             AMENDED OPINION

                UNPUBLISHED

   UNITED STATES COURT OF APPEALS

          FOR THE FOURTH CIRCUIT


JOHN LEE LEONARD-BEY, JR.,
     Petitioner-Appellee,

     v.    No. 01-6730

PATRICK CONROY; ATTORNEY
GENERAL OF THE STATE OF
MARYLAND,
     Respondents-Appellants.


Appeal from the United States District Court

for the District of Maryland, at Baltimore.

William N. Nickerson, District Judge.

     (CA-99-1132-WMN)

Argued: September 24, 2001

Decided: December 26, 2001

Amended Opinion Filed: June 13, 2002


Before MICHAEL, TRAXLER, and GREGORY, Circuit Judges.


____________________________________________________________

Reversed by unpublished per curiam opinion. Judge Gregory wrote a
dissenting opinion.

____________________________________________________________

                 COUNSEL

ARGUED: Ann Norman Bosse, Assistant Attorney General, Crimi-
nal Appeals Division, OFFICE OF THE ATTORNEY GENERAL,
Baltimore, Maryland, for Appellants. Fred Warren Bennett, BEN-
NETT & NATHANS, L.L.P., Greenbelt, Maryland, for Appellee. ON
BRIEF: J. Joseph Curran, Jr., Attorney General of Maryland, Crimi-
nal Appeals Division, OFFICE OF THE ATTORNEY GENERAL,
Baltimore, Maryland, for Appellants. Michael E. Lawlor, BENNETT
& NATHANS, L.L.P., Greenbelt, Maryland, for Appellee.

____________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

____________________________________________________________

                   OPINION

PER CURIAM:

   A Maryland jury convicted John Leonard-Bey, Jr. of felony murder
but acquitted him of the sole underlying felony, attempted armed rob-
bery. After unsuccessful direct and collateral review in the Maryland
courts, Leonard-Bey petitioned the United States District Court for
the District of Maryland for habeas relief pursuant to 28 U.S.C.
§ 2254. The district court granted the writ on the ground that
Leonard-Bey's trial counsel was ineffective because he failed to
request a jury instruction specifying that Leonard-Bey must be acquit-
ted of felony murder if he was acquitted of the underlying felony. We
reverse because the Maryland court did not unreasonably apply
clearly established federal law when it concluded that Leonard-Bey's
lawyer acted within prevailing norms of the profession.

              I.

   Leonard-Bey was with Wendell Daniels while Daniels was making
his rounds to collect drug debts in Annapolis. Daniels approached
Reno Green and demanded payment of a debt. When Green balked,
Daniels pulled a gun to intimidate him, and the two got into a scuffle.
When it looked like Daniels was losing, Leonard-Bey shot and killed
Green. Leonard-Bey was tried on several charges in Maryland state
court, including first degree murder, first degree felony murder, and

              2
attempted armed robbery. The jury returned an inconsistent verdict:
it acquitted Leonard-Bey of the sole predicate (attempted armed rob-
bery) for felony murder, yet found him guilty of felony murder. It also
acquitted him of first degree murder.

   The state trial court instructed Leonard-Bey's jury as follows on
felony murder: "In order to convict the Defendant of first-degree fel-
ony murder, the State must prove . . . that the Defendant or another
participating in the crime with the Defendant attempted to commit the
crimes of robbery with a deadly weapon or robbery." This instruction
was taken almost verbatim from Maryland's pattern jury instruction
on felony murder. In his state habeas proceedings Leonard-Bey
argued that his lawyer rendered ineffective assistance because he
failed to request a clarifying instruction on felony murder, namely, an
instruction stating that if the jury did not convict the defendant of the
predicate felony charged, it must acquit him of felony murder. The
state habeas court denied the writ, concluding that Leonard-Bey's
lawyer "acted well within the prevailing norms of the profession.
Counsel's failure to request any such instruction may have been a
deliberate tactical choice." The Maryland Court of Special Appeals
summarily denied Leonard-Bey's application for leave to appeal the
order denying habeas relief.

    Leonard-Bey filed a successful petition for habeas relief in United
States District Court. The district court held that the state habeas
court's decision was an unreasonable application of the Supreme
Court's precedent for determining ineffective assistance of counsel as
set forth in Strickland v. Washington, 466 U.S. 668 (1963). First, the
district court concluded that Leonard-Bey was entitled to the clarify-
ing felony murder instruction and that his lawyer failed to request it
because of his "lack of understanding of existing state law." Specifi-
cally, the court found nothing in the record to indicate that the failure
to request the instruction was a strategic or tactical decision. Second,
the court concluded that there was a reasonable probability that
Leonard-Bey would have been acquitted on the felony murder count
if the clarifying instruction had been given. The writ was therefore
granted, and the State of Maryland now appeals.

