Barber v. Snyder

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
ROBERT EARL BARBER,
Petitioner,
v. 	CASE NO. 26-3357-JWL
PAUL SNYDER,
Respondent.
MEMORANDUM AND ORDER
This matter began when Petitioner and state prisoner Robert Earl Barber filed a pro se
petition for writ of habeas corpus under 28 U.S.C. § 2241. (Doc. 1.) The Court reviewed the
petition and on September 29, 2026, issued a memorandum and order (“M&O”) explaining that
the grounds for relief asserted in the petition appeared to challenge the validity of Petitioner’s
sentence, so the petition must be brought under 28 U.S.C. § 2254. (Doc. 2.) Therefore, the Court
liberally construed the petition as seeking relief under § 2254 and, because Petitioner had not
obtained preauthorization from the Tenth Circuit to file a second or successive § 2254 petition,
this Court lacked jurisdiction over the current petition, dismissed it without prejudice, and declined
to issue a certificate of appealability. Id. at 1-2, 5-6. Judgment was entered the same day. (Doc. 3.)
This matter comes now before the Court on Petitioner’s October 6, 2026 motion for relief
from judgment pursuant to Federal Rule of Civil Procedure 60(b)(6). (Doc. 4.) For the reasons
explained below, the Court finds that Petitioner is not entitled to relief from judgment in this case.
Thus, the Court will deny the motion and direct the Clerk to close this case once more.
Background
As set forth in the M&O, in 2005, a jury in Labette County, Kansas, convicted Petitioner
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of attempted first-degree murder and the state district court sentenced him to 620 months in prison.
State v. Barber, 2021 WL 1584[5]83, *1 (Kan. Ct. App. Apr. 23, 2021) (unpublished), rev. denied
Jan. 13, 2022. Petitioner unsuccessfully pursued a direct appeal and then habeas corpus relief in
the state courts. See Barber v. State, 2011 WL 6385646 (Kan. Ct. App. Dec. 16, 2011), rev. denied
Feb. 19, 2013; State v. Barber, 2007 WL 1309602 (Kan. Ct. App. 2007), rev. denied Oct. 1, 2007.
In March 2013, he filed with this Court a pro se petition for writ of habeas corpus under 28 U.S.C.
§ 2254 challenging his 2005 conviction. Barber v. McKune, et al., Case No. 13-cv-3040-SAC,
Doc. 1. The Court denied the petition in June 2014, finding that all of Petitioner’s claims were
either procedurally defaulted, procedurally barred, or failed on their merits. Barber v. McKune,
2014 WL 2604283, *2-12 (D. Kan. June 11, 2014). Petitioner appealed, but the Tenth Circuit
denied his request for a certificate of appealability and dismissed the appeal. Barber v. McKune,
595 F. App’x 817 (10th Cir. 2014).
Also in 2014, Petitioner filed in state district court a motion to correct illegal sentence
pursuant to K.S.A. 22-3504, arguing that the sentencing court had erred by scoring Indiana
convictions in his criminal history as person felonies, meaning that his sentence was illegal. See
Barber, 2021 WL 1584683, at *1. In support of his argument, Petitioner relied on the Kansas
Supreme Court’s decision in State v. Murdock, 299 Kan. 312 (2014) (Murdock I), which was later
overruled by State v. Keel, 302 Kan. 560 (2015). See Barber, 2021 WL 1584683, at *1. Instead of
granting Petitioner relief under Murdock I, however, “the Labette [C]ounty [D]istrict [C]ourt held
[P]etitioner’s motion for 18 months, until the Legislature changed the law, with House Bill #2053,
signed into law April 2, 2015, by the then Governor, Sam Brownback . . . .” (Doc. 4, p. 2-3 (all
errors in original).) Then, later in 2015, it denied the motion to correct illegal sentence, relying on
H.B. 2053 and “saying the new House Bill fixed the Murdock loophole, not the law, but the
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loophole.” Id. at 3 (emphasis in original).
