Barbee v. Stephens, Director TDCJ-CID

Filing 89

MEMORANDUM OPINION AND ORDER DENYING 85 MOTION TO ALTER OR AMEND JUDGMENT: Barbee fails to demonstrate manifest error in law or fact. The Court DENIES Barbees motion to alter or amend the judgment. (Ordered by Judge Terry R Means on 9/1/2015) (trs)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
STEPHEN DALE BARBEE,
Petitioner,
V.
WILLIAM STEPHENS, Director,
Texas Department of Criminal
Justice, Correctional
Institutions Division,
Respondent.

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Civil Action No. 4:09-CV-074-Y
(death-penalty case)

MEMORANDUM OPINION AND
ORDER DENYING MOTION TO ALTER OR AMEND THE JUDGMENT
Before the Court is Stephen Dale Barbee’s motion to alter or
amend the Court’s judgment denying the relief requested in his amended
petition for writ of habeas corpus (“motion”) [Doc. 85]. Respondent
opposes the motion. The Court assumes the parties’ familiarity with
its opinion in this case. See Barbee v. Stephens, No. 4:09-CV-074-Y,
2015 WL 4094055 (N.D. Tex. July 7, 2015).
I.

Applicable Law

Barbee has moved, under Rule 59(e) of the Federal Rules of Civil
Procedure, to alter the judgment and correct what he contends are
errors of law and fact. The decision whether to reopen a case under
Rule 59(e) is within the district court’s discretion.

See Johnson

v. Diversicare Afton Oaks LLC, 597 F.3d 673, 677 (5th Cir. 2010).
It is an extraordinary remedy that should be used sparingly. Templet
v. Hydrochem, Inc., 367 F.3d 473, 479 (5th Cir. 2004).
In particular, “[a] motion to alter or amend the judgment under
Rule 59(e) must clearly establish either a manifest error of law or
fact or must present newly discovered evidence and cannot be used

to raise arguments [that] could, and should, have been made before
the judgment issued.”

Schiller v. Physicians Res. Group Inc., 342

F.3d 563, 567 (5th Cir. 2003) (internal quotation marks and citations
omitted).

Relief under Rule 59(e) is also appropriate when there

has been an intervening change in the controlling law. Id. A motion
to alter or amend may also be granted if necessary to prevent manifest
injustice.

Amir-Sharif v. Comm’rs of Dallas, No. 3:07-CV-0175-G,

2007 WL 1308314, at *1 (N.D. Tex. May 4, 2007) (Fish, C.J.) (citing
Fresh America Corp. v. Wal-Mart Stores, Inc., No. 3:03-CV-1299-M,
2005 WL 1253775, at *1 (N.D. Tex. May 25, 2005) (Lynn, J.)).
Respondent asserts that this Court lacks jurisdiction to decide
Barbee’s motion because, in this Circuit, a post-judgment motion that
attacks the Court’s merits determination is, in effect, a successive
petition for which circuit-court authorization is required. See 28
U.S.C. § 2244(b)(statute controlling second or successive habeas
applications); Gonzalez v. Crosby, 545 U.S. 524, 530-31 (2005)
(holding that Rule 60(b) motion attacking the substance of the
district court’s resolution of a claim on the merits is, in effect,
a successive petition); Williams v. Thaler, 602 F.3d 291, 301-04 (5th
Cir. 2010) (extending Gonzalez framework to motions under Rule 59(e)).
Barbee acknowledges that there is a split among the circuits on this
issue, and he argues that Williams was wrongly decided.

He also

asserts that, even under the Williams rule, his motion is not the
equivalent of a second or successive petition because it raises no
new grounds for relief and presents no new evidence.

2

The Court assumes it has jurisdiction over the motion but denies
it for lack of merit.

As stated above, a 59(e) motion must clearly

establish either a manifest error of law or fact. It is not a vehicle
for rehashing evidence, legal theories, or arguments that could have
been made before the judgment issued. The motion does not meet these
standards.
II.

Claim 1 - Actual innocence

Barbee makes four distinct challenges to the Court’s analysis
of his actual-innocence claim.

Initially, the Court notes that

Barbee’s argument for actual innocence is in reality a challenge to
his trial counsel’s chosen defensive strategy.

The claim asserts

that the State’s theory at trial “made little sense” and that trial
counsel should have presented a “Dodd did it” theory, based largely
on evidence that was known to the defense team at the time of trial.
He fails to acknowledge that there were no witnesses to say “Dodd
did it” because Barbee refused to testify. Thus, as discussed below,
the claim relies upon opinion testimony from his family and friends,
Dodd’s criminal history, and anecdotal evidence suggesting why Dodd
and ex-wife Theresa would want to frame Barbee for murder.
The Court, in addressing one reason why the claim fails, observed
that the “Dodd did it” theory makes little sense because it does not
account for the fact that Dodd could not have known Barbee would
confess.

