James Estep v. David Ballard , 502 F. App'x 234 ( 2012 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-6540
JAMES N. ESTEP,
Petitioner - Appellant,
v.
DAVID BALLARD, Warden, Mount Olive Correctional Complex,
Respondent – Appellee,
and
DARRELL V. MCGRAW, JR.,
Respondent.
Appeal from the United States District Court for the Southern
District of West Virginia, at Huntington. Robert C. Chambers,
District Judge. (3:10-cv-00396)
Argued: September 18, 2012 Decided: November 7, 2012
Before WILKINSON, MOTZ, and GREGORY, Circuit Judges.
Affirmed by unpublished opinion. Judge Wilkinson wrote the
opinion, in which Judge Motz joined. Judge Gregory wrote a
dissenting opinion.
ARGUED: Morgan Ann McCall, WAKE FOREST UNIVERSITY, School of
Law, Appellate Advocacy Clinic, Winston-Salem, North Carolina,
for Appellant. Robert David Goldberg, OFFICE OF THE ATTORNEY
GENERAL OF WEST VIRGINIA, Charleston, West Virginia, for
Appellee. ON BRIEF: John J. Korzen, Director, Leslie Cockrell,
Third-Year Law Student, Hannah Davis, Third-Year Law Student,
WAKE FOREST UNIVERSITY, School of Law, Appellate Advocacy
Clinic, Winston-Salem, North Carolina, for Appellant. Darrell
V. McGraw, Jr., Attorney General, Charleston, West Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
2
WILKINSON, Circuit Judge:
James N. Estep petitions for a writ of habeas corpus in
connection with his sentence of life without possibility of
parole for first-degree felony murder. On direct appeal of his
conviction, the Supreme Court of Appeals of West Virginia
rejected his Sixth Amendment claim of ineffective assistance of
counsel under Strickland v. Washington, 466 U.S. 668 (1984). On
federal habeas review, the District Court for the Southern
District of West Virginia held that although the performance of
Estep’s trial counsel fell below a reasonable standard of
professional competence, Estep failed to establish prejudice
resulting from this error.
In light of the deferential standards for reviewing state
court judgments under the Antiterrorism and Effective Death
Penalty Act, we agree that petitioner has failed to demonstrate
a reasonable probability that the outcome of the trial would
have been different had his counsel’s performance not been
deficient. We therefore affirm the judgment of the district
court.
I.
A.
Shortly before midnight on November 16, 2001, Estep, who
was eighteen years old, was traveling through West Virginia with
3
his girlfriend when their car broke down in front of a
stranger’s home. The owner of the home, sixty-year-old Donovan
Barringer, attempted to help restart the car, but the attempt
was unsuccessful. Estep then turned on Barringer, striking him
in the head three times with a baseball bat. Estep dragged
Barringer into a field and burglarized his home, stealing his
wallet, two firearms, and his pickup truck. Barringer’s family
discovered his lifeless body the next morning. Estep and his
girlfriend were apprehended that day at a hotel in Kentucky.
They had spent the stolen money on a variety of items, including
a CD player, CDs, posters, and hair dye.
Estep was tried in 2003 at a unitary trial -- that is, a
proceeding in which the issues of guilt and, if necessary,
sentencing are tried together. The jury convicted him of first-
degree felony murder and nighttime burglary and declined to
issue a discretionary recommendation of mercy, which would have
rendered him eligible for parole after no fewer than fifteen
years pursuant to West Virginia Code § 62-3-15. 1 The trial judge
1
In pertinent part, this statute provides that
[i]f [a] person indicted for murder is found by the
jury . . . guilty of murder of the first degree, . . .
he or she shall be punished by imprisonment in the
penitentiary for life, and he or she . . . shall not
be eligible for parole: Provided, That the jury may,
in their discretion, recommend mercy, and if such
recommendation is added to their verdict, such person
(Continued)
4
sentenced Estep to life in prison without the possibility of
parole on the murder charge and one to fifteen years
(concurrently) on the nighttime burglary charge.
B.
