                 United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 16-1467
                         ___________________________

                                   David Barnett

                               Petitioner - Appellee

                                         v.

                                    Don Roper

                              Respondent - Appellant
                                 ____________

                    Appeal from United States District Court
                  for the Eastern District of Missouri - St. Louis
                                  ____________

                            Submitted: March 15, 2018
                            Filed: September 20, 2018
                                  ____________

Before WOLLMAN, SHEPHERD, and ERICKSON, Circuit Judges.
                        ____________

ERICKSON, Circuit Judge.

       Don Roper, the Superintendent of the Potosi Correctional Center in Mineral
Point, Missouri, appeals from the district court’s1 judgment granting David Barnett’s
application for habeas corpus relief from his death sentence pursuant to 28 U.S.C. §

      1
       The Honorable E. Richard Webber, United States District Judge for the
Eastern District of Missouri.
2254. Roper asserts that the district court erred: (1) in treating the decision in
Martinez v. Ryan, 132 S. Ct. 1309 (2012) as an extraordinary circumstance justifying
a reopening of the case; (2) in finding ineffective assistance of counsel at the post-
conviction phase of the underlying proceedings; and (3) in finding ineffective
assistance of counsel at the penalty phase of the trial. After carefully considering the
claims as applied to the particular circumstances of Barnett’s case, we affirm.

I.    Background and Procedural History

       On February 4, 1996, David Barnett broke into the home of his grandparents,
Clifford and Leona Barnett, while they were attending church activities. State v.
Barnett, 980 S.W.2d 297, 301 (Mo. 1998). When his grandparents returned home,
he murdered them by stabbing each of them several times and kicking his grandfather
in the head. Id. The details surrounding the murders, which are not in dispute, are
described in the district court’s memorandum opinion and are accepted as true.
Barnett v. Roper, No. 4:03-cv-614, 2015 WL 13662176, at *1-2 (E.D. Mo. Aug. 18,
2015) (quoting State v. Barnett, 980 S.W.2d at 301). In March 1997, a jury convicted
Barnett of two counts of first degree murder, one count of first degree robbery, and
two counts of armed criminal action. At the close of the penalty phase, the jury
returned capital verdicts for each of the murders. In reaching the death penalty, the
jury found four aggravating circumstances related to Clifford Barnett’s murder and
three related to the murder of Leona Barnett. Barnett was sentenced to death on the
murder counts and three consecutive life sentences on the robbery and armed criminal
counts. 980 S.W.2d at 301. The Missouri Supreme Court affirmed the convictions.
Id.

      Barnett sought post-conviction relief under Rule 29.15 of the Missouri Rules
of Criminal Procedure, raising eight allegations of ineffective assistance of counsel.
Barnett v. State, 103 S.W.3d 765, 768 (Mo. 2003). Barnett’s allegations included a
claim that his penalty-phase trial counsel failed “to investigate and provide the jury

                                          -2-
with information about Barnett’s biological mother, her family, and the environmental
and genetic factors that affected his development.” Id. at 770. Barnett claimed, and
continues to claim, “that a great deal of mitigating evidence was available for counsel
to utilize at trial, but went unutilized because counsel failed to exercise due diligence
in search for it.” Id. The Missouri Supreme Court affirmed the lower court’s denial
of Barnett’s motion on the ground that it was insufficiently pled. The supreme court
stated:

      Barnett’s life history, as set forth in the post-conviction motion, was
      over 25 pages, and 22 pages were dedicated to listing the hundreds of
      witnesses and organizations that were capable of providing proof of
      Barnett’s life history. The motion court found, however, that the 25-
      page narrative of Barnett’s life history did not connect a specific portion
      of the narrative to a particular witness, did not allege that counsel was
      informed of their existence, and did not state that any of the witnesses
      were available to testify.

