PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

CHRIS ANTHONY LUCHENBURG,
Petitioner-Appellee,

v.

SEWELL B. SMITH, Warden,
                                                                     No. 95-6136
Maryland Correctional Institution;
ATTORNEY GENERAL OF THE STATE OF
MARYLAND,
Respondents-Appellants.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
William M. Nickerson, District Judge.
(CA-92-2807-WN)

Argued: September 28, 1995

Decided: March 28, 1996

Before RUSSELL, Circuit Judge, CHAPMAN,
Senior Circuit Judge, and BEATY, United States District Judge
for the Middle District of North Carolina, sitting by designation.

_________________________________________________________________

Affirmed by published per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: Tarra R. DeShields-Minnis, Assistant Attorney General,
Criminal Appeals Division, OFFICE OF THE ATTORNEY GEN-
ERAL, Baltimore, Maryland, for Appellants. Steven Frederick Reich,
Assistant Federal Public Defender, Greenbelt, Maryland, for Appel-
lee. ON BRIEF: J. Joseph Curran, Jr., Attorney General of Maryland,
Criminal Appeals Division, OFFICE OF THE ATTORNEY GEN-
ERAL, Baltimore, Maryland, for Appellants. James K. Bredar, Fed-
eral Public Defender, Sigmund R. Adams, Staff Attorney, Greenbelt,
Maryland, for Appellee.

_________________________________________________________________

OPINION

PER CURIAM:

The Maryland Attorney General appeals the district court's order
adopting the magistrate judge's report and recommendation to grant
Chris Anthony Luchenburg's petition for a writ of habeas corpus
under 28 U.S.C. § 2254 (1988). Because Luchenburg was denied
effective assistance of trial counsel, we affirm.

I.

In 1985, Chris Anthony Luchenburg was tried in the Maryland Cir-
cuit Court for first degree rape, first degree sexual offense, common
law assault, carrying a deadly weapon (a knife), and the use of a
handgun during the commission of a crime of violence. Luchenburg
was accused of assaulting his estranged wife at gunpoint, and raping
his sister-in-law at gunpoint and with a knife. At the close of trial, the
circuit court instructed the jury in relevant part as follows:

          [h]e is also charged with the offense of use of a handgun in
          the commission of a crime of violence. Now, under this
          count, he is charged, as I said, with the use of a handgun in
          the commission of a crime of violence. Now, the crime of
          rape, as he is charged and the crime of sexual offense in the
          . . . first degree, excuse me, are crimes of violence. There-
          fore, if you find the defendant guilty of these and you also
          find the defendant used a handgun in the commission of that
          offense, you may find the defendant guilty of the use of a
          handgun in the commission of a crime of violence and, of
          course, vice versa.

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Defense counsel did not object to the court's failure to explicitly
instruct the jury that it must first find Luchenburg guilty of a predicate
crime of violence in order to convict him of the compound handgun
count. Although common law assault is not a "crime of violence" in
Maryland,1 the court did not so instruct the jury, and defense counsel
similarly failed to object to this omission.

The jury acquitted Luchenburg of the rape and sexual offense
charges against his sister-in-law, including the charge of carrying a
knife, but convicted him of assaulting his wife and of using a handgun
during the commission of a crime of violence. Despite that Luchen-
burg was acquitted of the predicate crimes of violence, the trial court
did not throw out the conviction on the compound handgun charge
and, in fact, sentenced Luchenburg to twenty years' imprisonment on
that charge--the maximum term possible. The court also sentenced
Luchenburg to serve a consecutive ten-year sentence on the assault
count. Luchenburg has since served over ten years in prison.

Luchenburg was denied relief on direct appeal and in a subsequent
state post-conviction petition. He thereafter filed the present habeas
corpus petition in federal district court. Luchenburg contended, inter
alia, that the post-conviction court erred in its ruling that trial counsel
_________________________________________________________________
1 Md. Crim. Law Code Ann. Art. 27,§ 441(e) defines the following as
crimes of violence:

          Abduction; arson in the first degree; burglary in the first, second,
          or third degree; escape; kidnapping; manslaughter, excepting
          involuntary manslaughter; mayhem; murder; rape; robbery; rob-
          bery with a deadly weapon; carjacking or armed carjacking; sex-
          ual offense in the first degree; and sodomy; or an attempt to
          commit any of the aforesaid offenses; or assault with intent to
          commit any other offense punishable by imprisonment for more
          than one year.