On appeal to the West Virginia Supreme Court, Estep argued,
among other points, that he was denied a fair opportunity for
receiving mercy because his trial counsel provided ineffective
assistance under the Sixth Amendment by failing to object to the
prosecution’s invocation of evidence establishing that Barringer
was a kind and helpful person. The West Virginia Supreme Court
summarily rejected Estep’s direct appeal. In a subsequent state
collateral proceeding, Estep did not raise an ineffective
assistance claim relating to that evidence. The circuit court
denied relief, and the West Virginia Supreme Court affirmed.
The challenged “good character evidence” can be divided
into four chronological categories. First, the prosecution made
shall be eligible for parole . . . , except that . . .
such person shall not be eligible for parole until he
or she has served fifteen years.
W. Va. Code § 62-3-15. West Virginia courts have held that the
question of mercy lies solely within the jury’s unfettered
discretion -- to such an extent that a judge may not even
suggest factors for consideration. See State v. Triplett, 421
S.E.2d 511, 520 (W. Va. 1992); State v. Miller, 363 S.E.2d 504,
508-09 (W. Va. 1987); see also Billotti v. Legursky, 975 F.2d
113, 117 (4th Cir. 1992) (explaining this framework).
5
comments concerning Barringer’s character during its opening
statement, including the following:
Donovan Barringer is going to be remembered in this
courtroom during this trial as a kind and gentle man
who sought out a very simple lifestyle, and a man who
had a very large heart. The kind of fellow that
always was willing to give anything he had to someone
else he thought needed it. He was a man that you will
find to have been loved by his family, and a man who
is now being mourned by his family.
After you discover the facts about this kind and
gentle man, you’re going to find it especially painful
to think that he lost his life while he was attempting
to help a stranger. . . .
. . . .
. . . And you’re going to discover that Donovan
Barringer was indeed a kind and gentle man who was in
his own house, minding his own business, when someone
knocked on the door and said their car broke down.
And you’re going to discover that [he] did what was
natural for him, he offered to help.
Second, in questioning Greg Barringer (“Greg”), the
victim’s nephew, the State elicited good character evidence on
several occasions. The prosecution first asked Greg to describe
his relationship with his uncle. Greg explained that he
was like a brother, a father, all rolled up into one.
He was my sounding board. He and I did all kinds of
things together, and he was my encourager. He gave me
advice. Taught me all kinds of things. Taught me how
to throw a baseball, how to catch a football, how to
fish and hunt, and how to drive a car. Just all kinds
of things like that. We spent lots of times, a lot of
time hunting and fishing. Camping. Just all kinds of
things together.
The prosecution then queried what Barringer’s personality was
like, with Greg answering that he
6
was the most humble person that I ever met in my life.
Never beat his own chest, never bragged. He bragged a
lot, but he always bragged about his family. I never
once in my life heard him brag about himself. He was
hard[-]working, honest, patriotic, patient, kind,
gentle, all kinds of adjectives that would describe
[him] and in the best of light. He was a strong moral
fiber. He was an extremely hard-working individual.
He worked as a union laborer and never shirked, never
shied away from hard work. Any dirty job, hard job,
he was always willing, without ever complaining, to do
the work.
Next, in response to the State’s request to describe whether
Barringer “ha[d] a tendency to be wanting to help others” and
was “generous,” Greg stated that his uncle
was a very generous person. If he had -- and I’ve
seen him do it time after time -- if he had two of
anything and one of them was worn and one of them was
new, he would give the other person the new one. He
was generous to a fault. He helped people. And I’ve
found out since his death lots and lots of people have
come up to me and told me the things that he did for
them. He raised a garden, he gave away literally tons
of food to people. He helped people when he would
hear that they were out of work. He would help them
with food and money, and nieces and nephews and
sisters. He was always helping everybody. If there
was something that needed done around your house, you
didn’t have to call him. If he knew about it, there
he was. And he always jumped in, you never had to ask
him, it was always he was there to do it and willing
and happy to do it.
