In re: Barrett , 840 F.3d 1223 ( 2016 )

FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS November 7, 2016
Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________
In re: KENNETH EUGENE BARRETT,
No. 16-7035
Movant. (D.C. No. 6:09-CV-00105-JHP)
(E.D. Okla.)
_________________________________
ORDER
_________________________________
Before KELLY, HARTZ, and MATHESON, Circuit Judges.
_________________________________
HARTZ, Circuit Judge.
_________________________________
A federal jury convicted Defendant Kenneth Eugene Barrett of three capital
offenses arising out of a shootout when law-enforcement officers came to his home to
serve arrest and search warrants. We affirmed the convictions and his death sentence
on direct appeal. See United States v. Barrett, 496 F.3d 1079 (10th Cir. 2007)
(Barrett I). The district court then denied relief on his motion under 28 U.S.C.
§ 2255. On appeal we affirmed the denial except that we reversed and remanded for
further proceedings on a claim of ineffective assistance of counsel at the trial’s
penalty phase. See United States v. Barrett, 797 F.3d 1207, 1211-12 (10th Cir. 2015)
(Barrett II), cert. denied, Barrett v. United States, 2016 WL 1046930 (Oct. 3, 2016).
Defendant now seeks authorization to file a second § 2255 motion challenging
his convictions on the basis of “a Single Claim, namely, that the continuous,
pervasive egregious prosecutorial and police misconduct in this case including
altering, fabricating and destroying evidence, misrepresentation of the facts by
omission and commission through lying, perjury, suborning perjury, planting
evidence, witness intimidation and presentation of and reliance on junk science is a
violation of due process.” Mot. for Pre-Filing Authority, at 1-2. In his reply to the
government’s response to his motion for authorization he states that “[t]he heart of
the claim presented here is the declaration of confidential informant, Charles
Sanders,” Reply at 3, in which Sanders makes assertions contrary to his trial
testimony and to statements allegedly made by him in support of the search warrant
for Defendant’s home.
The statutory provision Defendant invokes in support of authorization requires
him to make a prima facie showing that his proposed § 2255 motion contains “newly
discovered evidence that, if proven and viewed in light of the evidence as a whole,
would be sufficient to establish by clear and convincing evidence that no reasonable
factfinder would have found [him] guilty of the [challenged] offense[s].” 28 U.S.C.
§ 2255(h)(1); see also id. § 2244(b)(3)(C). We hold that he has not met that
standard. His conviction is still well supported by eyewitness accounts of
law-enforcement officers, the testimony of multiple acquaintances of Defendant, and
physical evidence at the scene of the crime.
I. BACKGROUND
The following excerpt from this court’s opinion on appeal from the denial of
Defendant’s first § 2255 motion describes the events underlying his convictions:
2
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.”
...
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. [A] second Bronco and [a] 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.” The gunfire intensified as the vehicle drew closer.
Hamilton was struck in the face with glass or bullet fragments.
...
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 “flashbang” stun grenade out
the window, which temporarily stopped the gunfire. 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
3
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.
Barrett II, 797 F.3d at 1211-12 (citations omitted).
Defendant was initially prosecuted by the state. After his first state trial ended
with a hung jury, he was convicted of manslaughter and assault and battery with a
deadly weapon. See Barrett I, 496 F.3d at 1086. Defendant was then prosecuted
federally and convicted of three offenses: using and carrying a firearm during and in
relation to drug-trafficking crimes, resulting in the death of a state law-enforcement
officer, see 18 U.S.C. § 924(c)(1)(A), (j); using and carrying a firearm during and in
relation to the killing of a state law-enforcement officer engaged in or on account of
the performance of official duties, see id.; and intentionally killing, during the
commission of a drug-trafficking crime, a state law-enforcement officer engaged in
the performance of his official duties, see 21 U.S.C. § 848(e)(1)(B). See Barrett I,
4
496 F.3d at 1082. He was sentenced to life imprisonment without the possibility of
parole on the two § 924(c) convictions and to death on the § 848(e) offense. See id.
We affirmed his convictions and sentences on direct appeal. See id.
Defendant’s initial motion for relief under § 2255 failed in all respects but one.
On appeal from the denial of the motion, we reversed and remanded his 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.” Barrett II, 797 F.3d at 1232.
Proceedings in the district court were abated pending disposition of a petition for
certiorari in the United States Supreme Court, see Barrett v. United States, E.D.
Okla. No. 09-CIV-105-JHP, Doc. 237 (Order filed Dec. 17, 2015); which was
recently denied.
II. SCOPE OF § 2255(h)(1) INQUIRY
In determining whether to authorize the filing of a second § 2255 motion, our
concern is not with the merits of Defendant’s claim of prosecutorial misconduct but
solely with whether he has proffered “newly discovered evidence that, if proven and
viewed in light of the evidence as a whole, would be sufficient to establish by clear
and convincing evidence that no reasonable factfinder would have found [him] guilty
of the [challenged] offense[s].” 28 U.S.C. § 2255(h)(1); see Case v. Hatch, 731 F.3d
1015, 1028-30 (10th Cir. 2013). In our review, “we must consider all the evidence,
old and new, incriminating and exculpatory, without regard to whether it would
5
necessarily be admitted under rules of admissibility that would govern at trial.”
