Mark Wright v. Harold Clarke

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 19-7447
MARK O’HARA WRIGHT,
Petitioner – Appellant,
v.
HAROLD CLARKE, Director, VA. Department of Corr.,
Respondent – Appellee.
Appeal from the United States District Court for the Western District of Virginia, at
Roanoke. James P. Jones, District Judge. (7:18-cv-00533-JPJ-PMS)
Argued: May 6, 2021 Decided: June 21, 2021
Before GREGORY, Chief Judge, and HARRIS and QUATTLEBAUM, Circuit Judges.
Reversed in part and remanded by unpublished opinion. Judge Harris wrote the opinion,
in which Chief Judge Gregory joined. Judge Quattlebaum wrote a separate opinion,
concurring in the judgment.
ARGUED: J. Andrew Mackenzie, Joshua Short, UNIVERSITY OF VIRGINIA
SCHOOL OF LAW, Charlottesville, Virginia, for Appellant. Victoria Lee Johnson,
OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for
Appellee. ON BRIEF: J. Scott Ballenger, Rachel Daley, Third Year Law Student, Anna
Cecile Pepper, Third Year Law Student, Appellate Litigation Clinic, UNIVERSITY OF
VIRGINIA SCHOOL OF LAW, Charlottesville, Virginia, for Appellant. Mark R. Herring,
Attorney General, K. Scott Miles, Deputy Attorney General, Donald E. Jeffrey, III, Senior
Assistant Attorney General, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA,
Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
2
PAMELA HARRIS, Circuit Judge:
Petitioner Mark O’Hara Wright appeals the district court’s denial of his § 2254
petition, based on his trial counsel’s alleged ineffective assistance. On state collateral
review, the Supreme Court of Virginia dismissed Wright’s claim on the ground that his
counsel’s performance was not constitutionally deficient under Strickland v. Washington,
466 U.S. 668 (1984). According to Wright, the state court unreasonably applied clearly
established federal law in reaching that judgment, deferring under Strickland’s first prong
to a purportedly strategic judgment that in fact rested on an undisputed and constitutionally
unreasonable mistake of law.
We agree with Wright. The Supreme Court of Virginia applied the wrong legal
standard in assessing trial counsel’s performance under Strickland. Under the correct and
clearly established standard, trial counsel’s performance fell below prevailing professional
norms when he failed, without justification, to inform himself of state law critical to his
client’s case. We further conclude that had Wright’s trial counsel been adequately
informed, there is a reasonable probability that the outcome of his trial would have been
different, establishing prejudice under Strickland’s second prong. Accordingly, we reverse
in part the district court’s dismissal of Wright’s § 2254 petition and remand with
instructions to grant relief on the claim of ineffective assistance of counsel.
I.
This case began when petitioner Mark O’Hara Wright, along with his brother,
entered a grocery store in Virginia, took deli sandwiches and two cases of beer, and then
3
left without paying. Wright was convicted of the Virginia offense of grand larceny from
the person and sentenced to ten years’ imprisonment. He now seeks relief from that
conviction under 28 U.S.C. § 2254, on the ground that his trial counsel’s failure to object
when his jury was instructed on grand larceny constituted ineffective assistance under
Strickland v. Washington, 466 U.S. 668 (1984), and thus violated his Sixth Amendment
right to counsel.
A.
On March 25, 2012, Wright and his brother, Robert, accompanied by Robert’s 15-
year-old stepson, drove to Martin’s Grocery in Harrisonburg, Virginia. Wright and his
brother walked into the grocery, took sandwiches and two cases of beer, and left without
paying for their merchandise. The store’s security guard, Garrett Atkins, followed the
brothers to their minivan and took one of the cases of beer from Robert’s hands. At that
point, Robert’s stepson stepped out of the minivan – with Wright on the opposite side of
the van, out of Atkins’s view – and “took a fighting stance,” telling Atkins, “I’m going to
fuck you up.” J.A. 94. Robert then grabbed the beer back from Atkins, and Wright, Robert,
and Robert’s stepson left in the minivan, taking with them the sandwiches and beer.
