Goodman v. Searls

Full title: KEVIN GOODMAN, JR., Petitioner Below, Petitioner v. SHELBY SEARLS…

Court: State of West Virginia Supreme Court of Appeals

Date published: Jun 8, 2022

885 S.E.2d 534 (W. Va. 2022)

Opinion

No. 20-0169

06-08-2022

Kevin GOODMAN, Jr., Petitioner Below, Petitioner v. Shelby SEARLS, Superintendent, Huttonsville Correctional Center, Respondent Below, Respondent.

Lonnie C. Simmons, Esq., J. Timothy DiPiero, Esq., Luca D. DiPiero, Esq., DIPIERO SIMMONS MCGINLEY & BASTRESS, PLLC, Charleston, West Virginia, Attorneys for Petitioner Patrick Morrisey, Esq., Attorney General, Lindsey S. See, Esq., Solicitor General, Mary Beth Niday, Esq., Gordon L. Mowen, II, Esq., Charleston, West Virginia, Attorneys for Respondent

WALKER, Justice

Lonnie C. Simmons, Esq., J. Timothy DiPiero, Esq., Luca D. DiPiero, Esq., DIPIERO SIMMONS MCGINLEY & BASTRESS, PLLC, Charleston, West Virginia, Attorneys for Petitioner

Patrick Morrisey, Esq., Attorney General, Lindsey S. See, Esq., Solicitor General, Mary Beth Niday, Esq., Gordon L. Mowen, II, Esq., Charleston, West Virginia, Attorneys for Respondent

WALKER, Justice: A jury convicted Kevin Goodman, Jr. of first-degree robbery, conspiracy, and entry of a dwelling after he and several accomplices entered the home of an elderly couple and held them and their grandchildren at gunpoint while members of the group stole a safe and other items. We affirmed the conviction in 2017, and now Mr. Goodman appeals the circuit court's denial of his petition for writ of habeas corpus.¹

1 Shelby Searls replaced Tom Harlan as superintendent of the Huttonsville Correctional Center after the petitioner filed this appeal. So, we substituted the parties according to Rule 41(c) of the West Virginia Rules of Appellate Procedure.

Mr. Goodman argues that his trial counsel provided ineffective assistance by failing to introduce certain evidence and not requesting specific jury instructions. He also claims that the prosecutor violated his constitutional rights by knowingly presenting false testimony. But, in deeming his lawyer's decision-making deficient, Mr. Goodman fails to recognize that many reasonable lawyers would have strategically made the same decisions under the circumstances. Mr. Goodman likewise mischaracterizes a witness's contradiction of prior statements as presentation of false evidence by the State. So, we find Mr. Goodman failed to meet his burden of proof and affirm the circuit court's denial of his petition. I. FACTUAL AND PROCEDURAL BACKGROUND

Mr. Goodman's brother, Kentrell Goodman (Kentrell), previously lived in Oak Hill, West Virginia, and during his time there, spent significant time in the home of Linda and Edward Knight because he was friends with their grandson, Andrew Gunn. At some point shortly before January 9, 2015, Kentrell and his girlfriend, Linsey Hess, moved from Oak Hill to the home of Benita Wicker (Aunt Benita) in Little Mountain, South Carolina. Aunt Benita is the paternal aunt of Kentrell and Mr. Goodman, and Rashod Wicker is Aunt Benita's son and first cousin of Kentrell and Mr. Goodman. By the time Kentrell moved in with Aunt Benita, Mr. Goodman split his time living there or at his girlfriend, Courtney Curry's, nearby apartment. Mr. Wicker, Tamika Bookman, and Shakayla Wicker (Shakayla) also lived with Aunt Benita.

Antwyn Gibbs and Radee Hill lived in separate homes close to Aunt Benita's house and spent some time there with Kentrell, Mr. Goodman, and Mr. Wicker. A few days before January 9, 2015, Kentrell told Mr. Goodman about a significant stash of money Mr. Gunn kept in a safe in his bedroom inside the Knights’ home, and Mr. Goodman told Kentrell something to the effect of "[l]et's go get money." The Goodman brothers then recruited the assistance of Mr. Wicker, Mr. Hill, and Mr. Gibbs, and at some time between midnight and 1:00 a.m. on January 9, 2015, the group departed South Carolina with Mr. Wicker driving Ms. Hess's car towards Oak Hill, West Virginia.

The group arrived in Oak Hill at around 7:30 or 8:00 that morning, and Mr. Wicker parked the car near a wooded area 50-60 feet from the Knights’ house. Mr. Wicker has cerebral palsy which limits his mobility, so he stayed in the car while the others retrieved several guns from the trunk and descended upon the Knights’ home. Ms. Knight left a door to her home ajar that morning after letting her dogs out, and as she sat on the couch in the living room preparing her granddaughter's hair for school, she saw a long-gun ease through the door and several men covering their faces and yelling follow closely behind. Ms. Knight refused one of the intruder's demand that she get on her knees and instead remained seated on the couch where her eighteen-year-old, disabled grandson buried his head in her lap and cried while her five-year-old granddaughter cowered behind her.

Two of the intruders proceeded to ransack Mr. Gunn's room while at least one other held the victims at gunpoint. Those in Mr. Gunn's bedroom located the safe and threw it, two pairs of Jordan athletic shoes, and a crossbow out the window. The group then gathered the objects and fled back to the getaway car, which Mr. Wicker drove back to South Carolina. When they arrived later that day, they went to Mr. Gibbs's home to blast open the safe with a shotgun and divided the contents of approximately $10,000 amongst themselves. Members of the group then transported the damaged safe to Aunt Benita's house and disposed of it behind a shed in her yard. Ms. Hess heard Mr. Goodman and Kentrell discussing the robbery days before it happened and then saw Mr. Goodman, Kentrell, and Mr. Wicker with the safe at Aunt Benita's house.

Immediately after the robbery, officers from the Oak Hill police department responded to the scene to investigate. Shortly into the investigation, Mr. Goodman's mother told investigators that she suspected Mr. Goodman's involvement and directed the officers to his whereabouts in South Carolina. And on January 14, 2015, officers from the Oak Hill Police Department traveled to Newberry, South Carolina and, with the help of local law enforcement, obtained and executed a search warrant on Aunt Benita's home. The police found, among other things, the opened safe behind the shed and Mr. Goodman's wallet in a bedroom with a shotgun, a rifle, and two handguns. Kentrell and Mr. Wicker were present when the police executed the warrant, and the police arrested them. Each gave statements admitting to the robbery and implicating Mr. Goodman, Mr. Gibbs, and Mr. Hill. The same day, police executed a search warrant at Mr. Gibbs's home and found fragments of the safe and spent shotgun shells in the backyard. Phone records showed that on the morning of the robbery, Mr. Gibbs's phone pinged on cell towers in Max Meadow, Virginia, Flat Top, West Virginia, and Oak Hill, West Virginia.

A grand jury indicted Mr. Goodman, Kentrell, Mr. Gibbs, Mr. Wicker, and Mr. Hill jointly on charges of first-degree robbery, entry of a dwelling, grand larceny, and conspiracy. Before trial, Kentrell and Mr. Wicker pled guilty to first degree robbery, and the State dropped the other charges in exchange. Kentrell and Mr. Wicker testified against Mr. Goodman, Mr. Gibbs, and Mr. Hill at their joint trial, and after the State presented its case, Mr. Goodman offered his girlfriend, Courtney Curry, as an alibi witness and testified in his own defense. Ms. Curry claimed she picked Mr. Goodman up from Aunt Benita's at around 8:30 a.m. on January 9, 2015. But, Ms. Curry sent Ms. Hess a text message at around 1:00 a.m. that day asking if she knew Mr. Goodman's whereabouts, and Ms. Hess responded that he traveled to West Virginia with Kentrell. Mr. Goodman claimed he passed out drunk and slept the whole night on Aunt Benita's couch before Ms. Curry picked him up and that Ms. Hess either mistakenly said he was in West Virginia or lied. He also claimed that Aunt Benita, Shakayla, and Ms. Bookman were all home when he woke up on the 9th, but the prosecutor pointed out on cross-examination that Mr. Goodman presented none of them as alibi witnesses.

The jury found Mr. Goodman, Mr. Gibbs, and Mr. Hill guilty of first-degree robbery, entry of a dwelling, and conspiracy. The trial court sentenced Mr. Goodman to 52-65 years in prison. In 2017, this Court affirmed the convictions and Mr. Goodman's sentence.²

2 State v. Gibbs , 238 W. Va. 646, 797 S.E.2d 623 (2017).

Mr. Goodman filed a petition for writ of habeas corpus in the Circuit Court of Fayette County on February 11, 2019. Mr. Goodman alleged, among other things, ineffective assistance of counsel and that the State violated his constitutional rights by presenting false testimony. Mr. Goodman claimed that trial counsel provided ineffective assistance by failing to introduce allegedly exculpatory tollbooth images and failing to request certain jury instructions. Mr. Goodman's trial counsel testified at an omnibus hearing about the circumstances surrounding the ineffective assistance claims. He stated that he reviewed the tollbooth videos before trial and "believe[ed] they had no value" and that he told Mr. Goodman

hey, they had some tollbooth video, but it really only shows the car going through. And—when I looked at that, you know, the windows were kind of glazed you couldn't see into the vehicle. So to me and how I believe I explained it to [Mr. Goodman], although I don't recall the exact words, was the only thing the videos do is confirm the times in which the vehicle did go through the tollbooth which did nothing but corroborate the co-defendant story.

Mr. Goodman's habeas counsel showed trial counsel a still frame photo from one of the tollbooth videos and trial counsel claimed that he had never seen the still frame image and that he would have introduced it to the jury had he seen it before trial.

