Mark Lee v. Harold Clarke ( 2015 )


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  •                                PUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 13-7914
    MARK E. LEE,
    Petitioner - Appellant,
    v.
    HAROLD W. CLARKE, Director, Department of Corrections,
    Respondent - Appellee.
    Appeal from the United States District Court for the Eastern
    District of Virginia, at Richmond.  Henry E. Hudson, District
    Judge. (3:13-cv-00251-HEH)
    Argued:   December 10, 2014                 Decided:   March 20, 2015
    Amended:    April 15, 2015
    Before MOTZ, GREGORY, and WYNN, Circuit Judges.
    Reversed and remanded by published opinion. Judge Gregory wrote
    the opinion, in which Judge Motz and Judge Wynn joined.
    ARGUED: David Bernard Hargett, HARGETT LAW, PLC, Glen Allen,
    Virginia, for Appellant. Leah A. Darron, OFFICE OF THE ATTORNEY
    GENERAL OF VIRGINIA, Richmond, Virginia, for Appellee.        ON
    BRIEF: Mark R. Herring, Attorney General, OFFICE OF THE ATTORNEY
    GENERAL OF VIRGINIA, Richmond, Virginia, for Appellee.
    GREGORY, Circuit Judge:
    Mark   E.   Lee   (“Lee”)   appeals   the   district    court’s   order
    granting the motion of the Director of the Virginia Department
    of Corrections (“Director”) to dismiss his petition for a writ
    of habeas corpus.        We issued a certificate of appealability to
    address Lee’s claim that his trial counsel provided ineffective
    assistance by failing to request a jury instruction defining
    heat of passion.        We find that the state habeas court’s decision
    was based on an unreasonable application of clearly established
    federal law set forth in Strickland v. Washington, 
    466 U.S. 668
    (1984), in that the court failed to appreciate the prejudice
    inherent in the absence of a jury instruction defining heat of
    passion given that the undisputed facts demonstrate that the
    instruction was crucial to Lee’s defense.            We therefore reverse
    the   district     court’s    order   of    dismissal   and    remand   with
    instructions that it issue Lee a writ of habeas corpus unless
    the Commonwealth of Virginia endeavors to prosecute him in a new
    trial within ninety days.
    I.
    A.
    On September 16-17, 2008, Lee was tried by a jury in the
    Circuit Court for the City of Richmond on a charge of first
    degree murder in connection with the stabbing of a man named
    2
    Thomas Plummer.           According to the testimony of William Gormley,
    a forensics pathologist and an assistant chief medical examiner
    with Virginia’s Department of Health, Plummer suffered from “a
    total     of     seven      inflicted        sharp       force    injuries,”            but    he
    ultimately died as a result of “two fairly large stab wounds on
    his chest.”          J.A. 64. 1
    The    prosecution        presented       the    testimony     of    a    man     named
    Jarrell Drayton.           Drayton testified that in the early afternoon
    on April 9, 2008, he was outside on the 3100 block of Enslow
    Avenue in Richmond, Virginia.                  He stated that he was speaking
    with some people when he saw Plummer walking up the street.
    Drayton       also    observed     a   burgundy         truck,   in    which      Lee    was    a
    passenger,       drive      onto       the   3100        block    of    Enslow          Avenue.
    According to Drayton, Lee “looked at [Plummer] funny.”                              J.A. 81.
    When asked to elaborate, Drayton stated only that Lee “turned
    his face upside down.”             J.A. 81.
    Plummer walked over to Drayton and his acquaintances and
    asked for a gun.           The truck was “[a] couple of steps” away, and
    the window was rolled up.               J.A. 82.         When nobody produced a gun,
    Plummer       walked    over      to   the   truck      and   told     Lee   to    get        out.
    Drayton stated that Plummer “was ready to fight,” and that when
    Lee got out of the truck, Plummer “moved right up on him.”                                    J.A.
    1
    “J.A.” refers to citations to the joint appendix filed by
    the parties in this case.
    3
    83.     Drayton testified that Plummer struck Lee in the face, and
    that he observed blood coming from Lee’s eye.                                  Drayton thought
    Plummer struck Lee at most six times, but he was unsure.                                          As
    Plummer and Lee were fighting, Drayton heard Plummer yell “he
    stabbed me.”          J.A. 84.         Plummer then advanced “up the street
    holding his chest,” but Lee approached from behind and the two
    began fighting again.               Drayton first stated that Plummer was
    again stabbed in the chest, but later admitted that he was not
    sure    where    on    Plummer’s       body      the      blow     landed.           Plummer      ran
    around a car and Lee continued to pursue him, but Drayton and
    another    individual         intervened         and      told     Lee    to       leave   Plummer
    alone.     Drayton heard Lee state “I’m tired of him” and “I’m
    gonna kill him,” before running from the scene.                                      J.A. 85-87.
    Drayton    did    not        know     where      Lee       went     afterward.             Plummer
    collapsed and later died.
    After Drayton’s testimony, the prosecution rested its case.
    Lee’s    trial    counsel      then       made       a    motion    to    strike       the    first
    degree murder charge and to proceed instead on a second degree
    murder charge, arguing that the Commonwealth had failed to show
    premeditation.          He     also    moved         to    proceed       on    a    manslaughter
    charge alone, arguing that there was no evidence of malice given
    that    Plummer       provoked      Lee    by        striking       first.          J.A.     111-13
    (“[W]hen    there       is    an    assault          on    the     defendant,        and     he    is
    provoked through that assault through no fault of his own, then
    4
    that negates the element of malice, which is required for a
    murder conviction.” (citing Moxley v. Commonwealth, 
    77 S.E.2d 389
     (Va. 1953), and Wilkins v. Commonwealth, 
    11 S.E.2d 653
     (Va.
