Estep v. Ballard, No. 3:10-0396, 2011 WL 1087495 (S.D. W. Va. Mar. 21, 2011):
Habeas petitioner asserted that he received constitutionally ineffective assistance of counsel at trial because his attorney failed to contest the State's direct examination of the murder victim's nephew and the State's cross-examination of Petitioner because, during both, the State elicited evidence regarding the good character of the victim in contravention of Rule 404 of the West Virginia Rules of Evidence. Rule 404 provides that, while evidence of a person's character is not admissible for the purposes of proving that he or she acted in conformity therewith, evidence of the character of a victim of a crime may be offered when introduced first by the accused for a pertinent character trait.
Exhaustion. The Court believes that Respondent has waived the exhaustion defense in this case. The State may waive exhaustion, but it must do so expressly and through counsel. Respondent's answer to the habeas petitioner stated that "Petitioner has had a full and fair opportunity to properly present his claims to the appropriate courts and appears to be colorably exhausted." Accordingly, the Court holes that Respondent has waived the exhaustion defense.
The Merits. The allegedly impermissible evidence consists primarily of the victim's nephew talking about the victim's general good character. The Magistrate Judge declined to speculate regarding whether counsel failed to object. Instead, she proceeding to the second prong of Strickland and determined that Petitioner is unable to establish actual prejudice to his trial based upon the introduction of this evidence. The District Court, however, believed it necessary to address both prongs.
Evidentiary decisions are fundamentally a matter of state law, and each state has the power to regulate how evidence is presented and excluded within its own courts. It is only in circumstances impugning fundamental fairness or infringing specific constitutional protections that a federal question is presented. Relief is in order only where the challenged evidence is a crucial, critical, or highly significant factor in the context of the entire trial. In this case, then, the appropriate action is not to reassess the correctness of the State court's evidentiary rulings under its own law, but to determine whether counsel's failure to object to otherwise inadmissible evidence constituted deficient performance under Strickland. Further, the Court must determine if the introduction of the inadmissible evidence impugned fundamental fairness or infringed specific constitutional protections.
The District Court holds that the attorney acted unreasonably. Rule 404(a)(2) allows the prosecution to introduce evidence of the victim's character only upon introduction by the defendant of evidence for a relevant character trait. During trial, Petitioner did not introduce any evidence of the victim's character prior to the questioning. Nor did he contend that the victim was an aggressor in the case. The Court cannot infer counsel's tactical choice where no choice appears to have been made at all.
Respondent suggests that counsel could have reasonably not wanted to draw attention to the victim's good character traits by objecting and also may not have wanted to sound antagonistic. This explanation is not compelling. If counsel was so concerned about appearing callous or keying the jury in on the prejudicial nature of this evidence, he could have approached the bench and objected. The entire strategy at trial was to essentially concede many of the facts in the indictment, and to primarily seek a mercy recommendation from the jury in a unitary proceeding. An overload of evidence on the victim's good character would have only served to undermine this effort.
Regarding prejudice, the Court characterized the issue as a "close call." Ultimately, the Court could not say with reasonable probability that the jury's decision would have been different if counsel had properly objected to the introduction of the character evidence. Accordingly, the Court issued a COA on this issue.