Barbee argues that his theory does not depend on Dodd’s

knowing beforehand that Barbee would confess because Dodd knew Barbee
would be implicated in the murder anyway, based on his romantic
relationship with the victim. Barbee was, in fact, a prime suspect
3

even before he confessed.

But this does not undermine the Court’s

conclusion that the frame-up theory lacks credibility.
According to Barbee’s declaration presented in support of his
amended petition, Dodd murdered the victims while Dodd’s truck was
parked, with Barbee inside, in the victims’ driveway. When Dodd was
finished, he returned to his truck, told Barbee, “Your problems are
solved, go get her truck,” and then left suddenly, leaving Barbee
alone on the victims’ doorstep. Upon finding his pregnant girlfriend
and her seven year-old son murdered, Barbee did not send the police
to Dodd’s home (which he knew Dodd shared with Theresa) but loaded
the bodies into the victim’s truck and called Dodd for help.

Dodd

did not leave Barbee in this incriminating predicament but met Barbee
in the woods with a shovel.

Dodd left again but returned to assist

Barbee in his evasion of the deputy sheriff.
Barbee home with him.

Dodd ultimately took

(Doc. 66-3, p. 91-92.)1

These are not the

actions of a person trying to frame Barbee for murder.

For that

matter, Barbee’s actions were not the actions of a person who fears
he is being framed. If Dodd were trying to inculpate Barbee, Barbee’s
confessions to Trish, Theresa, and the police did more to accomplish
that end than anything Dodd did. Yet Dodd could not have relied upon
the confessions as part of his alleged plan.
Barbee next asserts that the Court improperly discounted Danny
Dowling’s statement to his father, Jerry, and to Tina Church that

1

Electronic documents are cited by the CM/ECF number and .pdf page number.

4

he, Danny, heard Dodd confess to murder.2 Danny is Theresa’s brother,
and Jerry Dowling is their father.

There is no declaration in the

record from Danny. Barbee relies upon Danny’s statements as reported
in the declarations of Jerry and a licensed investigator named Tina
Church. Tina Church is the founder of “The Other Victims Advocacy,”
and was contacted by Barbee’s mother shortly after Barbee’s arrest.
Church provided Barbee’s family with investigative and other services.
As part of her investigation, Church spoke to Danny.

(Doc. 66-3,

p. 109-12.)
The Court’s opinion discounted Danny’s statement as reliable
evidence of innocence because Danny had accused Barbee of making the
same incriminating remark.

Danny had also told Church that, when

he saw the Amber Alert sign for the victims, he said to himself,
“that’s probably something that [Barbee] would do.” (Doc. 66-3, p.
112.)

These remarks, which call into question Danny’s statement

implicating Dodd, were omitted from Barbee’s innocence argument.
(Doc. 61, p. 132.) Barbee now faults the Court for pointing out these
remarks for what they are and complains that (1) the Court ignored
the fact that Jerry is Theresa’s father and would therefore have no
motive to implicate Dodd, with whom Theresa was living, and (2) the
Court overlooked statements in Church’s declaration indicating that
Church did not believe Danny’s statements inculpating Barbee.
Barbee’s argument that Jerry would have no motive to implicate
Dodd is untrue, based on the record. Jerry’s declaration states that

2

The statement Danny attributed to Dodd was something like: “I had to hit
the bitch 25-26 times in the face before she would go down.” (66-3, p. 112, 134.)

5

his first impression of Dodd was that he was “a smart ass, loudmouth,
and obnoxious,” and that he told his daughter, Theresa, that he did
not want to meet Dodd.

Jerry knew Dodd “was like a dog that would

come up to the back door and Theresa was feeding him.
for the money.

Big money was being thrown around.”

He was there

Barbee, on the

other hand, looked up to Jerry like a father and would seek his direction on personal and business matters.

Jerry praised Barbee as “a

very hard worker, and a generous person,” who came “from a very good
stable family.”

Jerry did not believe Barbee was responsible for

the murders. (Doc. 66-3, p. 133-34.) Based on his declaration, the
assertion that Jerry had no motive to implicate Dodd is untrue.
The Court also rejects Barbee’s complaint that the opinion does
not credit statements in Church’s declaration indicating “the impossibility” that Barbee could have implicated himself to Danny. The Court
did not overlook this information; it is obvious from her declaration
that Church believed Danny when he incriminated Dodd but did not
believe Danny when he incriminated Barbee.

(Doc. 66-3, p. 112.)

But the Court is not obligated to accept Church’s opinion about which
of Danny’s statements is true.

Schlup v. Delo, 513 U.S. 298, 330

(1995) (noting that the habeas court may have to make some credibility
assessments).

More to the point, a petitioner making an innocence

claim must support the claim with reliable evidence.

Id. at 324.

The analysis is not this Court’s independent determination about what
likely occurred, but an assessment of how reasonable jurors would

6

react to the overall newly supplemented record. See House v. Bell,
547 U.S. 518, 538 (2006). Based on Church’s report, Danny is a vacillating witness who ultimately could not remember whether Dodd or
Barbee made the incriminating remark.

