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APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF OKLAHOMA. (D.C. Nos. 6:09-CV-00105-JHP and 6:04-CR-00115-JHP-1).
David B. Autry, Oklahoma City, Oklahoma, (Heather E. Williams, Federal Defender, Joan M. Fisher and Tivon Schardl, Assistant Federal Defenders, Sacramento, California, with him on the briefs) for Defendant - Appellant.
Jeffrey B. Kahan, Trial Attorney, United States Department of Justice, Washington, D.C., (David A. O'Neil, Acting Assistant Attorney General, Washington, D.C., Mark F. Green, United States Attorney, and Christopher J. Wilson, Assistant United States Attorney, Muskogee, Oklahoma, with him on the brief) for Plaintiff - Appellee.
Before KELLY, HARTZ, and MATHESON, Circuit Judges.
HARTZ, Circuit Judge.
Defendant Kenneth Barrett was sentenced to death after being convicted in federal court on two counts of felony murder and one count of intentionally killing a state law-enforcement officer. We affirmed on direct appeal. See United States v. Barrett, 496 F.3d 1079 (10th Cir. 2007). Defendant then filed a motion for relief under 28 U.S.C. § 2255, which the district court denied. See Barrett v. United States, No. 6:09-civ-105-JHP, 2012 WL 3542609 (E.D. Okla. Aug. 16, 2012) (unpublished). We granted a certificate of appealability (COA) enabling him to appeal on several of his claims of ineffective assistance of counsel. See 28 U.S.C. § 2253(c)(1)(B) (requiring COA to appeal denial of § 2255 motion). Exercising jurisdiction under 28 U.S.C. § 2255(d), we now consider the merits of those claims and affirm on all but one. Because Defendant may be entitled to relief on his contention that his trial attorneys were ineffective by failing to investigate and present evidence of his background and mental health for the trial's penalty phase, we reverse and remand for an evidentiary hearing on this issue.
A. The Offenses
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 highrisk, 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." R., Vol. 5 pt. 1 at 629.
The Tact Team devised its plan to secure Defendant's residence: Two white Broncos and a marked patrol car with its emergency lights activated, each containing two troopers, would approach Defendant's residence single-file from the east while three troopers in another patrol car would approach the fence south of Defendant's residence. A fifth vehicle would drive to a trailer occupied by Defendant's mother, which was west of the house, to provide security and protect her. The six troopers approaching from the east would enter and secure the residence. Of the three troopers approaching from the south, one would stay at the fence to provide sniper cover and the other two would apprehend anyone fleeing west from the residence.
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. The second Bronco and 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." Id. at 700. The gunfire intensified as the vehicle drew closer. Hamilton was struck in the face with glass or bullet fragments.
Meanwhile, the troopers coming from the south arrived at the fence. Two of them scaled it and headed toward the residence. They saw Defendant's son, Toby Barrett, outside the residence and ordered him to get on the ground. Toby eventually complied. The gunfire erupted either shortly before or while they were shouting at Toby. After Toby was handcuffed he yelled for his father.
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 " flash-bang" stun grenade out the window, which temporarily stopped the gunfire. Id. at 707. 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 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.
B. Procedural History
The same day as the shootings, Defendant was charged by information in Oklahoma state court with one count of first-degree murder and three counts of shooting with intent to kill. After several amendments the final information charged him with one count of first-degree murder (for Eales's death), one count of shooting with intent to kill (for shooting Hamilton), and two counts of discharging a firearm with intent to kill (for shots fired at two other troopers). His first state trial resulted in a hung jury. In 2004 he was retried and found not guilty on the two counts of discharging a firearm with intent to kill but guilty on two lesser-included offenses--namely, manslaughter, instead of first-degree murder, and assault and battery with a dangerous weapon, instead of shooting with intent to kill. He was sentenced to 30 years in prison.
On September 23, 2004, Defendant was charged with various federal drug and murder offenses in the United States District Court for the Eastern District of Oklahoma. A superseding indictment charged him with three offenses: (1) causing
Eales's death in the course of using a firearm in furtherance of a drug-trafficking offense, see 18 U.S.C. § 924(c)(1)(A), (j); (2) causing Eales's death in the course of using a firearm in furtherance of a crime of violence, see id. ; and (3) intentionally killing Eales during a federal drug offense while Eales was engaged in, and on account of, the performance of his official duties, see 21 U.S.C. § 848(e)(1)(B). The government sought the death penalty on each count. On November 4, 2005, a jury found him guilty on all three counts, and thereafter recommended life imprisonment on the first two and death on the third. The judge imposed the recommended sentence. On direct appeal we affirmed the convictions and sentence. See Barrett, 496 F.3d 1079. The Supreme Court denied Defendant's petition for certiorari. See Barrett v. United States, 552 U.S. 1260, 128 S.Ct. 1646, 170 L.Ed.2d 359 (2008).