Id. In agreeing with the lower court’s finding that the motion was deficient, the
supreme court cited precedent which “held that ‘[w]here the pleadings consist only
of bare assertions and conclusions, a motion court cannot meaningfully apply the
Strickland standard for ineffective assistance of counsel.’” Id. (alteration in original)
(quoting Morrow v. State, 21 S.W.3d 819, 824 (Mo. 2000)). Because the supreme
court found the pleadings so inadequate as to be unreviewable, it held that the failure
of the motion court to appoint counsel was not error, recognizing that there is “no
constitutional right to counsel in a post-conviction proceeding.” 103 S.W.3d at 773
(citing State v. Hunter, 840 S.W.2d 850, 871 (Mo. 1992)).

       On May 24, 2005, Barnett filed a petition for federal habeas relief in the United
States District Court for the Western District of Missouri. He listed nineteen grounds
for relief. Ground I alleged that the trial counsel was ineffective for failing “to



                                          -3-
investigate and present information about the petitioner’s mother and her family.”
Ground I alleged:

             Respondent’s custody over the petitioner violates the Constitution
      of the United States in that trial counsel was constitutionally ineffective
      for failing to investigate and provide information about the petitioner’s
      background—specifically regarding his mother and her family—because
      this ruling denied the petitioner’s rights to due process of law, a
      fundamentally fair trial, the effective assistance of counsel, and freedom
      from cruel and unusual punishments under the Fifth, Sixth, Eighth and
      Fourteenth Amendments when although trial counsel investigated parts
      of the petitioner’s background and provided information to her expert
      witnesses, she did not pursue significant aspects of his background
      related to his mother and her family.

Recognizing that the state court disposed of the failure-to-investigate issue on
procedural grounds, the district court addressed whether the procedural grounds were
based on “independent and adequate state law.” On August 24, 2006, the court
denied habeas relief, deciding that it could not “say that the state court’s application
of the procedural rule was ‘exorbitant.’” The court issued a certificate of
appealability on three of Barnett’s allegations, including Ground I, finding that
Barnett had made a substantial showing because “among reasonable jurists, a court
could resolve the issues differently.”

       On September 5, 2008, we affirmed the district court’s denial of habeas relief.
We cited the rule that “[f]ederal courts will not review a state court decision that rests
on ‘independent and adequate state procedural grounds.’” Barnett v. Roper, 541 F.3d
804, 808 (8th Cir. 2008) (quoting Coleman v. Thompson, 501 U.S. 722, 729-30
(1991)). Specifically, we concluded “that Missouri’s procedural rule is firmly
established and regularly applied and constitutes an independent and adequate ground
that bars our review of Barnett’s claims” and the denial of his request for an
evidentiary hearing. 541 F.3d at 810-11.

                                           -4-
      On June 29, 2012, Barnett moved for rule 60(b) relief from the judgment
entered on August 24, 2006. In part, Barnett alleged: “In March of this year, the
Supreme Court handed down its ruling in Martinez v. Ryan, 132 S.Ct. 1309 (2012),
a case that has been termed by other courts as, ‘a remarkable development in the
Court’s equitable jurisprudence.’” On July 10, 2012, the court denied the motion,
noting “that petitioner may not obtain federal habeas relief based on the ruling in
Martinez because it is not a new rule of constitutional law that is retroactively
available on collateral review.”

        On August 7, 2012, Barnett filed a rule 59(e) motion, asking the court to amend
its judgment on the rule 60(b) motion and grant a hearing on the claims presented.
With the exception of Ground I, the court denied the rule 59(e) motion. The court
ordered an evidentiary hearing on the issue of whether Barnett received ineffective
assistance of counsel at the penalty phase of his trial. After hearing nine days of
evidence, the district court issued a 189-page memorandum opinion in which it
concluded that Barnett established ineffective assistance of counsel “for failure to
sufficiently investigate and present mitigating evidence during the penalty phase of
his trial.” In a judgment on August 18, 2015, the court granted Barnett’s application
for habeas corpus and ordered the state of Missouri to sentence Barnett to life
imprisonment without the possibility of parole or grant him a new penalty-phase trial
within 180 days.