Danny also made a separate

statement indicating he believed that the victims’ disappearance was
“probably something that [Barbee] would do.” For these reasons, Danny
is not a reliable witness to Barbee’s asserted innocence, Church’s
opinion notwithstanding.
Next, Barbee challenges the Court’s rationale that evidence of
head injuries or debilitating headaches is incompatible with innocence
because that sort of evidence provides an excuse for wrongdoing.
Barbee first contends that the Court misconstrued his claim because
such mitigating evidence would have been offered at punishment when
guilt has already been decided.

It therefore appears that Barbee

is in agreement with the Court that evidence of a head injury or
debilitating headaches is the sort of evidence that would be used
as mitigating evidence at punishment. Barbee appears to take issue,
however, with the Court’s conclusion that such evidence is inconsistent with actual innocence. Other than to say his trial counsel did
not, in actuality, present an innocence theory to be “inconsistent”
with (a matter addressed more fully in claim 4 below), Barbee fails
to clearly explain his position and provides no rationale for
revisiting this issue.

7

Assuming without deciding that head injury and headaches are
not inconsistent with innocence, as Barbee contends, the Court’s
decision is unaffected because the Court held, in the first instance,
that Barbee’s head injuries and headaches were not “new” evidence,
as required by Schlup.

See Moore v. Quarterman, 534 F.3d 454, 465

(5th Cir. 2008) (holding that evidence is not “new” if it was always
within the reach of petitioner’s personal knowledge or reasonable
investigation).

There is no debate that trial counsel possessed

evidence of Barbee’s head injuries and headaches. (Doc. 27, p. 41;
Doc. 66-7, p. 25; 25 RR 76-77.)
To the extent that this claim may rely upon the arguably new
post-conviction opinion of Dr. Martin that Barbee is brain-impaired,
the Court stands by its conclusion that Dr. Martin’s opinion is
inconsistent with actual innocence.3 Assuming Dr. Martin’s diagnosis
is accurate,4 the frontal-lobe impairment does not demonstrate
innocence but provides a reason why Barbee murdered the victims.
Dr. Martin noted that the frontal-lobe impairment provides “a broader
and more accurate explanation for why Mr. Barbee could have engaged
in a violent crime.” Dr. Martin opined that, “Mr. Barbee’s violent

3

The Court addresses the alleged brain-impairment separately from the head
injuries and headaches out of an abundance of caution and due to its concern,
previously explained in other orders, about identifying all the issues raised in
Barbee’s briefing, which was excessive and dependent on cross-referencing. Barbee
argued in claim 4(a) that frontal-lobe-impairment evidence should have been
presented at the guilt phase of trial and incorporated by reference the facts and
argument from the innocence claim. (Doc. 61, p. 232-35.)
4

Dr. Martin’s post-conviction opinion conflicts with the opinions of the
three mental health experts retained by trial counsel.

8

actions at the time of the offense would have been mediated by
emotional factors as opposed to reason to due the aforementioned
damage to his frontal lobes” and that the damaged frontal lobes “would
have likely increased his impulsivity tendencies and reduced his
ability to fully consider the consequences of his actions.”

(Doc.

27, p. 51-53.) This evidence would have made it more apparent that
Barbee intended to cause the victims’ deaths.

See, e.g., Jackson

v. State, 160 S.W.3d 568, 572 (Tex. Crim. App. 2005) (recognizing
that evidence that the paranoid schizophrenic defendant thought his
brother was out to get him only made it more apparent that he intended
to cause his brother serious bodily injury or death).
Barbee’s last complaint about the innocence analysis concerns
the Court’s conclusion that Barbee “presents no newly-discovered
evidence required by Schlup.” Barbee appears to take issue with the
word “new,” and argues that much of his evidence is newly discovered
because it is contained in the 2010 declarations attached to his
amended petition.

The Court disagrees with Barbee’s unarticulated

assumption that information within his knowledge at the time of trial
becomes “new” simply because it is memorialized in a post-trial
declaration.

But even if the evidence can be considered new, none

of it is the sort of compelling evidence required by Schlup. There
is no scientific evidence, no eyewitness accounts, no critical
physical evidence, no evidence questioning the credibility of a critical trial witnesses.

To generalize, Barbee’s evidence consists of

9

Dodd’s criminal history, the fact that Dodd washed his clothes and
his truck on the night of the murders, the opinions of Barbee’s family
and friends about who is more likely to be the murderer, and weak5
anecdotal evidence that Theresa, and by extension, Dodd, wanted Barbee
out of their shared business arrangement and possibly stood to benefit
financially from Barbee’s death.
Barbee’s evidence also consists of information from family and
acquaintances, which originates from Barbee himself, that Barbee’s
confessions were false. Aside from the inherently self-serving nature
of this information, Barbee has a history of attempting to fabricate
evidence for his defense.

There is unrefuted evidence that Barbee

tried to get Theresa to implicate Dodd (Doc. 66-7, p. 38-39; Doc.
66-8, p. 43; 25 RR 100-102), and that Barbee agreed to pay an inmate
to testify that Dodd had confessed. (Doc. 66-8, p. 41-42; Doc. 66-6,
p. 62, 64.)