United States v. Williams, 790 F.3d 1059, 1077 (10th Cir.) (internal quotation marks
omitted), cert. denied, 136 S. Ct. 604 (2015).1 In particular, “[t]he legality of a
search and admissibility of any seized evidence is not relevant to our analysis
under . . . [§] 2255(h)(1).” Id. at 1081 n.17.2 Defendant’s challenges to the validity
of the arrest and search warrants executed on the night of the shooting are therefore
immaterial.
Defendant suggests that the alleged invalidity of the warrants undermined the
executing officers’ authority and thus is relevant to his innocence because he was
charged with killing a law-enforcement officer “engaged in, or on account of, the
performance of such officer’s official duties.” 21 U.S.C. § 848(e)(1)(B). But
executing warrants is undeniably a part of an officer’s official duties. Defendant
cites no authority for the proposition that killing an officer executing a warrant does
not violate the federal law under which he was prosecuted if the warrant is later
found to be invalid. And we have held that improper service of a summons (by an
IRS agent) “would not mean that . . . [the agent] was somehow acting outside his
official duties” when assaulted by the defendant, in violation of 18 U.S.C. § 111.
1
In contrast, when considering authorization for a second-or-successive claim
under § 2254 because of new evidence, see 28 U.S.C. § 2244(b)(2)(B), our inquiry
“does not encompass new facts that became available only after trial and that are not
rooted in constitutional errors occurring during trial.” Case, 731 F.3d at 1038.
2
This is also in contrast to the treatment of habeas claims under
§ 2244(b)(2)(B), which requires a link between the prisoner’s constitutional claims
and the evidence demonstrating his innocence. See Case, 731 F.3d at 1034, 1038.
6
United States v. Young, 614 F.2d 243, 244 (10th Cir. 1980) (citing holding in United
States v. Heliczer, 373 F.2d 241 (2d Cir. 1967), “that an agent who has made an
arrest does not lose his official capacity . . . simply because the arrest be
subsequently adjudged unlawful” (internal quotation marks omitted)). Thus,
Defendant’s warrant-related arguments are irrelevant to whether we should authorize
his second § 2255 motion.
Also irrelevant are Defendant’s complaints about various misconduct of
law-enforcement officers in the execution of the warrants. He does not demonstrate
any connection between his allegations—that Oklahoma Highway Patrol (OHP)
personnel unreasonably relied on dubious warrants, used excessive force against him
after he was shot, and delayed his medical treatment after the incident—and his
alleged innocence of the crimes for which he was convicted. Equally irrelevant are
his allegations that OHP officers engaged in intimidating conduct during the state
trials that preceded his federal prosecution. Those allegations are not tied to anything
that occurred during his federal prosecution.
III. MATTERS ASSUMED BUT NOT DECIDED
Before assessing the motion for authorization, we note two issues that we are
not resolving. First, we assume without deciding that evidence can be “newly
discovered” under § 2255(h)(1) even if Defendant was not diligent in discovering it.
Some courts have observed that § 2255(h)(1) does not have an explicit diligence
requirement while 28 U.S.C. § 2244(b)(2)(B)(i) requires that “the factual predicate
for the claim could not have been discovered previously through the exercise of due
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diligence.” See United States v. MacDonald, 641 F.3d 596, 610 & n.7 (4th Cir.
2011); United States v. Lopez, 577 F.3d 1053, 1061 & n.6 (9th Cir. 2009). But a
diligence requirement in § 2244(b)(2)(B)(i) needed to be expressly stated because the
provision does not use the term of art newly discovered evidence, which is commonly
understood to include a diligence requirement. See, e.g., United States v. Jordan, 806
F.3d 1244, 1252 (10th Cir. 2015) (construing the term newly discovered evidence in
Fed. R. Crim. P. 33(a), (b)(1)), cert. denied, 136 S. Ct. 1700 (2016); see also
Restatement (Second) of Judgments § 74 (relief from judgment requires reasonable
diligence in discovering the ground for relief). At least one circuit has expressly read
a diligence requirement into § 2255(h)(1). See Herrera-Gomez v. United States, 755
F.3d 142, 147-48 (2d Cir. 2014). We leave resolution of the issue for another day.
Even affording Defendant the benefit of all the evidence he contends is newly
discovered, regardless of any lack of diligence on his part in failing to obtain it
sooner, he still has not made the showing necessary to warrant authorization of his
proposed § 2255 motion.
Second, we need not resolve whether the “evidence as a whole” that we
consider under § 2255(h)(1) includes posttrial evidence that is not newly discovered.
We have no precedent directly addressing the matter. Again, however, we can leave
the issue to a future panel of this court. Defendant’s newly discovered evidence,
even buttressed with all the other trial and posttrial evidence to which he refers, is not
8
sufficient to meet the innocence standard in § 2255(h)(1).3 We therefore deny
authorization without deciding whether a defendant may rely on previously
discovered posttrial evidence to bolster a request for authorization based on other
newly discovered evidence.
IV. DEFENDANT’S SHOWING
At the outset it is important to emphasize two points to put Defendant’s
allegations in context. First, Defendant has never contended, now or at his trial, that
someone other than he shot Trooper Eales. The core of his defense is that he did not
know he was shooting at law-enforcement officers and, secondarily, that there was
insufficient evidence of his manufacture and distribution of methamphetamine to
support the search warrant for his home and the drug element of two of his offenses.