A grand jury indicted Wright for robbery by means of violence, based on Robert’s
physical taking of the beer from Atkins in the parking lot. 1 On the day of Wright’s 2012
1
Wright also was charged with two other offenses stemming from the events at the
grocery store: petit larceny, for originally taking the sandwiches and beer from the store
without paying for them; and contributing to the delinquency of a minor, for the
involvement of Robert’s stepson. The jury convicted Wright on both counts, neither of
which is at issue in this appeal.
4
trial, the indictment was amended to charge Wright with robbery as a principal in the
second degree, meaning that Wright was present for and aided or abetted Robert’s taking
of the beer. See Brown v. Commonwealth, 107 S.E. 809, 810 (Va. 1921). In either form,
the robbery charge would require the Commonwealth of Virginia (“Commonwealth”) to
prove that the beer was taken from Atkins by force or intimidation, and if convicted of this
serious offense, Wright would face a sentence of five years to life in prison. See Va. Code
Ann. § 18.2-58; Commonwealth v. Hudgins, 611 S.E.2d 362, 365 (Va. 2005) (describing
elements of robbery). At trial, Atkins testified that he never spoke to Wright on the day of
the incident; the one thing he heard from Wright’s side of the minivan was someone saying,
“let’s go, let’s go,” after Robert had taken the beer from him. J.A. 100. And when asked
“what state of mind” he had been put in by the confrontation in the parking lot, Atkins
testified only that he was made “uncomfortable” by the “abnormal” events of the day. J.A.
96–97.
The jury instruction at the heart of this case was proposed after the close of evidence,
when the Commonwealth asked that the jury be instructed not only on robbery but also on
grand larceny from the person – which, unlike the robbery charge, would not require proof
of force or intimidation, and carries a lower sentence of zero to 20 years’ imprisonment.
See Va. Code Ann. § 18.2-95; Ali v. Commonwealth, 701 S.E.2d 64, 67 (Va. 2010).
Because Wright was not indicted for grand larceny, the state relied in seeking the
instruction on the premise that grand larceny from the person is a lesser included offense
of robbery. See Commonwealth v. Dalton, 524 S.E.2d 860, 862 (Va. 2000) (defendant may
5
be convicted of a crime with which he was not charged only if that crime is a lesser included
offense of a charged crime).
Under Virginia law, a court must, upon counsel’s request, instruct on a lesser
included offense so long as there is evidence to support the charge. See Barrett v.
Commonwealth, 341 S.E.2d 190, 193 (Va. 1986). And at the time of trial, counsel for both
parties were “in agreement” that grand larceny from the person indeed was a lesser included
offense of robbery. J.A. 212. Accordingly, Wright’s counsel, Andrew C. Graves, did not
object to the Commonwealth’s proposed instruction, and the trial court issued Jury
Instruction 10, allowing the jury to consider both robbery and grand larceny.
Specifically, the court instructed the jury that it should convict Wright of robbery if
the Commonwealth proved beyond a reasonable doubt: “(1) That the defendant intended
to steal; and (2) That the defendant took beer; and (3) That the taking was from Garrett
Atkins or in his presence; and (4) That the taking was against the will of the owner or
possessor; and (5) That the taking was accomplished by intimidation of the person or the
threat of serious bodily harm.” J.A. 270. If the Commonwealth could prove the first four
elements but not the fifth – that is, not the intimidation or threat of bodily harm – and prove
that the property taken was worth $5 or more, then the jury should “find the defendant
guilty of grand larceny from the person.” J.A. 270. Consistent with the Commonwealth’s
unchallenged representation, the verdict form listed grand larceny from the person as a
lesser included offense of robbery.
In fact, and notwithstanding the parties’ agreement to the contrary, grand larceny
from the person is not a lesser included offense of robbery under Virginia law. Nor was
6
there any doubt on that point at the time of Wright’s trial. See Ali, 701 S.E.2d at 67. Thus,
it is now undisputed that Jury Instruction 10 was improper when issued, in that it allowed
the jury to convict Wright of an offense for which he never was charged. See Dalton, 524
S.E.2d at 862. Moreover, neither party sought, and the court did not issue, an instruction
allowing the jury to consider, in connection with the parking-lot encounter, robbery’s
actual lesser included offense of petit larceny, with its maximum sentence of one year. See
Va. Code Ann. § 18.2-96; see also Dufresne v. Commonwealth, No. 161633, 2018 WL
1096067, at *1 (Va. Mar. 1, 2018) (explaining that petit larceny is a lesser included offense
of robbery); Yellardy v. Commonwealth, 561 S.E.2d 739, 743 (Va. Ct. App. 2002) (same).