Thus, considering all the old and new evidence, both

incriminating and exculpatory, without regard to its admissibility,
it fails to demonstrate that, more likely than not, no reasonable
juror would find him guilty beyond a reasonable doubt.

5

At the time of the murders, Theresa and Dodd already resided in Barbee’s
grand former home, and shortly after his arrest, Barbee transferred the businesses
(which were in debt) to Theresa for zero compensation.

10

III.

Claim 4 - Counsel’s assistance at guilt phase

Barbee challenges the Court’s reasoning with respect to claim
4a and 4b that the presentation of head-injury or other excuse
evidence at the guilt phase of trial presupposes that Barbee did
something to excuse and would have been inconsistent with Barbee’s
assertion that he did not commit the offense.

He contends this is

incorrect because trial counsel did not present an “actual innocence”
defense but only a “legal innocence” defense. He contends that the
accidental

killing

theory

presented

by

trial

counsel

is

not

inconsistent with a head injury, but would have supported it, and
that the theory counsel argued to the jury did not relieve counsel
of his obligation to present mitigating evidence of head injury.
Barbee’s argument that evidence of his head injuries would have
supported the accidental-killing theory belies the fact that trial
counsel, who had the assistance of three mental-health experts,
possessed no evidence that Barbee was brain-impaired as a result of
his head injuries. Barbee also fails to acknowledge that Texas law
does not allow evidence of a mental defect less than insanity at the
guilt phase of trial.

See Jackson, 160 S.W.3d at 572 (holding that

Texas law does not recognize a lesser form of insanity affirmative
defense). While Texas does allow such evidence to negate the alleged
mental state, there is no evidence that, due to his head injury (or
alleged frontal-lobe impairment) Barbee did not know or intend the
result of his actions.

His alleged brain impairment, as discussed

11

above, only inhibited his ability to control his emotions, control
his impulsivity, and fully consider the consequences of his actions,
which are not defenses in Texas.

See Ruffin v. State, 270 S.W.3d

586, 593 (Tex. Crim. App. 2008)(holding that Texas does not recognize
diminished mental-state defenses that permit the exoneration or
mitigation of an offense because of a person’s supposed psychiatric
compulsion or inability to engage in normal reflection or moral
judgment).
In addition to the foregoing, Barbee’s assertion that evidence
of head injuries would have augmented trial counsel’s accidental-death
theory is dubious.

Trial counsel elicited testimony from the

assistant medical examiner that the victim’s airway would have likely
been more obstructed because her uterus was “bigger than a basketball”
and that she would have had less cardiovascular reserve in her third
trimester than at other times. The medical examiner agreed that the
more pregnant the victim, the less time it would take for her to die.
(23 RR 188-89.)

Trial counsel then argued to the jury that Barbee

simply held the victim down too long based on her physical condition,
which was consistent with his confession to Trish. Thus, counsel’s
theory was based on the victim’s physical state not Barbee’s mental
state, and it would not have been augmented by evidence of Barbee’s
head injuries.

12

IV.

Claim 5 - Counsel’s assistance at sentencing

Barbee takes issue with the Court’s discussion in claim 5
concerning trial counsel’s decision not to elicit opinion testimony
from punishment witnesses about Barbee’s lack of future dangerousness.
Barbee asserts that the “road rage” incident was wrongly termed “a
history of violent behavior,” which trial counsel then used as a
rationale for not presenting “mitigation relating to future dangerousness” on the pretext that the State might somehow find out about it.
This cannot past muster, he contends, because trial counsel did not
investigate or ask potential witnesses about Barbee’s past.

He

contends the Court ruled against him only by denigrating much of his
evidence as unreliable while crediting trial counsel’s explanations
“in all respects.”6

6
Barbee elaborates in a footnote that the Court found unreliable the declarations of the “disinterested” declarants Tina Church and Patricia Springer. Barbee’s
description of Church as “disinterested” is less than candid: Church is the founder
of The Other Victims Advocacy (“TOVA”) and assisted Barbee's family by conducting
a fact investigation, providing Barbee’s mother with a filing system and a
copier/fax machine, and being a confidant on matters related to the case. Barbee
regularly called Church collect from jail to express displeasure about his attorneys
and talk about his relationship with Theresa and the events for which he was
arrested. (Doc. 66-3, p. 109-10.) This information alone makes her an interested
witness. But in addition, her biography on the TOVA website states that Church
has “been on the front lines in the fight to abolish the death penalty since the
early 90's [sic].” See
http://www.theothervictimsadvocacy.com/team.htm (last
visited Aug. 20, 2105)(printed and attached as an exhibit to this Order). Barbee
should know this, as his federal habeas counsel is part of the same TOVA team.

