                                UNPUBLISHED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Affirmed by unpublished opinion.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Unpublished opinions are not binding precedent in this circuit.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

                                          24
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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