Second, much of the evidence Defendant now relies on, particularly in seeking to
undermine the testimony of various officers and experts presented by the prosecution,
was available to his trial counsel—who evidently considered some of it not worth
raising to impeach the witnesses. And, of course, the evidence that was used in this
way did not persuade the jury to reject the prosecution’s case.
A. Confidential Informant Sanders
3
One apparent error should be quickly disposed of. At times it seems that the
government objects to Defendant’s arguments based on the weakness of the evidence
against him at trial. But the original trial evidence is obviously included in the
reference to “old” evidence in Williams, 790 F.3d at 1077; it would be absurdly
prejudicial to the government if it were not. The defendant is supposed to explain
why his new evidence establishes his innocence notwithstanding the strength (or
because of the weakness) of the case against him at trial.
9
Defendant states that the heart of his motion for authorization is the newly
obtained recantation of confidential informant Sanders. We assume the recantation is
“newly discovered.” In his reply to the government’s response to his motion for
authorization, Defendant states that his investigator “attempted to interview Mr.
Sanders in a timely manner before the original § 2255 filing and was turned away.”
Reply at 6.
In light of the evidence as a whole, however, Sanders’s declaration falls far
short of a prima facie showing of “clear and convincing evidence that no reasonable
factfinder would have found [Defendant] guilty of the offense[s] of conviction,” as
required by § 2255(h)(1). Postconviction recantations are to be viewed with
“extreme suspicion” and “ha[ve] long been disfavored as the basis for a claim of
innocence.” Case, 731 F.3d at 1041-42 (internal quotation marks omitted). And in
any event the recantation is quite limited in scope; and the testimony from other
witnesses, as well as physical evidence, independently substantiates the gist of the
recanted testimony.
Because the recantation relates to unlawful drug activity at Defendant’s
residence, we begin with a summary of the trial evidence relevant to that activity.
Sanders testified that he obtained methamphetamine from Defendant on more than
five occasions in the three or four months leading up to the shooting. He also
testified that he converted pseudoephedrine for use in the methamphetamine
manufacturing process and had it delivered to Defendant. Other witnesses provided
further detail about Defendant’s manufacturing and distributing methamphetamine.
10
Randy Turman testified that he obtained methamphetamine from Defendant by
paying in cash, trading for it, or working off the debt. He said he learned the basics
of methamphetamine manufacture by watching Defendant make the drug at his home;
on occasion he purchased ephedrine pills at Defendant’s request for use in the
process. He saw Defendant manufacture methamphetamine within three or four
months of the murder. Other witnesses who obtained methamphetamine from
Defendant were Karen Real, who also saw Defendant sell drugs to others inside and
outside his home, and Randall Weaver.
Physical evidence corroborated this testimony regarding the manufacture of
methamphetamine at Defendant’s residence. According to expert testimony at trial,
the three primary ingredients in a typical clandestine methamphetamine lab in
Oklahoma at the relevant time were red phosphorus, ephedrine or pseudoephedrine,
and iodine. Some 51 grams of red phosphorus was found on Defendant’s person. In
one pants pocket was a pill bottle containing a baggie with 15 grams, a paper filter
with 2.8 grams, and two moist filters with residue. In another pocket was a Ziploc
bag with 33 grams. Defendant’s clothing was removed as he was transported to the
hospital and these items were later sent to a lab for testing. The red phosphorus in
the bags contained traces of methamphetamine, indicating it had been used in the
manufacturing process. (Red phosphorus is not consumed in the process. It acts as a
catalyst and can be reused.) The red phosphorous on the filters contained traces of
phenyl acetone, a byproduct of the methamphetamine manufacturing process. A
search of Defendant’s residence uncovered a bag containing 1426 pseudoephedrine
11
tablets secreted in the ceiling, and two bottles of iodine with a net weight of 144.3
grams hidden inside a camera. In addition, officers found a cup with 72 pills
containing nicotinamide, a substance used to cut methamphetamine. Finally, the
search of Defendant’s property also “resulted in the seizure of a variety of materials
related to the production and use of methamphetamine (e.g., coffee filters,
hypodermic needles, digital scales, . . . plastic tubing, toluene).” Barrett I, 496 F.3d
1079, 1085.
With this background we can see the limited import of Sanders’s recantation.
Defendant’s proposed § 2255 motion describes the portion of Sanders’s testimony
that he recanted.
Sanders testified against [Defendant], claiming to have been at his
residence a “couple of days” before the issuance of the search warrant and
to have observed a drug transaction. [Sanders] testified he did not know
that he was the informant on the search warrant at the time it was procured
by [Agent] Johnson, but learned of it later. On cross-examination,
Mr. Sanders testified that when he went out to [Defendant’s] house shortly
before the raid, he saw guns but did not do or see any drugs other than a
joint that he, his nephew and [Defendant] smoked. He testified that he had
told DTF Agent Johnson. After a break called by the AUSA Michael
Littlefield, Sanders reversed course on re-direct and said that he was
uncertain of the times he had been to [Defendant’s] and that he had
observed drug activity. He admitted, when questioned, that Agent Johnson
was more likely than he to know the dates. Mr. Sanders admitted that Mr.
Littlefield had talked to him during the break about the dates he was at
[Defendant’s]. He testified, however, that they did not discuss the nature of
his testimony.