Trial counsel also testified that, at the time of Mr. Goodman's trial, he knew about the availability of jury instructions limiting the jury's consideration of accomplices’ guilty pleas only to assess the accomplices’ credibility and advising the jury to consider uncorroborated accomplice testimony with caution. He claimed he did not request the instructions but that the "[trial court's] general charge ha[d] some warnings concerning that in it ...." And trial counsel responded, "no," when Mr. Goodman's habeas counsel asked "[w]as there any conceivable strategic reason for not asking for any of these cautionary instructions to the [c]ourt?"

The circuit court denied the habeas petition after finding that trial counsel provided effective assistance and that the State did not present false testimony. Mr. Goodman now appeals the order.

II. STANDARD OF REVIEW

We review habeas corpus proceedings under a multipronged standard:

In reviewing challenges to findings and conclusions of a circuit court in a habeas corpus action, we apply a three-prong standard

of review. We review the final order and the ultimate disposition under an abuse of discretion standard; the underlying factual findings under a clearly erroneous standard; and questions of law are subject to a de novo review.^{[ 3 ]}

3 Syl. Pt. 1, Mathena v. Haines , 219 W. Va. 417, 633 S.E.2d 771 (2006).

III. ANALYSIS

On appeal, Mr. Goodman raises two assignments of error. First, he claims that the circuit court should have found ineffective assistance of counsel based on trial counsel's failure to introduce the allegedly exculpatory photo and video evidence from the West Virginia tollbooths and to request jury instructions related to the jury's consideration of co-defendants’ testimony about their guilty pleas and other testimony. Second, Mr. Goodman claims that the trial court erred by finding his rights "were not violated when the State presented false testimony from a witness, who lied at trial and identified [Mr. Goodman] as one of the perpetrators, told the jury that it could believe the perjured testimony, and the State failed to take appropriate action to correct the admission of this perjured testimony."

A. Mr. Goodman Failed to Prove Ineffective Assistance of Counsel

To begin our analysis of Mr. Goodman's claims of ineffective assistance of counsel, we recognize the overarching standard that "[o]ur law is clear in recognizing that the Sixth Amendment of the federal [C]onstitution and Article III, § 14 of the state [C]onstitution guarantee not only the assistance of counsel in a criminal proceeding but that a defendant has ‘the right to effective assistance of counsel.’ "⁴ And it is well established that a two-part test applies:

4 Ballard v. Ferguson , 232 W. Va. 196, 200, 751 S.E.2d 716, 720 (2013) (citing Cole v. White , 180 W. Va. 393, 395, 376 S.E.2d 599, 601 (1988) ).

In the West Virginia courts, claims of ineffective assistance of counsel are to be governed by the two-pronged test established in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) : (1) Counsel's performance was deficient under an objective standard of reasonableness; and (2) there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different.^{[ 5 ]}

5 Syl. Pt. 5, State v. Miller , 194 W. Va. 3, 459 S.E.2d 114 (1995).

When reviewing whether counsel's performance was deficient under the first prong, this Court gives strong deference to the actions of defense counsel, and "[w]hen assessing whether counsel's performance was deficient, we ‘must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance[.]’ "⁶ In other words, "[j]udicial scrutiny of counsel's performance must be highly deferential[,]"⁷ and "the defendant must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’ "⁸ Finally, " ‘[w]here a counsel's performance, attacked as ineffective, arises from occurrences involving strategy, tactics and arguable courses of action, his conduct will be deemed effectively assistive of his client's interests, unless no reasonably qualified defense attorney would have so acted in the defense of an accused.’ Syl. Pt. 21, State v. Thomas , 157 W. Va. 640, 203 S.E.2d 445 (1974)."⁹ And, as to the second prong, "[t]o demonstrate prejudice, a defendant must prove there is a ‘reasonable probability’ that, absent the errors, the jury would have reached a different result."¹⁰ We may resolve some ineffective assistance claims on only one prong of the test because "[i]n deciding ineffective of assistance claims [sic], a court need not address both prongs of the conjunctive standard ... but may dispose of such a claim based solely on a petitioner's failure to meet either prong of the test."¹¹

6 Miller , 194 W. Va. at 15, 459 S.E.2d at 126 (quoting Strickland v. Washington , 466 U.S. 668, 689, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ).

7 Strickland , 466 U.S. at 689, 104 S.Ct. 2052.

8 Id. (citing Michel v. Louisiana , 350 U.S. 91, 76 S.Ct. 158, 100 L.Ed. 83 (1955) ).

9 Syl. Pt. 3, State v. Frye , 221 W. Va. 154, 650 S.E.2d 574 (2006).

10 Miller , 194 W. Va. at 15, 459 S.E.2d at 126 (quoting Strickland , 466 U.S. at 694, 104 S.Ct. 2052 ).

11 Syl. Pt. 5, in part, State ex rel. Daniel v. Legursky , 195 W. Va. 314, 465 S.E.2d 416 (1995).

Initially, we note that Mr. Goodman emphasizes that his trial constituted trial counsel's first jury trial. But, trial counsel's experience does not affect our objective analysis of his conduct, because "[t]he test of ineffectiveness has little or nothing to do with what the best lawyers would have done. Nor is the test even what most good lawyers would have done .... [W]e are interested in whether the adversarial process at the time, in fact, worked adequately."¹² Mindful of these standards, we turn to Mr. Goodman's specific allegations of ineffective assistance of counsel.

12 Miller , 194 W. Va. at 16, 459 S.E.2d at 127.

1. The Tollbooth Images

Mr. Goodman first claims that trial counsel's representation fell outside of the broad range of professionally competent assistance because of his failure to "introduce into evidence the exculpatory video showing that [Mr. Goodman] was not in the vehicle used in the crime ..." and "[trial counsel] evidently performed only a cursory review of the footage as he later acknowledged that he would have introduced the video had he investigated in further detail."

As to trial counsel's decision not to introduce the tollbooth footage, Mr. Goodman focuses on one still frame photo taken from one of the toll booth videos that he believes most clearly depicts that "as [Ms. Hess's] car passes under the roof of the toll booth, the glare on the slanted back windshield disappears, showing there is no person seated in this car directly behind the driver." But the circuit court "thoroughly reviewed the turnpike toll booth videos" and found "[Mr. Goodman] places far more weight and exculpatory value on the video tape than it actually warrants." The circuit court explained that it "meticulously reviewed each and every segment of the collected video tapes ... [, and] at best, the videos are inconclusive as to the occupancy of the subject vehicle and are of no significant exculpatory value."

Our analysis of the subject videos and still frame in the appendix record yields no reason to quarrel with the circuit court's finding that the videos and photo are indiscernible, do not reveal the backseat occupancy as Mr. Goodman argues, and offer little exculpatory value. The photo shows only a silver Acura sedan matching the description of Ms. Hess's car driving through the toll booth at 9:17 a.m. on the morning of the robbery and a collage of reflections and glare in the darkly tinted back windshield with a possible silhouette of a person seated in the back right-hand side of the car, and all other portions of the videos reveal even less. That said, there is nothing in the videos to support a finding that the circuit court clearly erred in its findings.

Since the videos had little exculpatory value, trial counsel made a reasonable, strategic decision not to introduce them into evidence. Just as trial counsel explained to Mr. Goodman before the trial, the videos placed the vehicle in West Virginia, contained time stamps matching the robbery timeline, and supported the State's theory that the group traveled back to South Carolina after executing the robbery. So, by not introducing the toll booth videos which may have been more harmful than beneficial, trial counsel's decision can be attributed to sound trial strategy, and other reasonable lawyers presented with the same circumstances might have made the same decision.

Regarding Mr. Goodman's criticism that trial counsel failed to adequately investigate the tollbooth videos, we note that trial counsel reviewed them, reasonably found they contained little exculpatory value, discussed them with Mr. Goodman before trial, and strategically decided not to admit them. We will not engage in the scrupulous hindsight of trial counsel's actions necessary to deem his investigation deficient.¹³ For these reasons, Mr. Goodman fails to prove ineffective assistance of counsel for trial counsel's investigation of and decision not the introduce the toll booth videos.

13 See Syl. Pt. 6, id. , 194 W. Va. 3, 459 S.E.2d 114.

2. The Caudill and Humphreys Jury Instructions

Mr. Goodman next argues that trial counsel offered ineffective assistance by not requesting a Caudill jury instruction or a Humphreys jury instruction. A circuit court gives a Caudill instruction to inform the jury that it may consider an accomplice's testimony about their guilty plea only to assess the credibility of the accomplice's testimony and not to prove the guilt of the defendant.¹⁴ In State v. Flack , we clarified that the circuit court is only required to give the instruction upon motion by the defendant.¹⁵ Likewise, a circuit court should give a Humphreys instruction when requested by the defense.¹⁶ A Humphreys instruction advises the jury that "uncorroborated testimony of an accomplice ... must be received with caution ...."¹⁷

14 See Syl. Pt. 3, State v. Caudill , 170 W. Va. 74, 289 S.E.2d 748 (1982).

15 See Syl. Pt. 1, State v. Flack , 232 W. Va. 708, 753 S.E.2d 761 (2013).

16 See Syl. Pt. 1, State v. Humphreys , 128 W. Va. 370, 36 S.E.2d 469 (1945).

17 Id.

While Mr. Goodman claims trial counsel provided ineffective assistance by not requesting either the Caudill or Humphreys instruction, Mr. Goodman conflates his argument for both instructions by arguing that "[b]oth of these cautionary instructions, which the trial court would have been required to give under the facts of this case, were critical because the main evidence against [Mr. Goodman] was the testimony of two alleged accomplices who had pleaded guilty to the crimes [Mr. Goodman] was facing[,]" and "[w]ithout these two helpful and critical cautionary instructions, the jury was provided no guidance on how it should evaluate the testimony of Mr. Wicker and Kentrell." Despite Mr. Goodman blending his argument, we separately address, in turn, trial counsel's choices not to request a Caudill or Humphreys instruction.