Petitioner filed a notice of appeal, “but he was not appointed appellate counsel and it does
not appear that an appellate court reviewed that decision.” Barber, 2021 WL 1584683, at *1. In
2019, Petitioner filed a second motion to correct illegal sentence, again arguing the miscalculation
of his criminal history score at sentencing, this time relying on State v. Murdock, 309 Kan. 585
(2019) (Murdock II). See Barber, 2021 WL 1584683, at *1. Because “Murdock II allowed only
those defendants whose direct appeals were pending to benefit from a change in the law” and
Petitioner’s “direct appeal had been decided in 2007 and his 2014 and 2019 motions to correct an
illegal sentence were not direct appeals, the district court denied [the] motion.” Id.
On appeal from the denial, the Kansas Court of Appeals affirmed, noting that “in Murdock
II, [the Kansas] Supreme Court underscored that ‘the legality of a sentence under K.S.A. 22-3504
is controlled by the law in effect at the time the sentence was pronounced.’” Id. at *2 (citation
omitted). It further noted Murdock II’s holding that “‘a sentence that was legal when pronounced
does not become illegal if the law subsequently changes’” unless the “change in the law occurs
while a direct appeal is pending, because a sentence is not final until the direct appeal is
completed.” Id. at *2 (citations omitted). Because Petitioner’s direct appeal was final well before
Murdock I, the state appellate court held, Petitioner was not entitled to relief. In January 2022, the
Kansas Supreme Court denied Petitioner’s petition for review.
Five months later, Petitioner filed in this Court a second petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2254. (See Doc. 2, p. 2.) As the sole ground for relief, Petitioner argued:
On May 15, 2014, this petitioner filed in the District [Court] a motion
pursuant to K.S.A. 22-3504, in light of the then recent ruling of State v. Murdock,
299 Kan. 312, 313, 314, 323 P.3d 846 (2014). The District Court held petitioner’s
motion for over a year, until the law was changed, an[d] applied the new law to
petitioner, which violated the Ex Post Facto clause of the U.S. Constitution.
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See Barber v. Cheeks, Case No. 22-cv-3130-SAC, Doc. 1, p. 5. The Court reviewed the petition
and concluded that it was an unauthorized second or successive § 2254 petition and it was not in
the interest of justice to transfer the petition to the Tenth Circuit for possible authorization. Id. at
*1-2. Thus, this Court dismissed the petition for lack of jurisdiction and did not issue a certificate
of appealability. Id. at *2. Petitioner did not appeal.
Instead, he returned to state district court and filed a third motion to correct illegal sentence.
See State v. Barber, 2025 WL 2490519, *2 (Kan. Ct. App. Aug. 29, 2025) (unpublished), rev.
denied Feb. 26, 2026. After the district court denied the motion, Petitioner filed a notice of appeal1
and in June 2023, he filed in the state district court a fourth motion to correct illegal sentence. Id.
When that motion was summarily denied, Petitioner appealed, but the Kansas Court of Appeals
affirmed the denial and the Kansas Supreme Court denied the subsequent petition for review in
February 2026. Id.
On September 24, 2026, Petitioner filed the federal habeas petition that began this case.
(Doc. 1.) As noted above, Petitioner filed his petition on the form for seeking relief under 28 U.S.C.
§ 2241. In Ground One, he asserted: “The Kansas Supreme Court interpreted several existing
statutes, that rend[er]ed petitioner’s sentence illegal. Petitioner filed a[] K.S.A. 22-3504 petition
in the District Court that sentence[d] him, and appealed to the [Kansas Court of Appeals] and
Supr[eme] Court.” (Doc. 1, p. 6.) As supporting facts for Ground One, Petitioner stated: 	“The
District Court held Petitioner’s petition for more than 18 months, until the law changed, with H.B.
