 United States Court of Appeals
          FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued April 16, 2014                    Decided July 29, 2014

                         No. 11-5300

                        RONNIE PAYNE,
                         APPELLANT

                               v.

              PATRICIA STANSBERRY, WARDEN,
                         APPELLEE


         Appeal from the United States District Court
                 for the District of Columbia
                     (No. 1:10-cv-00617)


    Rosanna M. Taormina, Assistant Federal Public Defender,
argued the cause for appellant. With her on the briefs was A.J.
Kramer, Federal Public Defender.

    John P. Gidez, Assistant U.S. Attorney, argued the cause for
appellee. With him on the brief were Ronald C. Machen Jr.,
U.S. Attorney, and Elizabeth Trosman, Assistant U.S. Attorney.
Suzanne G. Curt and John P. Mannarino, Assistant U.S.
Attorneys, entered appearances.

    Before: ROGERS, SRINIVASAN and MILLETT, Circuit Judges.

    ROGERS, Circuit Judge: Ronnie Payne appeals the
dismissal of his petition for a writ of habeas corpus in which he
                                 2

claimed he was denied his right to the effective assistance of
counsel under the Sixth Amendment when his appellate counsel
failed to seek plain error review of the trial judge’s instruction
that the jury “must find [Payne] guilty” even if the government
failed to prove any element of a charged offense beyond a
reasonable doubt. We conclude Payne has met his burden under
the ineffective assistance standard of Strickland v. Washington,
466 U.S. 668 (1984). Accordingly, he is entitled to a new direct
appeal at which he may raise this instructional error claim before
the D.C. Court of Appeals for plain error review.

                                 I.

     At the close of the evidence, the trial judge instructed the
jury on the government’s burden of proof:

         If you find that the Government has proved, beyond a
         reasonable doubt, every element of the offense with
         which these defendants, or this defendant is charged,
         it’s your duty to find that defendant guilty.

         On the other hand, if you find that the Government has
         failed to prove any element of the offense, beyond a
         reasonable doubt, you must find that defendant guilty.

Trial Tr. 94 (Feb. 19, 1993) (emphasis added). The jury was
further instructed that it “may not . . . disregard any instruction”
and “may not question the wisdom of the law.” Id. at 90. At the
start of the trial, the judge had instructed the jury that it was to
follow the final instructions rather than his preliminary remarks.
See Trial Tr. 108 (Feb. 9, 1993). Defense counsel did not object
to the final instruction on the government’s burden of proof.
Payne was convicted and sentenced to consecutive sentences
ranging from two years to life imprisonment.
                                3

     On appeal, his trial counsel was appointed his appellate
counsel and argued, among other things, that the trial judge
erred in giving an aiding and abetting instruction to the jury,
visiting the crime scene, and denying Payne’s motion for a new
trial based on newly discovered potentially exculpatory
evidence. Although counsel had a trial transcript for review, he
did not seek plain error review of the burden of proof
instruction. The D.C. Court of Appeals affirmed Payne’s
convictions. Payne v. United States, 697 A.2d 1229 (D.C.
1997). Payne filed several pro se motions to vacate his
convictions and to recall the mandate, identifying in at least one
a missed “constitutional issue that he failed to present on direct
appeal.” Mot. for Recons. at 1 (Sept. 17, 2008).

     Following the denial of his post-conviction motions by the
District of Columbia courts, Payne filed a pro se petition for a
writ of habeas corpus in the federal district court. See Williams
v. Martinez, 586 F.3d 995, 998 (D.C. Cir. 2009). He argued that
he was denied his Sixth Amendment right to the effective
assistance of appellate counsel, see Evitts v. Lucey, 469 U.S.
387, 393–94 (1985), because his appointed appellate counsel,
who was also his trial counsel, labored under a conflict of
interest and failed, among other things, to present the trial
judge’s erroneous burden of proof instruction for plain error
review. Payne attached to the petition two letters from counsel
acknowledging that he “overlooked the faulty jury instruction,”
and that he “simply d[id] not know how [he] could have missed
that in the appeal,” and suggesting that Payne’s “best option is
pursuing the ineffective [assistance of counsel] option.”
Appellant’s App. 34–35 (attaching letters of Dec. 6 & 31, 2007).
The district court dismissed the habeas petition, finding Payne
had failed to show he was prejudiced as a result of appellate
counsel’s deficient performance in failing to present the
“obvious” instructional error. Payne v. Stansberry, 800 F. Supp.
2d 251, 260–62 (D.D.C. 2011).              Payne’s motion for
                               4

reconsideration was denied.