After deliberation, the jury acquitted Wright of robbery. But it found him guilty of
grand larceny from the person, and recommended a sentence of ten years’ imprisonment
for that offense. The court accepted that recommendation and imposed the entirety of the
ten-year sentence. Wright now is scheduled for release from prison on September 7, 2021. 2
B.
The relevant post-conviction proceedings began in 2017, when Wright filed a pro
se petition for a writ of habeas corpus in the Supreme Court of Virginia. Wright raised
2
At the close of trial, Wright was sentenced to a total of 22 and a half years’
imprisonment. That total accounted for convictions on several additional charges relating
to events that transpired when Wright and his brother were arrested after leaving the
grocery store. The Supreme Court of Virginia later overturned those convictions on appeal
on insufficiency of the evidence grounds. See Wright v. Commonwealth, 789 S.E.2d 611,
618 (Va. 2016). That left Wright with a sentence of 11 and a half years: ten years for
grand larceny from the person, and the rest for the two additional convictions for petit
larceny and contributing to the delinquency of a minor, noted above.
7
several claims, including the only one at issue here: that his trial counsel, Graves, provided
ineffective assistance in violation of the Sixth Amendment when he failed to object to the
court’s instruction on grand larceny from the person. Because Virginia law makes clear
that grand larceny from the person in fact “is not a lesser included offense of robbery,”
Wright argued, “[a]ny reasonably competent attorney would have known” that an objection
was in order. J.A. 304–05.
The Supreme Court of Virginia remanded that claim to the trial court for an
evidentiary hearing. After the hearing, the trial court found, as a matter of fact, that on the
day of Wright’s trial, Graves was “unaware that larceny from the person is not a lesser
included offense of robbery.” J.A. 384. But, the court noted, Graves testified that he
“believe[d] he would not have objected to the instruction whether he did or did not know”
the relevant law, because it would have been advantageous for the jury to have the option
of convicting Wright of an offense less serious than robbery. J.A. 384. Thus, the court
reasoned, “[t]here was a strategy coupled with a lack of knowledge.” J.A. 385.
Back before the Supreme Court of Virginia, Wright argued that his trial counsel’s
failure to object could not be considered strategic if counsel did not know that he had any
basis upon which to object. The court disagreed and dismissed Wright’s petition, finding
that Graves’s performance was not deficient under Strickland. See Wright v. Woodson
(Wright I), No. 170163, 2018 WL 5077908, at *3–4 (Va. Oct. 18, 2018).
The Supreme Court of Virginia did not question the finding that Graves was
unaware that grand larceny from the person was not a lesser included offense of robbery.
Nor did it consider whether Graves’s failure to inform himself of that highly relevant law
8
fell below an objective standard of reasonable assistance in light of prevailing professional
norms. Instead, the court asked a different question: whether a hypothetical fully informed
and competent counsel “could still have decided” to forgo an objection to Jury Instruction
10, so that the jury would have in front of it an alternative to robbery with a lower
sentencing range. Id. at *3. And because Wright could not show that “no competent
counsel” might have made that strategic decision, the court concluded, he could not
establish that Graves’s performance was deficient. Id. at *4 (emphasis and internal
quotation marks omitted). That holding disposed of Wright’s claim, and the court did not
reach the question of whether Wright could show prejudice under Strickland’s second
prong.