Mr. Goodman claims that "[u]nder the objective test, a reasonable attorney would have sought [a Caudill ] instruction[ ] under these facts and there is a reasonable probability that this deficiency, combined with the failure to present the exculpatory video, would have resulted in a different outcome." Mr. Goodman cites Syllabus Point 1 of Flack ¹⁸ to support his argument. But, in its analysis of the deficiency prong of Strickland , the circuit court found "it rather telling that two other veteran attorneys involved in the joint trial also did not request the instruction[ ]" and that "as a tactical matter, trial counsel might not want" a Caudill instruction given. But, the circuit court "assum[ed] deficiency without deciding the issue" and resolved the claim on the prejudice prong. The circuit court seemed hesitant to decide the deficiency prong because trial counsel "appear[ed] to confess error under the deficiency prong of Strickland / Miller ...." But, as noted by many courts applying Strickland , a defendant does not satisfy the deficiency prong with their trial lawyer's subjective belief that they may have erred in hindsight.¹⁹ And, as stated by this Court:

18 See Syl. Pt. 1, Flack , 232 W. Va. 708, 753 S.E.2d 761.

19 See , e.g. United States v. Bordon , No. 98-0427-CR, 2007 WL 4180877, at *10 (S.D. Fla. Nov. 21, 2007).

[i]n reviewing counsel's performance, courts must apply an objective standard and determine whether, in light of all the circumstances, the identified acts or omissions were outside the broad range of professionally competent assistance while at the same time refraining from engaging in hindsight or second-guessing of trial counsel's strategic decisions. Thus, a reviewing court asks whether a reasonable lawyer would have acted, under the circumstances, as defense counsel acted in the case at issue.^{[ 20 ]}

20 Syl. Pt. 6, Miller , 194 W. Va. 3, 459 S.E.2d 114 (emphasis added).

So, "[e]ven though [Mr. Goodman's] own counsel ... testified at the evidentiary hearing that he believed he made a mistake ... the Court's inquiry is an objective one."²¹ And, trial counsel's testimony that he knew of no strategic reason for failing to request the Caudill instruction does not satisfy the deficiency prong, because a petitioner satisfies the prong by showing that "no reasonably qualified defense attorney would have so acted in the defense of an accused[,]"²² and trial counsel's subjective knowledge of possible strategies has no bearing on what other lawyers may have done under the circumstances. We choose to resolve this claim under the deficiency prong, because, under the objective standard, Flack proves the reasonableness of trial counsel's decision not to request a Caudill instruction.²³

21 Bordon , 2007 WL 4180877, at *10 (citing Chandler v. United States , 218 F.3d 1305, 1315 n. 16 (11th Cir. 2000) and Waters v. Thomas , 46 F.3d 1506, 1522 (11th Cir. 1995) ).

22 Syl. Pt. 21, in part, Thomas , 157 W. Va. 640, 203 S.E.2d 445.

23 In Flack v. Ballard , we found the deficiency prong satisfied "for purposes of [that] proceeding" after the trial lawyer at issue in that case admitted to being unaware of the existence of a Caudill instruction. 239 W. Va. 566, 579, 803 S.E.2d 536, 549 (2017). But, as indicated, we limited the holding on the deficiency prong to that case and instead resolved the claim on the prejudice prong.

The facts surrounding the botched theft in Flack possess eerie similarities to the robbery for which the jury convicted Mr. Goodman. In January 2011, the Flack defendant traveled with three accomplices from Pulaski, Virginia to a home in Bluefield, West Virginia intending to burglarize the defendant's uncle's home.²⁴ Upon arrival at the home, the group discovered the defendant's seventeen-year-old second cousin, Matthew Flack, and two other boys alone in the home.²⁵ The group then forced their way into the home and one of the defendant's accomplices, Jasman Montgomery, killed Matthew by shooting him in the face.²⁶ Montgomery later pled guilty to first degree murder and testified against the Flack defendant.²⁷ Montgomery testified about his guilty plea and the Flack defendant later appealed his conviction arguing, among other things, that the circuit court committed plain error by not giving the jury a Caudill instruction on its own initiative.²⁸ This Court held that circuit courts have no duty to give a Caudill instruction unless the defense requests the instruction.²⁹ We adopted the State's reasoning that "defense counsel, faced with the difficult task of dealing with damaging testimony of an accomplice, may not want to have a Caudill instruction because such an instruction could emphasize the damaging testimony[, and] [i]n such cases the trial court could be interfering with a defendant's right to develop his own trial strategy."³⁰ The Court also reasoned that "[d]efense counsel may have ample reason to get beyond an accomplice's damaging testimony as quickly as possible[, and] [w]hether the trial court should instruct the jury how the accomplice's damaging testimony could, or could not, be considered is a matter left to the discretion of defense counsel."³¹

24 Flack , 232 W. Va. at 710, 753 S.E.2d at 763.

25 Id.

26 Id.

27 Id. at 711, 753 S.E.2d at 764.

28 Id. at 713, 753 S.E.2d at 766.

29 See , Syl. Pt. 1., id.

30 Id. at 713, 753 S.E.2d at 766.

31 Id. at 714, 753 S.E.2d at 767.

In this instance, we would directly contradict our reasoning in Flack if we found every reasonable lawyer would request a Caudill instruction under the circumstances. Instead, we follow the sound reasoning to avoid interfering with defense lawyers’ ability to develop their trial strategy. We reiterate that defense lawyers often face difficult decisions about whether to request a Caudill instruction, and we leave the decisions in their discretion. At Mr. Goodman's trial, a reasonable lawyer in trial counsel's position would have to make the decision between drawing more attention to damaging accomplice testimony or getting the possible benefit of a Caudill instruction and may have decided to move past the damaging testimony as quickly as possible.

Since trial counsel made a calculated decision by a reasonable lawyer standard, he acted within the broad range of acceptable professional conduct. Mr. Goodman's claim surely does not rebut the presumption that one might objectively consider the challenged action sound trial strategy, and he fails to prove that no reasonable lawyer would fail to request instruction under the circumstances.

Turning to Mr. Goodman's other jury instruction argument, he claims that trial counsel performed deficiently by failing to request a Humphreys instruction informing the jury that uncorroborated witness testimony must be received with caution. But, the circuit court found "the circumstances did not warrant giving the jury an accomplice testimony cautionary instruction[ ]" since other evidence corroborated the accomplice testimony. So, the circuit court also found "[Mr. Goodman's] claim against his trial counsel is ... without merit[,]" because Mr. Goodman cannot "establish that his counsel was constitutionally ineffective under either prong of Strickland / Miller for failing to request an instruction that was not warranted."

We agree with the circuit court that the evidence corroborated Kentrell and Mr. Wicker's testimony and that trial counsel, therefore, acted reasonably by choosing not to request an unwarranted instruction. Kentrell and Mr. Wicker both testified that Mr. Goodman traveled with them, Mr. Gibbs, and Mr. Hill to West Virginia and participated in the robbery. Each corroborated the other's testimony. Ms. Hess also corroborated their testimonies by testifying that she heard Mr. Goodman planning the robbery with Kentrell and then saw Mr. Goodman and Kentrell with the safe after the robbery. The jury also considered, among other things, the following corroborating evidence: 1) the text message Ms. Hess sent Ms. Curry stating that Mr. Goodman traveled to West Virginia with Kentrell, 2) Mr. Goodman's wallet in Aunt Benita's home in a room with several guns and the opened safe in the backyard, 3) fragments of the safe in Mr. Gibb's backyard with phone records that showed Mr. Gibbs's travel to West Virginia on the morning of the robbery, 4) the investigator's testimony that the Oak Hill Police Department pinned Mr. Goodman as a suspect after his mother reported her suspicion that Mr. Goodman participated in the robbery, and 5) Mr. Goodman's own discredited testimony that he passed out drunk and slept on Aunt Benita's couch during the robbery.

But, what's more, trial counsel and the lawyers for Mr. Goodman's jointly tried co-defendants requested, and the circuit court gave, a jury instruction telling the jury it must individually consider the credibility of witnesses. So, we are confident the adversarial process worked adequately. Indeed, a "decision regarding trial tactics cannot be the basis for a claim of ineffective assistance of counsel unless counsel's tactics are shown to be ‘so ill chosen that it permeates the entire trial with obvious unfairness.’ "³² In no way did trial counsel's decision not to request the arguably inapplicable and duplicative jury instruction permeate the entire trial with unfairness. For these reasons, Mr. Goodman fails to rebut the presumption that trial counsel made what might have been a sound strategic decision not to request a Humphreys instruction.

32 Meadows v. Mutter , 243 W. Va. 211, 222, 842 S.E.2d 764, 775 (2020) (quoting Teague v. Scott , 60 F.3d 1167, 1172 (5th Cir. 1995) ).

B. Mr. Gunn's Inconsistent Trial Testimony.

In his second assignment of error, Mr. Goodman challenges the circuit court's finding that the prosecutor did not offer false testimony in violation of Mr. Goodman's constitutional rights. We explained in Syllabus Point 2 of State ex rel. Franklin v. McBride ³³ what a petitioner must prove when claiming a prosecutor presented false testimony:

33 226 W. Va. 375, 701 S.E.2d 97 (2009).

