                               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