Proposed § 2255 motion at 20-21 (citations omitted). The pertinent portion of
Sanders’s declaration relates what happened during the break:
12. In the middle of my testimony, Mr. Littlefield asked to stop the
trial, to take a break, a recess I think they call it.
12
13. Mr. Sperling [co-counsel to AUSA Littlefield] came to my
holding cell and Mr. Littlefield said I can’t be testifying the way I was,
which was telling the truth, although I don’t recall exactly what I was
testifying about at the time. He said that instead I should be saying “I don’t
recall.” Mr. Sperling spoke up and said to Mr. Littlefield that I needed to
be truthful, but Mr. Littlefield said to me “no,” that we had a deal, and that I
needed to say that I didn’t recall, which is what I said on the witness stand
when the trial resumed. They had me lying on the witness stand.
Proposed § 2255 motion, Ex. 21, at 3-4. In short, the recantation does not concern
Sanders’s trial testimony that he had purchased methamphetamine from Defendant
repeatedly during the three or four months before the murder or that he had assisted
in Defendant’s manufacture of methamphetamine. It concerns only whether he had
seen a drug transaction a few days before the murder. Although the declaration may
call into question the factual basis for the search warrant obtained by Agent Johnson,
the validity of the warrant, as we have explained, is irrelevant to our innocence
inquiry. And the declaration has little impact on the proof that Defendant killed a
law-enforcement officer while committing a drug offense, as required for two of
Defendant’s convictions. That allegation was amply supported by the testimony and
physical evidence described above. In particular, the presence of the red phosphorus
on his person is compelling evidence of contemporary methamphetamine
manufacture.
13
Sanders’s declaration also discusses Littlefield’s pretrial efforts to get him to
testify. But that discussion does not concern the content of his testimony, just
whether he would testify at all.4
4
Sanders also testified about matters unrelated to drugs. On direct
examination he recounted Defendant’s talking about the warrant for his arrest and
referring to it as the reason he was reluctant to leave his cabin. When asked what
Defendant had said “in relation to what he expected law enforcement to do because
of the warrant,” Sanders testified that Defendant told him “that if the police ever
came to his house that he would shoot the first police that came through his door.”
Trial Tr. at 2515.
These points were supported by other witnesses who knew Defendant. Randy
Turman testified that he never saw Defendant leave his property and that Defendant
was aware of the warrant and expected law enforcement to come to his home to
execute it. When asked what Defendant “sa[id] that he was intending to do if the
laws came to his place,” Turman replied that Defendant declared “[t]here was going
to be a shootout” and “he was going to take out as many as he could before they got
him.” Id. at 412-13. Cindy Crawford testified that Defendant stayed at home
because of the warrant; that Defendant said there was a chance law enforcement
would come to his home and “that’s why . . . he had protection”; and that Defendant
boasted if “Police, or anyone, [came to his home] that he would go out in a blaze of
glory.” Id. at 3068-69. Karen Real testified that Defendant said “if they [cops] ever
come out he would shoot them” (although she did not believe him at the time). Id. at
3106-07. Finally, Brandi Price testified that when discussing the warrant, Defendant
told her and some friends that if they were there when law enforcement showed up
they were to “either grab a gun or hit the floor” and that “[h]e was going to open fire
on them and . . . [t]ake as many of them bastards with him as he could.” Id. at
3492-93. Defendant’s cousin, Travis Crawford, also testified to the same effect, but
he recanted in a declaration submitted with Defendant’s first § 2255 motion.
In addition, several eyewitnesses provided testimony showing that Defendant
must have known that he was shooting at law-enforcement officers. See Barrett I,
496 F.3d at 1113-14. We concluded on Defendant’s direct appeal that the “evidence
was more than sufficient to allow the jury to reasonably find that [Defendant] knew
that [Trooper] Eales and the other persons approaching his residence were law
enforcement officers and that he intended to kill Eales.” Id. at 1115. We address that
evidence further below, in connection with Defendant’s allegations regarding the
conduct of the state officers executing the warrant.
14
In sum, Sanders’s recantation has little impact on the strength of the
prosecution’s case. Its limited scope leaves much of his testimony unaffected, and
the key allegations against Defendant were further supported by testimony from other
witnesses and by physical evidence. In terms of § 2255(h)(1), Defendant does not
make a prima facie showing that Sanders’s declaration, “viewed in light of the
evidence as a whole, would be sufficient to establish by clear and convincing
evidence that no reasonable factfinder would have found [Defendant] guilty of the
[challenged] offense[s].”
B. Agent Clint Johnson
Clint Johnson was the Drug Task Force Agent who obtained the search warrant
for Defendant’s home. We need not address the merits of much of what Defendant
alleges about Agent Johnson (and his superior, Allen Franklin Lloyd, who did not
testify at trial) because it challenges only (1) the search warrant obtained for
Defendant’s home and (2) the good faith of the officers who planned the execution of
the warrant. As explained above, neither of those issues is relevant to our inquiry
under § 2255(h)(1). There remain, however, two issues to address.
1. Allegedly planting evidence (red phosphorus in pill bottle)
Defendant claims that Agent Johnson may have planted some of the red
phosphorus attributed to Defendant that supported the government’s allegation of
methamphetamine manufacture and sale. Noting that some (unspecified) quantity of
red phosphorus was found in Agent Johnson’s car after he left the Task Force, some
seven years after the murder, Defendant suggests this “newly discovered evidence of
15
Johnson’s possession of the precursor raises the specter of [his] having planted the
same,” providing false evidentiary support for the drug-related charges against him.