In order to obtain a new trial on a claim that the prosecutor presented false testimony at trial, a defendant must demonstrate that (1) the prosecutor presented false testimony, (2) the prosecutor knew or

should have known the testimony was false, and (3) the false testimony had a material effect on the jury verdict.^{[ 34 ]}

34 Id.

Mr. Goodman claims the prosecutor presented false testimony through Mr. Gunn who identified Mr. Goodman as one of the robbers. Before identifying Mr. Goodman at trial, Mr. Gunn initially told investigators that he did not know the intruders and that one looked like "Robert Lee" and it may have been a guy named Drake that played on his basketball team. He then identified Mr. Goodman's father, Kevin Goodman, Sr., in a photo line-up conducted by police a few days after the robbery. But, at trial, the prosecution called Mr. Gunn as a witness, and he testified that he recognized Mr. Goodman as one of the robbers. Trial counsel then cross-examined him about the inconsistent statement and used all of Mr. Gunn's prior identifications to impeach him:

Q. So three days after the crime and the day of the crime, you were not under arrest, you were not facing charges for anything, you were the victim of a crime, and the police came to your aid, and you completely lied to the police? Is that your testimony today?

A. I guess. I don't even want to be—want to be here.

...

Q. Are you being honest with the Court today?

A. Yes.

And, the prosecutor's redirect of Mr. Gunn likewise questioned the inconsistency:

Q. ... Explain to me in your own words why it is today that you feel certain that Kevin Goodman, Jr., was in your house.

A. Well, I kind of knew it was him, but I didn't want to—I didn't want to believe it. You know what I mean? So I finally—I said (unintelligible).

Mr. Gunn's inconsistent statements required the jury to make a credibility determination,³⁵ but "[i]nconsistencies between a witness's trial testimony and their previous statements, or between the testimonies of multiple witnesses, do not necessarily demonstrate falsity."³⁶ Mr. Gunn's exchanges with trial counsel and the prosecutor show that Mr. Gunn may have been uncooperative during the investigation but later had a change of heart at trial. We agree with the circuit court's finding that "it is unclear whether Mr. Gunn was being untruthful during the investigation, during his trial testimony, or both" and that Mr. Goodman "did not present any evidence to support this claim at the habeas hearing" because he offered only the inconsistent statements. So, Mr. Goodman correctly recognizes that "[a]t the trial, Mr. Gunn surprised everyone by testifying that he identified [Mr. Goodman] as being involved. The only thing [Mr. Goodman's] counsel could do at that point in the trial was to confront Mr. Gunn with his previous inconsistent statements."

35 State v. Guthrie , 194 W. Va. 657, 669, 461 S.E.2d 163, 175 (1995) ("Credibility determinations are for a jury and not an appellate court.").

36 Ballard , 239 W. Va. at 581, 803 S.E.2d at 551.

Because these inconsistent statements are insufficient to prove that the prosecutor presented false testimony under McBride , Mr. Goodman's second assignment of error lacks merit.

IV. CONCLUSION

For the reasons set out above, we affirm the circuit court's February 13, 2020, order denying Mr. Goodman's petition for writ of habeas corpus.

Affirmed.

JUSTICE WOOTON dissents and reserves the right to file a separate opinion.

WOOTON, J., dissenting:

As the United States Court of Appeals for the Fourth Circuit once cautioned, "[t]olerance of tactical miscalculations is one thing; fabrication of tactical excuses is quite another." Griffin v. Warden, Md. Corr. Adjustment Ctr. , 970 F.2d 1355, 1359 (4th Cir. 1992). In denying habeas relief to petitioner Kevin Goodman, Jr., the majority patently ignores its own precedent, as well as Fourth Circuit caselaw granting federal habeas relief under nearly identical circumstances—all under the guise of imagined "tactical reasons" excusing trial counsel's ineffective assistance. Because the cumulative effect of counsel's failure to introduce a potentially exculpatory photo, coupled with his failure to request mandatory jury instructions squarely implicating the State's only evidence against petitioner, I respectfully dissent to the majority's conclusion that petitioner suffered no ineffective assistance of counsel and would grant habeas relief.¹

1 I do not, however, take issue with the majority's conclusion that the State did not proffer perjured testimony at trial.

Petitioner was indicted on charges stemming from the robbery of Andrew Gunn and his family, along with four other accomplices—Antwyn Gibbs, Radee Hill, Kentrell Goodman (petitioner's brother), and Rashod Wicker (petitioner's cousin). Petitioner was tried as a co-defendant with Gibbs and Hill. Goodman and Wicker (hereinafter "the accomplices") entered plea agreements prior to trial and testified against petitioner and his co-defendants. The jury was informed, through testimony and introduction of the plea agreements themselves, that the accomplices had entered guilty pleas and that, in exchange, the State agreed to recommend youthful offender treatment at sentencing.

At trial, the State offered evidence that petitioner, the co-defendants, and the alleged accomplices—Goodman and Wicker—plotted to rob Andrew Gunn, an acquaintance of Goodman's who lived in Oak Hill, West Virginia. Testimony at trial indicated that shortly after midnight on January 9, 2015, the group departed South Carolina (where they all lived), in an Acura belonging to Kentrell Goodman's girlfriend, Lindsay Hess. Upon arrival in Oak Hill the group allegedly used weapons to enter the home owned and occupied by Elwood and Linda Knight (Mr. Gunn's grandparents) and stole a safe containing $9,000, a crossbow, and two pairs of sneakers, all belonging to Mr. Gunn.

The material evidence against petitioner consisted of 1) Ms. Hess’ testimony that a couple of weeks prior to the crime while in South Carolina at "Aunt Benita's" house (where she, Goodman, and a friend named "Tamika" resided), she overheard petitioner and accomplice Goodman discussing robbing Mr. Gunn; 2) Ms. Hess’ testimony that "Tamika" told her petitioner was in West Virginia in the early morning hours preceding the crime, which she then relayed to petitioner's girlfriend, Courtney Curry, via text; 3) the testimony of the alleged accomplices that petitioner accompanied them to West Virginia and participated in the robbery; and 4) Mr. Gunn's testimony that petitioner was one of the perpetrators.²

2 At trial, petitioner testified on his own behalf and was provided an alibi by Ms. Curry. Petitioner testified that he was at Aunt Benita's house on the evening at issue as part of a family get-together and became drunk, deciding to stay there on a couch overnight. Petitioner denied accompanying the others to West Virginia, but rather, was asleep at Aunt Benita's all night. When he awoke the next morning, Ms. Curry returned to Aunt Benita's, where she discovered petitioner, and they argued about Ms. Hess’ text stating he was in West Virginia. Ms. Curry confirmed that the group was together until late the preceding night, but she left to return to the home she shared with petitioner because she had kids who had school the next morning. She returned to Aunt Benita's after 8:30 a.m. the next day—while the others were in West Virginia committing the robbery—where she found petitioner and argued about why Ms. Hess had stated he was in West Virginia, believing that petitioner had asked Ms. Hess to lie about his whereabouts.

In sum, the evidence that petitioner was an actual participant in the subject robbery consisted of 1) the testimony of the two alleged accomplices who pled guilty to the crimes at issue and testified extensively about their belief that they would be afforded preferential sentencing treatment for testifying at petitioner's trial; 2) the testimony of one accomplice's girlfriend, who testified that she overheard the accomplice and petitioner discussing the robbery, and that another woman—who did not appear at trial —told her that petitioner was in West Virginia at the time of the crime;³ and 3) the identification of petitioner by a victim—a lifelong friend of one of the accomplices—whose identification of petitioner was so incredible the State later disavowed and urged the jury to disregard it. It is undisputed that no physical or forensic evidence connecting petitioner to the crime was uncovered, despite analysis of shell casings, pieces of the safe which was broken apart, fingerprints and shoe prints, cell phones, and searches of the various residences.

3 The majority emphasizes the State's point on cross-examination that petitioner called none of the other occupants of Aunt Benita's house to testify that he was there and not in West Virginia at the time of the crime. However, it fails to similarly credit petitioner's counsel's point that the State likewise did not call any of these witnesses to confirm that petitioner was not at Aunt Benita's house.

Notwithstanding the State's case against petitioner being based almost exclusively on accomplice testimony, petitioner's trial counsel—who was participating in his first jury trial—inexplicably failed to request two mandatory jury instructions. The instructions would have advised the jury that 1) the accomplices’ testimony must be viewed "with caution"; and 2) the accomplices’ guilty pleas could not be considered as evidence of petitioner's guilt. Trial counsel provided absolutely no rationale for failing to request the instructions and denied that there was any strategic reason for failing to do so. Petitioner's trial counsel further admitted that a photograph culled from video evidence he was provided during discovery appears to demonstrate that petitioner was not even in the Acura as the group departed the crime scene to return to South Carolina. Trial counsel offered no explanation whatsoever for why he failed to notice the photograph or video among the discovery he was provided. Remarkably, the State admitted below that the photograph appears to show that there was "probably" only one person is in the back of the vehicle, despite the group allegedly consisting of five male members.⁴

4 In answer to petitioner's habeas petition below, the State indicated: "[I]t could fairly be argued that there is probably only one person in the back seat of the vehicle in question."

In spite of these extraordinary undisputed facts, the majority has determined that there was no deficiency of trial counsel in any event. It does so despite this Court having previously found the exact same instructional omission to be ineffective and manufactures purely hypothetical strategic reasons for the omission, which trial counsel himself denied. The majority renders this opinion in the face of nearly identical federal caselaw which it fails to acknowledge or distinguish.