             3
            II.

   We review de novo the district court's decision to grant the writ of
habeas corpus. See Spicer v. Roxbury Corr. Inst., 194 F.3d 547, 555
(4th Cir. 1999). This case involves a question of law. Thus, the writ
may be granted only if the state habeas court's decision was contrary
to or involved an unreasonable application of clearly established fed-
eral law, as determined by the Supreme Court of the United States.
See 28 U.S.C.A. § 2254(d)(1). The clearly established and applicable
federal law is set forth in Strickland v. Washington, 466 U.S. 668,
688, 694 (1963): a defendant's Sixth Amendment right to effective
assistance of counsel is violated if (1) "counsel's representation falls
below an objective standard of reasonableness" and (2) "there is a rea-
sonable probability that, but for counsel's unprofessional errors, the
result of the proceeding would have been different. "1

   We will assume without deciding that Leonard-Bey, if his lawyer
had requested it, was entitled to a clarifying instruction on felony
murder, specifically, that if the jury did not convict him on the predi-
____________________________________________________________
   1
     Leonard-Bey argues that the state habeas court erroneously held that
he "was required to prove both prongs of Strickland by a preponderance
of the evidence." Appellee Br. at 12. The state court did misstate the
proof standard for the second prong because the Supreme Court has said
that it would be contrary to the Court's clearly established precedent if
a state court rejected "a prisoner's claim of ineffective assistance of
counsel on the grounds that the prisoner had not established by a prepon-
derance of the evidence that the result of his criminal proceeding would
have been different." Williams v. Taylor, 529 U.S. 362, 405-06 (2000).
See also Rose v. Lee, 252 F.3d 676, 689 (4th Cir. 2001). Requiring proof
by a preponderance of the evidence on the second prong of Strickland
would be contrary to clearly established Supreme Court precedent
because the Court "held in Strickland that the prisoner need only demon-
strate a reasonable probability that . . . the result of the proceeding would
have been different." Williams, 529 U.S. at 406 (internal quotations and
citations omitted). This issue need not concern us because the state
habeas court decided Leonard-Bey's ineffective assistance claim by
applying only the first prong of Strickland, that is, it considered whether
his lawyer's representation fell below objectively reasonable standards.
The state habeas court therefore did not apply a criterion that was con-
trary to established Supreme Court precedent.

             4
cate felony (attempted armed robbery), it must acquit him of felony
murder. The threshold question under Strickland, then, is whether
Leonard-Bey's trial counsel rendered ineffective assistance by failing
to request the clarifying instruction in this case. As we will explain,
the state court was correct in concluding that counsel was not ineffec-
tive.

   "Judicial scrutiny of counsel's performance must be highly defer-
ential." Strickland, 466 U.S. at 689. In particular, "a court must
indulge a strong presumption that counsel's conduct falls within the
wide range of reasonable professional assistance; that is, the defen-
dant must overcome the presumption that, under the circumstances,
the challenged action might be considered sound trial strategy." Id.
(citation and internal quotations omitted). At the state habeas hearing
Leonard-Bey's trial counsel testified that he could not remember why
he did not request the clarifying jury instruction.2 Leonard-Bey argues
that there was no strategic advantage in not requesting the instruction.
We do not agree with Leonard-Bey. He may have been spared expo-
sure to the death penalty because it was not made clear to the jury —
due to the lack of the clarifying instruction — that the jury should
acquit him of felony murder if it found him not guilty of the underly-
ing felony.

   It is important to consider the situation facing Leonard-Bey and his
lawyer at the time jury instructions were being formulated. The evi-
dence was in, and it did not look good. There was evidence that
Leonard-Bey had accompanied Wendell Daniels on a mission to col-
lect drug debts. When one debtor refused to pay, Daniels pulled a gun
and a scuffle ensued. Leonard-Bey then stepped in to assist Daniels,
shooting and killing the debtor. There was thus ample evidence for
____________________________________________________________
  2
     The dissent questions whether Leonard-Bey's counsel had any strat-
egy in mind when he did not ask for the clarifying instruction. However,
determining the reasonableness of a lawyer's performance is an objective
inquiry: "[t]o uphold a lawyer's strategy, we need not divine the lawyer's
mental processes underlying the strategy." Chandler v. United States,
218 F.3d 1305, 1315 n.16 (11th Cir. 2000). Again, the only question is
whether under prevailing professional norms "the challenged action
might be considered sound trial strategy." Strickland, 466 U.S. at 689
(citation and internal quotations omitted).

