Decided: March 20, 2015
The Fourth Circuit held that Virginia’s state habeas court incorrectly applied the Strickland standard because they did not find prejudice in a lack of a heat of passion jury instruction, and reversed and remanded for a writ of habeas.
This case was an appeal from a dismissal of a writ of habeas corpus, in which appellant Lee claimed ineffective assistance of counsel due to his attorney’s failure to ask for a jury instruction that defined heat of passion. In the original trial, when Lee was charged with murder, there was evidence presented that demonstrated that Lee killed the man after the man attacked him. Defense counsel therefore moved to proceed either on a second degree murder charge or manslaughter charge, since defense contended that the prosecution failed to show premeditation, and that there was no malice present since Lee was provoked. The trial court denied the motions, and the defense then presented their case and a witness who testified on Lee’s behalf. Defense counsel then moved to proceed solely on the manslaughter charges, but again trial counsel rejected the defense’s motions, and proceeded to ask both sides for the appropriate jury charges. Although there were several forms to choose from, neither side chose any charges that included the definition of heat of passion, although defense counsel attempted to distinguish between the definition of malice and the definition of heat of passion in his closing arguments. During deliberations, the jury was given an Allen charge twice, as well as a clarification of another legal term. The jury pronounced him guilty, and the Court of Appeals of Virginia upheld the conviction, and the Supreme Court of Virginia declined to hear his subsequent appeal. Lee then, with new counsel, filed a state habeas petition claiming that he received ineffective assistance of counsel due to his attorney’s failure to ask for a heat of passion jury charge. The Circuit Court of Richmond denied his appeal, as did the Supreme Court of Virginia. He then filed a federal petition in the Eastern District of Virginia, who denied his claim and also noted that the evidence against Lee was strong enough that he was not prejudiced by the lack of a heat of passion instruction.
After asserting that it would review the proceedings de novo, the Fourth Circuit went on to define both the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) test for habeas petitions and the Strickland two-prong test for ineffective assistance of counsel, and determined that it was appropriate to apply both simultaneously in this case. The court then looked at the facts of the case and, based on the facts present, said that because there were facts that were in dispute in the case, it was appropriate for it to go before the jury. However, the court firmly stated that in cases where there is “ample evidence” of heat of passion, it was ineffective to request a manslaughter instruction and fail to also request a heat of passion instruction. Since the court could not find that there was a legitimate strategic reason for failing to request the instruction, defense counsel failed the first prong. The Fourth Circuit then examined the second prong, whether or not there was prejudice by the failure to request the instruction. The court noted that even though the Director argued that it was sufficient for defense counsel to mention heat of passion in closing arguments, juries do not give closing arguments the same weight as they do jury charges. Furthermore, even though defense counsel attempted to distinguish between malice and heat of passion, he did so without the benefit of the jury having heard the full definitions of those terms. Based on the facts of the case, which the court believed created a substantial jury question that could have resulted in a different outcome had the jury been able to choose based on knowing the definition of heat of passion, as well as on the fact that Lee’s sentence would have been considerably shorter had he been charged with manslaughter, the Fourth Circuit reversed the district court’s order and remanded to issue Lee a writ of habeas corpus unless Virginia decided to hold a new trial.