The problem with Springer’s declaration, on the other hand, is that it is
vague to the point of being irrelevant. Springer, while researching her book about
the murders, stated that she had visited the Tyler Police Department at an unnamed
time and asked to visit the bathroom where Barbee (according to the record)
confessed.
Upon her inquiry, an unnamed officer told Springer that, to his
knowledge, no one had ever confessed in the bathroom. There is no indication that
this officer was employed at the department when Barbee was arrested, was in a
position to have known about the confession, or could even be identified by name.
(Doc. 28, p. 28-29.)

13

The argument is factually incorrect. Trial counsel had information about a fight after a road-rage incident in which Barbee, then
employed as a reserve police officer, had to be pulled off of an older
man and his adult son. But trial counsel also had information about
“some other things that Mr. Barbee had allegedly done” that the motion
fails to acknowledge.

(Doc. 66-8, p. 26, testimony of Ray.)

They

include setting baby hamsters on fire with gasoline,7 extensive
vandalism of a school building, stealing from a bait-and-tackle store
and a concession stand, fire–setting, theft of jewelry and other items
from a locker room, killing an animal while on a date with Michelle
Cook, and bribing another inmate to testify that Dodd confessed. (Doc.
66-7, p. 34-36, 38, 49 (testimony of A. Maxwell); Doc. 66-8, p. 28
(testimony of Ray).)

Any of the above information could have been

the subject of cross-examination at trial had defense counsel elicited
opinion testimony about Barbee’s propensity for future dangerousness.

7

In another footnote, Barbee complains that the Court placed unfair emphasis
on the "hamsters which may have been set on fire," because it "amounted to an
unverified report" from "Mr. Boyd," and "Mr. Boyd's" declaration states that Barbee
was a well-behaved young man, whose behavior was not out of the ordinary, and who
would probably not commit future violent acts. Barbee also asserts that "Mr. Boyd"
could not have testified to the animal cruelty because it was just a story, not
something he observed. Barbee fails to acknowledge, however, that this was a story
that "Mr. Boyd" heard from Barbee himself. (Doc. 66-7, p. 36, testimony of A.
Maxwell.) The motion does not explain how, if asked on the witness stand, "Mr.
Boyd" could avoid retelling the story without committing perjury.
Moreover, Barbee’s use of the vague "Mr. Boyd" conflates Jeff Boyd with his
father, Bobby Boyd. Jeff, a childhood friend, was the person Barbee told about
his hamster burning, while Bobby was the declarant who did not think Barbee had
a high probability of future violence. (Doc. 66-7, p. 35-36 (reporter's record
pages 77-78); Doc. 27-1, p. 18.) Thus, Barbee’s assertion that this Court unfairly
failed to acknowledge the good things “Mr. Boyd” said about Barbee in his
declaration is misleading at best: there is no declaration from Jeff. Efforts
like this to beguile and mislead the Court are not appreciated and are subversive
of Barbee’s counsel’s credibility with the Court.

14

Further, the suggestion that trial counsel feared the State might
somehow find out about the road-rage incident from defense witnesses
demonstrates a failure to grasp Texas law. Trial counsel had reason
to believe the State already knew about it.

(SHR 71; Doc. 66-8, p.

28, 57.) Whether the defense witnesses themselves knew the information is beside the point; the State would have been entitled to test
the witness’s knowledge of prior bad acts and the jury would have
heard the damaging questions.

Wilson v. State, 71 S.W.3d 346, 350

(Tex. Crim. App. 2002) (unanimously holding that a witness who testifies to a defendant’s good character may be cross-examined to test
the witness’s knowledge of relevant specific instances of conduct).
Any witness who maintained the opinion that Barbee was not a future
danger could have been impeached as either (1) uninformed, because
he does not know Barbee’s true behavior or (2) biased, because he
knows about the behavior but it does not affect his opinion. A third
and arguably worse scenario is that the witness, after learning of
these prior bad acts on cross-examination, changes his opinion.
V.

Claim 5a - Counsel's assistance at sentencing

Next, Barbee challenges the Court’s analysis of his complaint
regarding Susan Evans’s testimony.

Barbee asserts that the Court

wrongly accused him of citing Evans’s testimony out of context and
of failing to acknowledge trial counsel’s strategy in using Evans’s
testimony. In his defense, he contends that “all of the 43 instances
of Ms. Evans’s testimony mentioned were clearly identified by both

15

volume and page number and were presented in strict chronological
order of her testimony.” This is correct; the petition cited to the
record chronologically.

Barbee misses the point, however, in that

he presented only fragments of Evans’s sentences in order to place
them in a more ominous light.

Under trial counsel’s direct

examination, Evans presented an overall picture of the prison
disciplinary and classification system, the reality of prison
violence, and the steps taken to deal with that violence, which
focused on employee training. She also testified that murderers often
make the best inmates because the triggering circumstances do not
repeat themselves in prison.