       On September 15, 2015, Roper filed a rule 59(e) motion to alter or amend the
August 2015 judgment, arguing that the court’s analysis contained “fundamental
errors.” The motion was denied. The court later amended the judgment to order
resentencing within 180 days of the conclusion of appellate review.




                                         -5-
       Roper appeals the “MEMORANDUM AND ORDER” and the judgment
granting habeas relief, as well as the order denying his rule 59(e) motion. We have
jurisdiction under 28 U.S.C. § 1291.

II.    The District Court’s Partial Grant of Barnett’s Rule 59(e) Motion

       Roper initially asserts that it is “an error of law to treat the decision in Martinez
v. Ryan, 132 S.Ct. 1309 (2012) as an extraordinary circumstance justifying reopening
the case, despite numerous precedents rejecting that position.” “Federal habeas
courts reviewing convictions from state courts will not consider claims that a state
court refused to hear based on an adequate and independent state procedural ground.”
Davila v. Davis, 137 S.Ct. 2058, 2062 (2017). This bar may be overcome by
establishing “‘cause’ to excuse the procedural default and” demonstrating actual
prejudice from the alleged error. Id. “An attorney error does not qualify as ‘cause’
unless the error amounted to constitutionally ineffective assistance of counsel.” Id.
Because there is no constitutional right to assistance of counsel in state post-
conviction proceedings, ineffective assistance in such proceedings will generally not
be cause to excuse procedural default. Id. (citing Coleman v. Thompson, 501 U.S.
722 (1991)). The Supreme Court, however, has recognized a narrow exception to the
general rule in Coleman. “That exception treats ineffective assistance by a prisoner’s
state postconviction counsel as cause to overcome the default of a single
claim—ineffective assistance of trial counsel—in a single context—where the State
effectively requires a defendant to bring that claim in state postconviction
proceedings rather than on direct appeal.” Id. (citing Martinez v. Ryan, 566 U.S. 1
(2012); Trevino v. Thaler, 569 U.S. 413 (2013)).

      In his notice of appeal, Roper failed to specifically appeal the district court’s
April 22, 2013, order denying Barnett’s rule 59(e) motion to amend “with the
exception of Ground I - alleging ineffective assistance of counsel at the penalty phase
of his trial due to trial counsel’s failure to investigate and present mitigating

                                            -6-
evidence” and concluding that Barnett was entitled to an evidentiary hearing on the
issue. We note that in the April 22nd “MEMORANDUM AND ORDER” the district
court concluded: “Thus, based on the substantial nature of the underlying assistance
of trial counsel claim as well as the equitable considerations, . . . Barnett meets the
required showing of ‘extraordinary circumstances’ under Fed. R. Civ. P. 60(b)(6).”2
Because the court’s partial grant of Barnett’s rule 59(e) motion is not subject to this
appeal, we do not address the merits of the court’s application of Martinez and its
finding of extraordinary circumstances. Fed. R. App. P. 3(c)(1)(B); Auer v. City of
Minot, ___ F.3d ___, No. 17-1535, 2018 WL 3470195, at *5 (8th Cir. July 19, 2018)
(citing Hallquist v. United Home Loans, Inc., 715 F.3d 1040, 1044-45 (8th Cir.
2013)).

III.   District Court’s Grant of Barnett’s Application for Habeas Corpus After
       Evidentiary Hearing

       After hearing the evidence on Ground I of Barnett’s habeas petition, the district
court concluded that Barnett’s state post-conviction counsel was ineffective,
providing cause to reach the merits of the claim of ineffective assistance of trial
counsel. The court further concluded that Barnett’s penalty-phase trial counsel was
ineffective, providing a basis for granting habeas relief.3