    1940)).      The   prosecutor   responded      that   “[i]f   the   defendant,
    after having been struck, had defended himself quickly with a
    knife and the fight would have terminated, then I would have
    brought [the court] a manslaughter case.”             J.A. 114.     He went on
    to characterize Drayton’s testimony:
    The truth is the fight was over, the man had been
    stabbed in the chest, he retreated, he backed off,
    “I’ve been stabbed,” at which point we are pursuing
    first degree murder, because this defendant then,
    after having stabbed the man once, pursued the man,
    stabbed him again, either got him in the heart or in
    the liver, and specifically said loud enough for
    everyone to hear: “I’m going to kill him.” And then
    even after they told him, “leave him alone,” he chased
    him down and stabbed him again.
    The Court is well aware, willful, deliberate, and
    premediated [intent] can be formed in the blink of an
    eye, and when you say, “I’m going to kill him,” you
    have reached the standpoint of first degree murder.
    J.A. 114.
    Lee’s    trial   counsel   argued   there    might   not   have   been   a
    cooling   off   period   between   the   two    stabbings.      However,   the
    trial court denied the motions, stating, “[t]he court believes
    the jury viewing the evidence in the light most favorable to the
    Commonwealth will have sufficient evidence of malice, and that
    evidence will include the defendant’s statement.”             J.A. 115.
    5
    B.
    Trial counsel then presented Lee’s case to the jury, in the
    form of testimony from Lee and Lee’s friend, Reginald Davis.
    Lee testified that he and Plummer had an argument the Friday
    prior to Plummer’s killing.          In particular, Lee testified that
    the two men were at the Salvation Army when Plummer “approached
    [him] about some rumors he had heard.”            J.A. 126.     Lee denied
    knowledge of the rumors, “[a]nd then [Plummer] pushed [him] into
    a lamp on a table at the Salvation Army.            And the houseman at
    the Salvation Army . . . put [them] both out that day.”                J.A.
    126.
    The following Wednesday, April 9, 2008, Davis was driving
    down Enslow looking for men to help pick up trash and do some
    other work for a friend.       Davis saw Lee and pulled over to let
    him into his truck so they could discuss the work.             As they were
    talking,   Lee   spotted   Plummer    outside.     Davis   testified   that
    Plummer passed by the truck, and then returned to speak to Lee.
    Davis stated that Lee “said something along the line . . . you
    got us kicked out of that place.”         J.A. 119.    Plummer “had this
    look in [sic] his face like he wanted to start fighting again,”
    and Lee urged Plummer to “let it go.”            J.A. 127.     Plummer then
    told Lee to get out of the truck, but before he could exit,
    Plummer began punching him through the window.               Plummer struck
    him in the face about the eye and his glasses.             Lee stated that
    6
    his “eye just started spitting out blood.”            J.A. 127.     Lee
    testified that Plummer pulled him out of the truck, and he fell
    to one knee.    Plummer “was over top of [Lee] beating [him], and
    [Lee] was throwing [his] hand up to try to . . . get up on [his]
    feet, and [Plummer] just kept on hitting [Lee] in [his] head.”
    J.A. 129.
    Lee drew a pocket knife, 2 swung it at Plummer, and then
    heard Plummer say, “He stabbed me.”         J.A. 131.     Lee admitted
    that he then stated, “Man you knocked my eye out.         Man I’m gonna
    kill this nigga.”       J.A. 131.    By then, Plummer was across the
    street yelling for someone to give him a gun.             Lee testified
    that he did not pursue Plummer or engage in additional fighting.
    Instead, other individuals in the area told Lee to leave, and he
    did so.
    Davis did not see the stabbing.        Rather, Davis exited the
    truck from the driver’s side once the fight began, but when he
    got to the passenger side, Lee and Plummer “were coming off the
    ground.”      J.A.   120.    Davis   observed   Plummer   running   away
    “holding his upper torso [and] saying, ‘I can’t believe I’ve
    been stabbed.’”      J.A. 120.   Davis then returned to his truck and
    drove away.    He testified that he did not see a knife in Lee’s
    hand at any point, and that he was unaware that Lee was armed.
    2
    Lee testified that he had the knife because he used it for
    his manufacturing job.
    7
    C.
    At the close of all testimony, Lee’s trial counsel again
    moved   to    strike    the    murder    charges    and    proceed        solely    on
    manslaughter.        Counsel argued that there was sufficient evidence
    of provocation, and also that the Commonwealth had failed to
    prove premeditation beyond a reasonable doubt.                       The trial court
    rejected     trial    counsel’s   arguments,       stating      that     there     were
    credibility determinations that must be put to the jury.                           The
    court stated also:
    The statement of the intent can incur [sic] after the
    forming of the intent, and that’s a jury issue.    The
    fact that the expression of the, I intend to kill him,
    was after one or two of the wounds is not relevant.
    The issue is when the intent was formed, not when it
    was stated, not when it was expressed.
    And I have read, too, the instruction on malice. I’ve
    read the instructions that have been offered without
    objection, and they are the law of the case and based
    on this law and the evidence before the Court, there
    are a number of jury issues.    The Court is not going
    to take this matter away from the jury.
    J.A. 147.
    The    trial     court   asked     both   counsel         to    look   at    the
    instructions;     neither      party    objected   to     the    instructions       or
    proposed any corrections or additions.              The court thus read the
    instructions to the jury.         Among them were:
    •   Instruction No. 3, in relevant part,
    If you find the Commonwealth has failed to prove
    beyond a reasonable doubt that the killing was
    malicious but that the Commonwealth has proved beyond
    8
    a reasonable doubt that the defendant killed Thomas
    Plummer, and further: (1) [t]hat the killing was the
    result of an intentional act; and (2) [t]hat the
    killing was committed while in the sudden heat of
    passion upon reasonable provocation[,] [t]hen you
    shall   find   the    defendant guilty of  voluntary
    manslaughter . . . . 3
    •   Instruction No. 4, in full,
    “Willful,   deliberate,  and  premeditated”   means  a
    specific intent to kill adopted at sometime before the
    killing, but which need not exist for any particular
    length of time.
