STATE OF NEW JERSEY VS. KENNETH A. BARR(10-02-0076, SALEM COUNTY AND STATEWIDE)
A-0351-15T2
| N.J. Super. Ct. App. Div. | Nov 2, 2017Background
- In 2008 Kenneth A. Barr solicited a friend to shoot his girlfriend; she died at the scene. Barr pled guilty in 2010 to first-degree murder in exchange for a 40-year sentence with an 85% NERA parole disqualifier.\
- Barr appealed; that appeal was dismissed. He subsequently filed multiple pro se PCR petitions asserting ineffective assistance of counsel and newly discovered evidence.\
- At a 2013 evidentiary PCR hearing Barr testified his trial counsel never obtained his version of events and did not provide discovery until after the plea; counsel testified discovery was provided before the plea.\
- Barr’s later filings relied on (1) an undated certification from his brother Steven Barr claiming exculpatory facts, (2) a videotape, and (3) a witness statement by Jamar Johnson. Barr claimed he first learned of some materials only after incarceration.\
- The PCR judge denied the third petition as untimely and previously adjudicated; the Appellate Division affirmed, concluding the videotape and Johnson statement were known to Barr earlier and that, even assuming the brother’s certification were newly discovered, Barr failed to show Strickland prejudice or deficient performance.
Issues
| Issue | State's Argument | Barr's Argument | Held |
|---|---|---|---|
| Timeliness under Rule 3:22-12 for a third/subsequent PCR | Petition untimely; factual predicate (videotape, Johnson statement) was discovered earlier | Third PCR is timely because factual predicate (brother’s certification and other materials) was not reasonably discoverable until 2015 | Denied — petition untimely; videotape and Johnson statement were known by early 2011, so do not support late filing |
| Whether videotape or Johnson statement constitute newly discovered exculpatory evidence | These materials do not support innocence; police used videotape to ID Barr and Johnson’s statement supports guilt | Videotape and Johnson statement are part of the factual predicate for ineffective assistance claim | Held against Barr — those items are not exculpatory and were known earlier, so they cannot justify a late petition |
| Whether Steven Barr’s certification, if newly discovered, establishes ineffective assistance of counsel under Strickland | Even if newly discovered, record lacks proof counsel knew of certification; Strickland prejudice not shown | Certification is new and exculpatory and shows trial counsel failed to investigate, so plea was unreliable | Denied — Barr fails both Strickland prongs: no proof counsel was aware or deficient and no reasonable probability of a different outcome shown |
| Failure to advise right to withdraw plea and credit for 3 days in Delaware | Merits insufficient or previously litigated; not raised timely | Counsel failed to advise Barr of right to revoke plea after sentence change; also seeks credit for 3 days in Delaware | Rejected — claims lack merit or are time-barred/previously adjudicated |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (establishes two-pronged ineffective assistance standard)\
- State v. Parker, 212 N.J. 269 (discusses Strickland application in New Jersey)\
- State v. DiFrisco, 174 N.J. 195 (counsel not at fault for failing to investigate facts unknown to defense)\
- State v. Fritz, 105 N.J. 42 (adoption of Strickland in New Jersey)