     This court granted Payne’s motion for a certificate of
appealability with regard to his claims of ineffective assistance
of counsel due to appellate counsel’s conflict of interest in
serving as both trial and appellate counsel, see Cuyler v.
Sullivan, 446 U.S. 335 (1980), and in failing to challenge the
reasonable doubt instruction, see Strickland v. Washington, 466
U.S. 668 (1984). See Order, Oct. 18, 2012. In view of our
disposition, we do not reach the conflict of interest claim.

                               II.

     To prevail on a claim of ineffective assistance of counsel
under Strickland, the defendant must show that (1) his counsel’s
performance “fell below an objective standard of
reasonableness,” and (2) “there is a reasonable probability that,
but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” 466 U.S. at 687–88,
694; see United States v. Hughes, 514 F.3d 15, 17 (D.C. Cir.
2008). The same standard applies with respect to claims of the
ineffective assistance of appellate counsel. See Smith v.
Robbins, 528 U.S. 259, 285 (2000). The Strickland test “does
not require defendants to show that the errors ‘more likely than
not altered the outcome in the case,’ but only that they were
‘sufficient to undermine confidence in the outcome.’” United
States v. Saro, 24 F.3d 283, 287 (D.C. Cir. 1994) (quoting
Strickland, 466 U.S. at 693–94). The parties agree that the D.C.
Court of Appeals would have applied a plain error standard of
review had appellate counsel presented the issue of the burden
of proof instruction in Payne’s direct appeal and under
Strickland’s second prong, the question therefore is whether it
is reasonably probable that the D.C. Court of Appeals would
have concluded that the instruction was plain error. This court
reviews the district court’s factual findings for clear error and
                                5

questions of law de novo. See Obaydullah v. Obama, 688 F.3d
784, 791–92 (D.C. Cir. 2012); Dorsey v. Stephens, 720 F.3d
309, 314 (5th Cir. 2013); Wilson v. Parker, 515 F.3d 682, 691
(6th Cir. 2008).

                                A.
     “The benchmark for judging any claim of ineffectiveness
must be whether counsel’s conduct so undermined the proper
functioning of the adversarial process that the trial cannot be
relied upon as having produced a just result.” Strickland, 466
U.S. at 686. Strickland cautions that “a court must indulge a
strong presumption that counsel’s conduct falls within the wide
range of reasonable professional assistance.” Id. at 689. As our
sister circuit has observed, “[b]ecause of this presumption and
the reality that effective appellate advocacy often entails
screening out weaker issues, the Sixth Amendment does not
require that appellate counsel raise every colorable or non-
frivolous issue on appeal.” Roe v. Delo, 160 F.3d 416, 418 (8th
Cir. 1998) (citing Jones v. Barnes, 463 U.S. 745, 751–54
(1983)). A “defendant must overcome the presumption that,
under the circumstances, the challenged action ‘might be
considered sound trial strategy.’” Strickland, 466 U.S. at 689
(citation omitted). Indeed, the decision to forego a plain error
claim would not uncommonly be thought to be “the result of a
reasonable winnowing of weaker appellate claims.” Roe, 160
F.3d at 418.

     In Payne’s case, however, counsel’s own letters indicate
that there could be no basis for concluding that there was any
strategic or tactical decision not to challenge the instruction on
appeal. Counsel acknowledged that he had no explanation for
his failure to raise the issue. Counsel stated that he “d[id] not
know how [he] could have missed” the issue on appeal. The
instructional error was significant because it lowered the
government’s burden of proof and would have been apparent to
                                 6

a reasonably competent attorney who reviewed the trial
transcript and was familiar with long-established Supreme Court
precedent on the burden of proof. See In re Winship, 397 U.S.
358, 364 (1970). Counsel raised a different non-constitutional
instructional error on direct appeal, further indicating that the
failure to raise this issue was oversight, not deliberate strategy.

     Consequently, absent a strategic decision by counsel, the
ineffectiveness prong of Strickland turns on whether an
objectively reasonable attorney would have sought plain error
review because the issue had a reasonable likelihood of success.
“In other words, this is the rare case where both Strickland
prongs turn on the same question, whether there is a reasonable
probability that the outcome of [Payne’s] appeal would have
been different had this issue been raised.” Roe, 160 F.3d at 419.
The answer requires an examination of the D.C. Court of
Appeals’ application of the plain error standard of review to
instructional error.

