Barnett v. Roper

941 F.Supp.2d 1099

David BARNETT, Petitioner,

v.Don ROPER, Respondent.

Case No. 4:03CV00614 ERW.

United States District Court,

E.D. Missouri,

Eastern Division.

April 22, 2013.

Elizabeth U. Carlyle, Columbus, MS, Richard H. Sindel, Kathryn B. Parish, Sindel and Sindel, P.C., Clayton, MO, for Petitioner.

Bill L. Thompson, Missouri Supreme Court, Stephen D. Hawke, Assistant Attorney General, Attorney General of Missouri, Jefferson City, MO, for Respondent.

MEMORANDUM AND ORDER

E. RICHARD WEBBER, Senior District Judge.

This matter comes before the Court on Petitioner David Barnett's Motion to Amend Judgment pursuant to Fed.R.Civ.P. 59(e), filed on August 7, 2012 [ECF No. 84]. Petitioner requests that this Court vacate its previous judgment of July 10, 2012, and amend its order to grant a hearing on the claims presented in Barnett's Fed.R.Civ.P. 60(b) motion and supplemental petition, both filed on June 29, 2012.

I. BACKGROUND

Petitioner Barnett is incarcerated at the Potosi Correctional Center located in Mineral Point, Missouri, pursuant to a sentence and judgment of the Circuit Court of St. Louis County, Missouri, where a jury convicted him of two counts of first degree murder, two counts of first degree robbery and two counts of armed criminal action. Barnett was sentenced to death for each of the two murder counts, and sentenced to four consecutive life sentences for the robbery and armed criminal action counts in the Missouri Department of Corrections. The Missouri Supreme Court affirmed his convictions in its opinion, State v. Barnett, 980 S.W.2d 297 (Mo. banc 1998). Barnett filed a pro se “Motion to Vacate, Set Aside or Correct the Judgment or Sentence” on February 10, 1999, pursuant to Missouri Supreme Court Rule 29.15.¹ Subsequently, Petitioner's First Amended Motion to Vacate, Set Aside or Correct the Judgment and Request for Evidentiary Hearing was filed by the appointed public defender's counsel.

The Rule 29.15 post-conviction state court denied collateral relief, and the Missouri Supreme Court affirmed the denial. Barnett v. State, 103 S.W.3d 765 (Mo. banc 2003). Petitioner then filed a petition for writ of habeas corpus with this Court [ECF No. 15]. The petition raised 19 grounds for relief. These grounds included Ground I, that Barnett was denied effective assistance of counsel at the penalty phase of his trial due to trial counsel's failure to investigate and present mitigating evidence about the petitioner's biological father, mother and mother's family; Ground XVII, that Barnett was denied effective assistance of counsel at the penalty phase of his trial due to trial counsel's failure to request a jury instruction that the jury could draw no adverse inference from Barnett's failure to testify; and Ground XIX, that Barnett was denied due process of law in Missouri's proportionality review process. On August 24, 2006, this Court denied relief on all grounds [ECF No. 28]. Barnett v. Roper, No. 4:03CV00614ERW, 2006 WL 2475036 (E.D.Mo. Aug. 24, 2006). In denying relief, this Court held that Grounds I and XVII were procedurally barred from federal court review due to petitioner's default during the post-conviction proceedings in state court. Furthermore, this Court declined review of these two grounds on the merits, as it found that petitioner's defaults were not excused as he was unable to show cause for the default, or establish a fundamental miscarriage of justice.² As to Ground XIX, this Court found that petitioner's right to Missouri's proportionality review process was not denied, that the Missouri court's decision was a reasonable application of federal law, and as such, this Court would not look behind the Missouri Supreme Court's determination that Petitioner's sentence was proportional. A certificate of appealability was granted as to Ground I, but denied as to Grounds XVII and XIX. The Eighth Circuit Court of Appeals affirmed this Court's ruling. Barnett v. Roper, 541 F.3d 804 (8th Cir.2008), cert. denied, 558 U.S. 830, 130 S.Ct. 63, 175 L.Ed.2d 47 (2009).

On June 29, 2012, approximately six years after the denial of federal habeas relief by this Court, Barnett filed a SupplementalApplication for Habeas Corpus under 28 U.S.C. § 2254 [ECF No. 77] and a Motion for Relief from Judgment under Federal Rule of Civil Procedure 60(b)(6) [ECF No. 78]. In his 60(b)(6) Motion, Barnett sought reconsideration of this Court's 2006 decision denying relief for Grounds I, XVII and XIX. Id. Petitioner argued that the change in the law brought about by the Supreme Court's ruling in Martinez v. Ryan, ––– U.S. ––––, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012), combined with the unique circumstances of this case, constitute “extraordinary circumstances,” requiring that Barnett's case be re-opened and the relevant claims be reviewed on the merits pursuant to Rule 60(b)(6). Additionally, Petitioner contended that the Missouri Supreme Court's recent decisions in State v. Anderson, 306 S.W.3d 529 (Mo. banc 2010); State v. Davis, 318 S.W.3d 618 (Mo. banc 2010); and State v. Dorsey, 318 S.W.3d 648, 659 (Mo. banc 2010), “change the landscape of Mr. Barnett's claim that he was denied proper proportionality review.” [ECF No. 78, ¶ 8]. This Court, however denied Rule 60(b) relief in its memorandum and order of July 10, 2012 [ECF No. 80]. Petitioner now files a motion pursuant to Fed.R.Civ.P. 59(e), to amend the July 10, 2012 judgment and grant a hearing on the claims presented in Barnett's Fed. R. Civ. Pro. 60(b) Motion and Supplemental Application for Habeas Corpus.