    •   Instruction No. 5, in full,
    Malice is that state of mind which results in the
    intentional doing of a wrongful act to another without
    legal excuse or justification, at a time when the mind
    of the actor is under the control of reason.    Malice
    may result from any unlawful or unjustifiable motive
    including anger, hatred or revenge.     Malice may be
    inferred from any deliberate willful and cruel act
    against another, however sudden.
    •   Instruction No. 6, in full,
    You may infer malice from the deliberate use of a
    deadly weapon unless, from all the evidence, you have
    a reasonable doubt as to whether malice existed.     A
    deadly weapon is any object or instrument, not part of
    the human body, that is likely to cause death or great
    bodily injury because of the manner and under the
    circumstances in which it is used.
    •   Instruction No. 7, in relevant part,
    You have been instructed on more than one grade of
    homicide and if you have a reasonable doubt as to the
    grade of the offense, then you must resolve that doubt
    in favor of the defendant, and find him guilty of the
    lesser offense.
    3
    The omitted portion of Instruction No. 3 provides the
    elements of first and second degree murder. J.A. 196.
    9
    •   Instruction No. 8, in full,
    The difference between murder and manslaughter is
    malice. When malice is present the killing is murder.
    When it is absent, the killing can be no more than
    manslaughter.
    •   Instruction No. 9, in full,
    Once the Commonwealth has proved there was an unlawful
    killing, then you are entitled to infer there was
    malice and that the act was murder in the second
    degree unless, from all the evidence, you have a
    reasonable doubt as to whether malice existed.
    See J.A. 194-207.
    Instruction    No.   5    included         the     first    paragraph     of    the
    Virginia   model    instruction        on       malice    and     heat   of   passion.
    Neither    party    requested        the    full       model     instruction,    which
    includes   a   definition       of    heat       of    passion,     as   well    as     a
    discussion of the “cooling” of passion:
    Malice is that state of mind which results in the
    intentional doing of a wrongful act to another without
    legal excuse or justification, at a time when the mind
    of the actor is under the control of reason.    Malice
    may result from any unlawful or unjustifiable motive
    including anger, hatred or revenge.     Malice may be
    inferred from any deliberate, willful, and cruel act
    against another, however sudden.
    Heat of passion excludes malice when that heat of
    passion   arises  from   provocation  that  reasonably
    produces an emotional state of mind such as hot blood,
    rage, anger, resentment, terror or fear so as to
    demonstrate an absence of deliberate design to kill,
    or to cause one to act on impulse without conscious
    reflection.   Heat of passion must be determined from
    circumstances as they appeared to defendant but those
    circumstances must be such as would have aroused heat
    of passion in a reasonable person.
    10
    If a person acts upon reflection or deliberation, or
    after his passion has cooled and there has been a
    reasonable time or opportunity for cooling, then the
    act is not attributable to heat of passion.
    J.A.       253   (2-33    Virginia     Model      Jury     Instructions       –    Criminal
    Instruction No. 33.220) (omitted portions in bold).
    During       closing      arguments,        Lee’s     counsel       attempted       to
    distinguish malice and heat of passion for the jury.                          He stated:
    “You cannot at the same time have malice, which is required for
    both       first   and    second     degree    murder,       and    heat    of     passion,
    provocation.             The   two   are    what    they     called    [sic]       mutually
    exclusive.         You cannot have them both present at the same time.”
    J.A. 157; see also J.A. 161 (“If you find the force was too
    much, he didn’t need to take that knife at that point, but that
    Mark       Lee   was    provoked     into   that        killing,    that    negates     that
    malice       element      that     we’ve    been        talking    about.         That’s    a
    manslaughter.”).
    During      its    deliberations,          the    jury     contacted       the   court
    three times.           First, the jury sent a note indicating that it was
    unable to reach a unanimous verdict, and the court responded by
    giving an Allen charge. 4             The second time, the jury requested a
    4
    “An Allen charge, based on the Supreme Court’s decision in
    Allen v. United States, 
    164 U.S. 492
     (1896), is ‘[a]n
    instruction advising deadlocked jurors to have deference to each
    other’s views, that they should listen, with a disposition to be
    convinced, to each other’s argument.’” United States v. Burgos,
    (Continued)
    11
    clarification of the definition of premeditation.                            The court
    informed the jury that Instruction No. 4 was the only legal
    definition        of   willful,    deliberate,        and    premeditated     that    was
    available, and thus re-read that instruction.                     Finally, the jury
    contacted the bailiff and indicated that it was still unable to
    reach a unanimous verdict.               The court thus gave both an Allen
    charge and re-read Instruction No. 7.                   Neither counsel objected
    to    the    court’s      instructions         and    responses       to    the   jury’s
    questions.        Sixteen minutes after the last set of instructions,
    the   jury    returned     with    a    unanimous      verdict    of    second    degree
    murder.
    Trial counsel made an oral motion to set aside the verdict,
    arguing that the evidence of malice for second degree murder was
    insufficient.          The court summarily denied the motion, and the
    jury later sentenced Lee to the maximum sentence of 40 years’
    imprisonment.
    D.
    On     direct      appeal,       Lee    again     argued       that   there     was
    insufficient evidence of malice to sustain his second degree
    murder conviction.            In upholding the conviction, the Court of
    Appeals      of    Virginia    framed        “the    issue    [as]     whether,     after
    
    55 F.3d 933
    , 935 (4th Cir. 1995) (quoting United                             States    v.
    Seeright, 
    978 F.2d 842
    , 845 n.* (4th Cir. 1992)).
    12
    viewing     the       evidence    in    the         light   most   favorable      to   the
    prosecution, any rational trier of fact could have found the
    essential       elements     of   the    crime        beyond   a   reasonable     doubt.”
    J.A. 33 (internal quotation marks and citation omitted).                               The
    court thus credited Commonwealth witness Drayton’s testimony and
    found    that     a   jury   could      have    concluded      that   Lee   acted      with
    malice.     Lee’s subsequent appeal to the Virginia Supreme Court
    was denied.