Proposed § 2255 motion at 53. This is rank speculation. We agree with the
government that:
a single discovery of phosphorus in 2006 does not establish, by any
evidentiary standard, a pattern of behavior by Johnson or a motive for
planting evidence during a 1999 homicide investigation, years before the
federal government pursued a drug charge. And even if it did, it would not
clearly and convincingly show that Johnson did so here, or that [Defendant]
was innocent of murdering Trooper Eales.
Resp. at 12.
Defendant attempts to bolster his evidence-planting theory by casting doubt on
the provenance of the 15 grams of red phosphorus found in a baggie inside the pill
bottle discovered in Defendant’s clothing when searched at the crime lab after his
arrest. He claims no witness testified about the pill bottle and the baggie during the
state homicide trials and insists its appearance at the federal trial is so suspect “that
any juror who knew of [Agent Johnson’s] misconduct alleged here would
undoubtedly have believed that the red phosphorus [in the baggie] was planted.”
Proposed § 2255 motion at 54. But drug manufacture and distribution were not
elements of any of the charges against Defendant in the state trials. There was no
reason to present evidence of the baggie or bottle.
Moreover, Defendant offers nothing to suggest either motive or opportunity
for Johnson’s alleged planting of the baggie. It would have been obvious to Johnson
that Defendant faced very serious charges (at least attempted murder) from the
16
shootings, and Johnson could not have known how much evidence of drug
manufacture or trafficking would be found in the residence. It is beyond speculation
that Johnson could have anticipated the state-court acquittals and the materiality of
the red phosphorus to the federal prosecution. This was not a street-level bust where
planting drugs would clearly make a difference. As for opportunity, when Johnson
arrived at the scene after the shooting, he went directly to assist in Eales’s emergency
treatment and removal by ambulance and then accompanied the ambulance to the
hospital. Meanwhile, Trooper Hash, who initially had custody of Defendant at the
scene, turned him over to the Sequoyah County Sheriff. When the ambulance to take
Defendant to the hospital arrived, the sheriff and a deputy removed Defendant’s
clothes in the ambulance; the deputy placed them in a biohazard bag, which he
handed to an Oklahoma State Bureau of Investigation criminologist near the crime
scene. Johnson thus had no access to Defendant before Defendant’s clothes were
removed, and there is no evidence that he had access to the clothes after they were
removed and later taken to the crime lab.
Finally, we note that the baggie with red phosphorus in the pill bottle was not
essential to Defendant’s conviction on the drug-related federal charges. The 33
grams of red phosphorus found in the Ziploc bag, and all the other physical evidence
and testimony recounted earlier, supported the government’s case of
methamphetamine manufacture at Defendant’s home. Even without the questioned
baggie a reasonable jury would hardly have been compelled to acquit Defendant.
2. Trial testimony
17
Agent Johnson also testified at trial regarding the execution of the search and
arrest warrants. He explained that he thought that execution of the warrants was high
risk because of reports over the previous six months that Defendant had been making
methamphetamine and had threatened to kill law-enforcement officers who came to
his home. And he stated that as his vehicle approached the scene after the shooting
was over, he could see flashing red and blue lights (lending some support to other
evidence that Defendant knew he was firing on law enforcement during the
shootout). Yet Defendant does not specifically direct his attacks at any of this
testimony. All he says is that “Johnson w[as] testifying falsely at trial” and that the
evidence of Agent Johnson’s misconduct “would have been admissible to impeach”
him. Proposed § 2255 motion at 88. Such nonspecific and perfunctory statements
cast no doubt on the verdict since Johnson’s testimony was cumulative and
insignificant in light of much other evidence on these matters.
C. AUSA Michael Littlefield
Defendant claims AUSA Michael Littlefield conspired with Agent Johnson to
violate his constitutional rights. He cites evidence that the two worked together on a
number of cases and that Johnson had helped Littlefield avoid a DUI arrest.
Defendant frames the alleged conspiracy in broad terms, but the focus of this claim is
Littlefield’s reliance on Johnson’s confidential informant Charles Sanders to bolster
the case against Defendant at trial, which we have already addressed. Conspiratorial
acts of Littlefield and Johnson may be important in establishing a constitutional
violation on which a § 2255 claim could be based, but they add nothing to the
18
factual-innocence claim that this court must now resolve. Likewise, evidence of
bullying behavior by Littlefield is at most relevant only to bolster Defendant’s claim
that Littlefield bullied Sanders into committing perjury. But we have already
rejected Defendant’s claim based on Sanders’s recantation (even accepting its truth);
and the alleged bullying is not itself evidence exculpating Defendant of anything.
The bullying allegation adds nothing helpful to Defendant.
D. Oklahoma Highway Patrol (OHP) Officers
Much of Defendant’s criticism of the conduct of OHP officers is irrelevant to
our inquiry under § 2255(h)(1), because it does not relate to his guilt or innocence.
Thus, we do not address his claims that officers beat him after the shooting and
interfered with his medical treatment, or his claim that some officers engaged in
intimidation tactics at his earlier state criminal proceedings. We discuss the merits of
only the innocence argument.