Moreover, in response to the question whether Barringer had
any hobbies at the farm, Greg replied that “[t]he farm itself
was a hobby because he never made any money on it. He always
gave everything away.” The prosecution then prompted, “Is there
a story about firewood?” to which Greg replied that
7
at the time that he was murdered, there were stacks of
firewood around his barn, but [he] didn’t have a
fireplace. He cut firewood and gave it away to people
that needed it. He had fifty-some acres of land and
he always thought it was a good way to help people,
that he would just give it to them as they needed it.
Greg also testified about Barringer’s care of his sick and
elderly mother.
Third, the State referenced Barringer’s good character when
cross-examining Estep by asking the following questions: whether
Barringer “came out of his warm house, at 11:30 at night on a
cold November night to help you”; whether Barringer “ha[d] to do
that”; whether “that [was] a kind gesture on his part”; whether
Estep “kn[e]w anything about the fact [Barringer] was taking
care of his elderly mother in the house”; whether Barringer was
“a nice man” who “came out to help”; and whether Estep thought
that “if you would have told him that perhaps you were hungry
that maybe he would have offered you some food.”
Fourth, the State invoked good character evidence several
times during its closing argument. The prosecution began by
saying that “[a]t the beginning of this trial I told you that
Donovan Barringer was a kind and gentle man that was minding his
own business . . . when someone knocked on his door and asked
him for help.” The prosecution also stated that Barringer was
“the kind of man that would help anybody.” And the prosecution
asserted that Barringer was “a kind and gentle man who loved his
8
family and would give anything to anybody” and that “[h]e was
the kind of man that would work in the greenhouse and plant
seeds and raise flowers and give vegetables away and cut
firewood and pile it up to the barn to give it to people.”
Finally, the prosecution stated that “[w]e live in a community
full of wonderful great people like him.”
Defense counsel did not object to any of these statements,
nor did the defense itself offer evidence concerning Barringer’s
character.
C.
On March 25, 2010, Estep filed a petition for a writ of
habeas corpus under the Antiterrorism and Effective Death
Penalty Act (AEDPA), 28 U.S.C. § 2254(d), in the U.S. District
Court for the Southern District of West Virginia. Among other
claims, he renewed his ineffective assistance argument based on
the good character evidence.
On March 21, 2011, the district court dismissed the
petition. Applying the framework set forth in Strickland v.
Washington, 466 U.S. 668 (1984), and focusing on Greg
Barringer’s testimony, the court found that the performance of
Estep’s trial counsel fell below a reasonable standard of
professional competence but concluded that Estep was unable to
establish that he had been prejudiced as a result.
9
The district court granted Estep’s application for a
certificate of appealability on this claim, and the present
appeal followed.
II.
Although this court’s review of a district court’s denial
of habeas relief to a state petitioner is de novo, see Wolfe v.
Johnson, 565 F.3d 140, 160 (4th Cir. 2009), we review the
underlying state court judgment pursuant to the deferential
standards set forth in AEDPA. As applicable here, AEDPA
provides that this court should grant the writ only if the
adjudication of the relevant claim in state court “resulted in a
decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined
by the Supreme Court of the United States.” 28 U.S.C.
§ 2254(d)(1). Where, as here, the underlying state court
decision “is unaccompanied by an explanation, the habeas
petitioner’s burden still must be met by showing there was no
reasonable basis for the state court to deny relief.”
Harrington v. Richter, 131 S. Ct. 770, 784 (2011). Moreover,
“[t]his is so whether or not the state court reveals which of
the elements in a multipart claim it found insufficient, for
§ 2254(d) applies when a ‘claim,’ not a component of one, has
been adjudicated.” Id.
10
To establish ineffective assistance under Strickland v.
Washington, 466 U.S. 668 (1984), a petitioner must show both (1)
that his counsel’s performance was deficient and (2) that he
suffered prejudice as a result. First, a defense attorney’s
performance is considered deficient if the “representation fell
below an objective standard of reasonableness.” Id. at 688.
The Supreme Court has specified that because of the inherent
difficulties in “eliminat[ing] the distorting effects of
hindsight,” courts “must indulge a strong presumption that
counsel’s conduct falls within the wide range of reasonable
professional assistance.” Id. at 689. Second, counsel’s
deficient performance results in prejudice if there exists “a
reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different,”
where “reasonable probability” means “a probability sufficient
to undermine confidence in the outcome.” Id. at 694. The mere
conceivability of some effect on the outcome is insufficient.