    Lee thereafter, with the help of new counsel, filed a state
    habeas petition in the Circuit Court for the City of Richmond,
    alleging    that       his   trial     counsel        was   ineffective     due   to   his
    failure to request a heat of passion jury instruction. 5                          After a
    motions hearing, the court granted the Commonwealth’s motion to
    dismiss Lee’s habeas petition.                  In its written order, the court
    stated:
    [T]he Court finds, upon review of the trial record, no
    reasonable probability that but for the lack of
    request of counsel for a jury instruction [on] the
    definition of the heat of passion . . . [the outcome
    of trial] would have been different.        The Court
    concurs with the argument of the [Respondent] with
    regard to the testimony of the witnesses as well as
    5
    Lee additionally alleged ineffective assistance of counsel
    for failing to advise him to take a plea offer.        The court
    denied the claim and, although Lee appealed that ruling in his
    federal habeas petition filed in the Eastern District of
    Virginia, this Court granted Lee a certificate of appealability
    only as to his claim of ineffective assistance of counsel for
    failure to request the heat of passion instruction.
    13
    the guidance . . . one can infer with regard to jury
    deliberation [on] th[e] issue of malice.
    J.A.       295   (internal      quotation          marks    and    citations       omitted)
    (alterations in original).              The court noted in its opinion that
    Lee had not requested an evidentiary hearing concerning his heat
    of passion claim. 6            The Supreme Court of Virginia denied Lee’s
    subsequent appeal.
    Lee next filed a federal habeas petition in the Eastern
    District of Virginia.             He argued again he received ineffective
    assistance of counsel as a result of his trial counsel’s failure
    to request a jury instruction defining heat of passion. 7                           Relying
    on “[t]he Court of Appeals of Virginia[’]s apt[] summar[y] of
    the evidence of Lee’s guilt” as set forth in the state court
    opinion      denying     Lee’s    direct      appeal,       J.A.     300,   the    district
    court       denied     Lee’s     federal      habeas        petition       and    denied   a
    certificate of appealability.                 In particular, the district court
    stated that jurors knew from Jury Instruction No. 3 “that if Lee
    killed       Plummer     in      the    heat       of      passion     upon      reasonable
    provocation       they    should       only    find        him    guilty    of    voluntary
    manslaughter.”         J.A. 302-03.           The district court also concluded
    that the weight of the evidence against Lee was such that a heat
    6
    Lee did request an evidentiary hearing for his claim
    concerning the plea offer, but the court denied his request.
    7
    Lee also advanced his claim concerning the plea offer. As
    noted earlier, only Lee’s heat of passion instruction claim is
    at issue in this appeal.
    14
    of passion instruction would not have changed the outcome of his
    trial.
    Lee   filed      an    informal       appeal.     This       Court    granted    a
    certificate of appealability, and this appeal followed.
    II.
    “We     review     de    novo   a   district      court’s   denial       of    habeas
    relief based on a state record.”                     Tucker v. Ozmint, 
    350 F.3d 433
    , 438 (4th Cir. 2003).             Under the Antiterrorism and Effective
    Death    Penalty      Act     of   1996   (“AEDPA”),     federal      courts     may    not
    grant    a    petitioner’s         habeas     petition    where      the     state   court
    adjudicated the petitioner’s habeas claims on the merits unless
    the   state    court’s        decision      “was    contrary   to,    or     involved    an
    unreasonable application of clearly established Federal law, as
    determined by the Supreme Court of the United States,” or “was
    based on an unreasonable determination of facts in light of the
    evidence presented in the State court proceeding.”                             
    28 U.S.C. § 2254
    (d).         “In      reviewing     a    state    court’s      ruling     on   post-
    conviction relief, we are mindful that ‘a determination on a
    factual issue made by a State court shall be presumed correct,’
    and the burden is on the petitioner to rebut this presumption
    ‘by clear and convincing evidence.’”                     Tucker, 
    350 F.3d at 439
    (quoting 
    28 U.S.C. § 2254
    (e)); see also Lindh v. Murphy, 521
    
    15 U.S. 320
    , 333 n.7 (1997) (referring to § 2254(d) as a “highly
    deferential standard for evaluating state court rulings”).
    We review claims based on ineffective assistance of counsel
    under the familiar two-part standard set forth in Strickland.                      A
    claimant must show first, that his counsel’s conduct “fell below
    an objective standard of reasonableness,” and second, that he
    was prejudiced as a result of counsel’s conduct.                          Strickland,
    
    466 U.S. at 688
    .      When reviewing ineffective assistance claims,
    courts “must consider the totality of the evidence before the
    judge or jury.”       
    Id. at 695
    .         As to counsel’s performance, “a
    court must indulge a strong presumption that counsel’s conduct
    falls   within    the      wide    range        of    reasonable      professional
    assistance; that is, the defendant must overcome the presumption
    that, under the circumstances, the challenged action ‘might be
    considered    sound     trial     strategy.’”          
    Id. at 689
    .      As   to
    prejudice, a claimant must demonstrate “a reasonable probability
    that, but for counsel’s unprofessional errors, the result of the
    proceeding    would     have    been   different.”            
    Id. at 694
    .     A
    reasonable    probability         is   one       “sufficient        to     undermine
    confidence in the outcome.”               
    Id.
            And, “[i]n cases where a
    conviction has been the result of a trial, the defendant must
    demonstrate that but for counsel’s errors, there is a reasonable
    probability   that    he   would    not    have      been    convicted.”      United
    States v. Luck, 
    611 F.3d 183
    , 186 (4th Cir. 2010).
    16
    Finally, we note that “when a petitioner’s habeas corpus
    claim   is     based    on     alleged    ineffective        assistance      of   counsel
    . . . . [t]he AEDPA standard and the Strickland standard are
    dual    and     overlapping,           and    we     apply     the    two      standards
    simultaneously         rather      than      sequentially.”            Richardson        v.
    Branker, 
    668 F.3d 128
    , 139 (4th Cir. 2012) (citing Harrington v.
    Richter, --- U.S. ---, 
    131 S. Ct. 770
     (2011)).                              Because both
    standards      of     review    are    “‘highly      deferential’      to     the   state
    court’s adjudication . . . , ‘when the two apply in tandem, the
    review is doubly so.’”            
