PRESENT:    All the Justices

JUAN MANUEL DOMINGUEZ
                                                 OPINION BY
v.     Record No. 131091                    JUSTICE WILLIAM C. MIMS
                                               April 17, 2014
SAMUEL V. PRUETT, WARDEN

                FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
                         Randy I. Bellows, Judge

       In this appeal, we consider whether the Circuit Court of

Fairfax County erred in denying Juan Manuel Dominguez’s

petition for a writ of habeas corpus.

           I.     BACKGROUND AND MATERIAL PROCEEDINGS BELOW

     A. Procedural History

       On March 11, 2009, Juan Manuel Dominguez (“Dominguez”) was

tried and convicted of malicious wounding and robbery in a jury

trial in the Circuit Court of Fairfax County.     He was sentenced

to ten years’ imprisonment for malicious wounding and five

years’ imprisonment for robbery, to be served concurrently.

       Dominguez appealed his convictions to the Court of

Appeals, asserting that the trial court improperly instructed

the jury as to the elements of malicious wounding, and that the

evidence was insufficient to support the convictions.       The

petition for appeal was denied by per curiam order.        Dominguez

v. Commonwealth, Record No. 2470-09-4 (May 12, 2010).       A three-

judge panel denied Dominguez’s petition for rehearing, and we

refused his petition for appeal to this Court.
     On February 3, 2012, Dominguez filed a petition for a writ

of habeas corpus in the Circuit Court of Fairfax County. 1    As

relevant to this appeal, Dominguez argued that his trial

counsel provided ineffective assistance by failing to object to

the malicious wounding jury instruction.   The habeas court

denied relief to Dominguez, holding that he failed to prove his

attorney’s performance was prejudicial as required under

Strickland v. Washington, 466 U.S. 668 (1984).

  B. Criminal Trial and Appeal

     The evidence against Dominguez at trial included testimony

from the victim, Eulogio Marroquen-Ulario (“Marroquen”), and

the responding officer, Officer Gerard Sullivan with the

Fairfax County Police Department.

     Marroquen testified that he was highly intoxicated on the

night of the attack.   His backpack and $20 had been stolen

during an attempted drug deal earlier that night.    He went to a

nearby convenience store to report the theft.    After talking

with police, Marroquen shared a beer with Dominguez outside the

store and told him about the theft.    Marroquen knew Dominguez

“from the street,” but did not know his name.    Marroquen




     1
       References to the events and rulings in the underlying
criminal trial will be to those of the “trial court,” and
similar references to the habeas corpus proceeding will be to
those of the “habeas court.”

                                 2
eventually walked away to inspect a “suspicious car” parked

nearby.   When he returned, Dominguez was gone.

     As Marroquen was walking home, he was attacked by two men

who hit him repeatedly with baseball bats.   Marroquen testified

that the assailants continued to beat him with the bats and

kick him in the head when he fell to the ground.   The attack

did not cease until Marroquen emptied his pockets, including

his wallet, onto the ground.   When asked why he threw his

wallet onto the ground, Marroquen responded: “[b]ecause I felt

like they were killing me. . . . I offered the money because I

want [sic] to save myself.”    Marroquen sustained several blows

to the head, which required stitches.

     Following the attack, Marroquen provided a detailed

description of one of the assailants to Officer Sullivan.    He

then identified Dominguez as one of the assailants from a

spread of photographs.   Marroquen admitted he could not see

Dominguez’s face during the attack, but stated he recognized

him because of his physical appearance.

     At the conclusion of the evidence, the jury was instructed

that the intent needed to find Dominguez guilty of malicious

wounding was “intent to maim, disfigure, disable, or kill.”

Dominguez’s trial counsel did not object to this instruction.

     During subsequent deliberations, the jury asked the trial

court two questions.   First, the jury asked when a photograph


                                 3
depicting Marroquen’s injuries was taken. The trial court

declined to answer.   Three hours later, the jury asked for a

definition of the term “disable” in the context of

distinguishing between malicious wounding and unlawful

wounding.   The trial court directed the jury to rely on the

given instructions; however, it noted that the difference

between malicious wounding and unlawful wounding was whether

the act in question was done with malice.

     The jury ultimately convicted Dominguez of malicious

wounding, in violation of Code § 18.2-51, and robbery, in

violation of Code § 18.2-58.   Dominguez appealed his

convictions to the Court of Appeals, arguing that the jury was

improperly instructed on malicious wounding.   Dominguez argued

that the instruction omitted the word “permanently,”

eliminating the element of intent to cause “permanent” injury.