                                 B.
     Under the plain error standard of review, there must be
(1) error (2) that is “obvious,” (3) “affec[ts] substantial rights,”
and (4) “seriously affects the fairness, integrity or public
reputation of judicial proceedings.” United States v. Olano, 507
U.S. 725, 732–36 (1993); see Foreman v. United States, 633
A.2d 792, 795 (D.C. 1993).

     The first two prongs of the plain error standard are met: The
burden of proof instruction was legal error and the error was
obvious, as the district court found, Payne, 800 F. Supp. 2d at
261. Both this court and the D.C. Court of Appeals have held
that a judge who incorrectly instructs the jury that it “must find
the Defendant guilty” absent adequate proof, even through “an
honest oversight,” effectively directs a verdict of guilt. United
States v. Hayward, 420 F.2d 142, 144 (D.C. Cir. 1969); Baker
                                 7

v. United States, 324 A.2d 194, 196–97 (D.C. 1974); cf. United
States v. Birbal, 62 F.3d 456, 461 (2d Cir. 1995); Bloomer v.
United States, 162 F.3d 187, 194 (2d Cir. 1998). In Baker, the
jury had been instructed that it must convict the defendant if the
government disproved the defendant’s self-defense claim,
regardless of whether it found all of the elements of the charged
offense had been proven. 324 A.2d at 196. The court relied on
this court’s opinion in Hayward, 420 F.2d 142, which was
binding under M.A.P. v. Ryan, 285 A.2d 310 (D.C. 1971),
holding that a similar instruction amounted to a directed verdict
in violation of the Sixth Amendment, and reversing the
conviction, Hayward, 420 F.2d at 146. Noting the similarity
between the two “must” convict instructions — one involving
self-defense, the other an alibi defense — the D.C. Court of
Appeals in Baker rejected the government’s argument that the
error was harmless when the other instructions were considered.
The court observed that applying the well-established
“presumption that juries faithfully obey” the judge’s instructions

         leads to the dilemma of which instruction do we
         presume the jury obeyed. Did they obey the specific
         instruction that they ‘must’ convict if the government
         disproved [the defendant’s] claim of self-defense; or
         did they, in spite of that specific instruction, somehow
         obey the general instructions that the government bears
         the burden of proof beyond a reasonable doubt on all
         elements of the offense?

324 A.2d at 197. Further, the court rejected the idea that the
weakness of the defendant’s self-defense claim rendered the
error harmless, noting that the problem with the instruction was
that it allowed the jury to convict solely on the basis of rejecting
the defense and thus “in effect direct[ed] a guilty verdict with
respect to all elements of the crime.” Id.
                                 8

      The government suggests that omission of the word “not”
in the instruction was either an error in transcription or a slip of
the tongue by the trial judge. But it makes no proffer to support
its transcription error theory, advising only that the jury was
apparently not given a written copy of the instructions and that
both the audio recording and the notes of the now-deceased
court reporter have been destroyed. And whether or not the
judge’s error was inadvertent does not change whether it was
obvious error. See, e.g., Hayward, 420 F.2d at 144; Turrentine
v. Mullin, 390 F.3d 1181, 1194 (10th Cir. 2004).

     As regards the third and fourth prongs of the plain error
standard on prejudice and the fairness of the trial, the analysis
begins with Sullivan v. Louisiana, 508 U.S. 275 (1993). There,
the Supreme Court held that a jury instruction defining
“reasonable doubt” as “such doubt as would give rise to a grave
uncertainty,” “an actual substantial doubt,” and a “moral
certainty” was structural error. See id. at 277 (citing Cage v.
Louisiana, 498 U.S. 39, 40 (1990)). The Court observed that
“although a judge may direct a verdict for the defendant if the
evidence is legally insufficient to establish guilt, he may not
direct a verdict for the State, no matter how overwhelming the
evidence.” Id. (citing Sparf v. United States, 156 U.S. 51,
105–06 (1895)). It concluded that “the jury verdict required by
the Sixth Amendment is a jury verdict of guilty beyond a
reasonable doubt,” id. at 278, and held that denial of the right to
a jury verdict of guilt beyond a reasonable doubt is a “structural
error,” which “def[ies] analysis by ‘harmless-error’ standards,”
id. at 281–82. Both this court and the D.C. Court of Appeals
have recognized that the logic of Sullivan applies to plain error
analysis. See United States v. Merlos, 8 F.3d 48, 51 (D.C. Cir.
1993); Arthur v. United States, 986 A.2d 398, 413 (D.C. 2009).