2053, then applied the new law to petitioner. Petitioner is saying it was an ex post facto ruling, for
the new H.B. 2053 enhanced Petitioner’s punishment.” Id. In Ground Two of the petition,
Petitioner asked “[w]hether the then[-]new H.B. #2053 could be applied retroactively.” Id. As
1 It appears that Petitioner did not pursue an appeal from the denial of the third motion to correct illegal sentence, but
the information now before this Court is not entirely clear on this point.
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supporting facts for Ground Two, Petitioner stated: 	“None of the appeals courts would answer
the Issue, choosing instead to completely ignore the Issue and to completely mis-interpret
Petitioner’s Brief.” Id. (all errors in original). Petitioner refers this Court to his brief and the Kansas
Court of Appeals memorandum decision. As relief in this case, Petitioner sought an order directing
the Labette County District Court to vacate his sentence and resentence him under the law as
interpreted in Murdock I. Id. at 7.
In the M&O this Court issued on September 29, 2026, it explained:
Petitioner filed his petition on the form used for seeking federal habeas
relief under 28 U.S.C. § 2241, and he states in the petition that he seeks to challenge
the Kansas Court of Appeals’ ruling on his latest motion to correct illegal sentence.
(Doc. 1, p. 2.) In essence, Petitioner wishes to attack the validity of the sentence
that was imposed for his 2005 conviction by way of challenging the state-courts’
rulings on later motions in which he argued that sentence was illegal. (Doc. 1, p. 2,
6.) As relief, he asks this Court to vacate his sentence and order the state district
court to re-sentence him under the law as set forth in State v. Murdock. Id. at 7.
A petition for federal habeas relief under 28 U.S.C. § 2241 “‘[is] used to
attack the execution of a sentence . . . .” Sandusky v. Goetz, 944 F.3d 1240, 1246
(10th Cir. 2019); see also Mayes v. Dowling, 780 Fed. Appx. 599, 601 (10th Cir.
2019) (unpublished) (“In this circuit, a state prisoner may challenge the execution
of his state sentence via a § 2241 petition.”). For example, the argument that a
release date was improperly calculated because less than the appropriate amount of
time served was credited is a challenge to the execution of a sentence. See Eldridge
v. Berkebile, 791 F.3d 1239, 1241-43 (10th Cir. 2015). Instead of challenging the
initial calculation of the sentence as it was originally imposed, a federal habeas
claim properly brought under § 2241 challenges how the sentence is being carried
out.
In contrast, the current petition argues that Petitioner’s sentence, as it was
initially imposed, was invalid in light of later changes to Kansas’ sentencing laws.
The appropriate avenue for a person in custody pursuant to the judgment of a State
court to assert in federal court that he “is in custody in violation of the Constitution
or laws or treaties of the United States” is 28 U.S.C. § 2254. Thus, although
Petitioner used the form for seeking relief under § 2241, his argument for relief
must be brought and considered under § 2254.
(Doc. 2, p. 4-5.)
Because the Court interpreted the petition to seek relief available only under 28 U.S.C. §
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2254 and this Court has previously adjudicated a § 2254 petition challenging Petitioner’s 2005
Labette County conviction, this Court concluded that the current petition was a second or
successive petition. Id. at 5-6. Petitioner did not obtain the required preauthorization to file his
petition, so this Court dismissed this case without prejudice for lack of jurisdiction, explaining to
Petitioner that he may independently apply directly to the Tenth Circuit for authorization to
proceed in a second or successive § 2254 petition if he wishes. Id. at 6. The Court declined to issue
a certificate of appealability. Id.
Petitioner then filed the motion for relief from judgment under Rule 60(b)(6) that is now
before the Court. In the motion, he asserts that the Court misconstrued his petition; he was not
seeking habeas relief from his underlying state-court conviction. Id. at 1. Petitioner explains that
the petition that began this case raised an argument that was unavailable to him when the Court
adjudicated his first § 2254 petition, as it is based on law that did not exist until later. Id. at 2. He
further clarifies that he “wants this Court to . . . answer the question of was the denial of Petitioner’s
K.S.A. 22-3504 motion an Ex Post Facto violation.” Id.