1. Investigator Paul Gordon
OHP internal-affairs Investigator Paul Gordon expressed the opinion that
because of the flawed manner in which the officers approached Defendant’s home, he
would not have known he was shooting at law-enforcement officers. (Gordon’s
criticism of the execution of the warrants is otherwise irrelevant to our innocence
inquiry, as is his complaint of official hostility toward him after he issued his critical
report.). He wrote:
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OHP [Officers] failed to follow the handbook protocol, at the very least, in
this regard: the Broncos [in which the lead members of the team arrived at
the scene] were unmarked and the troopers did not activate their emergency
lights to warn [Defendant] he was dealing with the police. . . . Under the
circumstances admitted to me and observed by me, [Defendant] would not
have known the incoming vehicles were law enforcement.
Gordon Declaration, Ex. 18 at 9 (par. 23) (emphasis added). But his underlying
assumption—the lack of emergency lights—was contrary to substantial evidence at
trial. As we said on Defendant’s direct appeal:
[A]lthough the lead Bronco did not exhibit any flashing lights (because
[Defendant] began shooting at it before the two officers inside had an
opportunity to turn on the lights), the second Bronco did. More
specifically, the second Bronco had a flashing strobe-type light on the sun
visor and “wig-wag” headlights, all of which had been activated. The third
vehicle to enter [Defendant’s] property, immediately following the two lead
Broncos, was a marked Oklahoma Highway Patrol car with its emergency
lights activated (including a standard light bar on top and “wig-wag”
headlights).
Barrett, 496 F.3d at 1113 (citations omitted); see also id. n.14 (noting that while
testimony was conflicting as to precisely when the lights of the marked patrol car
were activated, “[i]t is clear, nevertheless, that a substantial portion of the shots fired
by [Defendant] occurred after the lights of this vehicle were activated”). We went on
to say, “[Defendant’s] conduct in shooting at the officers that night clearly would
have allowed the jury to reasonably find that he intended to kill one or more of th[e]
officers, including Eales.” Id. at 1114 (recounting conduct during the shooting
reflecting Defendant’s intent to kill officers); see also id. at 1113 (discussing
additional evidence relevant to Defendant’s intent, including his awareness of the
outstanding warrant and his threats of violence should law enforcement attempt to
20
serve it). Gordon’s critique may be helpful to Defendant, but Defendant again fails
even to approach a prima facie case that Gordon’s opinion would persuade, much less
clearly and convincingly compel, a jury to acquit Defendant.
2. OHP Troopers
Defendant’s § 2255 motion contains a hodgepodge of allegations under the
heading “Trooper by trooper, they lied and misled the jury.” Proposed § 2255 motion
at 66. Some OHP troopers gave statements to police officials, testified at the state
trials, and testified at the federal trial. Defendant alleges that their testimony
“relat[ing] to the question of notice and self-defense” changed over time and “[t]he
evolution of that testimony makes clear that the OHP’s interest was not in the truth
but in securing a verdict of death.” Id. As the government points out, however,
“inconsistent statements made over the course of multiple investigations and trials”
are matters “[Defendant] could have identified long ago.” Resp. at 14. In some
instances, trial counsel did bring out the inconsistencies before the jury, but to no
demonstrable effect; in other instances, counsel evidently deemed them not worth
pursuing. This reinforces our assessment that the few minor inconsistencies
identified here are too insignificant to play a material role in the innocence inquiry
under § 2255(h)(1).
Defendant points to testimony on two occasions by Agent Ben Rosser (who
interviewed officers shortly after the shooting): (1) “At the [state] preliminary
hearing, Agent Rosser testified that when he arrived on the scene [after the shooting]
the only emergency lights on were on Trooper Hash’s marked unit”; (2) “At the first
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[state] trial Agent Rosser admitted that he had listened to the Troopers’ testimony at
the preliminary hearing and the first trial and in ‘many many’ instances, that the
testimony concerning emergency lighting differed from the sworn statements given
under oath to [Investigator] Paul Gordon.” Proposed § 2255 motion at 66. But
Defendant fails to explain the relevance of what Rosser saw after the shooting or how
any inconsistency (he does not identify what the “many many” instances were) was
material to the verdict.5
Defendant accuses Trooper John Hamilton of telling two lies. First, he says:
“Hamilton maintained that he had damaged the push guards on the [lead] Bronco by
hitting a post at the driveway. It was a lie. Agent Rosser testified [at the state
preliminary hearing] the push guards were bent at the same height as the porch [on
Defendant’s home].” Id. at 67. But the height of the porch is hardly conclusive.
And although Defendant notes the dispute at trial about where the Bronco was when
shooting began, he does not explain how that dispute would be resolved by
determining where the Bronco was damaged; all agree that ultimately the Bronco
ended up at or near the porch. The second allegation is based on a misreading of the
record. Defendant asserts that Hamilton initially stated in investigative interviews
that he did not shoot his gun and admitted he did so only when confronted with a
ballistics report confirming that fact. But in the interviews Hamilton did not deny
shooting his weapon. In one, he was asked but his answer on the recording was
5
Here, and elsewhere, Defendant improperly refers to testimony in state
proceedings for which he has not provided a transcript.
22
inaudible. In the other, he seems to indicate that he had used his sidearm. See Ex. 47
at 45 (“The only firearm that HAMILTON had immediately available and in use
during the time that he was receiving gun fire was his Sig Sauer sidearm.”). In any
event, Defendant does not explain the relevance of these statements to his guilt or
why Hamilton would intentionally provide false information on these matters.