1. COUNSEL'S FAILURE TO REQUEST HUMPHREYS/BOLLING INSTRUCTION

The first instruction petitioner's trial counsel failed to request is a Humphreys / Bolling instruction, which advises the jury that the uncorroborated testimony of an accomplice must be viewed with caution.⁵ Accomplice testimony is so fraught with danger that there is a split among jurisdictions as to whether convictions may be based on such testimony where it is uncorroborated. West Virginia has chosen to permit it, but with the important "corollary ... rule" that a Humphreys instruction be given. State v. Vance, 164 W. Va. 216, 220, 262 S.E.2d 423, 426 (1980) ; see State ex rel. Franklin v. McBride , 226 W. Va. 375, 381, 701 S.E.2d 97, 103 (2009) (footnote omitted) ("A Humphreys instruction is required when an accomplice to the crime testifies for the State.").

5 The syllabus point at issue originated as syllabus point one of State v. Humphreys , 128 W. Va. 370, 36 S.E.2d 469 (1945), and is quoted as syllabus point two of State v. Bolling , 162 W. Va. 103, 246 S.E.2d 631 (1978).

In Humphreys , the Court held: "Conviction for a crime may be had upon the uncorroborated testimony of an accomplice; but in such case the testimony must be received with caution and the jury should, upon request, be so instructed...." 128 W.Va. 370, 36 S.E.2d 469, syl. pt. 1, in part (emphasis added); see Bolling , 162 W. Va. 103, 246 S.E.2d 631, syl. pt. 2 (same); Vance , 164 W. Va. 216, 262 S.E.2d 423, syl. pt. 2 ("Where the accomplice's testimony is uncorroborated, a criminal defendant is entitled to a jury instruction that such testimony should be received with great caution."); Syl. Pt. 3, State v. Spadafore , 159 W.Va. 236, 220 S.E.2d 655 (1975) ("As a general rule, West Virginia courts are not permitted to comment on the weight of the evidence; however, there is an exception entitling the defendant to an instruction that the uncorroborated testimony of a co-conspirator should be received with great caution when such testimony has a tendency to inculpate the accused."). The importance of a Humphreys / Bolling instruction has been explained: "The reasoning behind [the rule] is that in implicating the defendant, the accomplice may well have an ulterior motive [of] revenge or the promise or hope of leniency in his case, whether by way of lighter sentence, probation, early parole or outright release." Vance, 164 W. Va. at 220, 262 S.E.2d at 426.

As to the necessity of the instruction where the accomplice testimony is uncorroborated, the Court has elaborated on what the term "uncorroborated" contemplates: "Where the testimony of an accomplice is corroborated in material facts which tend to connect the accused with the crime , sufficient to warrant the jury in crediting the truth of the accomplice's testimony , it is not error to refuse a cautionary instruction." Id ., syl. pt. 3, in part (emphasis added). It is on this basis that the majority finds that failure to request the instruction was not ineffective assistance of counsel. The majority adopts the circuit court's position⁶ that the accomplices’ testimony was corroborated by 1) each other's testimony; 2) Ms. Hess’ testimony about an overheard conversation which occurred before the crime; and 3) her testimony that she saw petitioner near the victim's safe at someone else's home after the robbery.

6 The circuit court also found that the accomplices’ testimony was corroborated not only by each other, but by Ms. Knight and Mr. Gunn's identifications of petitioner and the "physical and technical" evidence. The majority does not mention these findings, plainly recognizing that 1) Ms. Knight never identified petitioner as a participant; 2) Mr. Gunn's identification was so incredible that not even the State would argue it was corroborative; and 3) there simply was no "physical" or "technical" evidence tying petitioner to the crime.

The majority grasps at straws to establish corroboration to excuse the absence of the Humphreys / Bolling instruction. None of the evidence cited by the majority constitutes corroboration of petitioner's actual participation in the robbery. First, the two accomplices cannot corroborate each other, as this Court recognized in Vance : "It appears to be the general rule that ... one accomplice ordinarily may not corroborate another[.]" Id. at 223 n.6, 262 S.E.2d at 428 n.6 ; see also Arnold v. United States, 94 F.2d 499, 506 (10th Cir. 1938) ("[O]ne accomplice cannot corroborate another accomplice[.]"); Wisto v. Adams , No. CV1703216VBFAFM, 2018 WL 2382154, at *10 (C.D. Cal. Feb. 7, 2018) ("The testimony of an accomplice cannot be corroborated by that of another accomplice."); Childers v. Dir., TDCJ-CID , No. CIV.A.6:06CV387, 2007 WL 666794, at *2 (E.D. Tex. Feb. 28, 2007) ("[A]ccomplice witness and confidential informant could not corroborate each others[’] testimony."); People v. Tewksbury , 15 Cal.3d 953, 127 Cal.Rptr. 135, 544 P.2d 1335, 1339 (1976) ("[R]equired corroboration must come from a source other than another accomplice.").

Second, being overheard discussing a theoretical robbery is no more corroborative of actually participating in the robbery than a person later being seen "near" evidence at another participant's home. As all of the witnesses made clear, this particular group of individuals lived and frequently socialized with and around each other. Neither the overheard conversation nor petitioner's subsequent proximity to other admitted participants bears any relevance to whether he actually participated. Finally, perhaps in the absence of any more compelling corroborative evidence, the majority inexplicably identifies physical evidence found at a co-defendant's house as somehow corroborative of petitioner's guilt. These scraps of testimony, which only tangentially associate petitioner with other admitted participants in the crime, are hardly the stuff of corroboration. Therefore, a Humphreys / Bolling instruction was mandatory. Cf. United States v. Lee , 506 F.2d 111, 121 (D.C. Cir. 1974) ("[A] cautionary instruction was required where there was no corroboration, or only minor corroboration that still left the government's case hanging almost entirely on informant testimony[.]" (footnote omitted)).

In fact, the absence of a functionally equivalent "informant instruction" justified habeas relief in a remarkably similar case decided by the Fourth Circuit. In United States v. Luck , 611 F.3d 183 (4th Cir. 2010), Luck was tried on charges stemming from allegations of possession of cocaine with intent to deliver. Id. at 184. The government's case was premised on the testimony of an investigating officer and two paid informants. Id. Upon conviction, Luck sought habeas relief from the district court based, in part, on his trial counsel's failure to request an informant instruction, among other deficiencies. Id. at 185. Notably, the Fourth Circuit found it unnecessary to address any of Luck's other allegations of ineffective assistance, finding that the failure to request the informant instruction alone was sufficient to overturn his conviction. Id. at 186.

The federal informant instruction reads nearly identical to this Court's Humphreys / Bolling instruction and states, in part: "The testimony of an informer who provides evidence against a defendant for pay, or for immunity from punishment, or for personal advantage or vindication, must be examined and weighed by the jury with greater care than the testimony of an ordinary witness." Id. ; see also Lee, 506 F.2d at 121 ("In general, the various types of shabby witnesses-the accomplices, informers, false friends ... are governed by similar rules" pertaining to cautionary instructions); Toliver v. United States , No. 2:08CR22, 2013 WL 12343712, at *4 (E.D. Va. May 9, 2013) (likening "accomplice jury instruction" to "informant jury instruction" for purposes of examining ineffective assistance of counsel claim).⁷ However, unlike this Court, the Fourth Circuit has not yet determined that an informant instruction is even mandatory. See Luck , 611 F.3d at 187. The Luck court nevertheless noted cases from other circuits finding that the instruction was mandatory where the testimony was otherwise uncorroborated, just as in West Virginia. 611 F.3d at 187-88.

7 See 1A Fed. Jury Prac. & Instr. § 15:02 (6th ed.), 1A Fed. Jury Prac. & Instr. § 15:02 (6th ed.) ("The testimony of an informant, someone who provides evidence against someone else for money or to escape punishment for [his] [her] own misdeeds or crimes or for other personal reason or advantage, must be examined and weighed by the jury with greater care than the testimony of a witness who is not so motivated."

The Fourth Circuit found that the informants’ testimony in Luck warranted such an instruction where, just as in the case at bar, the witnesses offered to "testify in return for certain benefits" including "time off of [an informant's] robbery sentence[.]" Id. at 188. Finding that "there was little corroborating evidence beyond the informants' testimony[,]" the court concluded that "a reasonable attorney would have requested an informant instruction." Id. The court further found that "there is no indication that failing to request the instruction had any root in trial strategy[ ]" because "Luck's counsel cross-examined both [informants] about the consideration they received from the government for their investigation and testimony." Id. Just as in the instant case, "Luck's counsel's defense strategy [was] ... focused on discrediting the government's witnesses[.]" Id. Accordingly, the Fourth Circuit had little difficulty in finding counsel's failure to request the instruction ineffective: "There is no debate that in a case like this where the government produces very little evidence beyond the uncorroborated testimony of paid informants, an informant instruction should have been given." Id. at 189.

Further, the Luck court expressly rejected the excuse offered by the majority herein: that a general credibility instruction serves as an adequate substitute for the accomplice or informant instruction. Considering "whether giving the informant instruction could have reasonably changed the probability of the outcome of the trial when the district court gave a general credibility instruction[,]" the Luck court handily rejected this defense explaining,

[i]t is true that the district court's general instructions on witness credibility contained all of the elements of the informant instruction. However, the informant instruction is sui generis ; it alerts jurors to the potentially unique problems that inhere where an individual is paid to inculpate a defendant. Cf. [U.S. v.] Anty , 203 F.3d [305]at 310 [(2000)] (citing Edward H. Devitt et al., Federal Jury Practice and Instructions § 15.02 (4th ed.1992)) (discussing the creation of the special credibility

instruction as one of the reasons why paid informant testimony may be considered). By summarizing the tools that the jury must use to evaluate credibility and applying it specifically to the case of the informant, the instruction more effectively cautions the jurors to think closely about the testimony. See Natapoff at 198 ("Jury instructions are a classic and crucial vehicle for shaping verdicts. Because jurors are the ultimate fact finders in criminal trials, charged with the task of evaluating witness credibility and figuring out what "really" happened, their evaluation of the informant testimony is central to the criminal process.").

