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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:
Decided:
November 7, 2012
with
his
sentence
of
life
the
Supreme
Court
of
without
possibility
of
Appeals
of
West
Virginia
habeas
review,
the
District
Court
for
the
On
Southern
trial
professional
counsel
fell
competence,
below
Estep
failed
reasonable
to
standard
establish
of
prejudice
judgments
under
the
Antiterrorism
and
Effective
Death
been
deficient.
different
had
his
counsels
performance
not
been
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
strangers home.
their
car
broke
down
in
front
of
Estep dragged
Barringers family
in
which
the
issues
felony
murder
and
of
guilt
and,
if
necessary,
nighttime
burglary
and
declined
to
on
the
murder
charge
and
one
to
fifteen
years
proceeding,
Estep
did
not
In a subsequent state
raise
an
ineffective
challenged
good
character
evidence
can
be
divided
comments
concerning
Barringers
character
during
its
opening
in
questioning
Greg
Barringer
(Greg),
the
He always
also
testified
about
Barringers
care
of
his
sick
and
elderly mother.
Third, the State referenced Barringers 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.
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.
asserted that Barringer was a kind and gentle man who loved his
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
corpus
under
the
Antiterrorism
and
Effective
Death
Among other
March
petition.
21,
2011,
the
district
court
dismissed
the
Washington,
466
U.S.
668
(1984),
and
focusing
on
Greg
trial
counsel
fell
below
reasonable
standard
of
The
district
certificate
of
court
granted
appealability
Esteps
on
this
application
claim,
and
for
the
present
appeal followed.
II.
Although this courts review of a district courts denial
of habeas relief to a state petitioner is de novo, see Wolfe v.
Johnson,
565
underlying
standards
provides
F.3d
state
set
that
140,
court
160
forth
this
(4th
judgment
in
Cir.
pursuant
AEDPA.
court
should
2009),
As
to
we
the
applicable
grant
the
review
writ
the
deferential
here,
only
AEDPA
if
the
that
was
contrary
to,
or
involved
an
unreasonable
the
Supreme
2254(d)(1).
decision
is
Court
of
the
Where,
as
here,
unaccompanied
by
United
the
an
States.
underlying
28
U.S.C.
state
court
explanation,
the
habeas
basis
for
the
state
court
to
deny
relief.
Moreover,
Id.
10
To
establish
ineffective
assistance
under
Strickland
v.
Washington, 466 U.S. 668 (1984), a petitioner must show both (1)
that his counsels performance was deficient and (2) that he
suffered prejudice as a result.
Id. at 688.
in
hindsight,
courts
counsels
conduct
professional
eliminat[ing]
must
falls
the
indulge
within
assistance.
Id.
distorting
strong
the
wide
at
689.
effects
presumption
range
of
of
that
reasonable
Second,
counsels
probability
that,
but
for
counsels
unprofessional
Id. at 694.
The mere
initial
under
Stricklands
respective
prongs,
the
Stricklands
Supreme
Court
deferential
made
clear
standards
become
just
doubly
last
year,
deferential
III.
A.
Estep argues that his trial counsels failure to object to
the
prosecutions
repeated
invocations
of
good
character
Rule
of
Evidence
404(a)(2),
which
proscribes
the
12
or
aggressor.
here.
by
contending
that
the
victim
was
the
first
district
courts
conclusion
that
trial
counsels
failure
to
elicited
by
the
prosecution
the
end
of
constituted
deficient
performance.
That
is
Stricklands
reasonable
not
prejudice
probability
prong,
that
the
Estep
but
for
inquiry,
must
his
however.
also
Under
demonstrate
attorneys
deficient
The
only
real
issue
at
trial,
therefore,
was
the
or
district
not
to
court
afford
correctly
noted,
defendant
mercy
[i]n
deciding
recommendation
[under West Virginia Code 62-3-15], the jury may consider and
assess all of the evidence presented at trial.