Id. at 693. Because of the deference due both trial counsel and
the initial outcome under Strickland’s respective prongs,
“[s]urmounting Strickland’s high bar is never an easy task.”
Padilla v. Kentucky, 130 S. Ct. 1473, 1485 (2010).
As the Supreme Court made clear just last year,
Strickland’s deferential standards become doubly deferential
when deployed in the context of federal court review of a state
11
court judgment under AEDPA. In Harrington v. Richter, the Court
explained the interaction of these standards as follows:
Establishing that a state court’s application of
Strickland was unreasonable under § 2254(d) is all the
more difficult [as compared to establishing
ineffective assistance under Strickland alone]. The
standards created by Strickland and § 2254(d) are both
highly deferential, and when the two apply in tandem,
review is doubly so. . . . Federal habeas courts must
guard against the danger of equating unreasonableness
under Strickland with unreasonableness under
§ 2254(d). When § 2254(d) applies, the question is
not whether counsel’s actions were reasonable. The
question is whether there is any reasonable argument
that counsel satisfied Strickland’s deferential
standard.
131 S. Ct. at 788. Mindful of this admonition, we approach
Estep’s ineffective assistance claim in the deferential posture
mandated by the Supreme Court.
III.
A.
Estep argues that his trial counsel’s failure to object to
the prosecution’s repeated invocations of good character
evidence concerning Barringer amounted to ineffective assistance
under Strickland.
As for Strickland’s performance prong, Estep contends that
the good character evidence was plainly inadmissible under West
Virginia Rule of Evidence 404(a)(2), which proscribes the
prosecution’s introduction of evidence relating to a victim’s
12
character to prove action in conformity therewith unless the
defense has opened the door by itself discussing the victim’s
character or by contending that the victim was the first
aggressor. There is no argument that either exception applies
here. In light of this rule, we see no reason to overturn the
district court’s conclusion that trial counsel’s failure to
object even once to the substantial quantity of good character
evidence elicited by the prosecution constituted deficient
performance.
That is not the end of the inquiry, however. Under
Strickland’s prejudice prong, Estep must also demonstrate a
reasonable probability that but for his attorney’s deficient
performance, the result of the trial would have been different.
As his brief explains, Estep “freely admitted” that he killed
Barringer. “The only real issue” at trial, therefore, “was
whether the jury would give a recommendation of mercy, allowing
the possibility of parole.”
As the district court correctly noted, “[i]n deciding
whether or not to afford a defendant a mercy recommendation
[under West Virginia Code § 62-3-15], the jury may consider and
assess all of the evidence presented at trial.” See Billotti v.
Legursky, 975 F.2d 113, 117 (4th Cir. 1992). Ultimately, while
the good character evidence did constitute a component of the
prosecution’s case, it was neither the exclusive nor dominant
13
focus of the State’s argument against mercy. 2 Based on the
totality of the evidence, as explained below, we conclude that
it would not have been unreasonable for the West Virginia
Supreme Court to determine that Estep failed to establish a
reasonable probability that the jury would have recommended
mercy absent trial counsel’s failure to object to the good
character evidence.
B.
The above conclusion is sound for the following reasons.
First and most fundamentally, the circumstances surrounding the
murder were “particularly brutal,” to quote the district court.
The facts of the crime itself (apart from the more general good
character evidence) indicate that Barringer was acting as a Good
Samaritan on the evening in question. He left the comfort of
2
A quantitative analysis of the record supports this
qualitative conclusion. Tracking the categories delineated
above, one finds that the challenged good character evidence
amounted -- at most -- to (1) approximately one of six trial
transcript pages of the prosecution’s opening statement,
(2) four of seven and one-half pages of Greg Barringer’s
testimony, (3) one and one-half of more than thirty-three pages
of the prosecution’s cross-examination of Estep himself, and (4)
a bit more than one of over twenty-one pages of the
prosecution’s closing argument.