    Id.
     (citing and quoting Richter, 
    131 S. Ct. at 788
    ).
    III.
    A.
    Lee contends that any reasonably competent attorney would
    have requested the Virginia jury instruction defining heat of
    passion.        The    Director       does    not    argue    that    the    failure     to
    request the instruction was not deficient, and the state habeas
    court    did     not     address       ineffectiveness         in     its     Strickland
    analysis.      While we do not today set forth the only circumstance
    in which a heat of passion instruction is required, it is clear
    from    the    testimony        that     arose      during    Lee’s    trial      that    a
    competent attorney would have requested the instruction in this
    case.
    17
    “Virginia        has   long   recognized         that   malice       and    heat      of
    passion cannot coexist.             Proof of malice excludes the presence
    of   passion,     and    proof   of   passion         presupposes     the    absence        of
    malice.”     Hodge v. Commonwealth, 
    228 S.E.2d 692
    , 697 (Va. 1976)
    (citing    Brown       v.    Commonwealth,       
    10 S.E.2d 745
    ,    747-48      (Va.
    1890)).    As the Virginia Supreme Court has stated,
    [i]n a given situation, the accused, without producing
    evidence, may be entitled to an instruction on
    manslaughter, or even to a verdict on that lesser
    charge, if it can reasonably be inferred from the
    Commonwealth’s evidence that he acted in the heat of
    passion.   Where the Commonwealth’s evidence does not
    permit such an inference, however, the burden of
    production shifts to the accused.         But when he
    produces some credible evidence that he acted in the
    heat of passion, he is entitled to an instruction on
    manslaughter and also, if the evidence as a whole
    raises a reasonable doubt that he acted maliciously,
    to a verdict on the lesser charge of homicide.
    
    Id.
     (citing McClung v. Commonwealth, 
    212 S.E.2d 290
    , 293 (Va.
    1975)).
    Here, Lee “produce[d] some credible evidence that he acted
    in   the   heat    of   passion,”     and    was      therefore      “entitled         to   an
    instruction       on    manslaughter.”           Hodge,       228    S.E.2d       at    697.
    Indeed, there was undisputed testimony at trial from both the
    Commonwealth and the defense that Plummer struck first, beating
    Lee about his face several times and drawing blood.                              There was
    no finding by the state trial court that any witness’s testimony
    was not credible.            Rather, because other facts were in dispute,
    the trial court correctly put the matter to the jury.
    18
    Critically, however, the jury was never provided with a
    complete definition of heat of passion.                But where, as here,
    there is ample evidence of heat of passion, an instruction on
    manslaughter is ineffective if not accompanied by an instruction
    defining   heat   of   passion.        See   Belton   v.   Commonwealth,     
    104 S.E.2d 1
    , 4 (Va. 1958).         In Belton, the Virginia Supreme Court
    found   that   the     trial   court    committed     reversible     error   by
    refusing, among other errors, to give the jury an instruction
    “on the distinction between malice and passion.”              
    Id.
        The court
    stated that “[t]here [was] evidence in the record tending to
    support” the defendant’s theory that he shot and killed his wife
    in the heat of passion during an argument in which she first
    taunted him about her relationships with other men and then hit
    him.    
    Id.
        The court went on to note that not only was an
    instruction on the law of voluntary manslaughter necessary, but
    also an instruction distinguishing heat of passion from malice.
    Id. at 4-5; cf. Arnold v. Commonwealth, 
    560 S.E.2d 915
    , 918-19
    (Va. Ct. App. 2002) (“While it is true that ‘[m]alice and heat
    of passion are mutually exclusive,’ we have held that where it
    is not the victim of the crime who invoked the defendant’s heat
    of passion, there was no evidence to support a [jury instruction
    or] finding of heat of passion.”             (footnotes omitted)).     Because
    “malice and heat of passion cannot coexist,”               Hodge, 228 S.E.2d
    at 697, it follows that the jury must be appropriately apprised
    19
    of the legal definition of each, at least in cases like this
    where it is undisputed that the passion was provoked by the
    victim.
    There is certainly a question concerning whether Lee, after
    stabbing Plummer once, pursued him a second time.               But under the
    facts here, the discrepancy does not diminish the importance of
    the heat of passion instruction.          Generally,
    whether provocation, shown by credible evidence, is
    sufficient to engender the [f]uror brevis necessary to
    rebut the presumption of malice arising from a
    homicide is a question of fact.   Only when the trial
    court, giving the defendant the benefit of every
    reasonable inference from the evidence, can say that
    the minds of reasonable men could not differ does the
    question become a question of law.     Subject to the
    same standards, it is also a question of fact whether
    the defendant committed the homicide before or after
    his passion had cooled.
    McClung, 212 S.E.2d at 292 (internal citation omitted).                     Put
    differently,    not   only   is   the     sufficiency    of    provocation    a
    question of fact for the jury, but also the question of when any
    passion stirred by the provocation cooled.              Here, assuming that
    Lee pursued Plummer a second time, there was very little time
    between the two fighting incidents.           The Virginia Supreme Court
    has found it appropriate to issue a cooling instruction for much
    longer cooling off periods than that potentially present here.
    See   Potter   v.   Commonwealth,   
    283 S.E.2d 448
    ,      450   (Va.   1981)
    (discussing cooling off instructions given in cases involving
    twenty-four     hours,    three     hours,    and      two    years    between
    20
    provocation       and      killing).      Moreover,        regardless    of     whose
    testimony is believed and contrary to what the Director appears
    to argue in his brief, Lee made the statement that he was going
    to   kill    Plummer    after    the    fighting     had   ceased.      Thus,    even
    though      the   malice    necessary    for    a   finding    of    second   degree
    murder can be “‘implied from any deliberate or cruel act against
    another,     however    sudden,’”      Thomas   v.    Commonwealth,      
    41 S.E.2d 476
    , 480 (Va. 1947) (citing Scott v. Commonwealth, 
    129 S.E. 360
    ,
    363 (Va. 1925)), there would remain, under the facts of this
    case, “a question of fact whether the defendant committed the
    homicide before or after his passion had cooled,” McClung, 212
    S.E.2d at 292.