In October 2018, still proceeding pro se, Wright filed a § 2254 petition in federal
court, see 28 U.S.C. § 2254, again asserting – among other claims not at issue here – his
ineffective assistance of counsel claim. The district court granted the Commonwealth’s
motion to dismiss, holding that the Supreme Court of Virginia did not unreasonably apply
federal law in determining that Graves performed competently. See Wright v. Clarke
(Wright II), No. 7:18-cv-00533, 2019 WL 4534026, at *8–9 (W.D. Va. Sept. 19, 2019)
(citing 28 U.S.C. § 2254(d)). Graves’s “outright legal errors” notwithstanding, the district
court concluded, the Supreme Court of Virginia reasonably could find that he had made a
9
“tactical choice” not to object to Jury Instruction 10, so that the jury would have a “less
onerous” alternative to robbery. Id. at *9.
Wright filed a timely appeal with this court. We granted a partial certificate of
appealability and appointed counsel.
II.
We review a district court’s denial of a habeas petition de novo. Grueninger v. Dir.,
Va. Dep’t of Corr., 813 F.3d 517, 523 (4th Cir. 2016). In evaluating Wright’s claim of
ineffective assistance, we apply the framework set out in Strickland v. Washington, 466
U.S. 668 (1984). Under Strickland’s “deficiency” prong – the one on which the Supreme
Court of Virginia relied – a petitioner first must show that his lawyer’s performance “fell
below an objective standard of reasonableness.” Id. at 688. And under Strickland’s second
prong, a petitioner also must show prejudice, in the form of a “reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding would have been
different.” Id. at 694.
Our review of counsel’s performance always is deferential under Strickland. See
Cullen v. Pinholster, 563 U.S. 170, 190 (2011). But it is “doubly” so in cases like this one,
involving § 2254 petitions. Id. (internal quotation marks omitted). Under the
Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), as the district court
recognized, a federal court may grant relief on a § 2254 claim only if a state court’s merits
determination was “contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court.” 28 U.S.C. § 2254(d)(1).
10
Wright can prevail here, in other words, only if he can show both that his counsel’s
performance was objectively unreasonable and undeserving of deference, and also that the
Supreme Court of Virginia’s finding to the contrary was itself “objectively unreasonable.”
Wiggins v. Smith, 539 U.S. 510, 521 (2003) (internal quotation marks omitted). That is a
high standard, but in this case and for the reasons given below, we think that Wright has
met it. 3
A.
We begin with the issue that was dispositive for the Supreme Court of Virginia:
whether Graves’s performance was deficient under Strickland’s first prong, falling below
an objective standard of reasonableness when measured against “prevailing professional
norms.” Padilla v. Kentucky, 559 U.S. 356, 366 (2010) (internal quotation marks omitted);
see also Hinton v. Alabama, 571 U.S. 263, 273 (2014); United States v. Carthorne, 878
F.3d 458, 466 (4th Cir. 2017). Only acts or omissions that fall “outside the wide range of
professionally competent assistance” will amount to constitutionally deficient
performance. Strickland, 466 U.S. at 690. As we note above, this is a “highly deferential”
standard, recognizing the “wide latitude counsel must have in making tactical decisions.”
Id. at 689.
3
Because the state court ended its analysis with Strickland’s first prong, there is no
state judgment to which we owe AEDPA deference on Strickland’s prejudice prong.
Accordingly, and as discussed below, we assess the prejudice question de novo. See
Wiggins, 539 U.S. at 534.
11
At the same time, however, Strickland makes clear that one critical element of
constitutionally reasonable performance is an adequate investigation of relevant facts and
law. Id. at 690–91 (discussing counsel’s duty to make “reasonable investigations”).
“[P]revailing professional norms,” that is, “include the duty to investigate and to research
a client’s case in a manner sufficient to support informed legal judgments.” Carthorne,
878 F.3d at 466; see, e.g., Williams v. Taylor, 529 U.S. 362, 395 (2000) (finding counsel’s
performance deficient for unreasonable failure to investigate mitigating evidence). And
that duty includes, as it must, a duty to investigate law as well as facts: “An attorney’s
ignorance of a point of law that is fundamental to his case combined with his failure to
perform basic research on that point is a quintessential example of unreasonable
performance under Strickland.” Hinton, 571 U.S. at 274.
It follows, as the Court explained in Strickland, that an act or omission undertaken
by counsel in ignorance of the law can be deemed objectively reasonable if and only if the
failure to conduct legal research itself reflected a “reasonable professional judgment[].”