Whereas good character evidence comprised a substantial
portion of Greg’s testimony, it bears emphasis that he was only
one of nine witnesses called by the prosecution during its case-
in-chief, and Estep does not argue that Barringer’s character
was a focus of any other prosecution witness’s testimony.
14
his own home late on a November night in order to assist two
strangers stranded by the wayside. Barringer’s kindness cost
him his life.
Estep’s own testimony at trial about the murder was
particularly damaging in this regard. Estep testified that he
hid a baseball bat in the sleeve of his jacket and clubbed
Barringer on the back of the head: “he didn’t see it coming,”
Estep confirmed. Barringer emitted a “painful agony type of
moan” and fell to the ground after the first blow, but the
ruthless attack continued. Estep swung the bat again, and
Barringer made another noise. It was only once Barringer lay
silent, after the third blow, that Estep ceased clubbing his
skull. Rather than attending to Barringer’s injuries, Estep
dragged his mangled body into a field, leaving him there to die.
Estep never summoned medical assistance -- not even anonymously
after leaving the scene. Besides demonstrating the utter
heartlessness of the crime, these conceded facts would have
permitted the jury to conclude that Estep acted with the intent
to kill -- which, though not a required element of the crime,
see State v. Lanham, 639 S.E.2d 802, 807 (W. Va. 2006),
significantly undermined the defense’s case for mercy.
Second, the evidence demonstrates that Estep displayed an
alarming absence of remorse in the hours following the gruesome
attack by -- among other actions -- burglarizing Barringer’s
15
home (where his ailing, eighty-seven-year-old mother lay in
bed); stealing his pickup truck; driving across state lines;
checking into a hotel; and frittering away Barringer’s money on
a CD player, CDs, and posters. Damaging also was the fact that
Estep and his girlfriend purchased two packages of hair dye the
morning after the murder -- from which the jury could have
inferred that they were intent on evading capture.
Third, Estep’s counsel presented a number of salient
arguments for mercy at trial. The defense’s closing argument is
illustrative. Estep’s attorney began by asserting that his
client had acted admirably by “taking responsibility, confessing
to what he did, facing the Prosecutor, the family, and . . .
more or less accept[ing] the fact that he was going to have to
face the consequences of his acts.”
Counsel proceeded to argue that Estep had not, in fact,
intended to kill Barringer, instead maintaining that he and his
girlfriend found themselves in dire straits and simply “wanted
to get somewhere, get some clothes, food and money.” To make
matters worse, Estep “thought [his girlfriend] was pregnant,”
his counsel emphasized. They were “two, what you may call,
desperate people, perhaps homeless.” He also contested the
prosecution’s argument that Estep had demonstrated a lack of
remorse, arguing that Estep was so distraught over the
16
possibility that he had ended Barringer’s life that he
contemplated suicide.
The defense’s closing argument underscored Estep’s youth as
well, encouraging the jury to place themselves in his shoes:
Age 18 is an important year in anybody’s life. . . .
You’re legally an adult, but you have the mind more or
less of a child. Each of you may be able to remember
when you were that age. Some it’s different than
others. But . . . we all could have made some serious
mistakes.
Finally, defense counsel described Estep’s grief at the
recent deaths of his mother and brother -- with whom he was very
close -- from a hereditary liver disease. He reminded the jury
that Estep had to be hospitalized because of his grief over his
mother’s passing and that he began abusing prescription drugs in
order to dull the pain. Returning to the theme of personal
accountability, defense counsel noted that although Estep had
admitted to taking painkillers the evening of the murder, “he
didn’t blame it on drugs.” Instead, “[h]e took responsibility
and admitted what he did.”
That Estep’s attorney established a long list of possible
mitigating factors for the jury to consider is beyond debate.
Although these arguments ultimately proved unavailing, the good
character evidence did not detract from the defense’s ability to
present a strong affirmative case for mercy. As the district
court concluded, “Petitioner offered his most compelling
17
arguments for mercy . . . . However, the jury was simply not
persuaded. The Court therefore cannot say with a reasonable
probability that the jury’s decision would have been different
if counsel had properly objected to the introduction of the
character evidence.” Neither can we.