    Finally, we note that “strategic choices must be respected
    . . . if they are based on professional judgment.”                      Strickland,
    
    466 U.S. at 681
    .            But here, Lee’s trial counsel in a May 25,
    2011 letter stated that “[t]here was no strategic reason for the
    omission of the instruction.”            J.A. 271.
    Because Lee’s trial counsel had no strategic reason for
    failing to request the heat of passion jury instruction, and
    because it was error to fail to do so in any event under the
    facts of this case, we find that Lee has satisfied the first
    prong of the Strickland/AEDPA test.
    21
    B.
    We   turn   now     to    the    issue      of   prejudice.          To    determine
    whether Lee satisfied the prejudice prong of Strickland, the
    state habeas court was required to consider the “totality of the
    evidence before the judge or jury.”                          Strickland, 
    466 U.S. at 695
    .    In conducting its analysis, it agreed with and adopted the
    arguments     made   by    the        Commonwealth.           J.A.    295   (“The    [state
    habeas] Court concurs with the argument of the [Respondent] with
    regard to the testimony of the witnesses as well as the guidance
    . . . one can infer with regard to the deliberation [on] th[e]
    issue of malice.” (first alteration added)); see also J.A. 264-
    66 (Commonwealth’s memorandum of law before state habeas court).
    In reviewing the state habeas court’s conclusions, “[o]ur
    inquiry regarding the prejudice prong is twofold:                               (1) whether
    the instruction, if requested, should have been given; and (2)
    if   the    instruction         had    been   given,         was   there    a    reasonable
    probability that the outcome of the proceedings would have been
    different.”        Luck, 
    611 F.3d at 189
    .                    We answer both of these
    questions     in     the    affirmative.                As    explained         below,    the
    undisputed testimony that Plummer struck Lee first demonstrates
    that   the   state       habeas       court’s      Strickland        analysis     fails    to
    perceive the prejudice created by the lack of a definitional
    heat of passion instruction.
    22
    First, if requested, the trial court should have given the
    complete heat of passion instruction.            As discussed at length
    above, Lee produced evidence of provocation and heat of passion.
    The Commonwealth’s witness, Drayton, also testified that Plummer
    provoked Lee.     Accordingly, Lee was entitled not only to an
    instruction on manslaughter, which he received, but also to an
    instruction defining heat of passion.        See Belton, 104 S.E.2d at
    4-5 (finding that where victim hit defendant during an argument,
    trial court should have given instruction distinguishing heat of
    passion from malice); Hodge, 228 S.E.2d at 697 (stating that a
    defendant is entitled to an instruction on manslaughter if he
    produces “some credible evidence that he acted in the heat of
    passion”); Arnold, 
    560 S.E.2d at 918-19
     (finding that it was not
    error   for   trial   court   to   refuse   to   give   heat    of   passion
    instruction where defendant failed to produce evidence of heat
    of passion).     Notably, the trial court made no finding that
    there was insufficient evidence to support a heat of passion
    defense.
    To address the second question, we look to the importance
    of the instruction under the facts of this case.               The Director
    argues that the lack of a heat of passion instruction could not
    have been prejudicial because Lee’s trial counsel discussed heat
    of passion during his closing arguments.         This is incorrect.      As
    an initial matter, it is well established that “arguments of
    23
    counsel     generally      carry       less    weight        with     a    jury   than      . . .
    instructions from the court.”                       Boyde v. California, 
    494 U.S. 370
    , 384 (1990) (stating that arguments of counsel “are usually
    billed     in    advance       to    the   jury      as     matters       of   argument,     not
    evidence        . . .   and     are    likely       viewed     as     the      statements     of
    advocates,” while jury instructions from the court, “we have
    often      recognized,         are     viewed        as      definitive         and    binding
    statements of the law”).               To be sure, “[j]urors are not lawyers;
    they do not know the technical meaning” of legal terms such as
    heat of passion.               See Carter v. Kentucky, 
    450 U.S. 288
    , 303
    (1981).          Accordingly,         “[t]he        other     trial       instructions        and
    arguments of counsel that the . . . jurors heard at the trial”
    cannot “substitute for [an] explicit instruction.”                                
    Id. at 304
    (“[M]ost        certainly,      defense       counsel’s       own     argument        that   the
    petitioner ‘doesn’t have to take the stand . . . [and] doesn’t
    have to do anything’ cannot have the purging effect that an
    instruction from the judge would have had.” (second alteration
    in original)); see also Muhammad v. Warden of Sussex I State
    Prison, 
    646 S.E.2d 182
    , 194 (Va. 2007) (“It is presumed that a
    jury will follow the instructions given by the trial court.”).
    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.
    24
    Moreover,        here,    trial    counsel     attempted     to    distinguish
    malice    and    heat    of    passion     without       once   setting    forth    or
    otherwise       explaining      the     full     force     of   Virginia’s     model
    instruction defining heat of passion.                He repeatedly stated that
    heat of passion negates malice but did not describe heat of
    passion   itself.        He     never    informed    jurors      that     “[h]eat   of
    passion must be determined from circumstances as they appeared
    to the defendant.”            J.A. 253.        And perhaps most important, he
    failed entirely to explain that, under the law of Virginia, the
    same emotions that can serve as the basis for malice can also
    serve as the basis for heat of passion.                     Compare Barrett, 341
    S.E.2d at 192 (“Heat of passion . . . may be founded upon rage,
    fear, or a combination of both.” (emphasis added) (citations
    omitted)),      and   J.A.    253     (model    instruction     defining     heat   of
    passion as arising from “hot blood, rage, anger, resentment,
    terror or fear” (emphasis added)), with Thomas, 41 S.E.2d at 480
    (“Malice . . . includ[es] not only anger, hatred and revenge,
    but every other unlawful and unjustifiable motive.” (emphasis
    added)), and J.A. 199 (Instruction No. 5, stating malice can
    arise from “anger, hatred or revenge” (emphasis added)).
