161467P.pdf   09/20/2018  David Barnett  v.  Don Roper
   U.S. Court of Appeals Case No:  16-1467
   U.S. District Court for the Eastern District of Missouri - St. Louis   
   [PUBLISHED] [Erickson, Author, with Wollman and Shepherd, Circuit Judges] 
   Prisoner case - Habeas - Death Penalty. For the court's prior opinion in 
   Barnett's habeas case, see Barnett v. Roper, 541 F.3d 804 (8th Cir. 2008). 
   Following the Supreme Court's decision in Martinez v. Ryan, 132 S.Ct. 1309 
   (2012), Barnett filed a Rule 60(b) motion. The district court denied it, 
   concluding Martinez was not a new rule of constitutional law retroactively 
   available on collateral review. Barnett then filed a Rule 59(e) motion 
   asking the court to amend its order on his Rule 60(b) motion; the court 
   granted Barnett's Rule 59(e) motion on one issue and determined that he 
   had been denied effective assistance of counsel based on his attorney's 
   failure to sufficiently investigate and present mitigating evidence during 
   the penalty phase of his trial. The court granted Barnett habeas relief 
   and ordered the State to sentence Barnett to life without the possibility 
   of parole or grant him a new penalty phase trial. The State appeals. Held: 
   (1) the State did not appeal the order partially granting the Rule 59(e) 
   motion and the court would not address the merits of the district court's 
   application of Martinez and its finding of extraordinary circumstances; 
   (2) the district court did not err in finding Barnett's post-conviction 
   counsel failed to render effective assistance of counsel where his 
   post-conviction pleading failed to properly raise a claim of ineffective 
   assistance of counsel at the penalty phase; Barnett's Rule 60(b) motion 
   with respect to the claim of ineffective assistance of counsel was not a 
   successive claim under 28 U.S.C. Sec. 2244(b). Grant of habeas relief 
   affirmed.