611 F.3d at 189-90 (emphasis added); see also Carter v. Kentucky , 450 U.S. 288, 304, 101 S.Ct. 1112, 67 L.Ed.2d 241 (1981) ("The other trial instructions and arguments of counsel that the ... jurors heard at the trial" cannot "substitute for [an] explicit instruction.").

The Luck court had scarcely more difficulty in finding prejudice under the second prong of Strickland .⁸ Because the informant instruction was clearly warranted and there was no tactical reason for failing to request it, the court placed into perspective the absence of the instruction on Luck's defense. Again, in a narrative which could be lifted from the pages of the instant case, the Luck court stated:

8 See Strickland v. Washington , 466 U.S. 668, 669, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ("With regard to the required showing of prejudice, the proper standard requires the defendant to show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. A court hearing an ineffectiveness claim must consider the totality of the evidence before the judge or jury.").

The government's case was built entirely on a foundation of paid informant testimony. There was minimal physical evidence. No government agent had ever observed Luck engaged in drug activity. Merely giving general instructions as to witness credibility is not sufficient to give confidence that the outcome was not tainted by prejudice. In this case in particular, there was a significant incentive for the government's two main witnesses to give testimony for their own benefit, both in terms of financial compensation and a reduction in sentence.

611 F.3d at 190 (emphasis added). In stark contrast to the "confiden[ce] [that] the adversarial process worked adequately" expressed by the majority despite the absence of this critical instruction, the Luck court concluded that

Luck's trial counsel was ineffective when he failed to request an informant instruction when it would have been reversible error for the court to refuse to give it if requested, and that ineffectiveness prejudiced the outcome of Luck's trial because the jury was not cautioned to consider the special problems of credibility posed by the government's paid informants.

Id. ; see also United States v. Bernard , 625 F.2d 854, 857 (9th Cir. 1980) (noting cases finding "refusal to give special instructions on the testimony of an accomplice when that testimony is important to the case" reversible error where "the defendant's guilt rested almost entirely on the testimony of the accomplice, and the other evidence linking the defendant to the criminal activity was weak." (citing United States v. Davis , 439 F.2d 1105 (9th Cir. 1971) ).

As our Federal Circuit has concluded, the failure to request a Humphreys / Bolling -type cautionary instruction is fatal to effective assistance of counsel where accomplice testimony is uncorroborated to any meaningful degree and forms the primary basis of the case against a defendant. As the Luck court stated, "[i]f there was ever a time to ask to have the jury instructed that paid informants [or accomplices] raise special issues about credibility, this was the case." Id. at 188. This same omission in the instant case is sufficient alone to warrant habeas relief to petitioner.

2. COUNSEL'S FAILURE TO REQUEST CAUDILL/FLACK INSTRUCTION

The second mandatory instruction petitioner's trial counsel failed to request without explanation is a Caudill / Flack instruction, which prohibits the jury from using an accomplice's guilty plea as evidence of the defendant's guilt.⁹ Caudill holds that an accomplice may testify to having entered a guilty plea to the crime of which a defendant is charged only "where such testimony is not for the purpose of proving the guilt of the defendant and is relevant to the issue of the witness-accomplice's credibility." See 170 W. Va. 74, 289 S.E.2d 748, syl. pt. 3. However, as a critical corollary to this evidentiary rule, Caudill made mandatory an instruction cautioning the jury that the accomplice's testimony should be limited to credibility and not used as inferential proof of the defendant's guilt. Id.

9 See Syl., State v. Flack , 232 W. Va. 708, 753 S.E.2d 761 (2013) ("Flack I "). The syllabus point at issue was a modification of syllabus point three of State v. Caudill , 170 W. Va. 74, 289 S.E.2d 748 (1982).

In Flack I , however, the Court modified that holding slightly to require that a defendant must first request such an instruction because, for tactical reasons, defense counsel may not want to draw unnecessary attention to the accomplices’ guilty plea with an instruction: "Defense counsel may have ample reason to get beyond an accomplice's damaging testimony as quickly as possible. Whether the trial court should instruct the jury how the accomplice's testimony could, or could not, be considered is a matter best left to the discretion of defense counsel." 232 W. Va. at 714, 753 S.E.2d at 767. Accordingly, it modified Caudill and the requirement of a cautionary instruction about an accomplice's guilty plea to require counsel to first request it to avoid unnecessarily interfering with counsel's trial strategy:

An accomplice who has entered a plea of guilty to the same crime charged against the defendant may testify as a witness on behalf of the State. However, if the jury learns of the accomplice's guilty plea, then upon the motion of the defendant, the trial court must instruct the jury that the accomplice's plea of guilty cannot be considered as proving the guilt of the defendant, and may only be considered for proper evidentiary purposes such as to impeach trial testimony or to reflect on a witness’ credibility. The failure of the trial court, upon request , to give such a limiting jury instruction is reversible error.

Id. , Syl., in part (emphasis added). Because Flack's counsel did not request such an instruction, the Flack I Court found no error on direct appeal.

However, in Flack's subsequent habeas petition he asserted ineffective assistance of counsel based on his counsel's failure to request such a cautionary instruction, just as in the instant case. See Flack v. Ballard, 239 W. Va. 566, 579, 803 S.E.2d 536, 549 (2017) (" Flack II "). Importantly, this Court found counsel "deficient under an objective standard of reasonableness" for counsel's failure to request a Caudill / Flack instruction. Id. at 579, 803 S.E.2d at 549 (footnote omitted). However, under identical circumstances in the case at bar—which the majority herein notes is "eeri[ly] similar[ ]"—it somehow finds no deficiency. The majority's analysis regarding a Caudill / Flack instruction is simply mystifying. It declares that in failing to request the instruction, trial counsel "made a calculated decision by a reasonable lawyer standard[.]" However, in the habeas proceedings below, trial counsel offered no explanation whatsoever for why he did not request the instruction. In fact, counsel was directly asked: "Was there any conceivable strategic reason for not asking for any of these cautionary instructions to the Court?" His response was: "... [N]o."

Further, the majority conjures an entirely hypothetical strategy debate about trial counsel "mak[ing] the decision between drawing more attention to the damaging accomplice testimony or getting the possible benefit" of the instruction. It speculates that counsel "may have decided to move past the damaging testimony as quickly as possible." (Emphasis added). Seemingly as though trial counsel did not even testify in the habeas proceeding, the majority simply imagines what might have been going through counsel's mind. However, trial counsel was thoroughly examined in the habeas proceeding below and directly questioned about the instructions. He offered no testimony whatsoever to suggest he made a tactical decision not to request the instruction to avoid "drawing more attention" to the accomplice testimony, and in fact flatly denied "any conceivable strategic reason" for failing to do so.

Manufactured "tactical reasons" are not sufficient to ward off a habeas claim. Further, "strategy" cannot be contrived from mere oversight. See Wiggins v. Smith, 539 U.S. 510, 526, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003) (finding ineffective assistance where "[t]he record of the actual sentencing proceedings underscores the unreasonableness of counsel's conduct by suggesting that their failure to investigate thoroughly resulted from inattention, not reasoned strategic judgment. " (emphasis added)); Hargrave v. Landon , 584 F. Supp. 302, 310 (E.D. Va. 1984), aff'd , 751 F.2d 379 (4th Cir. 1984) (distinguishing trial tactics from "attorney error which evinces ignorance or oversight"); Person v. Rawski , No. CV 4:15-4606-RMG, 2017 WL 1319778, at *4 (D.S.C. Apr. 10, 2017), dismissed , 692 F. App'x 147 (4th Cir. 2017) (the presumption of strategy "however, is not absolute where the purported strategic decision is based upon an error or ignorance of the law by trial counsel.").

In that regard, with respect to allegedly deficient trial tactics, "[t]he question is one of counsel's motivation[.]" Hargrave , 584 F. Supp. at 310. Here, counsel quite simply offered no motivation. The Fourth Circuit has made clear that the "tactical decision" defense to ineffective assistance cannot be presumed or fabricated from a silent record: " ‘[C]ourts should not conjure up tactical decisions an attorney could have made, but plainly did not.’ " Tice v. Johnson , 647 F.3d 87, 105 (4th Cir. 2011) (quoting Griffin , 970 F.2d at 1358. In a markedly similar case, the Fourth Circuit disavowed a state court's attempt to manufacture a tactical defense for counsel from a silent record, stating:

[T]he "cogent tactical considerations" that the state court bestowed on David for failing to present Griffin's alibi witnesses are exercises in retrospective sophistry. From the attorney's perspective at the time of trial, no reasonable excuse for failing to notify the state of Griffin's alibi and to secure the attendance of alibi witnesses appears or is even suggested in the evidentiary record. Indeed, David's statements at the bench conference are unambiguous admissions of unpardonable neglect.

Griffin , 970 F.2d at 1358 (emphasis added); accord Luchenburg v. Smith , 79 F.3d 388, 392-93 (4th Cir. 1996) (finding failure to request mandatory jury instruction constituted ineffective assistance of counsel and stating that "counsel made no tactical ‘choice,’ unless a failure to become informed of the law affecting his client can be so considered.").

Here, not only is a tactical basis wholly absent from the appendix record, but the notion that counsel failed to request these instructions for strategic reasons flies directly in the face of trial counsel's entire defense strategy. Just as in Luck , petitioner's counsel's focus on the accomplices’ lack of credibility due to their guilty pleas and assurances made by the prosecutor as to their sentencing makes it clear that "there is no indication that failing to request the instruction had any root in trial strategy[.]" Luck , 611 F.3d at 188. However, nowhere does the majority examine the omission of the instructions in view of the overall case and defense, having satisfied itself with the mere possibility that an unidentified trial tactic adequately explained the omission.