       2
       The court addressed this in its memorandum and order following the
evidentiary hearing. In addressing a “misunderstanding” revealed in post-hearing
briefing, the court stated: “In any case, under the most sensible reading of the 2013
Order, that Order clearly left only one remaining issue and task: a merits evaluation
of Ground I. Thus, the State’s post-hearing arguments concerning Rule 60(b) and
Martinez are largely unnecessary, as the relevant legal questions relating to those
issues were already answered by this Court in 2013.”
       3
        Because the state did not challenge the district court’s underlying finding of
ineffective assistance of trial counsel on appeal and failed to raise, brief, or argue the
issue, the district court’s finding of ineffective assistance is not before us. Hill v. City
of Pine Bluff, Ark., 696 F.3d 709, 712 n.2 (8th Cir. 2012) (claims not argued on

                                            -7-
      A.     Ineffective Assistance of State Post-Conviction Counsel

       A finding of ineffective assistance of post-conviction counsel was part of the
district court’s analysis of extraordinary circumstances in its April 22, 2013, order
which is not on appeal.4 Even so, in the order appealed from, the district court
acknowledged that “the 2013 Order could have been clearer in finding PCR counsel
to be ineffective” and clarified its previous finding. Barnett v. Roper, No. 4:03-cv-
614, 2015 WL 13662176, at *72 (E.D. Mo. Aug. 18, 2015). In clarifying its previous
finding and supporting analysis, the court relied on testimony heard at the evidentiary
hearing. That hearing occurred after the district court recognized that inadequate
pleadings under state procedural rules may be the product of a deficient performance
under Strickland while noting that fact alone may not meet the constitutional standard
for ineffective assistance of counsel. Even with the failure to appeal the April 22,
2013, order, the district court’s final determination that Barnett received ineffective
assistance from his state post-conviction counsel is properly raised on appeal and the
question is squarely before us. Hallquist, 715 F.3d at 1044 (“This court has
jurisdiction over the underlying order if the appellant’s intent to challenge is clear,
and the adverse party will suffer no prejudice if review is permitted.”).

      To prove ineffective assistance of counsel, Barnett must “show that his counsel
was deficient and that his counsel’s deficient performance prejudiced him.” Slocum
v. Kelley, 854 F.3d 524, 532 (8th Cir. 2017) (citing Strickland v. Washington, 466
U.S. 668, 687-88, 694 (1984)). To be deficient, counsel’s representation must have

appeal are deemed abandoned); Rotskoff v. Cooley, 438 F.3d 852, 854 (8th Cir.
2006) (appellant waives challenge to district court’s ruling by failing to develop an
issue in the brief as required by rules of appellate procedure).
      4
       Specifically, the court, in footnote 17 of the order, concluded: “Therefore, the
state motion court’s determination that Barnett’s post-conviction counsel failed to
comply with the state procedural rule, which barred review on the merits, establishes
deficient performance and a reasonable probability of prejudice under Strickland.”

                                         -8-
fallen “below an objective standard of reasonableness.” Id. To prove prejudice,
Barnett must establish “a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.” Id. The likelihood
that the result would have been different must be “substantial, not just conceivable.”
Id. (citing Williams v. Roper, 695 F.3d 825, 831 (8th Cir. 2012). “On appeal, ‘[w]e
review the district court’s factual findings for clear error and the legal question
whether those findings amount to ineffective assistance de novo.’” Long v. United
States, 875 F.3d 411, 413 (8th Cir. 2017) (alteration in original) (quoting Keys v.
United States, 545 F.3d 644, 646 (8th Cir. 2008)). We give due deference to the
district court’s credibility determinations. Nooner v. Hobbs, 689 F.3d 921, 933-34
(8th Cir. 2012).

       The district court reviewed the post-conviction record before the state court in
great detail. The court noted the motion court’s description of the insufficient
pleading, including that the “Movant’s narrative does not connect a specific portion
of the narrative to a particular witness, does not allege that counsel was informed of
their existence, and does not state that any of these witnesses were available to
testify.” The court further noted that the motion’s court cited established precedent
in Missouri that spelled out these specific requirements for a rule 29.15 motion. The
court pointed to the testimony of Mr. Tucci, one of Barnett’s motion’s attorneys, that
although he was satisfied with the narrative form of the petition at the time, he now
believes it was not properly drafted. The court also was influenced by the fact that,
given an invitation to correct the deficient pleadings when the state moved to dismiss,
Barnett’s counsel chose not to file a response. Testimony from both of Barnett’s
post-conviction counsel was that they take great pains to make sure that they now
identify witnesses with descriptions of their proposed testimony, show that the
witnesses were available to testify, and inform the court that the witnesses would
have been discovered through proper investigation. The court’s findings of fact are
supported by the record and are not clearly erroneous. The findings support the
court’s conclusion that “the technical inadequacies, combined with the ease with