Id. (emphasis added). Maryland has only codified aggravated forms of
assault, such as assault with intent to rob, assault with intent to murder,
and assault with intent to rape. Each of these crimes would qualify as
predicate offenses for use of a handgun during a crime of violence. But,
Luchenburg was charged with common law simple assault, which is a
lesser offense than the aggravated types of assault included in § 441(e)'s
definition of crimes of violence.

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was not ineffective for failing to object to the jury instruction, and
that his conviction and sentence for use of a handgun during a crime
of violence violated his due process rights. Upon recommendation of
the magistrate judge, the district court granted the writ based on Luch-
enburg's claim that his trial counsel was ineffective. The Maryland
Attorney General timely appealed.

II.

Turning to the merits of Luchenburg's ineffective assistance of
counsel claim,2 we note that our scope of review on a petition for
habeas corpus is limited because we sit not to retry state cases de
novo, but rather to examine the proceedings in the state court to deter-
mine whether a violation of federal constitutional standards occurred.
Milton v. Wainwright, 407 U.S. 371, 377 (1972). Federal habeas
courts are without authority to correct a simple misapplication of state
criminal law or procedure "but may intervene only to correct wrongs
of [a federal] constitutional dimension." Smith v. Phillips, 455 U.S.
209, 221 (1982). Hence, we do not exercise the same supervisory
power that we possess on an appeal from a conviction in the district
court. Donnelly v. DeChristoforo, 416 U.S. 637, 642-43 (1974).
Nonetheless, an erroneous jury charge may form the basis of a habeas
_________________________________________________________________
2 We reject the State's contention that Luchenburg failed to exhaust,
and subsequently procedurally defaulted, his claim that trial counsel's
failure to object to the handgun instruction amounted to ineffective assis-
tance. The State asserts Luchenburg abandoned this claim during his
state post-conviction proceedings because he failed to present it in his
application for review to the Maryland Court of Special Appeals. We dis-
agree. In his initial petition for post-conviction relief, Luchenburg clearly
presented the claim of ineffective assistance of trial counsel for failing
to take issue with the circuit court's jury instruction. After the circuit
court denied the claim, Luchenburg, proceeding pro se, filed an applica-
tion for further review that, while unartfully drafted, contained a point
heading stating, "[The post-conviction judge] ruled incorrectly under
ineffective assistance of counsel contention." We are confident the Mary-
land Court of Special Appeals considered Luchenburg's claim of ineffec-
tive assistance of trial counsel to be fairly raised. See Proff v. State, 583
A.2d 1097, 1100 (Md. Ct. Spec. App. 1991) (holding that Maryland
courts are not to use imprecise language in a pleading to avoid a determi-
nation on the merits when the nature of the pleading is ascertainable).

                    4
petition, either independently or in conjunction with an ineffective
assistance of counsel claim, where the instruction"so infected the
entire trial that the resulting conviction violates due process" by ren-
dering the trial fundamentally unfair. Cupp v. Naughten, 414 U.S.
141, 147 (1973).

Ineffective assistance of counsel is a mixed question of fact and
law. A petitioner must show (1) that counsel made errors so serious
that counsel's representation fell below an objective standard of rea-
sonableness, and (2) that such failure resulted in prejudice so as to
render the results of the trial unreliable. Strickland v. Washington, 466
U.S. 668, 688 (1984). A lawyer's performance is entitled to a pre-
sumption of reasonableness. Id. at 689. Thus, a petitioner challenging
his conviction on the grounds of ineffective assistance must overcome
a strong presumption that the challenged action amounted to trial
strategy.

A. Deficient performance.

Under Maryland law, the circuit court must give a requested
instruction that correctly states the applicable law and has not been
fairly covered in the instructions already given. Mack v. State, 479
A.2d 1344, 1348 (Md. 1984). The failure to give such an instruction
constitutes error. Id. An instruction telling a jury it may not convict
on a charge of use of a handgun during the commission of a crime
of violence unless it first convicts on the predicate crime of violence
is a correct statement of the law. Id. (citing Ford v. State, 337 A.2d
81 (Md. 1975)). So, too, is an instruction telling the jury that common
law assault is not a predicate crime of violence. Therefore, had coun-
sel requested these instructions, the circuit court would have been
required to give them unless already fairly covered in the given
instructions.