IV.
There is no question about the brutal nature of the crime.
There is no question about Barringer’s kindness on the evening
in question. There is no question about the manner of his
death. There is no question about Estep’s guilt. The fact that
the jury declined mercy in light of the arguments presented by
Estep’s attorney -- which the good character evidence did not
taint -- strengthens the district court’s conclusion that the
judgment of the West Virginia Supreme Court should not be
collaterally overturned. Estep has simply failed to establish
under AEDPA that he suffered Strickland prejudice as a result of
his counsel’s errors at trial.
Heeding the deferential standard for reviewing state court
dispositions of Strickland claims under AEDPA, we hold that the
decision of the West Virginia Supreme Court rejecting Estep’s
ineffective assistance claim was not an unreasonable application
18
of clearly established federal law. We accordingly affirm the
judgment of the district court. 3
AFFIRMED
3
It is worth noting the many things that our friend in
dissent does not contest. The dissent does not take issue with
the utter brutality of the crime other than to offer the general
observation that all murder is brutal. Likewise, the dissent
does not dispute the defendant’s callous and insouciant behavior
in the aftermath of the murder other than to state,
paradoxically, that it somehow presented an additional argument
for mercy. Nor does the dissent quarrel with the fact that the
circumstances of the crime itself cast the character of the
victim in a sympathetic light. Finally, the dissent attempts to
reargue the very points for mercy that Estep advanced before an
unpersuaded jury. Instead, in insisting that one type of
evidence overshadows all the rest, the dissent downplays the
totality of evidence before the trier of fact and overlooks the
sense of perspective and proportion that a reviewing court under
AEDPA is required to exercise. To say in the face of all this
that the West Virginia Supreme Court indulged in an unreasonable
application of clearly established law is a sharp and
unwarranted conclusion.
19
GREGORY, Circuit Judge, dissenting:
While I agree with the majority’s holding that Estep’s
counsel was ineffective for repeatedly failing to object to
inadmissible character evidence, I disagree with the conclusion
that there has been no prejudice. The majority accurately
states that the standard of review under AEDPA demands a high
level of deference when considering ineffective assistance of
counsel on federal habeas review. But, while AEDPA sets a high
standard, it does not set an impossible one. I believe that the
extensive, repetitive and pivotal use of prohibited evidence in
this case meets the AEDPA standard.
The State’s sole discernible theme at trial -- that Estep
killed a “kind and gentle man” who was a virtual saint in his
community -- was a calculated attempt to use inadmissible
evidence to pull at the heart strings of the jury. The framing
of the theme early in opening argument makes the State’s
objective clear: “After you discover the facts about this kind
and gentle man, you’re going to find it especially painful to
think that he lost his life while he was attempting to help a
stranger.” This framing shows that the State made a flagrant
appeal to the jury’s emotions as they relate to the victim’s
character. The prosecution directly and unmistakably
communicated to the jury that it should make a decision based on
facts which should never have been admitted.
20
The pervasive, strategic use of prohibited good character
evidence of the victim makes this case exceptional. I could
find no case -- and neither the majority nor the State points to
any case -- that approaches this level of abuse for the relevant
evidentiary rules. Instead, the majority engages in
mathematical calisthenics in an attempt to minimize the gravity
of the disputed evidence. Such a simplistic approach demeans
the spirit of the Sixth Amendment protections at issue.
Prejudice is not a question of whether 10 percent or 25 percent
or 50 percent of the prosecution’s evidence was inadmissible.
It is a question of impact on the jury. When the prosecution
communicates three paragraphs into its opening argument that it
intends to persuade the jury using impermissible evidence and
then successfully introduces and re-visits that impermissible
evidence at each and every stage of the trial, it is
unreasonable to conclude that the jury did not respond
accordingly.
Here, the State elevated the victim to virtual sainthood.