Discussion
Under Rule 60(b), the Court may order relief from a final judgment, but only in exceptional
circumstances. See Servants of Paraclete, 294 F.3d at 1009. Specifically, Rule 60(b) states:
On motion and just terms, the court may relieve a party or its legal representative
from a final judgment, order, or proceeding for the following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence that, with reasonable diligence, could not have been
discovered in time to move for a new trial under Rule 59(b);
(3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or
misconduct by an opposing party;
(4) the judgment is void;
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(5) the judgment has been satisfied, released, or discharged; it is based on an earlier
judgment that has been reversed or vacated; or applying it prospectively is no
longer equitable; or
(6) any other reason that justifies relief.
In addition, “Rule 60(b) relief is not properly granted where a party merely revisits the original
issues and seeks to ‘challenge the legal correctness of the district court’s judgment by arguing that
the district court misapplied the law or misunderstood [the party’s] position.’” Lebahn v. Owens,
813 F.3d 1300, 1306 (10th Cir. 2016) (citation omitted).
As a threshold matter, the Court assures Petitioner it is aware he was not attempting in this
case to challenge the validity of his conviction. The Court is unconvinced, however, that
Petitioner’s argument, at its core, is not a challenge to the validity of his sentence, which must be
brought under 28 U.S.C. § 2254. It is worth noting that the issues in the petition that began this
case are substantively the same as the issue in Petitioner’s 2022 petition for federal habeas relief
under § 2254.
Petitioner filed the motions to correct illegal sentence after Murdock I because he believed
he was entitled to have his criminal history score calculated in accordance with the law as
interpreted in Murdock I, as opposed to the law as it was interpreted in 2005 when he was
sentenced. In this case, he seeks a ruling reversing the denial of his 2014 motion to correct illegal
sentence and directing the state district court to vacate the 2005 sentence and resentence him in
accordance with Murdock I.
Challenging the constitutionality of a ruling the state district court made during the
proceedings on the 2014 motion to correct illegal sentence does not make that challenge arguments
properly brought pursuant to 28 U.S.C. § 2241. As explained in the M&O, state prisoners may file
§ 2241 petitions in this circuit to challenge the execution of a sentence imposed by a state court.
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(See Doc. 2, p. 5.) Additionally, a state pretrial detainee may file a 28 U.S.C. § 2241 petition “to
compel the State to bring [him or her] to trial.” See Smith v. Crow, 2022 WL 12165390, at *2 (10th
Cir. Oct. 21, 2022) (unpublished order denying certificate of appealability) (quoting Dolack v.
Allenbrand, 548 F.2d 891, 893-94 (10th Cir. 1977)). The petition filed in this case does neither.
The Court remains convinced that the arguments in the petition, at their core, are an attack
on the validity of the initial sentence, which was at issue in the 2014 motion to correct illegal
sentence. This understanding is supported by the relief Petitioner sought in this case: 	an order
directing the Labette County District Court to vacate his 2005 sentence and resentence him in
accordance with Murdock I. (See Doc. 1, p. 7.) A challenge to the length of a sentence imposed,
even when the challenge asserts a constitutional violation in later state-court efforts to obtain
resentencing, is a challenge that must be considered under 28 U.S.C. § 2254. Petitioner has not
shown he is entitled to relief under Rule 60 and the motion for relief from judgment (Doc. 4) will
be denied. In addition, the Tenth Circuit has explained that a petitioner must obtain a certificate of
appealability to appeal the denial of a Rule 60(b) motion. See Larson v. Leyba, 507 F.3d 1230,
1233 (10th Cir. 2007). The Court declines to issue a certificate of appealability in this matter.
IT IS THEREFORE ORDERED THAT the motion for relief from judgment (Doc. 4) is
denied. No certificate of appealability shall issue. The Clerk is directed to close this case.
IT IS SO ORDERED.
DATED: 	This 13th day of October, 2026, at Kansas City, Kansas.
S/ John W. Lungstrum
JOHN W. LUNGSTRUM
United States District Judge
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