Barbee’s amended petition presented

the portions of Evans’s testimony that involved matters of prison
violence but ignored the rest.
acknowledge

the

violence

in

Had trial counsel failed to

prison,

as

Barbee

suggests,

the

prosecution surely would have done so on cross-examination, with a
greater impact on the jury. It could have also created the appearance
that counsel was uninformed or trying to hoodwink the jury.
Despite the fact that federal counsel extensively questioned
trial counsel in the state habeas hearing about his use of Evans’s
testimony, the amended petition fails to acknowledge counsel’s
asserted strategy.

Trial counsel testified that his theory was to

show that “the prison system has the ability to react to [the]
violence of inmates,” that “people on death row are not the only
people that have committed violent acts and not the only people to

16

commit violent acts in prison,” and that “the prison has a system
in place to take care of those kind of problems,” which are a “very
small percentage of infractions, given who’s there.”

(Doc. 66-8,

p. 30-31.) Counsel also explained that he was trying to distinguish
Barbee’s behavior out of prison from his likely behavior in prison
because the prosecution told the voir dire panel that the answer to
the future dangerousness issue could be based on the facts of the
offense alone. (Doc. 66-8, p. 31.) Barbee disagrees that he failed
to acknowledge the strategy, pointing out that his amended petition
asserts that Evans’s testimony was unhelpful to counsel’s stated
“overall strategy,” and was very damaging to Mr. Barbee’s case for
a life sentence. It is true that the amended petition asserts that
Evans’s testimony was “very damaging to Mr. Barbee’s case for a life
sentence,” but nowhere does it mention counsel’s strategy to
demonstrate that the prison system has the ability to react to inmate
violence.

To the extent that the amended petition tacitly acknow-

ledges, in its criticism of counsel, the general concept of having
a strategy for securing a life sentence in a capital defense, his
argument is one of semantics and quibbling over the Court’s choice
of words. Whether it is called a strategy or a purpose or something
else, the amended petition failed to acknowledge why counsel presented
the evidence.

17

VI.

Claims 5b and 5c - Counsel’s sentencing investigation

Barbee next asserts that the Court did not properly acknowledge
his challenge to trial counsel’s “investigation” as opposed to trial
counsel’s “presentation.”

On the contrary, the Court understands

his claim to allege a “failure to investigate,” as well as a “failure
to present” the allegedly overlooked evidence in the declarations
attached to his amended petition. The fact of the matter is, however,
that much of the evidence in the declarations was known to trial
counsel, or elicited at trial, or both.

The complaint otherwise

concerns trial counsel’s alleged failure to investigate Barbee’s
“propensity for future dangerousness” by asking called and uncalled
lay witnesses for their opinion on the matter. This complaint fails
to recognize the risky strategy of presenting such opinion testimony,
as previously discussed, and trial counsel was not deficient for
failing to pursue it.
Barbee complains the Court arrived at its conclusion by accepting, without any reason, trial counsel’s explanations at face value
while discounting or minimizing evidence favorable to Barbee.8
is incorrect.

He

In the first place, the Court may not disregard any

8
For example, Barbee complains in a footnote that the Court minimized the
fact that Theresa had Barbee transfer the businesses after his arrest without
compensation. But the jury heard this evidence. (25 RR 61-62.) And Theresa
explained that Barbee asked her to accept the transfer and that the businesses
were in debt. (25 RR 94.) There is also no indication that Barbee transferred
the businesses unwillingly, and it appears that the transfer may have allowed Barbee
to qualify for appointed counsel, as company assets are not listed on his affidavit
of indigency. (1 CR 19.) See doc. 66-3, p. 109 (Church’s declaration stating that
Barbee’s family was in no position to pay retained counsel and Barbee “finally
qualified as indigent”).

18

factual issues determined by the state court unless they are rebutted
by clear and convincing evidence.

See 28 U.S.C. § 2254(e)(1).

Secondly, with the exception of Dr. Goodness, whose “Dangerousness
Risk Assessment” Barbee did not provide, the Court accepted the
information in his declarations as true. The Court found the information unpersuasive evidence of ineffective assistance, however, for
the many reasons explained in the opinion.
Barbee greatly overstates the value of his proffered declarations
when he asserts, “Virtually all of the declarations attached to the
petition show that these potential witnesses would have presented
a dramatically different picture of the ‘future dangerousness’ special
issue . . . as well as the general mitigation themes . . . .”
Generally speaking, the declarations contain good character evidence,
academic struggle, the loss of siblings to illness and accident, head
injuries, headaches, voluntary hydrocodone abuse, suicidal ideation,
opinion testimony from family and friends that Barbee would not be
a future danger, and anecdotal evidence of Dodd’s and Theresa’s bad
character. This case is a far cry from the investigations and overlooked evidence in the opinions cited by Barbee where counsel was
deemed ineffective.