             5
the jury to choose two conviction options that would have made
Leonard-Bey eligible for the death penalty at the sentencing phase.
These options were (1) to convict him of felony murder along with
the underlying felony, attempted armed robbery or (2) to convict him
of first degree murder plus the attempted armed robbery. In both
instances, it is the conviction for attempted robbery that would have
triggered eligibility for a death sentence. If the clarifying instruction
had been given to the jury, the instruction would have drawn height-
ened attention to the attempted armed robbery charge and its particu-
lar importance in the felony murder equation. Of course, a conviction
for felony murder and an acquittal on the underlying felony charge
leads to an inconsistent verdict. It is a valid trial strategy to risk an
inconsistent verdict by not asking for a clarifying instruction when
asking for the instruction could increase the danger of a consistent
verdict that would trigger eligibility for the death penalty. This strat-
egy makes particular sense in Maryland, where the courts have gener-
ally been tolerant of inconsistent verdicts. Moreover, as a general
matter, it is a reasonable trial tactic not to draw attention to a crime
(here, attempted armed robbery) that could serve as the predicate or
aggravating factor leading to death penalty exposure in the event of
a conviction for felony murder or first degree murder.

    In sum, the fact that Leonard-Bey's lawyer did not request an
instruction that the jury must acquit Leonard-Bey of felony murder if
it acquitted him of attempted armed robbery might well have resulted
in a more favorable verdict for Leonard-Bey, that is, the guilty verdict
on felony murder only. This inconsistent verdict rendered him ineligi-
ble for the death penalty.3 Consequently, Leonard-Bey has failed to
overcome the presumption that it was sound trial strategy to refrain
from requesting the clarifying instruction. Leonard-Bey has therefore
not satisfied the first element (substandard representation) of the
Strickland test. As a result, the state habeas court did not unreason-
ably apply Strickland when it concluded that Leonard-Bey's trial
____________________________________________________________
  3
    The dissent fails to take into account that an expanded jury instruction
on felony murder could have caused the jury to focus more on the
attempted armed robbery charge, for which a conviction would have trig-
gered eligibility for the death penalty. After all, the evidence against
Leonard-Bey was quite strong on both the murder charges and the
attempted armed robbery charge.

             6
counsel acted "within the prevailing norms of the profession."
Accordingly, we reverse the district court's order granting Leonard-
Bey's petition for habeas corpus relief.

                                      REVERSED

GREGORY, Circuit Judge, dissenting:

   The majority reverses the district court's order granting habeas cor-
pus relief on the ground that Leonard-Bey failed to demonstrate that
counsel's performance was substandard. Faced with a record that
reveals a confusing jury instruction, scant evidence linking Leonard-
Bey to the underlying felony supporting his conviction, an acquittal
on the underlying felony, and a trial attorney who failed to become
informed of the law affecting his client, I simply cannot agree.
Because I would affirm the district court's order, I respectfully dissent
from the majority opinion.

              I.

   I first note that the jury instructions on felony murder were inade-
quate as written. The trial judge gave the following instruction, which
closely followed Maryland's pattern jury instruction:

         The Defendant is also charged with the crime of first-degree
         felony murder. In order to convict the Defendant of first-
         degree felony murder, the State must prove, one, that the
         Defendant or another participating in the crime with the
         Defendant attempted to commit the crimes of robbery with
         a deadly weapon or robbery. . . . [T]wo, that the Defendant
         or another participating in the crime killed Reno Green. And
         three, that the act resulting in the death of Reno Green
         occurred during the attempted commission of the crimes of
         robbery with a deadly weapon or robbery. Felony murder
         does not require the State to prove that the Defendant
         intended to kill the victim.

(J.A. 917).

              7
   In assessing counsel's alleged ineffective assistance, the district
court found that the issue was not the per se correct recitation of the
felony murder instruction as set forth in Maryland's pattern instruc-
tions, but rather counsel's failure to request an expanded instruction.
The court found that Daniels provided no testimony that Leonard-Bey
was aiding and abetting Daniels' robbery of the victim. Further, the
court found that the state court unreasonably determined that coun-
sel's actions (or inactions) were based on an objectively reasonable
trial strategy. The court concluded that had the jury been properly
instructed, it would have acquitted Leonard-Bey of felony murder.