     A finding that the instructional error at Payne’s trial was
“structural” would, under the logic of Sullivan v. Louisiana, go
                                 9

a significant way towards establishing the last two prongs of the
plain error inquiry, which in turn would go a long way towards
establishing (at least) a reasonable probability of plain error. In
Arthur, 986 A.2d at 413, the D.C. Court of Appeals
acknowledged that “if [an error] is structural in nature, the
defendant’s substantial rights will be deemed to have been
affected, without need for further analysis in the context of the
particular trial.” In Barrows v. United States, 15 A.3d 673 (D.C.
2011), the court acknowledged that a structural error is “likely
to have an effect on the fairness, integrity or public reputation of
judicial proceedings.” Id. at 679. And in Foreman, 633 A.2d at
796, the D.C. Court of Appeals acknowledged that “Sullivan
strongly implies that some defective reasonable doubt
instructions would constitute plain error, since a ‘structural
error’ of that kind undermines the ‘reliability’ and hence
integrity of the criminal trial.”

     In Foreman, moreover, the D.C. Court of Appeals
acknowledged a critical distinction between a jury instruction
that directs a verdict (as here) and a jury instruction containing
a confusing legal standard (as in that case). There, the trial
judge had departed from the standard jury instruction on
reasonable doubt by substituting the phrase “a deep rooted belief
in” for the phrase “an abiding conviction of.” Id. at 794. With
regard to the prejudice prong of the plain error standard under
Olano, id. at 795–96, the court distinguished between the type
of instructional error it was addressing, which “did not eliminate
any essential elements of the charged offenses,” and an
instructional error that “serve[s] to direct a verdict of guilty.”
Id. at 796. The court concluded there was no structural error
under Sullivan because the ambiguous instruction in Foreman’s
trial involved “no dilution of the government’s burden even
comparable to that in Sullivan . . . ; the judge’s single
modification of the [standard jury] instruction did not work a
‘structural defect in the constitution of the trial mechanism’ and
                                10

so deprive [Foreman] of ‘the right to trial by jury. . . .’” Id. at
796–97 (quoting Sullivan, 508 U.S. at 280–82).

     Payne contends that the erroneous instruction at his trial is
an example of a structural error that is “so intrinsically harmful
as to require automatic reversal” of his convictions. Neder v.
United States, 527 U.S. 1, 7 (1999); see Merlos, 8 F.3d at 51;
Arthur, 986 A.2d at 413; Littlejohn v. United States, 73 A.3d
1034, 1043 (D.C. 2013). Alternatively, Payne contends the D.C.
Court of Appeals would have found prejudice because “there is
a reasonable likelihood that the jury understood the instructions
to allow conviction based on proof insufficient to meet the
Winship standard,” Victor v. Nebraska, 511 U.S. 1, 6 (1994),
which requires the government to prove every element of a
charged offense beyond a reasonable doubt, Winship, 397 U.S.
at 364. Regardless of the accuracy of the trial judge’s other
instructions on the presumption of innocence and the
government’s burden of proof, Payne focuses on the
requirement, acknowledged by the D.C. Court of Appeals in
Baker, that the court must “presum[e] that juries faithfully obey
the instructions given to them by the judge,” 324 A.2d at 197,
noting the particular instructions given to his jury — that it may
not disregard any final instruction or question the wisdom of the
law, and that it must follow the trial judge’s final instructions
rather than his preliminary remarks or the statements of counsel.
Payne further points out that the erroneous instruction was the
only time the trial judge instructed the jury on what to do if the
government failed to meet its burden of proof on an element of
an offense.

     In the government’s view, Payne would prevail under
neither approach because the D.C. Court of Appeals would not
have found either structural error or error so prejudicial to
Payne’s substantial rights as to jeopardize the fairness and
integrity of his trial. Citing Victor, 511 U.S. 1, the government
                                11