Next, Defendant complains about testimony from Trooper Raymond Greninger
(who was in the second Bronco approaching Defendant’s home) as to when the
gunfire started. Defendant states:
Greninger told Agent Rosser that the gunfire began [when the lead Bronco
was] at the front porch; thereafter, he advised [Investigator] Gordon that he
‘drew a blank’ from the ditch until they pulled up and heard gunfire. In the
first state trial, Greninger maintained his ‘memory block’ story; in the
second state trial, he testified the gunfire began as the Bronco approached
the house. By the federal trial, Trooper Greninger again claims he had a
memory block from the ditch to the stopping of [his] car.
Proposed § 2255 motion at 67-68 (citations omitted). Defendant’s point appears to
be that he should have the benefit of Greninger’s earlier statements indicating the
lead Bronco was near the front porch when gunfire began. But the jury heard from
the driver of the lead Bronco, Trooper Hamilton, whose testimony was summarized
in our Barrett I opinion:
[Defendant] began shooting at the lead vehicle, a Ford Bronco driven by
Trooper Hamilton, as soon as the vehicle cleared a ditch that ran
between [Defendant’s] house and a property to the east. . . . As
Hamilton continued driving the Bronco westward towards [Defendant’s]
residence, the gunfire intensified and the windshield of the Bronco
began to disappear. The gunfire continued after Hamilton stopped the
Bronco near the edge of the front porch of [Defendant’s] residence.
23
Barrett I, 496 F.3d at 1114 (citations omitted). Even if Greninger’s statements
contradicted Hamilton’s account, a reasonable jury would certainly not be required
to accept those statements over the trial testimony of the lead Bronco’s driver.
Defendant notes in one sentence that Trooper Gene Hise (driver of the
fourth vehicle approaching Defendant’s home) testified his headlights were off as
he entered Defendant’s property, although Hise had testified in state proceedings
that they were on. It is not evident what Defendant’s point is. Hise’s testimony on
this matter at the federal trial was, if anything, more favorable to Defendant,
contrary to Defendant’s theory that the officers lied to obtain a death sentence.
Defendant then focuses on Trooper Steven Hash’s testimony about feeling a
pill bottle in Defendant’s pocket when he frisked him for weapons at the crime scene.
Defendant notes that although Hash testified about this at the federal trial and the
first state trial, he did not mention it during his internal interviews, at the second state
trial, or at the preliminary hearing. Defendant does not say, however, that Hash was
asked and denied feeling the bottle on the latter occasions. Moreover, the Sequoyah
County Sheriff and his deputy testified about finding the pill bottle in Defendant’s
pocket and putting it back before Defendant’s clothes were bagged as evidence. In
light of that testimony, and all the other (admittedly untainted) evidence of
methamphetamine manufacture and sale by Defendant discussed earlier, a reasonable
jury would hardly be compelled to find him innocent of the charges based on drug
trafficking due to any inconsistency in Hash’s testimony.
24
Defendant also alleges a discrepancy between Officer Danny Oliver’s trial
testimony and a handwritten statement he gave after the shooting. Oliver was with
Hash in the third vehicle approaching the scene. At trial he testified he first heard
gunfire when “[t]he first Bronco was already through the ditch and the second was
nearly through.” Id. at 69 (internal quotation marks omitted). But his earlier
handwritten statement, for which Defendant provides neither a copy nor a citation to
our record, purportedly said: “As soon as the first vehicle stopped in front of the
residence I heard automatic weapon fire and could see a great deal of gun smoke in
front of the residence.” Id. at 68 (internal quotation marks omitted). We are not
persuaded that every reasonable juror would infer from the handwritten statement
that all the officers must have lied at trial about when the gunfire began.
Finally, Defendant states that Lieutenant Kerry Pettingill testified
inconsistently about whether his headlights were on or off as he drove his vehicle
onto the drive of the adjacent property of Defendant’s mother. But the alleged
inconsistency is between Pettingill’s testimony in the first and second state trials and
is wholly irrelevant to Defendant’s guilt.
In sum, Defendant’s objections regarding minor discrepancies in testimony by
OHP officers do not materially advance his case for innocence.
3. Destruction of evidence
Defendant complains about the destruction of a partially recorded interview
with a now-deceased trooper after the shootout. It was ordered destroyed per official
policy against recording officers immediately after an incident. Defendant does no
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more than speculate that “[b]ecause of the duplicity and timing of the destruction, it
is fair to say that there was exculpatory evidence on that tape.” Id. at 72 (emphasis
added). There is no evidence that the taped interview would in fact have supported
Defendant’s claim of innocence.
4. Failure to preserve crime scene
Defendant’s proposed § 2255 motion raises several alleged failures to preserve
the crime scene. The principal one is the alleged movement of the lead Bronco from
its location during the shooting. Defendant contends this undermines the testimony
of government expert Iris Dalley about the trajectory of bullets fired by Defendant at
the oncoming vehicle and supports his position “that the Bronco came barreling up to
his porch, and he was shooting into headlights without knowing who he was shooting
at.” Id. at 72. But any uncertainty about the vehicle’s position must be viewed in
light of the eyewitness testimony of the vehicle’s position and, more importantly, the
testimony regarding the shooting itself. This is a far cry from the sort of physical
evidence that can conclusively establish the inaccuracy of eyewitness testimony.