Legursky, 975 F.2d 113, 117 (4th Cir. 1992).
See Billotti v.
Ultimately, while
Based on the
would
Supreme
Court
reasonable
mercy
not
have
to
been
determine
probability
absent
unreasonable
trial
that
Estep
the
jury
that
counsels
failure
for
the
failed
would
to
West
to
have
object
Virginia
establish
recommended
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.
14
own
testimony
at
trial
about
the
murder
was
moan and fell to the ground after the first blow, but the
ruthless
attack
continued.
Estep
swung
the
bat
again,
and
silent, after the third blow, that Estep ceased clubbing his
skull.
dragged his mangled body into a field, leaving him there to die.
Estep never summoned medical assistance -- not even anonymously
after
leaving
heartlessness
the
of
scene.
the
crime,
Besides
these
demonstrating
conceded
facts
the
utter
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),
home
(where
his
ailing,
eighty-seven-year-old
mother
lay
in
Estep and his girlfriend purchased two packages of hair dye the
morning
after
the
murder
--
from
which
the
jury
could
have
Esteps
counsel
Esteps
presented
number
of
salient
attorney
began
by
asserting
that
his
To make
people,
perhaps
homeless.
He
also
contested
the
arguing
that
Estep
was
16
so
distraught
over
the
possibility
that
he
had
ended
Barringers
life
that
he
contemplated suicide.
The defenses closing argument underscored Esteps youth as
well, encouraging the jury to place themselves in his shoes:
Age 18 is an important year in anybodys life. . . .
Youre 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 its different than
others. But . . . we all could have made some serious
mistakes.
Finally,
defense
counsel
described
Esteps
grief
at
the
recent deaths of his mother and brother -- with whom he was very
close -- from a hereditary liver disease.
concluded,
Petitioner
offered
17
his
As the district
most
compelling
counsel
had
properly
character evidence.
objected
to
the
introduction
of
the
IV.
There is no question about the brutal nature of the crime.
There is no question about Barringers kindness on the evening
in question.
death.
of
the
West
collaterally overturned.
Virginia
Supreme
Court
should
not
be
18
agree
was
with
ineffective
the
for
majoritys
repeatedly
holding
failing
that
to
Esteps
object
to
there
has
been
no
prejudice.
The
majority
accurately
use
inadmissible
The framing
of
the
--
was
theme
early
objective clear:
calculated
in
opening
attempt
argument
to
makes
the
States
The
prosecution
directly
and
unmistakably
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
spirit
of
the
Sixth
Amendment
protections
at
issue.
successfully
evidence
at
unreasonable
each
to
introduces
and
and
every
conclude
re-visits
stage
that
the
of
jury
that
the
did
impermissible
trial,
not
it
is
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:
mentor;
the
most
her,
kept
her
companionship.
admissible.
responsive
aside,
company,
None
of
and
this
was
her
information
sole
was
support
even
and
arguably
the
State
With
took
the
the
reins
of
opportunity
evidentiary
to
create
law
cast
detailed
there
was
no
prejudice
particularly brutal.
because
the
crime
itself
was
Murder is
murder
depended
of
on
saint-like
more
brutal
man
whom
than
the
his
family
murder
of
and
community
relatively
22
But, the
not
immediately
display
remorse
after
his
crime
was
line
remorse
of
reasoning.
emotion.
First,
is
not
time-limited
days after his crime, that does not preclude a finding that he
was remorseful at trial.
F.2d
193,
illustrating
197
(11th
remorse
Cir.
for
the
1992)
(explaining
purpose
23
of
that
mitigation
conduct
may
take
The second,
1987).
makes
review
under
AEDPA
Id.
difficult,
it
cannot
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 Esteps counsel properly
objected to the good character evidence of the victim.
believe that it is reasonable to conclude otherwise.
to
nuts,
the
States
case
emphasized
and
I do not
From soup
relied
upon
to
the
temptation
to
abdicate
our
responsibility
on
25
Doody v.