Strickland, 466 U.S. at 690–91. It is the “particular decision not to investigate” the law,
that is, that must be “assessed for reasonableness in all the circumstances.” Id. at 691. And
if that decision was not reasonable – if counsel unreasonably failed to “demonstrate a basic
level of competence regarding the proper legal analysis governing” his case, Carthorne,
878 F.3d at 466 – then no deference is owed to purportedly “strategic” actions that follow.
See Kimmelman v. Morrison, 477 U.S. 365, 385 (1986) (finding that counsel’s failure to
request discovery cannot be deemed “strategic” where it rests on “mistaken belief[]” about
the law); Carthorne, 878 F.3d at 469 (explaining that presumption that counsel is acting
12
strategically is “defeated when counsel fails to do basic legal research, because lack of
preparation and research” cannot themselves be considered strategic (internal quotation
marks omitted)); see also Thompson v. Gansler, 734 F. App’x 846, 855 (4th Cir. 2018)
(“[M]yriad controlling opinions stand[] for the proposition that acts or omissions made by
counsel under a mistaken belief or an ignorance of law are rarely – if ever – ‘reasonable’
in light of prevailing professional norms.”).
The performance of Wright’s counsel was plainly deficient under this well-
established standard. When he declined to object to Jury Instruction 10, counsel was
unaware that the stated and critical premise for that instruction – that grand larceny from
the person is a lesser included offense of robbery – was legally incorrect. Under Strickland,
the question then becomes whether counsel’s failure to investigate this pivotal point of law
can itself be deemed reasonable, applying the appropriately deferential standard. See 466
U.S. at 691. Here, there are no “reasonable professional judgments,” id., that could support
counsel’s failure to inform himself of the governing law, and the Commonwealth does not
meaningfully argue otherwise.
There is no suggestion, for instance, that the legal research involved would have
been difficult or resource-intensive; at the time of trial, Virginia law on the point was
unequivocal and long-standing. See Ali, 701 S.E.2d at 67. Indeed, counsel could have
learned that grand larceny from the person is not a lesser included offense of robbery
simply by reviewing Jury Instruction 10, which on its face demonstrates that each offense
“requires proof of a fact that the other does not,” see Hudgins, 611 S.E.2d at 364 (internal
quotation marks omitted): for robbery, proof of intimidation or threat of serious bodily
13
harm; and for grand larceny from the person, proof that the property taken was worth at
least $5. See J.A. 270. Nor can counsel’s failure to familiarize himself with the relevant
law be excused by the pressures of the moment. See Strickland, 466 U.S. at 689 (“A fair
assessment of attorney performance requires that every effort be made to eliminate the
distorting effects of hindsight . . . .”). Although the Commonwealth may have surprised
defense counsel with its proposed instruction during trial, counsel and the prosecutor
subsequently took a substantial recess to discuss the jury instructions, during which counsel
would have had ample opportunity to assess the lawfulness of the instruction on grand
larceny.
In this case, in short, counsel’s failure to perform even a minimal investigation of
the law cannot be said to reflect a “reasonable decision” or trial strategy. See id. at 691.
And that unreasonable ignorance of the law left counsel wholly unable to make the kind of
“tactical” decision regarding Jury Instruction 10 that the Commonwealth now attributes to
him. Indeed, from counsel’s perspective, there was no decision to be made at all: Grand
larceny from the person was a lesser included offense of robbery; the Commonwealth
therefore was entitled to its requested instruction under Virginia law, see Barrett, 341
S.E.2d at 193, leaving counsel with no grounds for objection; and so the jury would be
instructed on grand larceny from the person at the Commonwealth’s election, regardless of
whether counsel thought that would help or hurt his client. Because no “reasonable
professional judgments” can justify counsel’s lack of investigation into the relevant law,
his failure to object to Jury Instruction 10 is similarly unreasonable, and his performance
deficient under Strickland. See Strickland, 466 U.S. at 691 (“[C]hoices made after less
14
than complete investigation are reasonable precisely to the extent that reasonable
professional judgments support the limitations on investigation.”); see also Wiggins, 539
U.S. at 526 (finding ineffective assistance when counsel’s “failure to investigate
thoroughly resulted from inattention, not reasoned strategic judgment”).
