Barr v. Luebbers
Filing
31
MEMORANDUM OPINION: IT IS HEREBY ORDERED that Petitioner Timothy Barr's motion for relief from judgment 27 , motion to appoint counsel 28 , motion to proceed in forma pauperis 29 , and motion for an evidentiary hearing 30 are DENIED. IT IS FURTHER ORDERED that the Court will not issue a certificate of appealability. Signed by District Judge Rodney W. Sippel on 7/2/19. (KEK)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
TIMOTHY BARR,
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)
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)
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)
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Petitioner,
v.
EILEEN RAMEY,
Respondent.
Case No. 4:00 CV 1706 RWS
MEMORANDUM OPINION
Petitioner Timothy Barr has filed a Federal Rules of Civil Procedure 60(b)
motion for relief from my March 12, 2004 order denying his habeas corpus petition.
My order adopted the Report and Recommendation of United States Magistrate
Judge Terry I. Adelman. Barr’s appeal of my order to the United States Court of
Appeals for the Eight Circuit was denied.
In his present motion Barr asserts that three of his grounds for relief that I
found to be procedurally barred should now be reviewed under the United States
Supreme Court’s holding in Martinez v. Ryan, 566 U.S. 1 (2012). Because Barr did
not file his Rule 60 motion in a reasonable time it will be denied. Barr’s motion will
also be denied because the Martinez decision does not apply to Barr’s grounds for
relief.
On May 12, 1997, a jury in the Circuit Court of St. Louis County, Missouri,
found Barr guilty of first-degree murder, three counts of first-degree assault, and four
counts of armed criminal action. Barr was accused of drive-by shooting and killing
Brenda Verges, a forty-five year old mother of eight, and of shooting Mario Johnson,
a twenty-five year old man, while feuding with gang members. He pursued a direct
appeal in state court as well as post-conviction relief.
Barr raised four grounds in his habeas petition. First, he asserted that the trial
court erred in admitting evidence of uncharged crimes. Second, Barr argued that the
state committed prosecutorial misconduct for commenting on Barr’s failure to testify.
Third, Barr asserted ineffective assistance of trial counsel. Fourth, Barr asserts that
his postconviction appellate counsel was ineffective.
Barr’s first ground for relief, that the trial court erred in admitting evidence of
uncharged crimes, was denied on the merits in my order and affirmed on appeal. The
last three grounds were all denied as procedurally defaulted for failing to raise them
in state court. “Missouri procedure requires that a claim be presented ‘at each step of
the judicial process’ in order to avoid default.” Jolly v. Gammon, 28 F.3d 51, 53 (8th
Cir. 1994) (citations omitted). “Claims that have not been presented for state court
review are procedurally defaulted.” Malone v. Vasquez, 138 F.3d 711, 716 (8th Cir.
1998) (citations omitted). A federal court has no authority to reach the merits of a
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procedurally defaulted claim because the petitioner has failed to raise those claims as
required by state rules. Sawyer v. Whitley, 505 U.S. 333, 338 (1992) (citations
omitted).
Barr’s present motion is brought under Rule 60(b)(6) which provides relief
from a judgment on “any other reason that justifies relief.” That rule provides for
extraordinary relief “only where exceptional circumstances have denied the moving
party a full and fair opportunity to litigate his claim and have prevented the moving
party from receiving adequate redress.” Harley v. Zoesch, 413 F.3d 866, 871 (8th
Cir. 2005). Rule 60(c) states that the motion must be brought within a reasonable
time. Barr’s habeas petition was denied in 2004. His present motion asserts that his
defaulted grounds for relief should be addressed under the holding in Martinez.
However, Martinez was decided in 2012 more that six years before Barr filed his
present Rule 60 motion. Barr’s delay in waiting over six years to bring seek relief
under Martinez fails to satisfy Rule 60’s requirement that a motion must be brought
within a reasonable time. As a result, his motion will be denied on that ground.
Moreover, Barr’s Rule 60 motion fails because Martinez does not open the
door for a review of Barr’s procedurally defaulted grounds for relief. In Martinez,
the United States Supreme Court created a limited exception to the Court’s previous
ruling in Coleman v. Thompson, 501 U.S. 722, 754-755 (1991) (that ineffective
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assistance of counsel during postconviction proceedings cannot serve as cause to
excuse a procedural default). The Martinez decision stated that a procedural default
will not bar a federal habeas court from considering a substantial claim of ineffective
assistance of trial counsel if the initial collateral-review proceeding counsel was
constitutionally ineffective. 566 U.S. at 17. Under Martinez, a petitioner must
establish that his initial postconviction counsel was constitutionally ineffective for
failing to raise an ineffective assistance of trial counsel claim and that the underlying
ineffective assistance of trial counsel claim is a substantial claim, that is, that it has
merit. Id. at 15. This limited procedural default exception does not apply to a claim
of ineffective assistance of postconviction appellate counsel. Id. at 16. Nor does the
Martinez exception apply to claims of ineffective assistance of counsel on direct
appeal. Davila v. Davis, 137 S. Ct. 2058, 2065 (2017).