                                         -9-
which those inadequacies could have been avoided or neutralized, constitute deficient
performance under Strickland” and the performance “fell ‘below an objective
standard of the customary skill and diligence displayed by a reasonably competent
attorney.’” 2015 WL 13662176, at *75-76 (quoting Armstrong v. Kemna, 534 F.3d
857, 863 (8th Cir. 2008)).

        The state motion court specifically identified the deficient pleading as grounds
for denying Barnett an evidentiary hearing on his claim of ineffective assistance of
penalty-phase trial counsel. The court’s finding that Barnett was prejudiced by
counsel’s deficient performance is supported by the evidence. On the record before
it, the district court properly concluded that Barnett established ineffective assistance
of his state post-conviction counsel.

      B.     District Court’s Jurisdiction to Grant Relief on Barnett’s Rule 60(b)
             Motion

       The state argues on appeal that the district court exceeded its jurisdiction by
granting relief on a claim that included evidence beyond what was relevant to the
original Ground I of the habeas petition, which alleged trial counsels’ failure “to
investigate and provide information” specifically relating to Barnett’s biological
background. In its memorandum decision following the evidentiary hearing, the
district court noted that although Barnett’s original Ground I alleged ineffective
assistance of counsel “for failing to investigate and provide information about the
petitioner’s background—specifically regarding his mother and her family,” the
parties agreed at the evidentiary hearing that the court would hear evidence unrelated
to Barnett’s biological family. The court noted that “[b]oth parties agreed they were
treating the case as ‘a very general ineffective assistance of counsel penalty phase




                                          -10-
claim.’”5 The parties’ agreement is reflected in the record. The state conceded at oral
argument that it tried the allegedly broader claim by consent.

       The state now asserts that the court expanded Barnett’s Ground I, essentially
creating a new claim in addressing the rule 60(b) motion. The state cites 28 U.S.C.
§ 2244(b) in arguing that this expanded claim must be dismissed as an impermissible
successive claim under the Antiterrorism and Effective Death Penalty Act
(“AEDPA”). In the alternative, the state suggests the possibility of remanding to the
district court “to consider whether Barnett’s Ground I, standing alone, entitles him to
a writ of habeas corpus.”

       Rule 60(b) applies in habeas proceedings “only ‘to the extent that [it is] not
inconsistent with’ applicable federal statutory provisions and rules.” Gonzalez v.
Crosby, 545 U.S. 524, 529 (2005) (quoting 28 U.S.C. § 2254). The court must
dismiss any claim in a second or successive habeas application that was presented in
a prior application. 28 U.S.C. § 2244 (b)(1). Further, any claim presented in a second
or successive application not presented in a prior application “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.” Gonzalez, 545 U.S. at 530 (citing
§ 2244(b)(2)). Before “the district court may accept a successive petition for filing,
the court of appeals must determine that it presents a claim not previously raised that
is sufficient to meet § 2244(b)(2)’s new-rule or actual-innocence provisions.” Id.
(citing § 2244(b)(3)). A rule 60(b) is a successive habeas corpus application if it
contains one or more claims. Id. at 530-31. “[A] ‘claim’ as used in § 2244(b) is an
asserted federal basis for relief from a state court’s judgment of conviction.” Id. at
530. A rule 60(b) motion that does not attack the merits of a prior habeas decision,


      5
      Considering that Ground I referenced Barnett’s background in general while
emphasizing the error in failing to investigate his biological family, the parties’
agreement is well-supported by the record.