Defendant then moved for relief under 28 U.S.C. § 2255. The district court denied the motion and declined to issue a COA. See Barrett, 2012 WL 3542609, at *94. Defendant then sought a COA from this court. We granted a COA on seven issues related to ineffective assistance of counsel:
1. " Whether trial counsel provided ineffective assistance in the guilt phase by failing to present an expert as to whether the police tactics employed during the search warrant's execution would have identified the police as law-enforcement personnel" ;
2. " Whether trial counsel provided ineffective assistance in the guilt phase by failing to present a crime-scene expert" ;
3. " Whether trial counsel provided ineffective assistance in the guilt phase by failing to investigate and present mental-health evidence" ;
4. " Whether trial counsel provided ineffective assistance in the guilt phase by failing to seek an instruction concerning the credibility of drug-addict witnesses" ;
5. " Whether trial counsel provided ineffective assistance in the guilt phase by failing to seek an instruction on the defense's theory of the case" ;
6. " Whether appellate counsel provided ineffective assistance by not raising the trial court's refusal to give a lesser-included-offense instruction" ; and
7. " Whether trial counsel provided ineffective assistance in the penalty phase by failing to develop mitigation evidence."
Case Mgmt. Order at 1-2, United States v. Barrett, No. 12-7086 (10th Cir. May 2, 2013).
A. Standard of Review
On appeal from the denial of a § 2255 motion, ordinarily " we review the district court's findings of fact for clear error and its conclusions of law de novo." United States v. Rushin, 642 F.3d 1299, 1302 (10th Cir. 2011). " [W]here, as here, the district court does not hold an evidentiary hearing, but rather denies the motion as a matter of law upon an uncontested trial record, our review is strictly de novo." Id. We review claims of ineffective assistance of counsel according to the two-pronged test in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). First, a movant must show that counsel's performance was deficient, meaning it " fell below an objective standard of reasonableness as measured by prevailing professional norms." Rushin, 642 F.3d at 1302 (internal quotation marks omitted). This is a demanding standard, requiring a showing that the performance was " outside the wide range of professionally competent assistance." Byrd v. Workman, 645 F.3d 1159, 1168 (10th Cir. 2011)
(internal quotation marks omitted). The performance " must have been completely unreasonable, not merely wrong." Id. (internal quotation marks omitted). Next, a movant must show prejudice, meaning " there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Rushin, 642 F.3d at 1302 (internal quotation marks omitted). " A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial . . . ." Byrd, 645 F.3d at 1168 (internal quotation marks omitted). " Courts are free to address these two prongs in any order, and failure under either is dispositive." Id.
B. Police-Tactics Expert
Defendant first contends that his trial attorneys were ineffective by choosing the wrong expert on police tactics. He asserts that criminologist George Kirkham (whom the court had authorized the defense to retain as an expert) could have established that the Tact Team's raid was ill-conceived in that it prevented him from knowing that it was law-enforcement officers, rather than drug dealers or other trespassers, who had invaded his property. Instead of using Kirkham, Defendant's trial attorneys called as an expert witness Cloyce Van Choney, a former FBI SWAT-team leader who had testified for the prosecution in the two state trials. Defendant contends that this was an inexplicable mistake because his attorneys knew that Choney was extremely hostile and would inevitably change his testimony in the federal trial to the defense's detriment. We disagree.
" [T]he decision of which witnesses to call is quintessentially a matter of strategy for the trial attorney." Boyle v. McKune, 544 F.3d 1132, 1139 (10th Cir. 2008). And " [t]he selection of an expert witness is a paradigmatic example of the type of strategic choice that, when made after thorough investigation of the law and facts, is virtually unchallengeable." Hinton v. Alabama, 134 S.Ct. 1081, 1089, 188 L.Ed.2d 1 (2014) (per curiam) (brackets and internal quotation marks omitted). We are satisfied that the decision to call Choney was a strategic choice within the bounds of professionally reasonable conduct. Even though Defendant's trial attorneys did not contact Kirkham, they had good reason to use Choney instead. As they said to the trial court at the ex parte hearing to establish a trial budget, Choney's testimony on cross-examination at the first state trial was extremely helpful to the defense in establishing that the methods used by the Tact Team were contrary to best practices. See R., Vol. 3 at 98-101. At the second state trial, he apparently refused to testify for the defense. But when the defense said it would read to the jury his testimony from the first trial, the prosecution called him and his testimony was, as acknowledged in Defendant's opening brief on appeal, a " debacle" for the prosecution. Aplt. Br. at 19.