    The facts in this case expose the consequences of trial
    counsel’s omission.           It cannot be overemphasized that, according
    to both Commonwealth and defense witnesses, Plummer struck Lee
    first such that Lee was bleeding from his head or his eye.
    25
    There can be no serious doubt that such an attack would engender
    anger,   rage,    fear   or     similar    emotions.        Thus,    the   principal
    prejudicial factor lies in the manner in which the legal import
    of these emotions was framed for the jury.                    The jury was well
    aware    that     “[m]alice       may     result   from       any     unlawful      or
    unjustifiable motive including anger, hatred or revenge.”                          J.A.
    199 (Instruction No. 5).          But it was never told, in any fashion,
    that if a reasonable person, when provoked, felt “rage, anger,
    [or] resentment,” then the jury could find instead that that
    person was acting in the heat of passion.                          J.A. 253 (model
    instruction defining heat of passion); see also Barrett, 341
    S.E.2d   at     192.      Put     differently,     the      jury    was    given     to
    understand “anger, hatred or revenge” as exclusively “unlawful
    or unjustifiable motive[s].”              J.A. 199 (Instruction No. 5).             It
    was not presented the option of applying the law of heat of
    passion -- that is, the option of concluding that anger, rage,
    or hatred arose from anything other than malice.                       Absent that
    option, the state trial court, through trial counsel’s failure
    to request the heat of passion instruction, deprived the jury of
    any legal avenue to find Lee guilty of manslaughter as opposed
    to   second   degree     murder    on   the    facts   of    this    case.     Trial
    counsel further compounded the problem by failing to explain
    during his closing argument that heat of passion and malice can
    arise from similar emotions.
    26
    The state habeas court turned a blind eye to this reality
    in     accepting       Lee’s         trial     counsel’s       brief          and     incomplete
    discussion      of   heat       of    passion    as    sufficient             to    overcome    the
    prejudice in this case.                  Put simply, and upon consideration of
    the    totality      of    the       evidence    before       the       trial      court,     trial
    counsel’s      closing         argument      could     not    carry       the       day.      Trial
    counsel did not define heat of passion for the jury.                                  He did not
    explain that anger or rage could legally signify either heat of
    passion or malice.               He did not reiterate for the jury that a
    finding that Lee’s anger or rage was attributable to heat of
    passion would completely supplant a finding that his anger or
    rage was attributable to malice.                       By failing to make plain to
    the jury that it had a legal choice between anger qua malice and
    anger    qua    heat      of    passion,       trial       counsel’s      closing          argument
    failed to remedy the lack of a jury instruction defining heat of
    passion.       In any event, and as discussed above, it would matter
    little whether trial counsel’s closing argument had been more
    adequately       presented,            because        it     was        not        supported     by
    “definitive and binding statements of the law” in the form of
    jury    instructions.                Boyde,     
    494 U.S. at 384
    .          This    was
    prejudicial.           The       state       habeas    court        unreasonably           applied
    Strickland in concluding otherwise, even when its conclusion is
    considered through the deferential lens of AEDPA.                                  Instead, with
    27
    only what little argument was offered, and without the heat of
    passion instruction, Lee suffered prejudice.
    The     Director    also     urges     the       Court    that       there    was     no
    prejudice because “it is evident from the jury’s deliberations
    that the jury did not believe the petitioner’s testimony and the
    jury’s     attention     was     focused        on    whether        Lee    acted        with
    premeditation.”       Appellee’s Br. 19.             But as the Virginia Supreme
    Court very recently stated, “[a] question posed to the court
    during     deliberations       . . .   could         suggest    as    little       as     the
    tentative views of a single juror.                    It cannot be extrapolated
    into a binding finding by the jury as a whole.”                            Dominguez v.
    Pruett, 
    756 S.E.2d 911
    , 915 (Va. 2014) (internal citation and
    quotation marks omitted).              Here, for example, it is possible
    that the question arose because a single juror was in favor of
    first degree murder, while some or all of the remaining jurors
    were in favor of second degree murder.                        And, for the reasons
    discussed    above,     there    is    a   reasonable         probability         that    the
    jurors were in favor of second degree murder only because they
    were never apprised of the definition of heat of passion.
    Our    conclusion     is    further        bolstered      by    Virginia      Supreme
    Court cases suggesting a reasonable probability that the outcome
    of Lee’s trial would have been different had the heat of passion
    instruction     been      given.           For       example,        in     Barrett        v.
    Commonwealth, two men were involved in a fistfight.                          
    341 S.E.2d 28
    190,       192    (Va.    1986).         The     loser      of    the    fight,    Gilchrist,
    “threatened Barrett, stating their next fight ‘wouldn’t be with
    fists.’”          
    Id.
             Barrett    was   fearful       because       Gilchrist         had   a
    reputation for carrying a gun.                    
    Id.
           Later, Barrett was walking
    with a friend when he encountered Gilchrist again.                                     Barrett’s
    friend testified that he saw Gilchrist pull out a gun.                                 When the
    friend yelled a warning, Barrett pulled out his own gun and shot
    Gilchrist. 8            The    Virginia     Supreme         Court       held   that     “a    jury
    reasonably could find from the evidence that Barrett did not act
    maliciously, but acted upon reasonable provocation, in the heat
    of   passion       induced       by     fear.”        Id.    at     193.       Here,     it    was
    undisputed that Plummer initiated the fight by punching Lee in
    the face.          Given these facts, and given the standard announced
    in Barrett, there is a reasonable probability that a jury would
    find       that   Lee    acted     upon    reasonable            provocation      in    heat       of
    passion when he swung his pocket knife at Plummer. 9
    8
    Barrett was convicted only of malicious wounding.
    However, “[b]ecause the mental-state elements of unlawful
    wounding are the same as those of voluntary manslaughter, [the
    Virginia Supreme Court] . . . examine[d] homicide law” in
    resolving the case. Barrett, 341 S.E.2d at 192.