The importance of the analysis the majority fails to undertake is best demonstrated in Flack II itself. The Flack II Court found the failure to request a Caudill / Flack instruction to constitute ineffective assistance—a conclusion the majority now completely upends in an "eeri[ly] similar[ ]" case. Regardless, the Flack II Court ultimately denied habeas relief for lack of prejudice because the accomplice's guilty plea was only mentioned twice and the State "did not emphasize" the plea. 239 W. Va. at 580, 803 S.E.2d at 550. The Court noted that the State asked only once about the guilty plea when addressing why the accomplice was wearing an orange jumpsuit and then mentioned it again once briefly in closing in stating that the accomplice " ‘accepted his responsibility[.]’ " Id. ¹⁰ In contrast, the accomplices’ admissions and guilty pleas in the instant case were the near exclusive focus of petitioner's defense; the State likewise drew repeated attention to the pleas, attempting to "make hay" out of them by arguing these admissions made the accomplices more credible, not less. The guilty pleas of the accomplices were heavily discussed on direct and cross-examination of both accomplices by petitioner's counsel. And with good reason: petitioner's counsel's defense strategy was clearly to discredit the accomplices because they were effectively the prosecution's only evidence against petitioner. Consequently, rather than the instruction undermining counsel's trial strategy (as the majority suggests as a theoretical possibility), an instruction from the court that the guilty pleas could not be used to infer petitioner's guilt significantly augments counsel's strategy, which was to discredit the accomplices altogether as self-interested witnesses who offered testimony against petitioner in the hopes of a more lenient sentence.

10 Because neither petitioner nor the State addresses this case in their briefs, neither addressed whether the State emphasized the guilty pleas of the accomplices in this case. The State cites Flack II for an isolated quote in the "proffering perjured testimony" portion of its brief. Nonetheless, the absolute necessity of the Caudill / Flack instruction is obvious from even a cursory review of the trial transcript as compared to limited role the guilty pleas played in Flack II .

Even absent trial counsel's focus on the accomplices’ guilty pleas, the State's focus on the plea agreements alone demanded a cautionary instruction to ensure the jury did not infer petitioner's guilt from that of his alleged accomplices. From the very outset, the accomplices’ guilty pleas were front and center in both the State and defense cases. In his opening, the prosecutor advised the jury:

Let me tell you this: Kentrell Goodman has pled guilty to the crime of armed robbery. Pled guilty. He will testify today. Rashod Wicker has pled guilty to the crime of armed robbery. He will testify today. These men (indicating) are essentially charged with armed robbery. These are the three that the State seeks today to bring to justice.

As indicated above, the accomplices’ plea agreements themselves were even introduced into evidence by the State and emphasized in its closing:

Now, plea agreement .... Here are the two plea agreements. You can take them back and you can read them , and you can criticize me if you want to. I made these decisions. I've got to make tough decisions. I made them. And I looked at Kentrell Goodman, nineteen. I looked at Rashod Wicker, eighteen or nineteen. And I said, ‘Well, they implicated themselves in this crime. They're young. And in particularly in Rashod's case, he didn't go in the house.’ And I thought that was worthy of the State's recommendation. I didn't buy their testimony. I thought that was just.

(emphasis added).

In addition to discussing the plea agreements themselves, the State made multiple additional references to the pleas, arguing that these two accomplice witnesses were more credible as a result of their plea/admissions, including the following statements:

[I]f this was a case that was based solely on the testimony of Kentrell Goodman and Rashod Wicker, who didn't implicate themselves in anything , were just pointing their finger at everybody else, I wouldn't have a very good case , and I wouldn't present it to you.

....

... [I]f I say "A crime occurred, and that person did it." That's pretty typical. And as a matter of fact, it happens a lot. I see it a lot. It's very atypical when someone says, "A crime was committed; I did it, and these people did, too." That's very atypical .... But you should get some credit when you tell on yourself and you implicate other people and what you tell the police is borne out by the physical evidence that we find. And you should also get some credit when the State is faced with a ton of circumstantial evidence that is highly coincidental, and you tie it together.

(emphasis added). Co-defendant Hill's attorney also highlighted the accomplices’ guilty pleas in his closing:

[L]et's also talk about the motivation that [Goodman and Wicker] had to appear here in court and testify. These guys are looking at life in prison. In addition to that, there's two other charges they can be punished for.

....

Let's look at the motivation that both Mr. Wicker and Kentrell Goodman have. Three of four felonies, gone. Robbery. They get a recommendation from the State to go to the Anthony Center, the Center for Youthful Offenders. They might be there for a year and a half or so. If they successfully complete the program, they get probation. They haven't been sentenced yet. Sentencing still hangs over their heads.

(emphasis added). Clearly, the plea agreements and admissions of the accomplices in petitioner's trial predominated all parties’ cases. This case was not one in which "a limiting instruction might only draw attention to an otherwise innocuous mention" and thereby undermine defense strategy. Flack II , 239 W. Va. at 579, 803 S.E.2d at 549. Instead, this case clearly falls into the category of cases acknowledged by Flack II where the accomplices’ guilty plea evidence predominates the trial and "is of the character that it might be misconstrued by the jury" and therefore warrants a cautionary instruction. Id. ¹¹

11 The circuit court dispensed with this issue on different grounds, noting that 1) two "veteran" trial attorneys representing co-defendants likewise did not request the instruction; and 2) petitioner's trial counsel's statement that it would benefit his client not to "overwhelm[ ]" the jury with instructions. First, the unexplained failure of the other co-defendants’ counsel to not request an instruction is not tantamount to "strategy." Neither of the co-defendants’ counsel testified at the habeas hearing below and trial counsel did not testify that these specific instructions were so much as discussed among his co-defense counsel. With respect to "overwhelming" the jury with instructions, this statement was made in reference to not repeating the core set of instructions three times for each defendant—not in declining mandatory, cautionary instructions which go to the State's primary evidence against petitioner.

More importantly, however, for purposes of the Caudill / Flack instruction, the State directly urged the jury to do precisely what Caudill / Flack forbids: to use the accomplices’ guilt as a surrogate for petitioner's guilt. In closing, the prosecutor stated:

If you decide, "Well, I think these three should get the same treatment that Kentrell and Goodman"—"Kentrell Goodman and Rashod Wicker got," well, then, fine. Just convict them of armed robbery if you think that's fair. But consider the differences in how they approached the case. And that's the basis for my decision. They had no obligation to testify, but they did.

(emphasis added). He further stated:

I lumped them all together, all of them : Andrew Gunn; Rashod Wicker; Kentrell Goodman, Kevin Goodman, Jr.; Radee Hill; and Antwyn Gibbs. I lumped them all together because they deserve each other. They deserve being lumped together because none of them is doing right, none of them had any respect for this woman.

(emphasis added). The State clearly utilized the accomplices’ guilty plea as a device to invite the jury to infer the guilt of petitioner. Where the State implores the jury to afford "similar treatment" to a defendant and "lump them all together," it expressly leverages the accomplices’ guilty pleas as a tool to permit the jury to reach the same conclusion about petitioner. Without an instruction from the Court cautioning that it may not do so, the jury was left with the unmitigated entreaty of the State to afford petitioner the same fate as the admitted accomplices.

Before leaving this issue, I believe it necessary to address the circuit court's reasoning as to why the absence of a Caudill / Flack instruction did not warrant habeas relief. Ironically—and in precise contradiction to the analysis in Flack II —the circuit court found no prejudice because the accomplices’ pleas were the "center point" and "heart" of petitioner's defense theory. However, as the Luck case explains and Flack II demonstrates, it is precisely because the accomplices’ pleas were the focal point of the case that these instructions—particularly the Caudill / Flack instruction—were so critical. The circuit court further found that it was "highly unlikely" there was jury "confusion" about whether the accomplices’ pleas could be taken as proof of petitioner's guilt, noting various other instructions given which cautioned the jury to not to consider the evidence or guilt of the defendants collectively and arguments of counsel. Obviously, the collective guilt of the jointly tried codefendants presents an entirely separate issue from the inference of guilt from the accomplices’ guilty pleas.

Moreover, this argument has been soundly rejected by the United States Supreme Court. The Supreme Court has observed that "arguments of counsel generally carry less weight with a jury than ... instructions from the court" because they are "usually billed in advance to the jury as matters of argument, not evidence ... and are likely viewed as the statements of advocates[.]" Boyde v. California , 494 U.S. 370, 384, 110 S.Ct. 1190, 108 L.Ed.2d 316 (1990). In contrast, jury instructions "we have often recognized, are viewed as definitive and binding statements of the law[.]" Id. More specifically, "[a] court issued jury instruction carries the command and force of law in a way that a statement by counsel cannot, and thus prejudice that arises from a flawed or omitted jury instruction is not cured by mere argument." Lee v. Clarke , 781 F.3d 114, 125-26 (4th Cir. 2015), as amended (Apr. 15, 2015).

The critical oversight of trial counsel failing to request the Caudill / Flack instruction alone warrants habeas relief. Coupled with the unexplained failure to request the Humphreys / Bolling instruction as well, petitioner was denied any semblance of effective assistance of counsel. Both instructions demonstrably enhance petitioner's defense by way of direct instruction from the Court to the jury regarding the State's primary evidence against him.