concludes that the D.C. Court of Appeals would have examined
the jury instructions in their entirety and concluded that the jury
would not have been misled about the government’s burden of
proof. Id. at 5–6; see also Foreman, 633 A.2d at 794–96. But
Victor and Foreman involved erroneous or ambiguous
definitions of reasonable doubt, not an instruction that the jury
must find the defendant guilty even if the government failed to
meet its burden of proof on any element of a charged offense.
It is true that in a case not cited by the parties, Minor v. United
States, 647 A.2d 770, 773 (D.C. 1994), the court applied
Victor’s analysis in rejecting a Fifth Amendment due process
challenge where the jury was instructed that “[t]he government
is not required to establish guilt beyond all reasonable doubt.”
But that case is also distinguishable. Like the instruction at
Payne’s trial, this instruction misstated the burden of proof,
rather than defining “reasonable doubt” in an ambiguous or
confusing way. But unlike Payne’s case, the court was not
considering a “must” convict instruction that explicitly directed
a verdict against the defendant. In Minor, the judge did wrongly
state in his final instructions that the government is not required
to establish guilt beyond a reasonable doubt, but he immediately
corrected himself, informing the jury that the government’s
burden “is to establish guilt beyond a reasonable doubt.” Id. at
774. In Payne’s case, by contrast, the defective instruction was
the only instruction given to the jury regarding what it should do
if the government failed to prove an element of a charged
offense beyond a reasonable doubt. To the extent the
government addresses the “must” convict instruction cases, it
fails to explain on what basis an instruction that the jury “must
find the defendant guilty” without proof sufficient to meet the
Winship standard is an “explicitly directed [] guilty verdict” in
Hayward, Appellee’s Br. 49, but not in Payne’s case.

    The Supreme Court acknowledged in Neder that there are
defective reasonable doubt instructions that fall in a “limited
                                12

class of fundamental constitutional errors” that are “so
intrinsically harmful as to require automatic reversal . . . without
regard to their effect on the outcome,” 527 U.S. at 7–8. Here,
the erroneous instruction was contrary to the Fifth Amendment
guarantee that no one will be deprived of liberty without due
process of law and the Sixth Amendment right to trial by jury,
which together require a jury to determine a defendant’s guilt on
every element of the charged crimes beyond a reasonable doubt.
See United States v. Gaudin, 515 U.S. 506, 509–10 (1995);
Sullivan v. Louisiana, 508 U.S. at 277–78; Winship, 397 U.S. at
364. The distinctions drawn by the D.C. Court of Appeals in
Foreman with respect to the ambiguous reasonable doubt
instruction suggest it is reasonably probable that court would
have reached a different conclusion regarding the prejudice
prong of the plain error standard had it viewed the instruction to
direct a guilty verdict or otherwise dilute the government’s
burden of proof, in a manner comparable to the instruction in
Sullivan. In Payne’s case, the court would have been confronted
with an instruction that directed the jury to render a guilty
verdict, the presumption that juries “faithfully” follow the trial
judge’s instructions, and the fact that the erroneous instruction
was the only instruction regarding the jury’s obligation if the
government failed to meet its burden to prove an element of a
charged offense beyond a reasonable doubt.

     As noted, to establish Strickland prejudice, Payne must
demonstrate that it is reasonably probable that, had his counsel
raised the issue on direct appeal, the D.C. Court of Appeals
would have concluded that the challenged instruction was plain
error. Although we cannot be certain the D.C. Court of Appeals
would have found plain error had this issue been presented in
Payne’s direct appeal, the question before this court is limited to
whether there is a reasonable probability that the outcome of his
appeal would have been different. Because the erroneous jury
instruction reduced the government’s burden of proof, the
                                13

distinctions drawn in Foreman between ambiguous and directed
verdict instructions, and the analysis in Baker of the
presumption that juries “faithfully” follow instructions move
the analysis toward finding plain error. An objectively
reasonable attorney, then, would have presented this issue for
plain error review. That is sufficient to establish ineffective
assistance of appellate counsel under Strickland.              The
appropriate relief is to afford Payne a belated appeal on the issue
that counsel ineffectively failed to present. See Roe, 160 F.3d
at 420; Mason v. Hanks, 97 F.3d 887, 902 (7th Cir. 1996).

     Accordingly, the judgment of the district court is reversed,
and the case is remanded with directions to issue a writ of
habeas corpus unless, within whatever reasonable period of time
the district court deems appropriate, Payne is afforded a new
appeal in which he may raise the burden of proof instruction
issue omitted from his original direct appeal. See, e.g., Evitts,
469 U.S. at 390–91; Lewis v. Johnson, 359 F.3d 646, 662 (3d
Cir. 2004); Hughes v. Booker, 220 F.3d 346, 348, 353 (5th Cir.
2000); Mapes v. Tate, 388 F.3d 187, 195 (6th Cir. 2004); Shaw
v. Wilson, 721 F.3d 908, 910 (7th Cir. 2013); Johnson v.
Champion, 288 F.3d 1215, 1230 (10th Cir. 2002).