The Supreme Court of Virginia did not reach a different conclusion as to whether
Graves’s unawareness of the law took him “outside the wide range of professionally
competent assistance.” Strickland, 466 U.S. at 690. Indeed, it failed to address that
question at all – misapplying the clearly established federal law that requires a reviewing
court to “directly assess[] for reasonableness” counsel’s “particular decision” not to inform
himself of pertinent law. See id. at 691 (“In any ineffectiveness case, a particular decision
not to investigate must be directly assessed for reasonableness . . . .”). Instead, it evaluated
Graves’s performance by asking only whether some other hypothetical counsel, fully
informed of the law, reasonably could have allowed Jury Instruction 10 to go to the jury as
a matter of strategy. See Wright I, 2018 WL 5077908, at *4. Here again, the Supreme
Court of Virginia misapplied clearly established federal law, conflating Strickland’s
performance and prejudice prongs.
As the Supreme Court has made clear, an unreasonable failure to investigate the law
is itself deficient performance. See Hinton, 571 U.S. at 274. And that does not change if
counsel arrives, by luck or accident, at a decision that an appropriately informed counsel
also might have reached. That is because the objective merits of a decision made under an
unreasonable and deficient mistake of law – here, counsel’s agreement to Jury Instruction
10 – do not govern the performance analysis. As the Supreme Court explained in Wiggins,
15
“[O]ur principal concern in deciding whether [an attorney] exercised ‘reasonable
professional judgmen[t]’ is not whether counsel should have [made a particular decision].
Rather, we focus on whether the investigation supporting counsel’s decision . . . was itself
reasonable.” 539 U.S. at 522–23 (quoting Strickland, 466 U.S. at 691) (first emphasis
added).
It may well be the case, as the Supreme Court of Virginia concluded, that a
reasonably informed counsel could have made a tactical decision to agree to Jury
Instruction 10, notwithstanding its invalidity, so that Wright’s jury would have the option
of convicting for an offense that carried a lesser penalty than robbery. See Wright I, 2018
WL 5077908, at *4. But as we detail below, that possibility is accounted for under
Strickland’s prejudice prong, which asks whether there is a “reasonable probability” that
appropriately informed counsel would have made a different decision and obtained a
different result. See Strickland, 466 U.S. at 694. The Supreme Court applied just that
distinction in Kimmelman, in which it held that counsel’s failure to request discovery, based
on “mistaken beliefs” about the law, constituted deficient performance. 477 U.S. at 385.
Whether the evidence in question was important enough to warrant discovery, the court
explained, would be “pertinent to the determination whether [the defendant] was
prejudiced by his attorney’s incompetence,” but “shed[] no light on the reasonableness” of
counsel’s actual decision, which reflected “ignorance of the law” rather than strategic
judgment. Id. at 385, 387; cf. United States v. Muniz, 647 F.3d 619, 624–25 (6th Cir. 2011)
16
(holding that counsel who fell asleep during trial performed deficiently and that whether
an “awake” counsel would have objected was a matter of prejudice, not performance). 4
The Supreme Court of Virginia misapplied clearly established law in evaluating
counsel’s performance, leading it to the “objectively unreasonable” conclusion, see
Wiggins, 539 U.S. at 521 (internal quotation marks omitted) (applying § 2254(d)(1)), that
petitioner could not show constitutional deficiency under Strickland. Under Strickland and
its progeny, counsel must adequately inform himself of the law fundamental to the case or
have some objectively reasonable justification for failing to do so. Wright’s trial counsel
was inadequately informed, and unreasonably so. That he now believes he would have
agreed to Jury Instruction 10 even if he had not unreasonably failed to learn the relevant
law, see J.A. 384 (describing Graves’s testimony at post-conviction hearing), may bear on
Strickland’s prejudice prong, but it does not retroactively redeem his performance at the
4
The Supreme Court of Virginia relied in part on a decision of the Tenth Circuit,
Bullock v. Carver, 297 F.3d 1036 (2002), in measuring performance by asking whether a
reasonably informed counsel might have made the same decision as Wright’s uninformed
trial counsel. See Wright I, 2018 WL 5077908, at *4. That, too, was in error. First, a
circuit court decision cannot justify what otherwise would be an unreasonable application
of “clearly established Federal law, as determined by the Supreme Court” under 28 U.S.C.