3. COUNSEL'S FAILURE TO INTRODUCE THE TOLLBOOTH VIDEO OR PHOTOGRAPH

While I believe the foregoing instructional omissions by trial counsel are more than adequate to justify habeas relief, petitioner also presents potentially exculpatory evidence which was in his counsel's possession, but not introduced into evidence. During discovery in the criminal trial the State produced 4 CDs containing footage from tollbooths on the West Virginia Turnpike, which purportedly showed Ms. Hess’ Acura traveling north through the tollbooths and then south through the tollbooths a few hours later. These CDs were not introduced into evidence at trial. During trial, the accomplices were questioned extensively about where each member of the five-person party was seated on the trip to and from West Virginia; the consensus appeared to be that petitioner—who is 6’4" tall—was sitting behind the driver at some point.

During the omnibus hearing below, petitioner's trial counsel was presented with a still photo apparently provided as part of video evidence from the tollbooths; petitioner's position is that the photo shows only one passenger in the rear of the vehicle on the passenger side. Upon being presented with the photo, trial counsel's immediate reaction was "I do not believe it's come from the videos that I've got." He explained further that "in the video I have the vehicle is towards the right of the shot and here the vehicle is towards the left. So I do not believe I have seen this photo. " (emphasis added).

However, after the omnibus hearing was concluded, trial counsel apparently retrieved his videos from his office, watched them with the parties’ attorneys, and all confirmed that the still image was contained on the CDs.¹² Further, the State does not challenge that trial counsel was in actual possession of the photo. Therefore, the inescapable conclusion is that trial counsel either did not review the entirety of the videos or did not review them carefully; otherwise, the photo would not have admittedly "caught [him] by surprise" at the habeas hearing.

12 Petitioner's brief explains:

[A]fter Mr. Steele completed his testimony, he went to his office and returned with the CD's he had been provided by the State. These CD's were viewed by counsel for Petitioner and Respondent. Three of the CD's were operational, including the video showing no person was seated behind Mr. Wicker. Counsel stipulated that the one CD that did not work did not contain any significant video information.

(emphasis added).

Regardless of why trial counsel had not previously seen the photo which was admittedly in his possession, he readily and unequivocally conceded: "It's very clear that nobody is sitting behind the driver seat in this photo." He elaborated that, "this is extremely valuable.... And had I had this shot I would've introduced it. Yes." In its answer to the habeas petition regarding the photo, the State similarly admitted, "it could fairly be argued that there is probably only one person in the back seat of the vehicle in question."

Again, the majority finds no ineffective assistance for failing to introduce the video, stating that "trial counsel reviewed [the tollbooth videos], reasonably found they contained little exculpatory value, ... and strategically decided not to admit them." Obviously, the majority's analysis rests upon an entirely fictitious premise: that trial counsel made a reasoned, tactical decision not to introduce a photo that, despite being in his possession, he had admittedly never seen. Contrary to the majority's contention, by his own admission counsel did not "review" the potentially exculpatory photo or video, much less disregard it for tactical reasons. Cf. Griffin , 970 F.2d at 1358 (4th Cir. 1992) ("[T]he attorney's incompetent performance deprived him of the opportunity to even make a tactical decision about putting Staples on the stand.").

Finally, the majority alternatively suggests that the failure to introduce the photo was not ineffective because it "offer[s] little exculpatory value[.]" With all due respect to the majority's presumed scrutiny of the video, the two individuals with the least to gain in admitting the photo may be exculpatory—petitioner's trial counsel who did not introduce the photo into evidence, and the State's prosecutor below seeking to defend the conviction—both admitted that the video showed only one person in the back seat. That there is disagreement on this point merely demonstrates its value to petitioner's defense. It is not the role of the Court in considering habeas relief to substitute itself as the jury and make factual determinations about what a jury would or would not have believed. It is the Court's role to determine whether the absence of this evidence sufficiently prejudiced petitioner's ability to defend himself; the majority fails to even entertain this analysis, which readily demonstrates the necessity of habeas relief.

4. THE "PREJUDICE" PRONG OF MILLER/STRICKLAND

Undoubtedly, the second prong of Miller / Strickland sets an extremely high bar, requiring a petitioner to establish "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different." Syl. Pt. 5, in part, State v. Miller , 194 W.Va. 3, 459 S.E.2d 114 (1995). This Court has historically construed that requirement to be commensurate with simple prejudice, i.e. whether petitioner's defense was prejudiced by the ineffective assistance. See Ballard v. Ferguson , 232 W. Va. 196, 206, 751 S.E.2d 716, 726 (2013) ("Mr. Ferguson is not entitled to relief unless we also conclude that he was prejudiced by the deficient performance."); accord Strickland , 466 U.S. at 687, 104 S.Ct. 2052 ("[T]he defendant must show that the deficient performance prejudiced the defense.").

Contrary to the circuit court's apparent belief, this standard does not require exonerating proof, nor does it require proof sufficient for an acquittal. As the Supreme Court explained, "a defendant need not show that counsel's deficient conduct more likely than not altered the outcome in the case." Id. at 693. Instead, the prejudice prong is met where petitioner demonstrates the omitted evidence may have created reasonable doubt as to his guilt. See id. at 695 ("[T]he question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt."). Cf. Ballard , 232 W. Va. at 207, 751 S.E.2d at 727 ("[W]e believe a jury could have reasonable doubts about the guilt of Mr. Ferguson."). Further, this Court has more easily found prejudice where there were cumulative errors.¹³ Thus, the impact of the errors must be evaluated in light of the entire case presented by the prosecution. The loss of the opportunity to argue the content of the potentially exculpatory tollbooth photo, along with instructions from the court to be wary of the accomplices’ testimony and guilty pleas—where they were effectively the only evidence against petitioner—could certainly reasonably be said to have prejudiced petitioner's defense. See Strickland , 466 U.S. at 696, 104 S.Ct. 2052 ("[A] verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support."). Particularly germane to the skeletal case against petitioner in this case, the Strickland Court further explained: "Some errors will have had a pervasive effect on the inferences to be drawn from the evidence, altering the entire evidentiary picture, and some will have had an isolated, trivial effect." Id. at 695-96.

13 See State ex rel. Myers v. Painter , 213 W. Va. 32, 38, 576 S.E.2d 277, 283 (2002) ("Taken cumulatively ... [t]he actions and omissions of the appellant's trial counsel were outside the range of reasonable professional judgment, and taken together prejudiced the appellant's ability to obtain a fair trial."); State ex rel. Humphries v. McBride , 220 W. Va. 362, 372, 647 S.E.2d 798, 808 (2007) (finding "cumulative effect" of errors created "a reasonable probability that, but for [counsel's] errors, the result of Humphries’ criminal trial would have been different."); State ex rel. Bess v. Legursky , 195 W. Va. 435, 444 n.10, 465 S.E.2d 892, 901 n.10 (1995) ("Appellant has proven prejudice as a result of the cumulative impact of multiple deficiencies in defense counsel's performance.")

Further, a court may not scrape together crumbs of evidence to support a verdict in order to minimize the prejudicial effect of ineffective assistance; the overall fairness of the trial must be examined. The Fourth Circuit has characterized a court's prejudice determination as "fatally unreasonable" where it "neither acknowledge[s] nor obey[s] the Strickland requirement to ‘consider the totality of the evidence before the ... jury’ ":

In the context of assessing the prejudicial effect of a failure to investigate mitigation evidence for sentencing, a court acts unreasonably if it does not "evaluate the totality of the available mitigation evidence—both that adduced at trial, and the evidence adduced in the habeas proceeding—in reweighing it against the evidence in aggravation." Williams , 529 U.S. at 397–98, 120 S.Ct. 1495 ; see also Porter v. McCollum , 558 U.S. 30, 130 S.Ct. 447, 454, 175 L.Ed.2d 398 (2009) (per curiam) ("The [state habeas court's] decision that Porter was not prejudiced by his counsel's failure to conduct a thorough—or even cursory—investigation is unreasonable [under Strickland ]. The [court] either did not consider or unreasonably discounted the mitigation evidence adduced in the postconviction hearing."); Rompilla , 545 U.S. at 390-93, 125 S.Ct. 2456 (finding prejudice under same totality-of-evidence standard on de novo review); Wiggins , 539 U.S. at 534-38, 123 S.Ct. 2527 (same).

Elmore v. Ozmint , 661 F.3d 783, 867-68 (4th Cir. 2011), as amended (Dec. 12, 2012).

Like the majority's discussion of the evidence herein, the Elmore court found that the state court "unreasonably discounted evidence favorable to Elmore by unduly minimizing its import and evaluating it piecemeal." Id. at 868. In its discussion, the majority seizes upon singular points on cross-examination, an inconclusive "tip" by petitioner's mother, and petitioner's mere proximity to admitted participants in the crime to bolster the evidentiary picture. However, there is little doubt that had the two accomplice instructions been given, along with introduction of the hotly contested tollbooth photo, "the jury undeniably would have seen a drastically different—and significantly weaker—prosecution case." Id. at 870.

By no means, however, do I suggest that but for trial counsel's omissions, petitioner would have been acquitted; that is not the standard. However, like Elmore , the State's "evidence of guilt, flimsy of its own right, is diminished further" if counsel had requested the instructions and introduced the photo. Id. at 871. See also Grueninger v. Dir., Va. Dep't of Corr. , 813 F.3d 517, 532 (4th Cir. 2016) ("We do not mean to suggest that the Commonwealth's independent evidence was insubstantial, or that it could not have supported a guilty verdict in the absence of Grueninger's confession. But that is not the standard we are to apply. Instead, the question is whether there is a ‘reasonable probability’ of a different outcome at trial had Grueninger's confession been excluded." (citations omitted)).

The extraordinary remedy of habeas corpus must be judiciously guarded. However, it is equally imperative that such relief be granted, and a new trial afforded, where a defendant's defense was so imperiled by attorney error that the trial was rendered fundamentally unfair. Therefore, for the foregoing reasons, I respectfully dissent from the majority's refusal to grant the instant petition for writ of habeas corpus.