   Although this case is couched in terms of ineffective assistance of
counsel, the most troubling aspect of the case is how a felony murder
conviction can stand when a defendant is acquitted of the sole under-
lying felony. The Maryland courts have considered the issue of incon-
sistent verdicts and clearly indicated that they will be upheld,
"provided there is no `proof of actual irregularity,' . . . and provided
there is sufficient evidence to support the conviction the jury has
returned." Bates v. State, 736 A.2d 407, 415 (Md. Ct. Spec. App.),
cert. denied, 741 A.2d 1095 (Md. 1999) (quoting Ford v. State, 337
A.2d 81, 86 (Md. 1975) (upholding a conviction for use of a handgun
in commission of a felony where jury acquitted defendant of the
underlying felony)); see also Mack v. State, 479 A.2d 1344 (Md.
1984) (also upholding use of a handgun conviction where jury acquit-
ted defendant of underlying felony).

   In Bates, the Maryland Court of Special Appeals found that incon-
sistent jury verdicts are permitted where the reviewing court would
have to speculate as to the reason for the inconsistency. "The rationale
for tolerating inconsistent verdicts under such circumstances is `[t]he
general view . . . that inconsistencies may be the product of lenity,
mistake, or a compromise to reach unanimity, and the continual cor-
rection of such matters would undermine the historic role of the jury
as arbiter of questions put to it.'" Bates, 736 A.2d at 415 (quoting
Shell v. State, 512 A.2d 358, 362 (Md. 1986)).

   Bates involved a defendant who was convicted of felony murder
but acquitted of the underlying felonies of armed robbery and
attempted armed robbery. After recognizing the general proposition
that inconsistent verdicts are permitted under certain circumstances,

             8
the court held that the verdict in Bates' case could not stand because
the verdict was the product of confusing jury instructions. Id. at 416.
Here, as in Bates, I believe that the inconsistent verdict resulted from
confusing jury instructions. The jury instructions in Bates, which are
similar to the instructions in this case, stated:

       In order to convict the defendants of first degree felony mur-
       der, the State must prove that the defendant or another par-
       ticipating in the crime with the defendant committed the
       murder in question, and that, in fact, the defendant, or
       another participating in the crime with the defendant, killed
       the victim in question, Clayton Culbreth, and that the act
       resulting in the death of Clayton Culbreth occurred during
       the commission or attempted commission of the robbery
       with which the defendants have been charged. It is not nec-
       essary for the State to prove that the defendants intended to
       kill the victim.

Id.

    The Bates court found this instruction to be inadequate because the
trial court never informed the jury that in order to find the defendant
Beharry guilty of felony murder, it had to find him guilty of armed
robbery or attempted armed robbery. The instructions as written
would allow the jury to find "Beharry guilty of felony murder even
if it believed that he did not participate in the attempted armed rob-
bery." Id. Based on the resulting inconsistent verdicts, the court found
"no doubt that the jury was affirmatively misled by the court's
instructions." Id. at 417; see also State v. Grey, 685 A.2d 923 (N.J.
1996) (overturning felony murder conviction where defendant was
acquitted of the underlying arson felony based on confusing jury
instructions).

    The instructions given at Leonard-Bey's trial were also confusing
as the jury could have found him guilty of felony murder without
finding that he had any involvement in the attempted robbery. The
first element of the instruction states that "the Defendant or another
participating in the crime with the Defendant attempted to commit the
crimes of robbery with a deadly weapon or robbery." This sentence
is confusing as the jury could find that only Daniels attempted to

             9
commit robbery and thus use Daniels' underlying felony to convict
Leonard-Bey of felony murder.

            II.

   Because it is the only issue raised on appeal, we must frame this
case in terms of whether trial counsel was ineffective for failing to
request an expanded jury instruction. As explained above, the jury
instruction at issue is confusing on its face. Additionally, it is not
clear that there was sufficient evidence presented at trial indicating
that Leonard-Bey participated in the attempted robbery of Green.
Despite the potential for confusion, counsel failed to object to the jury
instruction or to request the expanded instruction at issue.

   Under Maryland law, the trial court would have been required to
give the expanded instruction to the jury if requested by counsel. "[A]
trial judge must give a requested instruction that correctly states the
applicable law and that has not been fairly covered in the instructions
actually given. Indeed, the failure to give such an instruction consti-
tutes error." Mack, 479 A.2d at 1348.