§ 2254(d)(1). And as Bullock itself acknowledges, in a case involving a counsel’s mistake
of law, Strickland’s “language” makes clear precisely the law we have laid out above:
“[S]trategic choices made after less than complete investigation are reasonable precisely to
the extent that reasonable professional judgments support the limitations on investigation.”
297 F.3d at 1049 n.6 (quoting Strickland, 466 U.S. at 690–91). Indeed, the Tenth Circuit
since has clarified that it follows Strickland’s “objectively reasonable” standard for
evaluating counsel’s performance, and that any suggestion to the contrary in Bullock is
dicta. See Hooper v. Mullin, 314 F.3d 1162, 1170 n.3 (2002).
17
time of trial, see Wiggins, 539 U.S. at 521, 526–27 (rejecting “post hoc rationalization” for
deficient performance).
B.
Having found that Graves performed deficiently under clearly established law, we
turn to the Commonwealth’s argument that Wright was not prejudiced under Strickland’s
second prong. As noted above, we address this question de novo; because the Supreme
Court of Virginia did not reach the issue of Strickland prejudice, our review is not
circumscribed by AEDPA’s standard of review. See Wiggins, 539 U.S. at 534. Nor, in
assessing prejudice, do we apply the “highly deferential” standard used to assess counsel’s
performance under Strickland. See Carthorne, 878 F.3d at 465, 469. Instead, we ask only
whether there is a “reasonable probability” that counsel’s ignorance of the law affected the
trial’s outcome. See Kimmelman, 477 U.S. at 375. And while we recognize that even a
fully informed trial counsel might have agreed to Jury Instruction 10 under the
circumstances of this case, we think there also is a reasonable probability that he would not
have, leading to a different outcome in Wright’s trial.
As discussed above, when counsel’s purportedly “tactical” decision reflects an
unreasonable and thus deficient failure to investigate the law, the objective merits of that
decision are relevant to the prejudice inquiry, though not to the performance prong, see id.at 387: The more likely it is that a hypothetical informed counsel would have made the
same decision, the less likely it is that actual counsel’s deficient performance mattered to
the outcome of the trial. And indeed, there will be cases in which an act or omission,
though undertaken in ignorance of the law, is so plainly the only reasonable or most
18
reasonable trial tactic that there is no realistic probability that competent counsel would
have acted differently. Cf. Muniz, 647 F.3d at 624–25 (holding that deficient performance
by sleeping counsel did not prejudice defendant because even “awake” counsel could not
and would not have objected).
This is not such a case. Again, we do not question the Supreme Court of Virginia’s
assessment that an informed counsel reasonably could have made a tactical decision to
accede to the improper jury instruction, believing that Wright would benefit if the jury had
an option of finding him culpable but convicting him of a crime less serious than robbery.
See Wright I, 2018 WL 5077908, at *3–4. But that was not the only reasonable strategic
judgment available to our hypothetical and fully informed counsel. That counsel, knowing
that grand larceny from the person was not a lesser included offense of robbery and thus
could not be sent to the jury, might have lodged what he knew would be a successful
objection to Jury Instruction 10, deciding that his client would be better off if the jury were
instructed only on robbery. Because the Commonwealth’s key witness, security guard
Atkins, had not testified to feeling intimidated or threatened in the parking lot, the jury well
might have acquitted on robbery even without an alternative charge – a thought that may
have occurred to the Commonwealth, too, given its last-minute request for a lesser-
included-offense instruction. And there was a third option, as well. Even assuming he did
not want to make an “all or nothing” bet on robbery, an informed counsel would have
known that he could have objected successfully to Jury Instruction 10 and instead sought
an instruction on petit larceny, an actual lesser included offense of robbery with a
19
maximum sentence of one year imprisonment, as opposed to the 20-year maximum for
grand larceny from the person. 5
This is a complicated decision-tree, calling for a careful weighing of risks and
potential rewards. Wright’s actual counsel, as we have explained, failed to put himself in
a position to make such an informed strategic judgment on Wright’s behalf. See Carthorne,
878 F.3d at 466 (describing duty to perform legal research sufficient to support informed
legal judgments). But given the multiple options available to a hypothetical informed
counsel, each with its own strategic merits, we think there is a “reasonable probability” that
such counsel would have chosen not to send to the jury an instruction on grand larceny that
he knew to be improper, and would instead have objected to Jury Instruction 10 – either to
put the jury to the choice of convicting on robbery or acquitting outright, or to seek instead
an instruction on an actual lesser included offense with lower sentencing exposure.