The prosecution continually illustrated its theme by introducing
facts that presented the victim as: a “mentor”; the most
“humble” of men; a “hard-working, honest, patriotic, patient”
man; a man who “never complained”; a man “loved by his family”;
a “generous” man; a man who carried on as a farmer only so that
he could give “literally tons of food to people”; a man who cut
21
firewood so that he could give it to people for free; a man who
took care of his “frail and bed ridden” mother, tied her shoes,
fed her, kept her company, and was her sole support and
companionship. None of this information was even arguably
admissible. But, the State took full advantage of Estep’s non-
responsive counsel. With the reins of evidentiary law cast
aside, the State took the opportunity to create a detailed
portrait of the victim designed to win over the emotions of the
jury. It would be unreasonable for any court to conclude that
there was not, at very least, a reasonable probability that this
portrait of a saintly man did not have a determinative effect on
the jury’s mercy decision.
The majority adopts the district court’s tenuous reasoning
that there was no prejudice because “the crime itself was
particularly brutal.” This borders on tautology. Murder is
particularly brutal by nature. What matters for our purposes is
the jury’s perception of brutality. Any attempt to place this
crime on some imaginary spectrum between “brutal” and “humane”
would be inextricably entangled with the inadmissible character
evidence. The conclusion that a jury would not consider the
murder of a saint-like man whom his family and community
depended on more brutal than the murder of a relatively
anonymous victim ignores the basic human capacity for empathy.
22
The majority also reasons that there is no prejudice in this
trial because “the good character evidence did not detract from
the defense’s ability to present a strong affirmative case for
mercy.” Indeed, Estep presented evidence that showed he was
just eighteen-years old when he committed his crime, that he was
clinically depressed because he had recently lost his mother and
brother, that he had begun to abuse prescription drugs that his
brother had given to him, that he did not intend to kill his
victim, and that he took responsibility for the crime. But, the
majority pretends this evidence somehow works against a finding
of prejudice. Quite to the contrary, this evidence only moves
the case closer to the tipping point on the question of mercy.
It makes it all the more likely that the inadmissible character
evidence was outcome determinative.
The majority also believes its holding sound because Estep
did not immediately display remorse after his crime was
complete, but instead made several purchases of trivial items
with the money he had stolen. There are two problems with this
line of reasoning. First, remorse is not a time-limited
emotion. While Estep may not have felt remorse in the hours or
days after his crime, that does not preclude a finding that he
was remorseful at trial. See United States v. Rodriguez, 959
F.2d 193, 197 (11th Cir. 1992) (explaining that conduct
illustrating remorse for the purpose of mitigation may take
23
place “prior to, during, and after the trial”). The second,
related problem with the majority’s reasoning is that Estep’s
petty purchases after the crime serve to reinforce the pro-mercy
argument that Estep was young and immature at the time.
This case does present a challenge in that West Virginia law
does not provide concrete factors to guide jury deliberation on
mercy. See State v. Miller, 363 S.E.2d 504, 508-09 (W. Va.
1987). Instead, the jury considers the evidence as a whole in
deciding whether to recommend mercy. Id. While this legal
framework makes review under AEDPA difficult, it cannot
completely insulate a state court. Such a conclusion would mean
that a defendant’s Sixth Amendment right to effective counsel
only adheres when the legal underpinnings provide for clear and
convenient review.
Our precedent instructs us to look at the totality of the
evidence when considering prejudicial effect on habeas review.
Elmore v. Ozmint, 661 F.3d 783, 868 (4th Cir. 2011). The
totality of the evidence before us in this case establishes --
at very minimum -- a reasonable probability that a jury would
have made a recommendation for mercy if Estep’s counsel properly
objected to the good character evidence of the victim. I do not
believe that it is reasonable to conclude otherwise. From soup
to nuts, the State’s case emphasized and relied upon
inadmissible character evidence. Our complicity in this sort of
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egregious abuse of the rules of evidence only serves as a signal
to certain prosecutors that they are free to play fast and loose
when the opportunity presents itself.
One court recently noted in an en banc opinion that “if we
succumb to the temptation to abdicate our responsibility on
habeas review, we might as well get ourselves a big, fat rubber
stamp, pucker up, and kiss the Great Writ good-bye.” Doody v.
Ryan, 649 F.3d 986, 1003 (9th Cir. 2011). I fear the inkpad may
be opening.
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