    Our decision in Luchenburg v. Smith, 79 F.3d 388 (4th Cir. 1996),
is directly on point. In Luchenburg, a Maryland case, we found that
trial counsel was indeed ineffective for failing to request an expanded
instruction more accurately explaining to the jury that it could not
convict Luchenburg of a compound handgun charge unless it first
found him guilty of a predicate crime of violence. We noted that such
an expanded instruction would have been a correct statement of the
law and, upon request, the trial court would have been obligated to
give the instruction. Further, we found that the instruction given to the
jury was confusing and "invited the jury to return an inconsistent ver-
dict." Id. at 392. We rejected any notion that counsel's failure to
request an expanded instruction was based on sound trial strategy,
finding that "counsel made no tactical `choice,' unless a failure to
become informed of the law affecting his client can be so consid-
ered." Id. at 392-93.

   As in Luchenburg, the instruction given in this case invited the jury
to return an inconsistent verdict. Moreover, counsel's failure to
request the expanded instruction cannot be based on sound trial strat-

            10
egy. During state post-conviction hearings, trial counsel could not
recall why he did not seek the expanded instruction but recognized
that the offense of felony murder required a finding of an underlying
felony and a homicide. (J.A. 1169). Counsel stated that it was
Thanksgiving, he figured the jury was eager to get home, and he "was
thankful to get out of the case with a felony murder conviction, all of
the underlying felonies not guilty and had hoped that the case would
be overturned on appeal on the issue of inconsistent verdict." (J.A.
1171). He was unaware, however, that his failure to object to the ver-
dict or to poll the jury waived the issue for appellate review. (Id.)
Later during questioning, however, counsel indicated that he did not
want the jury to hone in on the underlying felonies because a convic-
tion on these felonies may have made Leonard-Bey eligible for the
death penalty.* (J.A. 1191). Given that counsel repeatedly stated in
the district court that he did not know why he failed to seek an
expanded instruction, this sudden recollection of "strategy" is not only
contrived, it strains all bounds of credibility.

    An expanded instruction was not only appropriate under the cir-
cumstances, it was necessary to avoid the jury confusion that ulti-
mately resulted in this case. Again, counsel did not recall why he did
not request the expanded instruction, stating that he had "no idea at
the time." (J.A. 1169). His failure to correct the jury instruction, cou-
pled by his failure to object to the jury's verdict, cannot be considered
____________________________________________________________
    *The majority contends that an expanded instruction could have
caused the jury to focus more on the attempted robbery charge, for which
a conviction would have triggered eligibility for the death penalty, and
claims that the evidence against Leonard-Bey was "quite strong" on both
the murder charges and the attempted robbery charge. The jury, after
considering all of the evidence, acquitted Leonard-Bey of both first
degree murder and attempted robbery, and I submit to the majority that
the evidence against Leonard-Bey on both charges was far from clear
cut. The jury was presented with evidence that both Leonard-Bey and
Wendell Daniels fired shots on that evening. (J.A. 415). Further, Police
Detective Hubert Bibbs testified that when he arrived on the scene, he
was greeted by a chorus of voices informing him that "Wendell did it."
(J.A. 95-97). I also question whether there was sufficient evidence pre-
sented at trial indicating that Leonard-Bey participated in the attempted
robbery, and note that Daniels provided no testimony as to Leonard-
Bey's involvement.

            11
a tactical choice, "unless a failure to become informed of the law
affecting his client can be so considered." Luchenburg, 79 F.3d at
392-93. Because counsel's performance clearly fell below an objec-
tive standard of reasonableness, I would find that Leonard-Bey has
met the first prong of Strickland.

    To meet the second prong of Strickland, Leonard-Bey must show
that "there is a reasonable probability that, but for counsel's unprofes-
sional errors, the result of the proceeding would have been different."
Strickland, 466 U.S. at 694. As stated above, if counsel had requested
an expanded instruction stating that the jury must acquit Leonard-Bey
on the felony murder charge if it found him not guilty of the underly-
ing felonies, the trial court would have been required to give this
instruction. The instructions would have been binding on the jury and
"it must be assumed that the jury would have followed the instruc-
tions." Luchenburg, 79 F.3d at 393 (citing Wilson v. State, 591 A.2d
524, 529 (Md. Ct. Spec. App. 1991) (stating that the jury is presumed
to follow the trial court's instructions)).

   Given that Leonard-Bey was acquitted of the sole underlying fel-
ony, there is a reasonable probability that he would have been acquit-
ted on the charge of felony murder had the jury been properly
instructed. I therefore would find that Leonard-Bey has also met the
second prong of Strickland and established his case of ineffective
assistance of counsel.

            12