The rest of the prejudice inquiry is straightforward. Had counsel objected to Jury
Instruction 10, it is highly likely that the objection would have been sustained; as all parties
5
The district court ruled that Wright had procedurally defaulted any claim that
counsel provided ineffective assistance by failing to seek an instruction on petit larceny,
see Wright II, 2019 WL 4534026, at *5, and the Commonwealth continues to argue that
point on appeal. But Wright, to be clear, is not claiming that his counsel performed
ineffectively by failing to request a petit larceny instruction. Instead, Wright contends – as
he has consistently, in state and federal court – that he was denied the effective assistance
of counsel when his lawyer failed to object to the improper instruction on grand larceny
from the person, and that the availability of a petit larceny alternative merely informs our
assessment, under Strickland, of his counsel’s performance and the resulting prejudice. As
no party disputes, those arguments are properly presented, and we take them into account
here.
20
now agree, that instruction was plainly improper, allowing the jury to convict on a charge
for which Wright had not been indicted. See Dalton, 524 S.E.2d at 862. It also is highly
likely that a jury instructed only on robbery would have acquitted Wright of that charge:
The actual jury did acquit Wright of robbery, finding that the Commonwealth had failed to
prove the elements of that crime beyond a reasonable doubt, and we may presume that the
jury did its job lawfully and properly. And had the jury been instructed on petit larceny, it
might or might not have convicted Wright of that crime – but either way, Wright would
have served no more than one year for the offense, as opposed to his ten-year sentence on
grand larceny from the person. In short, had trial counsel objected to Jury Instruction 10,
there is, at the very least, a “reasonable probability” that the outcome of Wright’s trial
would have been different and more favorable to him. 6
In Strickland, the Supreme Court rejected a higher standard for prejudice in favor
of the one we apply today: a reasonable probability, “sufficient to undermine confidence
in the outcome,” of a different result had counsel’s performance met minimum
6
The Commonwealth raises a different possibility: If counsel had objected to Jury
Instruction 10, the Commonwealth suggests, then the prosecutor might have moved to
amend Wright’s indictment to include a grand larceny from the person charge, allowing
for a jury instruction on that offense. Perhaps so. But, based on his statements to the trial
court, the prosecutor believed grand larceny was a lesser included offense of robbery, and
there is no indication that he would have insisted on the instruction once he was informed
otherwise. And even if the prosecutor had moved to amend Wright’s indictment – a
decision that, per the prosecutor’s own testimony at the post-conviction hearing, would
have been “unusual,” J.A. 374 – whether to grant such a motion rests with the discretion
of the trial court. See Va. Code Ann. § 19.2-231. Given these imponderables, we do not
think this prospect sufficiently likely to defeat a “reasonable probability” of a different
result.
21
constitutional standards. 466 U.S. at 693–94 (rejecting requirement that defendant show
counsel’s deficient performance “more likely than not” altered outcome). Here, we cannot
be confident that trial counsel’s lack of basic knowledge on a fundamental point of law did
not prejudice his client. Because there is a “reasonable probability” that counsel’s deficient
performance – his unreasonable failure to inform himself of the law – affected the outcome
of Wright’s trial, Wright is entitled to relief on his Sixth Amendment claim of ineffective
assistance of counsel.
III.
For the foregoing reasons, we reverse in part the judgment of the district court and
remand with instructions to grant the writ on Wright’s Sixth Amendment ineffective
assistance claim.
REVERSED IN PART AND REMANDED
22
QUATTLEBAUM, Circuit Judge, concurring in the judgment:
I concur in the judgment of the panel.
23