Likewise for Defendant’s remaining crime-scene issues: (1) Dalley’s alleged
testing of a load bearing vest rather than a “turtle shell” vest worn by Eales in making
trajectory calculations; (2) removal of one of the officers’ weapons from the scene
for 12 hours; (3) the movement on and off the scene of such items as the pin of a
flashbang device and the ignition key of the lead Bronco; (4) the failure of state
criminalists to collect all the bullet casings at the scene, analyze blood on the porch
or fingerprints on the baggies of red phosphorus or the pill bottle containing one of
26
the baggies claimed to have been in Defendant’s pockets, and calculate the trajectory
of all shots to the lead Bronco and a shot likely fired by Trooper Hamilton into
Defendant’s cabin; and (5) an allegedly deficient determination of the number of
shots that were fired and by whom. Defendant objects generally that “[t]he failure to
manage the crime scene in a scientifically responsible manner left the sequence of
events, critical to [Defendant’s] defense, in a muddle.” Id. at 77. But he ignores the
eyewitness accounts of what happened, and he points to nothing inconsistent with the
officers’ accounts. His argument amounts to nothing more than that the
corroboration of these accounts by physical evidence and expert testimony may not
be as strong as the prosecution contended. That is not a ground for relief under
§ 2255(h)(1).
E. Ballistics Expert Higgs
Ballistics expert Terrance Higgs tied the bullet fragment that killed Eales to
Defendant’s .223 Colt H Bar Sporter rifle, “to the exclusion of all guns that are made
or that will be made.” Trial Tr. at 3703-05. Defendant challenges this finding in two
ways. First, he says that Higgs’s testimony at the state trials was not as definitive as
at the federal trial because at the state trials Higgs used a preponderance-of-the-
evidence standard in testifying that the fragment matched Defendant’s gun. But he
does not claim that if Higgs had testified at the federal trial in terms of a
preponderance, no reasonable jury would have convicted him. Such a claim would
be absurd.
27
Defendant’s second challenge concerns chain of custody. He claims that “the
government did not and cannot establish an unbroken chain of custody,” id. at 83, for
the fragment between its removal during the autopsy and its testing by Higgs, and
that “[w]ithout an unbroken chain from Eales’ autopsy, no reasonable juror could
find that it was [Defendant’s] bullet that killed Trooper Eales,” id. at 85. Such
hyperbole is singularly unpersuasive. The evidence of chain of custody was solid,
and Defendant’s carping in his proposed § 2255 motion is based on a misreading of
the record. He points to no evidence indicating tampering. Moreover, Defendant
again ignores that the bullet fragment was merely physical evidence to corroborate
eyewitness testimony. And there was no evidence, or even argument, at trial that
anyone but Defendant shot Eales.
F. Reconstruction Expert Dalley
Finally, Defendant returns to his criticism of expert Iris Dalley. He suggests
that another expert would testify that Dalley “lacked sufficient knowledge of
ballistics, vehicle construction, and the necessity of using consistent, accurate terms
of reference when reconstructing a scene to render reliable, credible opinions about a
shooting scene involving a vehicle and did not follow widely accepted protocol used
in shooting incident reconstruction.” Proposed § 2255 motion at 86 (internal
quotation marks omitted). He also alleges that near the time of her testimony in this
case, Dalley was “chastised” by the Oklahoma Court of Criminal Appeals for
“dress[ing] up her personal opinions in the guise of ‘science.’” Id. at 86 (citing
Dunkle v. State, 139 P.3d 228, 249-51 (Okla. Crim. App. 2006)).
28
But, as this court pointed out in reviewing Defendant’s first § 2255 motion,
Dalley was thoroughly and effectively cross-examined at trial (one of her lawyers
thought her testimony turned out to be embarrassing for the government, see
Barrett II, 797 F.3d at 1216), yet the jury convicted. Dalley’s testimony was
intended only as corroboration of the officers’ eyewitness testimony. Defendant has
not made a prima facie showing that any reasonable jury made aware of the alleged
deficiencies in Dalley’s testimony would have acquitted him.
V. CONCLUSION
In addressing Defendant’s request for authorization, we have necessarily
discussed his allegations in a serial manner. But we have also considered them
cumulatively. And we must conclude that Defendant has not presented a prima facie
case that in light of the evidence he presents, no reasonable factfinder could find him
guilty of the charged offenses. There is too much evidence that a jury could credit
concerning both the shooting and Defendant’s manufacture and distribution of
methamphetamine.
We therefore deny authorization to file the proposed second § 2255 motion.
This decision is “not . . . appealable and shall not be the subject of a petition for
rehearing or for a writ of certiorari.” 28 U.S.C. § 2244(b)(3)(E); see In re Clark,
No. 16-5081, ___F.3d___, 2016 WL 5210887 at *3 (10th Cir. Sept. 21, 2016)
(§ 2244(E) applies to denials of authorization under § 2255(h)). Defendant’s motion
to proceed in forma pauperis is denied as unnecessary “because there is no filing fee
29
for the motion for authorization.” In re Alvarado, No. 10-4205, 2010 WL 9531122,
at *2 (10th Cir. Dec. 2, 2010) (unpub.).
Entered for the Court
Harris L Hartz
Circuit Judge
30