II. STANDARD OF REVIEW

Rule 59(e) allows a court to alter or amend a judgment upon a motion filed no later than 28 days after entry of the judgment. ³Fed.R.Civ.P. 59(e). A district court enjoys broad discretion in determining whether to grant or deny a Rule 59(e) motion. United States v. Metro. St. Louis Sewer Dist., 440 F.3d 930, 933 (8th Cir.2006) (internal citations omitted). “ Rule 59(e) motions serve the limited function of correcting manifest errors of law or fact or to present newly discovered evidence.” Id. (internal citations omitted). “Such motions cannot be used to introduce new evidence, tender new legal theories, or raise arguments which could have been offered or raised prior to entry of judgment.” Id. “[A] motion made pursuant to [ Rule] ... 59 is not intended to routinely give litigants a second bite at the apple, but to afford an opportunity for relief in extraordinary circumstances.” Dale and Selby Superette & Deli v. U.S. Dept. of Agriculture, 838 F.Supp. 1346, 1348 (D.Minn.1993) (emphasis added).

In the habeas context, a Rule 59(e) motion is subject to the well established restrictions on filing successive motions for post-conviction relief. United States v. Lambros, 404 F.3d 1034, 1036, 1036 (8th Cir.2005), cert. denied, 545 U.S. 1135, 125 S.Ct. 2953, 162 L.Ed.2d 879 (2005) (affirming the district court's dismissal of petitioner's Rule 59(e) motion as an effort to file a successive motion for post-conviction relief, observing that motion “sought ultimately to resurrect the denial of [petitioner's] earlier § 2255 motion”). If petitioner's motion is determined to be a successive habeas corpus application, then it is subject to 28 U.S.C. § 2244(b). That statute prohibits a district court from considering a successive petition absent direction from the Court of Appeals. Gonzalez v. Crosby, 545 U.S. 524, 530, 125 S.Ct. 2641, 162 L.Ed.2d 480 (2005).⁴

III. DISCUSSION

The Court will examine, as a threshold matter, whether Barnett's Motion to Amend his Rule 60(b) Motion constitutes a successive habeas corpus application, warranting dismissal. For reasons discussed below, the Court finds that Ground XIX is successive. The applicability of Martinez v. Ryan, as to Grounds I and XVII, is then addressed. Finally, the Court will consider whether there are “extraordinary circumstances,” entitling Barnett to relief under Rule 60(b)(6).

A. Application of 28 U.S.C. § 2244(b)

As a preliminary matter, the Court must determine whether Barnett's Rule 59(e) Motion is a successive “habeas corpus application.” Here, as the instant 59(e) Motion seeks to amend the previously denied Rule 60(b)(6) motion, the focus of this initial inquiry will be on whether the grounds for relief asserted by Barnett under his Rule 60(b) motion should be treated as second or successive.⁵ In his 59(e) Motion to Amend, Barnett maintains that the Rule 60(b)(6) motion should not be construed as a second or successive petition.

Federal Rule of Civil Procedure 60(b) allows a habeas petitioner to seek relief from final judgment and to request the reopening of his case in certain circumstances. Ward v. Norris, 577 F.3d 925, 932 (8th Cir.2009). Rule 60(b) applies to habeas proceedings to the extent it is not inconsistent with the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). Id. (citing Gonzalez, 545 U.S. at 529, 125 S.Ct. 2641);see also28 U.S.C. § 2254; Fed.R.Civ.P. 81(a)(4). The AEDPA does not define “second or successive.” The Supreme Court has stated that the term “takes its full meaning from [the Court's] case law, including decisions predating the enactment of [AEDPA].” Panetti v. Quarterman, 551 U.S. 930, 943–44, 127 S.Ct. 2842, 168 L.Ed.2d 662 (2007) (internal citations omitted). The “gatekeeping” provision of the AEDPA, 28 U.S.C. § 2244, governs second or successive habeas petitions under § 2254. The AEDPA imposes the following three requirements on those petitions deemed second or successive habeas petitions:

First, any claim that has already been adjudicated in a previous petition must be dismissed. § 2244(b)(1). Second, any claim that has not already been adjudicated must be dismissed unless it relies on either a new and retroactive rule of constitutional law or new facts showing a high probability of actual innocence. § 2244(b)(2). Third, before the district court may accept a successive petition for filing, the court of appeals must determine that it...