The circuit court's instructions in the instant case did not explicitly
tell the jury that it could not convict Luchenburg of the compound
handgun charge unless it first convicted him of a predicate crime of
violence. It also failed to inform the jury that common law assault
was not a "crime of violence." Instead, the court merely instructed the
jury that if it found Luchenburg guilty of rape or sexual offense, then
it could convict him of the handgun offense, and"vice versa."

                     5
The State acknowledges the given instruction could have been
more specific, but it contends the instruction fairly informed the jury
that it could convict on the handgun count only if it first convicted on
a predicate crime of violence. We disagree. We believe serious prob-
lems existed with the instructions of which trial counsel should have
been aware. First, while it is possible that the addition of the words
"vice versa" were intended to convey to the jury that it should acquit
on the compound handgun offense if it acquitted on the predicate
offenses, this is not the only, or even the most, reasonable interpreta-
tion. Vice versa literally means "[c]onversely; in inverted order; in
reverse manner." Black's Law Dictionary, 1567 (6th ed. 1990).
Inverting the order of the given instruction informed the jury that if
it first found Luchenburg guilty of the use of a handgun during the
commission of a crime of violence, then it may also convict him of
the predicate crimes of violence. Informing the jury to consider these
charges in reverse order is nonsensical because it invited the jury to
return an inconsistent verdict--convicting Luchenburg for the use of
a handgun during the commission of a crime of violence while acquit-
ting him of the predicate crimes of violence. A proper instruction
would inform the jury to only consider the compound handgun
offense after it convicted on a predicate crime of violence.

The circuit court also never specifically told the jury that common
law assault is not a "crime of violence." Because of the nature of the
trial evidence, that omission seriously compromised the result of
Luchenburg's trial. The verdict demonstrates the jury believed
beyond a reasonable doubt that Luchenburg assaulted his wife, but
did not believe the allegations that he raped his sister-in-law. In the
absence of a specific instruction that it could not use the assault
charge as a predicate crime of violence, we believe the jury was led
to mistakenly so use the assault charge. Indeed, the assault was vio-
lent: Luchenburg struck his wife, dragged her across the living room,
tied her hands, and held a gun to her head.

Moreover, we do not agree that trial counsel's failure to request an
expanded instruction was the result of a tactical decision. Although
the compound handgun charge carried a maximum sentence of twenty
years' imprisonment, trial counsel testified at the state post-conviction
hearing that he was primarily concerned with the rape and sexual
offense charges and that the compound handgun charge was not "first

                     6
on [his] list of priorities." Trial counsel also testified, however, that
he thought the circuit court's instruction accurately stated the law. In
these circumstances, counsel made no tactical "choice," unless a fail-
ure to become informed of the law affecting his client can be so con-
sidered. We refuse to endorse such a rule. We believe trial counsel
should have objected to the circuit court's instruction and requested
an expanded instruction that more accurately explained to the jury (1)
that it could not convict Luchenburg of the compound handgun
charge unless it first found him guilty of a predicate crime of vio-
lence, and (2) that common law assault is not a predicate "crime of
violence." The circuit court's instructions rendered Luchenburg's trial
fundamentally unfair, and trial counsel's failure to object was consti-
tutionally deficient.

B. Prejudice.

Trial counsel's deficient performance will only be held "ineffec-
tive" if a reasonable probability exists that, but for his failure to object
and request an expanded instruction, the result of the proceeding
would have been different. See Fitzgerald v. Thompson, 943 F.2d
463, 468 (4th Cir. 1991), cert. denied, 502 U.S. 1112 (1992). If coun-
sel had requested instructions to the jury that it could only convict of
the compound handgun charge if it first convicted on a predicate
crime of violence, and that common law assault is not a predicate
crime of violence, the circuit court would have been required to give
them. The instructions would be binding on the jury. Hence, it must
be assumed that the jury would have followed the instructions. See
Wilson v. State, 591 A.2d 524, 529 (Md. 1991) (stating that the jury
is presumed to follow the trial court's instructions).

In light of his acquittal on the predicate crimes of violence, Luch-
enburg has established a reasonable probability that the jury, had they
received the proper instructions, would also have acquitted him on the
compound handgun charge. We believe trial counsel's failure to
object and request an expanded instruction in this case amounted to
ineffective assistance in violation of the Sixth Amendment. For this
reason, the decision of the district court is

AFFIRMED.

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