    9
    Despite the unanimous testimony that Plummer initiated the
    fight by striking Lee in the face, the Director argues that Lee
    provoked Plummer by “making a derogatory facial expression” at
    Plummer and verbally blaming Plummer for the incident at the
    Salvation Army.    Appellee’s Br. 16-17.    Even if such actions
    were to blame for the ensuing physical altercation, there is a
    factual issue as to whether Lee or Plummer made a face and spoke
    first.    Compare J.A. 81, 83 (Drayton’s testimony that Lee
    (Continued)
    29
    Also      illustrative          is      another      case,        Callahan     v.
    Commonwealth, 
    63 S.E.2d 617
     (Va. 1951), in which a jury found
    the    defendant    guilty      of     voluntary       manslaughter.        There,   the
    defendant and the deceased were arguing near the entrance to a
    cafe.     Id. at 618.           Witnesses for the Commonwealth testified
    that    the    deceased       left    the   entrance      and   walked     toward    the
    defendant, at which point the defendant fired a pistol at the
    deceased’s feet.         Id.    The deceased continued walking toward the
    defendant, and the defendant then fired two more shots, killing
    the deceased.           Id.     The defendant’s witnesses, on the other
    hand, testified that the deceased threatened the defendant both
    verbally and with a knife, and that the defendant subsequently
    fired the warning shot and the fatal shots.                        Id.    The jury was
    instructed on not only manslaughter, but also first and second
    degree        murder,     and        returned      a     verdict     for     voluntary
    manslaughter.           Id.    at    619-20.       The    Virginia       Supreme    Court
    affirmed the conviction.               While a heat of passion instruction
    was not directly at issue in Callahan, it is noteworthy that the
    jury convicted the defendant of voluntary manslaughter despite
    conflicting evidence about provocation.                    In this case, there is
    evidence of provocation from both the Commonwealth and Lee.                           It
    “looked at [Plummer] funny” and that Plummer told Lee to get out
    of the truck”), with J.A. 119 (Davis testimony that Lee spoke
    first).
    30
    thus seems reasonably probable that, if properly instructed on
    the definition of heat of passion, a jury would conclude that
    Lee    was    guilty      of    manslaughter       as   opposed      to    second        degree
    murder.
    There     remains       the   question      of    whether         Lee       pursued   and
    stabbed Plummer a second time.                     But again, even assuming two
    stabbings, there is a reasonable probability that a jury would
    conclude that Lee was acting in the heat of passion for the
    duration of the fighting.                   The Virginia Supreme Court stated
    that   there        was   “credible    evidence         to    support”         a    defendant’s
    theory of voluntary manslaughter resulting from provocation and
    heat of passion in Crockett v. Commonwealth, 
    47 S.E.2d 377
    , 382
    (Va. 1946).           There, the deceased beat the defendant with his
    fists and with a bottle of gin during the course of a card game.
    Id. at 379.           Three hours later, the defendant sought out the
    deceased and shot him in the chest.                           Id.        The Commonwealth
    argued    that       sufficient      time    had   elapsed         for    the       defendant’s
    blood to cool, whereas the defendant argued that he shot the
    deceased in the heat of passion.                   Id. at 381-82.                  The Virginia
    Supreme Court observed that, based on the facts, it was error to
    give the jury instructions pertaining only to the Commonwealth’s
    theory       that     the      defendant’s     blood         had    cooled         before    the
    shooting.       Id. at 381.          Rather, the jury should have also been
    given an instruction that supported the defendant’s theory that
    31
    the he was operating in the heat of passion when he shot the
    deceased.      Id. at 381-82.         Here, too, there is credible evidence
    that Lee was acting in the heat of passion, and there is a
    reasonable probability that a jury would so conclude if properly
    instructed.       See McClung, 212 S.E.2d at 293 (finding that jury
    could have concluded that defendant acted in heat of passion
    where jury “could have concluded that the ‘cooling time’ was
    less than half an hour”).
    We note finally that a verdict of manslaughter would have
    resulted in a substantially shorter sentence.                       Under Virginia
    law, second degree murder is punishable by a maximum of forty
    years in prison.           Va. Code § 18.2-32.           By contrast, manslaughter
    is a Class 5 Felony punishable by a maximum of ten years in
    prison.        Va.    Code      §§ 18.2-35,       18.2-10(e).       Here,      Lee    was
    sentenced to the maximum term for second degree murder.                         Because
    there is a reasonable probability that the jury would have found
    Lee   guilty      only     of   manslaughter,       he    would   have    received     a
    sentence at least thirty years shorter.                    This difference in the
    applicable sentences is undoubtedly prejudicial.                        See Glover v.
    United States, 
    531 U.S. 198
    , 202-04 (2001) (holding that Sixth
    Amendment prejudice resulted from an unasserted error that added
    six to twenty-one months to the defendant’s sentence).
    In   sum,      the   trial     court    should     have   given    the   heat    of
    passion     instruction         if   asked.        Trial     counsel’s      inadequate
    32
    discussion of heat of passion during closing argument did not
    cure the lack of instruction.          Under the law of Virginia, the
    undisputed facts here present a reasonable probability that the
    outcome of Lee’s trial would have been different if the heat of
    passion instruction had been given, and we therefore find that
    Lee was prejudiced by his trial counsel’s failure to request the
    heat of passion instruction.
    IV.
    For the foregoing reasons, we find that the state habeas
    court’s denial of Lee’s ineffective assistance claim was based
    on an unreasonable application of clearly established federal
    law set forth in Strickland and its progeny, even when viewed
    through the additional lens of AEDPA.           Specifically, given the
    undisputed   facts   presented   at    Lee’s   trial,   the   state    habeas
    court   erred   in   disregarding     the   prejudice    created      by   the
    omission of a jury instruction defining heat of passion.                   The
    district court’s order is therefore reversed, and this case is
    remanded with instructions to issue Lee a writ of habeas corpus
    unless the Commonwealth of Virginia endeavors to prosecute him
    in a new trial within ninety days.
    REVERSED AND REMANDED
    33