for his arrest, and anticipated that law enforcement officials would come to his house to arrest him at some point. Tr. at 400-01. Despite that awareness, or perhaps because of it, Barrett exhibited a defiant attitude towards law enforcement officials. On the front gate leading to his residence, Barrett had installed a sign reading: "Keep Out. I don't give a shit who you are, if you cross my gate or come on my property, I'll shoot." Id. at 399. Further, in the months and weeks leading up to the date of the shooting, Barrett regularly told friends and family that if law enforcement officers came to his house, "[t]here was going to be a shootout," id. at 412, "he would shoot the first police that came through his door," id. at 2515, and "he was going to take out as many [law enforcement officers] as he could before they got him." Id. at 412-13; see Id. at 3068-69, 3106, 3493. Indeed, on the evening of September 23, 1999, Barrett observed three of the Tact Team members drive by his residence in an unmarked vehicle, and subsequently stated to his cousin, ...

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