A federal appeals court dismissed a Missouri death row inmate’s petition for post-conviction relief Sunday, despite questions about the evidence used to convict him, clearing the way for his execution to take place on Tuesday. This order will vacate a 30-day stay of execution that a federal judge granted to Walter Barton on Friday.
Walter Barton was originally convicted of first degree murder for the killing of Gladys Kuehler, an 81-year old park operator. After several mistrials and a vacated judgment, Barton was convicted in his fifth trial for murder. Federal District Court Judge Brian Wimes granted Barton a 30 day-stay of execution because he believed the court needed more time to consider the issues Barton’s attorneys raised in regards to the blood spatter evidence that was originally used to convict him. In his order, Wimes stated, “at a minimum equity requires this Court’s meaningful consideration the petition for habeas relief, which the Court anticipates would require more than 30 days from today’s date to complete.”
As a result, prosecutors appealed this 30-day stay of execution, and the judges on the US Court of Appeals for the Eighth Circuit found that Barton had “no possibility of success” on these newly raised issues.
A habeas petitioner who raises a gateway claim of actual innocence must satisfy a two-part test in order to obtain review of otherwise procedurally barred claims. First, the petitioner’s allegations of constitutional error must be supported with new reliable evidence not available at trial. Evidence is only new if it was not available at trial and could not have been discovered earlier through the exercise of due diligence. Second, the petitioner must establish that it is more likely that not that not reasonable juror would have convicted him in light of the new evidence. Barton cannot satisfy this two party test.
Barton’s death by lethal injection will be the first execution in the US since March 5, as many states have postponed executions due to rising concerns about COVID-19.