E.g., Sears v. Upton, 561 U.S. 945 (2010)

(finding ineffective counsel’s “one day or less” investigation spent
talking to witnesses selected by petitioner’s mother, which overlooked
evidence of his parents’ physically abusive relationship, sexual abuse
at the hands of a cousin, verbal abuse and inappropriate discipline,

19

significant frontal-lobe damage suffered during childhood, and drug
and alcohol abuse in his teens); Porter v. McCollum, 558 U.S. 30
(2009) (finding counsel ineffective for failing to take even the first
step of interviewing witnesses or requesting records, thereby failing
to discover evidence that Porter suffered severe abuse from his
father, dropped out of school at 12 or 13, jointed the military at
age 17, served heroically in the Korean War and was injured twice,
had long-term substance abuse, and impaired mental health and mental
capacity); Rompilla v. Beard, 545 U.S. 374 (2005) (finding counsel
ineffective for failing to examine court file which would have led
to discovery of evidence of alcohol-related incarcerations, schizophrenia and other disorders, organic brain damage, childhood problems
probably related to fetal alcohol syndrome, and an abusive home life);
Wiggins, 539 U.S. at 517 (finding counsel ineffective for failing
to uncover evidence that petitioner’s mother was a chronic alcoholic
who starved her children and left them alone for days, had sex with
men while her children slept in the same bed, and once forced
Wiggins’s hand against a hot stove, and that Wiggins’s foster families
physically abused, molested, raped, and gang-raped him).
Barbee asserts that trial counsel failed to fully present his
non-violent nature and low risk of future dangerousness to the jury.
This is untrue.

Opinion testimony from family and friends, as

suggested by Barbee, is only one way to litigate the future dangerousness issue and is dependent on the inherently biased opinions of

20

friends and loved ones. It can also be unnecessarily risky for the
reasons already discussed. Counsel here held the State to its burden
of proof and let the lack of evidence speak for itself.

Counsel

guaranteed that Barbee had no prior convictions or juvenile history
because the State did not offer any evidence of such.

Counsel

summarized the previous 36 years of Barbee’s non-violent life,
including a good family life, the tragedies he endured and overcame,
his strong work ethic, and his involvement in the church.

(27 RR

7-11.) Counsel emphasized that the people who testified on Barbee’s
behalf and ate dinners with him (Pastor Cearley, Barbee’s mother,
aunt, and niece, a friend from church, an ex-girlfriend, the girlfriend of his former roommate, and a deputy sheriff who worked at
the jail) knew the “real” Stephen Barbee. Counsel presented testimony
and argument that Barbee had good behavior in the jail and that he
would be almost 80 years old before he was eligible for parole.
Barbee fails to show that counsel’s litigation of future dangerousness
was deficient.
Barbee contends the Court’s analysis conflicts with Supreme Court
case law because trial counsel “by their own admission” abandoned
their investigation of Barbee’s background after having acquired only
rudimentary knowledge of his history from a narrow set of sources.
He fails to cite where, in the record, trial counsel made such an
admission, and the Court can find none.

21

Barbee reasserts his challenge to trial counsel’s decision not
to present evidence of “head injuries, good character evidence, and
lack of future dangerousness” because Barbee refused to accept
responsibility. Barbee exaggerates the scope of counsel’s reliance
on this rationale.

Trial counsel believed that the head injuries

and some of Barbee’s mental-health diagnosis could have been helpful
at punishment only if Barbee had accepted some responsibility for
his actions.

(Doc. 66-8, p. 39.)

This was in accordance with Dr.

Shupe’s evaluation. (SHR 98.) Counsel also believed, however, that
the usefulness of the head-injury evidence and mental-health diagnosis
was outweighed by the diagnosis of anti-social personality disorder
and the fact that the State would have been entitled to an expert
evaluation, which probably would have yielded the same harmful
conclusions as Dr. Shupe.

Trial counsel also believed that excuse

evidence could solidify the guilt issue because it provided a reason
why Barbee would “snap.”

He believed it could be aggravating when

the defense theory at the guilt phase was “the State’s whole case
[is] a lie.” And trial counsel did not want to be inconsistent with
the punishment witnesses who would testify that Barbee was innocent.
(Doc. 66-8, p. 24, 39, 44.)

Barbee fails to show these decisions

were unreasonable.
Finally, Barbee asserts that counsel’s rationale contradicts
case law holding that a sentencing strategy focused on the defendant’s
“direct responsibility” for the murder is not necessarily mutually

22

exclusive of a sentencing strategy focused on mitigation.

See

Wiggins, 539 U.S. at 535. The comparison to Wiggins is simply inapt.
As noted, trial counsel did not pursue a sentencing strategy based
on Barbee’s lack of “direct responsibility” to the exclusion of
mitigation evidence.

Counsel presented mitigation testimony from

Barbee’s pastor, mother, aunt, niece, and five friends (one of whom
was a deputy sheriff), as well as Barbee’s ex-wife, Theresa, on crossexamination.
VII.

Statement regarding briefing

The motion, as a final matter, argues that some of the
misrepresentations and errors in Barbee’s amended petition were
wrongly identified as such and may, therefore, constitute a basis
for altering or amending the Court’s opinion. In his Reply, Barbee
concludes, without explanation, that “many of the alleged ‘misrepresentations and errors’” were in fact based on “the Court’s misreading
of the facts and/or the law.”