Barr’s first and third procedurally defaulted grounds for relief do not fall under
the exception provided by the Martinez decision. The first defaulted ground asserts
that the State committed prosecutorial misconduct during his trial.1 Barr failed to
1
Barr claims that in closing argument the prosecutor commented on Barr’s failure to testify. The record
does not support that allegation. The prosecutor stated that evidence that Barr was in the car involved in
the shooting was “uncontradicted.” Such a comment was not an indirect comment on Barr’s failure to
testify. Even if it were the comment would not require reversal. “To obtain a reversal for prosecutorial
misconduct, the defendant must show that “(1) the prosecutor's remarks were improper, and (2) such
remarks prejudiced the defendant's rights in obtaining a fair trial.” United States v. Crumley, 528 F.3d
1053, 1064 (8th Cir.2008) (citations omitted). Even when a prosecutor's comments are determined to be
improper, the court, in determining whether to reverse the conviction, must consider “the cumulative
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raise this ground in his direct appeal. This ground is not based on an ineffective
assistance of counsel claim. Even if it were, the ground for relief would be a claim
for the ineffective assistance of appellate counsel. Martinez does not apply to such a
ground for relief. Davila, 137 S. Ct. at 2065. More importantly, this ground for
relief was raised in Barr’s postconviction motion and in his postconviction appellate
motion. The Missouri courts’ clearly reasoned denial of this ground for relief was
not contrary to, or an unreasonable application of, federal law or was based upon an
unreasonable determination of the facts in light of the evidence presented in the state
court proceeding which would entitle Barr to habeas relief. See 28 U.S.C. §
2254(d)(1) and (2).
Barr’s third defaulted ground for relief asserts a claim of ineffective assistance
of his postconviction appellate counsel. The Martinez decision specifically states it
does not apply to errors of postconviction appellate counsel. 566 U.S. at 16.
Nor does Martinez excuse Barr’s second procedurally defaulted ground for
relief. In that ground Barr asserts that his trial counsel was constitutionally
ineffective for failing to: 1) “adequately conduct a proper investigation into the
effect of the improprieties, the strength of the evidence against the defendant, and whether the district
court took any curative action.” Id. In his traverse Barr argued that the evidence against him was “very
flimsy” because the only evidence was his fingerprint on the window of the passenger door of his own car.
Barr overlooks the fact that three .30 caliber spent shell casings were found in the car shortly after the
shooting and that he was identified as the shooter by two of his victims at trial. The prosecutor’s remark
did not prejudice Barr’s right to a fair trial.
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statement made by State’s witness [Mario] Johnson;” 2) “file any pretrial motions
to suppress identification;” 3) “investigate and call requested witnesses (alibi);”
and 4) “call rebuttal witnesses.” However, these claims were raised in Barr’s
initial postconviction proceeding under Missouri Supreme Court Rule 29.15.
Martinez is limited to claims regarding initial postconviction counsel to ensure that
claims of ineffective assistance of trial counsel are reviewed by at least one court.
566 U.S. at 10-11. Barr received that review. These claims were defaulted because
Barr’s postconviction appellate counsel failed to raise them in the postconviction
appeal. As stated above, the ineffective assistance of postconviction appellate
counsel is not recognized as cause to excuse a procedurally defaulted claim under
Martinez. As a result, Barr’s Rule 60 motion will be denied.
I have also considered whether to issue a certificate of appealability. To grant
a certificate of appealability, the Court must find a substantial showing of the denial
of a federal constitutional right. See Tiedeman v. Benson, 122 F.3d 518, 522 (8th
Cir. 1997). A substantial showing is a showing that issues are debatable among
reasonable jurists, a court could resolve the issues differently, or the issues deserve
further proceedings. Cox v. Norris, 133 F.3d 565, 569 (8th Cir. 1997). I believe that
Barr has not made such a showing on the grounds raised in his motion. Therefore, I
will not issue a certificate of appealability.
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Accordingly
IT IS HEREBY ORDERED that Petitioner Timothy Barr’s motion for relief
from judgment [27], motion to appoint counsel [28], motion to proceed in forma
pauperis [29], and motion for an evidentiary hearing [30] are DENIED.
IT IS FURTHER ORDERED that the Court will not issue a certificate of
appealability.
_____ ___________________________
RODNEY W. SIPPEL
UNITED STATE DISTRICT JUDGE
Dated this 2nd day of July, 2019.
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