Date: 01-19-2021

Case Style:

Case Number: 19-7049

Judge: Matheson

Court: United States Court of Appeals for the Tenth Circuit on appeal from the Estern District of Oklahoma (Muskogee County)

Plaintiff's Attorney: Jeffrey B. Kahan, Deputy Chief, Capital Case Section, (Brian A. Benczkowski, Assistant Attorney General, with him on the brief), Department of Justice, Washington, D.C.; (Brian J. Kuester, U.S. Attorney General, Christopher J. Wilson and Linda Epperly, Assistant U.S. Attorneys, with him on the brief), U.S. Department of Justice, Muskogee, Oklahoma, for Plaintiff - Appellee.

Defendant's Attorney: David B. Autry, Oklahoma City, Oklahoma, (Heather E. Williams, Federal Defender; Joan M. Fisher and Carrie L. Ward, Assistant Federal Defenders, with him on the briefs), Office of the Federal Public Defender, Eastern District of California, Sacramento, California, for Defendant - Appellant.

Description: Kenneth Eugene Barrett moved under 28 U.S.C. § 2255 to vacate his death sentence based on ineffective assistance of counsel in violation of the Sixth Amendment to the Constitution.1 The district court denied relief. On appeal, this court remanded for an evidentiary hearing to determine whether defense counsel’s performance at sentencing was deficient and prejudicial. Following the hearing, the district court found deficient performance but no prejudice, and again denied relief. Mr. Barrett has appealed. Exercising jurisdiction under 28 U.S.C. § 1291, we reverse.Mr. Barrett’s death sentence was based on his intentionally killing a state trooper when drug task force officers attempted to execute a warrant at his home. The evidence at trial and at the sentencing hearing depicted him as having planned a lethal attack on police officers. In mitigation, defense counsel introduced testimony that he was a loved family member and good person who was sorry for his crime. But his counsel did notintroduce evidence that he experienced abuse as a child; suffered from brain-damage, bipolar disorder, and post-traumatic stress disorder (“PTSD”); and struggled to exercise judgment in pressured situations. The jury recommended, and the court imposed, the death penalty. 1 Section 2255 provides that a federal prisoner “claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, . . . may move the court which imposed the sentence to vacate, set aside or correct the sentence.” 28 U.S.C. § 2255(a).
2 After filing his § 2255 motion in district court, Mr. Barrett presented declarations and assessments from experts describing his abusive upbringing and mental impairments, information his trial counsel failed to present at sentencing. The district court denied relief. On appeal, we remanded for the district court to conduct an evidentiary hearing to determine (1) whether defense counsel was deficient in failing to develop and present mitigating evidence and, if so, (2) whether there was a reasonable probability the jury would not have recommended a death sentence if counsel had introduced the mitigatingevidence. The district court referred the evidentiary hearing to a magistrate judge, who conducted the hearing over seven days. Fourteen witnesses testified, including experts on both sides. After the hearing, the magistrate judge recommended the district court find that Mr. Barrett’s counsel performed deficiently under the Sixth Amendment and that such performance prejudiced Mr. Barrett at sentencing. The Government conceded deficient performance but objected to the recommended finding of prejudice. Without rehearing any testimony, the district court rejected the recommendation, held Mr. Barrett could not establish prejudice, and denied relief. Although it found counsel’s performance deficient, the court observed that “the jury would not have been impressed by [Mr. Barrett’s] experts’ opinions.” Barrett v. United States, No. CIV-09-105-RAW, 2019 WL 1406957, at *6 (E.D. Okla. Mar. 28, 2019).

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Outcome: We reverse the district court’s decision finding no prejudice, vacate Mr. Barrett’s sentence on Count 3, and remand for resentencing on Count 3.

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Defendant's Experts:

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