Although Defendant contends that, given Choney's hostility, he would inevitably change his testimony in the federal trial, he had not done so between the two state trials. Defendant's trial attorneys could have reasonably believed his testimony would be much the same the third time around. " [F]or counsel to repeat a winning strategy in a later trial for the same type of crime, involving the same defendant, strikes us as eminently reasonable." Laws v. Armontrout, 863 F.2d 1377, 1393 (8th Cir. 1988) (en banc). To the contrary, had they departed from that strategy, Defendant may well have argued that it was ineffective to do that instead. See Guerrero v. United States, 84 F.App'x 933, 934-35 (9th Cir. 2003) (remanding for § 2255 hearing on ineffectiveness claim
when attorney departed from strategy that led to hung jury in first trial); cf. Putman v. Head, 268 F.3d 1223, 1229, 1244-45 (11th Cir. 2001) (rejecting habeas applicant's argument that trial counsel in second trial should have followed the same strategy used in first trial). Although Defendant contends that his trial attorneys could have avoided the risk of Choney's testimony going awry by calling Kirkham instead, there is no guarantee that Kirkham's testimony would have survived cross-examination. See Boyle, 544 F.3d at 1138-39 (medical experts if called may have made damaging concessions on cross-examination). They could have rationally concluded that it was preferable to use Choney--a known commodity who had testified favorably twice in the past--rather than a new expert.
Defendant's claim thus fails Strickland's first prong because the decision to call Choney was within " the wide range of professionally competent assistance." Byrd, 645 F.3d at 1168 (internal quotation marks omitted).
C. Crime-Scene Reconstruction Expert
Defendant contends that his trial attorneys were ineffective by failing to counter the government's crime-scene reconstruction expert, Iris Dalley. He says they could have called or at least consulted with Edward Hueske, a ballistics and crime-scene reconstruction expert who had been retained in the state-court proceedings and for whom the district court had authorized funding. Instead, they decided to rely solely on cross-examining Dalley. According to Defendant, that was an ineffective strategy: His trial attorneys should have objected to Dalley's testimony in the first place; called Hueske as a witness; and prepared adequately for Dalley's testimony by consulting with Hueske and reviewing all Dalley's state-court transcripts. Defendant states that Dalley's testimony was damaging for two reasons. First, it placed him standing outside his residence when shooting, which countered his defense that he shot from a prone position inside his residence where he could not see any emergency lights on the vehicles behind the lead Bronco and thus did not know that the intruders were law-enforcement officers. Second, Dalley's testimony established that Eales was shot after he exited the Bronco, which, he says, again tended to negate Defendant's defense that he was unaware he was firing on law-enforcement officers.
Central to all of Defendant's complaints is the contention that his trial attorneys could not have made an informed strategic choice to forgo Hueske and rely solely on cross-examination of Dalley because they never consulted with Hueske about Dalley's testimony, did not have transcripts of her testimony from the second state trial, and spent little time preparing for her cross-examination. The government does not appear to contest that Defendant's trial attorneys consulted no expert and concedes that they were without the second-trial transcripts. Nevertheless, the government argues that an informed strategic choice was made. It points to an affidavit executed during the § 2255 proceedings by one of Defendant's trial attorneys, Roger Hilfiger, which states:
The State Court transcripts caused me to be aware that during the pendency of Mr. Barrett's Sequoyah County prosecution, the presiding judge had considered striking Iris Dalley's testimony. I felt that during the federal trial, the defense could rely on the same plan for cross-examination that Mr. Barrett's lawyers had successfully employed in the county case. I did not think that employing a defense expert on crime scene reconstruction would make a difference in our ability to confront Ms. Dalley's testimony.
Aplee. Br. at 26 (internal quotation marks omitted). And it contends that Dalley's testimony from the first state trial included a critical concession that Defendant's trial attorneys knew would negate her impact: a concession that ...