(Doc. 88, p. 9).

Three of the

arguments in the motion merit discussion.
Barbee first denies making the misrepresentation that trial
counsel fired Amanda Maxwell in this case.

He explains that trial

counsel in fact “terminated his relationship” with Maxwell, which
is the practical equivalent of firing her in this case.
disagrees that these are equivalent.

The Court

Maxwell’s post-conviction

declaration against trial counsel in this case and the subsequent
termination of her relationship with him, occurred more than a year

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after Barbee was convicted.
CR 411.)

(Doc. 27, p. 44; Doc. 66-7, p. 32; 2

Counsel did not fire her in “this” case.

Yet Barbee’s

amended petition had asserted that trial counsel fired Maxwell while
trial was pending in order to argue that counsel was operating under
a conflict of interest due to a secret agreement with the trial judge
to dispose of the case quickly.9

Terminating a relationship after

the conviction, which is what actually happened, does not carry the
same stain of disloyalty and is far from the practical equivalent
of firing her before trial was over.
Barbee next denies making the misrepresentation that trial
counsel gave Maxwell’s mitigation report to the prosecution before
trial. He contends that the actual wording in his amended petition
was vague enough to include the truth, which is that the report was
given over after conviction during state habeas proceedings.

But

Barbee only now acknowledges the truth, stating for the first time
in his post-conviction motion that “it is clear” the report was
disclosed during state habeas proceedings; the amended petition did
not mention this “clear” fact. Moreover, Barbee’s apparent attempt
to maintain plausible deniability fails because he made the false
assertion in connection with his conflict-of-interest claim and
Wiggins claim–-his argument being that trial counsel was so disloyal
and eager to move the case that he ordered his mitigation investigator

9

The actual language in the amended petition is: “6) the mitigation expert,
Amanda Maxwell, was fired by Mr. Barbee’s attorneys and her findings were not
presented, again for no apparent strategic reason.” (Doc. 61, p. 193-94).

24

to dig up negative information about his client and put it in a
written report, which he then gave to the prosecution to use against
his own client.10 This contention would have little probative force
vis-a-vis the disloyalty and ineffectiveness allegations if the
petition had acknowledged the truth: that the report was given over
to habeas prosecutors by state habeas counsel.
Barbee also points out that, when he litigated this issue in
state court during abeyance, Maxwell testified she “thought” the
report was provided pre-trial. Barbee then criticizes the Court for
crediting the testimony of the trial attorneys that it was not, complaining that the Court “gives no reason for favoring the word of
the trial attorneys over Maxwell.”

In the first instance, Maxwell

had no first-hand knowledge of the matter, while counsel did.
Secondly, the state court made a specific finding that, “Neither Mr.
Ray nor Mr. Moore provided the psychosocial history report to the
prosecutors before trial.”

(Doc. 66-5, p. 142, ¶ 93.)

The Court

may not disregard this presumptively correct finding absent clear
and convincing evidence to the contrary, which Barbee did not provide.
§ 2254(e)(1).
Barbee next denies misrepresenting the accuracy of the information given by trial counsel to Dr. Leo. He explains that this alleged

10

The actual language in the amended petition is: “The problem here is not
that Ms. Maxwell was asked to learn positive and negative information, but that
Mr. Ray told her to write up and put the negative information in a report that
was in fact later given to the prosecution and used against Mr. Barbee.” (Doc.
61, p. 208, 318-19.)

25

misrepresentation was merely part of a factual summary of the direct
examination of trial counsel during the state-court hearing, and not
part of his argument. He also asserts that his summary did, in fact,
concede that trial counsel sent a corrective letter to Dr. Leo.
Several things are wrong with this argument. First, in acknowledging
that his factual summary focused only on the helpful directexamination testimony from the state-court hearing, he proves the
point that he is misrepresenting the record by omitting the crossexamination testimony against his claim. Second, while the amended
petition certainly acknowledges that trial counsel sent a corrective
letter regarding the cellphone records, the implication was that it
was done after Dr. Leo had already rendered the unhelpful opinion
and so was to no avail.11

Barbee utterly fails to mention trial

counsel’s testimony on cross-examination that Dr. Leo said the
corrected information about Barbee’s cellphone records would not
change his opinion that Barbee’s confession was true.

(Doc. 66-8,

p. 36.) Instead, Barbee states at the end of the paragraph that Dr.
Leo’s unfavorable report was due to trial counsel’s omissions. (Doc.
61, p. 181).

This is either argument improperly presented within

a factual summary, or it is a false assertion of fact.
Barbee fails to demonstrate manifest error in law or fact. The
Court DENIES Barbee’s motion to alter or amend the judgment.

11

The actual language in the amended petition is: “Mr. Ray sent a corrective
letter to Dr. Leo after he had rendered his opinion that the confession was true.”
(Doc. 61, p. 181.)

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SIGNED September 1, 2015.

____________________________
TERRY R. MEANS
UNITED STATES DISTRICT JUDGE
TRM/ks:bb

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EXHIBIT