                                         -11-
but only alleges “some defect in the integrity of the federal habeas proceedings” is not
a successive habeas application. Id. at 532. In other words, “[i]f neither the motion
itself nor the federal judgment from which it seeks relief substantively addresses
federal grounds for setting aside the movant’s state conviction, allowing the motion
to proceed as denominated creates no inconsistency with the habeas statute or rules.”
Id. at 533. “[A] motion does not attack a federal court’s determination on the merits
if it ‘merely asserts that a previous ruling which precluded a merits determination was
in error—for example, a denial for such reasons as failure to exhaust, procedural
default, or statute-of-limitations bar.’” Ward v. Norris, 577 F.3d 925, 933 (8th Cir.
2009) (quoting Gonzalez, 545 U.S. at 532 n.4).

       The Supreme Court has recognized that AEDPA is designed to “further the
principles of comity, finality, and federalism.” Panetti v. Quarterman, 551 U.S. 930,
945 (2007) (internal quotation marks omitted) (quoting Miller-El v. Cockrell, 537
U.S. 322, 337 (2003)). “These purposes, and the practical effects of our holdings,”
the Court instructed “should be considered when interpreting AEDPA.” Panetti, 551
U.S. at 945. “This is particularly so when petitioners ‘run the risk’ under the
proposed interpretation of ‘forever losing their opportunity for any federal review of
their unexhausted claims.’” Id. at 945-46 (quoting Rhines v. Weber, 544 U.S. 269,
275 (2005)).

       In its original order denying Barnett’s habeas corpus petition, the district court
concluded that Missouri’s procedural rule foreclosed it from considering the merits
of Ground I. In his 60(b) motion, Barnett sought review of Ground I because the
merits of his ineffective assistance of trial counsel claim were never addressed by any
court. The district court originally denied the review, concluding it was a successive
petition that required authorization by this court. In granting Barnett’s rule 59(e)
motion as to Ground I, the district court concluded that the rule 60(b) motion as to
Ground I did not state a new claim for habeas relief, but attacked the procedural bar
to hearing the original claim. Barnett’s claim of ineffective assistance of trial counsel

                                          -12-
for failing to investigate his background and family was never addressed on the
merits prior to the district court’s evidentiary hearing following the grant of the rule
59(e) motion. Prior to Martinez, the ineffective assistance of his post-conviction
counsel would not have provided cause for overcoming the procedural default due to
the deficient post-conviction pleadings. It is apparent that Martinez does not require
that the ineffective assistance of post-conviction counsel be first addressed by the
state court. Petitioner in that case argued the issue for the first time in the federal
habeas petition. 566 U.S. at 17 (“Where, under state law, claims of ineffective
assistance of trial counsel must be raised in an initial-review collateral proceeding,
a procedural default will not bar a federal habeas court from hearing a substantial
claim of ineffective assistance at trial if, in the initial-review collateral proceeding,
there was no counsel or counsel in that proceeding was ineffective.”).

      It is undisputed that no court, including the district court in its original habeas
consideration, has addressed the merits of Ground I. As to that ground, Barnett’s rule
60(b) motion did not challenge the merits of a federal court determination. The
motion instead challenged the procedural basis for the court’s failure to address the
merits of Barnett’s claim. We agree with the district court that, as to Ground I,
Barnett’s rule 60(b) motion was not a successive claim under 28 U.S.C. § 2244 (b).

IV.   Denial of Roper’s Rule 59(e) Motion

      The district court did not err in denying Roper’s rule 59(e) motion. The
judgment granting habeas relief was not the result of any manifest error. The motion
was not supported by any showing of extraordinary circumstances.6




      6
       We decline to accept Roper’s invitation to revive the statutes-of-limitations
defense which he forfeited early in these proceedings. See Barnett v. Roper, 541 F.3d
804, 807-08 (8th Cir. 2008).

                                          -13-
V.   Conclusion

     We affirm the judgment of the district court.

                     ______________________________




                                      -14-
