United States v. Barrett
2015 U.S. App. LEXIS 14586
| 10th Cir. | 2015Background
- Kenneth Barrett fired on an Oklahoma Highway Patrol tactical team executing a day-or-night no-knock search warrant on Sept. 24, 1999; Trooper David Eales was killed and Barrett was convicted in federal court of multiple § 924 and § 848 offenses; jury recommended death on the § 848 count and the district court imposed death.
- Barrett’s direct appeal and certiorari were denied; he filed a 28 U.S.C. § 2255 motion alleging ineffective assistance of counsel (IAC) on multiple guilt- and penalty-phase grounds; the district court denied relief and Barrett obtained a COA from the Tenth Circuit on seven IAC claims.
- The Tenth Circuit reviews de novo where the district court denied relief without an evidentiary hearing and applies Strickland’s two-prong IAC test (performance and prejudice).
- The panel considered claims including: choice of police-tactics expert, failure to retain/consult a crime-scene reconstruction expert, failure to investigate/present mental-health evidence in guilt and penalty phases, omitted jury instructions (self-defense, drug-manufacturing, drug-addict witness caution, lesser-included offenses), and ineffective appellate counsel.
- The court affirmed denial of relief on all issues except the penalty-phase mitigation investigation, finding (1) strategic decisions about experts and cross-examination were within professional bounds, (2) guilt-phase mental-health and instruction-related claims lacked demonstrated prejudice or viable legal basis, but (3) the record was insufficient on whether counsel performed a constitutionally adequate mitigation investigation and whether prejudice resulted—warranting an evidentiary hearing.
Issues
| Issue | Barrett's Argument | Government's / Counsel's Argument | Held |
|---|---|---|---|
| Choice of police-tactics expert | Counsel should have used criminologist Kirkham rather than Cloyce Van Choney | Calling Choney was a reasonable strategic choice given prior favorable testimony | Counsel’s choice was not deficient; claim denied |
| Crime-scene reconstruction expert | Counsel failed to call/consult Hueske and inadequately prepared to rebut Dalley | Reliance on cross-examination of Dalley was a reasonable tactic; no proof Hueske would contradict government on fragments | No Strickland deficiency shown; claim denied |
| Guilt-phase mental-health evidence | Counsel failed to investigate/present psychiatric evidence that would negate mens rea | No proffered expert showing inability to form requisite intent; Brown limits admissibility | No prejudice shown; claim denied |
| Penalty-phase mitigation investigation | Counsel failed to adequately investigate Barrett’s background/brain dysfunction and present mitigation | Counsel lacked red flags, Barrett opposed sympathy-based mitigation, and they presented a family-focused strategy | Record inadequate to resolve performance and prejudice; reversed and remanded for evidentiary hearing |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (counsel-performance and prejudice standard for IAC)
- Wiggins v. Smith, 539 U.S. 510 (duty to investigate mitigation and life-history evidence)
- Porter v. McCollum, 558 U.S. 30 (evaluate counsel performance by prevailing norms at time of trial and consider totality of mitigation evidence)
- Sears v. Upton, 561 U.S. 945 (cursory mitigation investigation can be constitutionally inadequate)
- Rompilla v. Beard, 545 U.S. 374 (counsel must investigate certain records once identified as significant)
- Beck v. Alabama, 447 U.S. 625 (must give lesser-included instruction where available in capital cases)
- Schmuck v. United States, 489 U.S. 705 (lesser-included-offense analysis requires elements subset test)
- United States v. Chanthadara, 230 F.3d 1237 (10th Cir.) (felony-murder malice-forfeits intent requirement; lesser-included analysis under § 1111)