     The Court of Appeals denied Dominguez’s petition for

appeal.   With respect to the malicious wounding instruction,

the Court of Appeals held that Dominguez failed to object to

the instruction.   Consequently, Rule 5A:18 barred it from

considering the merits of his argument.   The Court of Appeals

refused to apply the ends of justice exception in Rule 5A:18,

stating that “any error . . . in instructing the jury was not

material” because “there was sufficient and competent evidence




                                4
in the record that [Dominguez] acted with [the requisite]

intent.”

  C. Habeas Corpus Proceeding

       Dominguez filed a habeas petition through newly-retained

counsel.   Dominguez alleged that he received ineffective

assistance of counsel at trial because, among other things, his

trial counsel failed to object to the malicious wounding

instruction.

       Henry J. Ponton, Warden of the Mecklenburg Correctional

Center (the “Warden”), filed a motion to dismiss Dominguez’s

habeas petition. 2   The Warden argued that Dominguez’s

ineffective assistance claim failed to meet the “prejudice”

prong of the two-part test set forth in Strickland, 466 U.S. at

687.

       After hearing argument, the habeas court denied relief to

Dominguez and dismissed his petition.    The judge stated that,

“given the evidence of [Marroquen] saying he was almost killed,

being attacked with a bat, needing multiple stitches, being hit

all over the head, being in pain in various places, I just

don’t see . . . prejudice flowing from the failure to object to

th[e malicious wounding] instruction.”


       2
       After the motion to dismiss was filed, Dominguez was
transferred to Coffeewood Correctional Center. Samuel V.
Pruett, the Warden of Coffeewood, was substituted as the
respondent in this case.

                                 5
       Dominguez timely filed a petition for appeal.   We granted

Dominguez’s appeal limited to the following assignment of

error:

       The Circuit Court erred when it denied . . . Dominguez’s
       claim that his trial counsel provided ineffective
       assistance of counsel, in violation of Strickland v.
       Washington . . . and the Sixth Amendment, by failing to
       object to the trial court’s deficient jury instruction on
       malicious wounding that omitted the essential requirement
       of an intent to “permanently” maim, disfigure, or disable
       the victim.

                              II.   DISCUSSION

  A.     Standard of Review

       Whether an inmate is entitled to habeas relief is a mixed

question of law and fact, which we review de novo.      Laster v.

Russell, 286 Va. 17, 22, 743 S.E.2d 272, 274 (2013).     “[T]he

[habeas] court’s findings and conclusions are not binding upon

this Court, but are subject to review to determine whether the

[habeas] court correctly applied the law to the facts.” Hash v.

Director, Dep’t of Corr., 278 Va. 664, 672, 686 S.E.2d 208, 212

(2009) (quoting Curo v. Becker, 254 Va. 486, 489, 493 S.E.2d

368, 369 (1997)).   “The [habeas] court’s factual findings,

however, are entitled to deference and are binding upon this

Court unless those findings are plainly wrong or without

evidence to support them.”      Hedrick v. Warden, Sussex I State

Prison, 264 Va. 486, 496, 570 S.E.2d 840, 847 (2002).




                                    6
  B.     Analysis

       Dominguez alleges that the habeas court erroneously denied

his claim that his trial counsel provided ineffective

assistance, in violation of Strickland and the Sixth Amendment,

by failing to object to the trial court’s jury instruction on

malicious wounding that omitted the element of intent to

“permanently” maim, disfigure or disable the victim.

       In Strickland, the United States Supreme Court established

a two-prong test to assess whether an attorney’s representation

was ineffective.    466 U.S. at 687.   To prevail on an

ineffective assistance of counsel claim, Dominguez must satisfy

both the “performance” prong and the “prejudice” prong of the

Strickland test. Id.    To satisfy the first prong, “the

defendant must show that counsel’s representation fell below an

objective standard of reasonableness.” Id. at 688.        Under the

second prong, “the defendant must show that the deficient

performance prejudiced the defense.     This requires showing that

counsel’s errors were so serious as to deprive the defendant of

a fair trial, a trial whose result is reliable.” Id. at 687.

       If Dominguez makes an insufficient showing on either

Strickland component, his ineffective assistance claim fails.

Id. at 697.   Accordingly, while we agree that a proper

malicious wounding instruction would include the element of

intent to “permanently” maim, disfigure or disable the victim,


                                 7
see Burkeen v. Commonwealth, 286 Va. 255, 259, 749 S.E.2d 172,

174 (2013), we will focus first on the “prejudice” prong of the

analysis.   See Strickland, 466 U.S. at 697 (observing that it

is often preferable to address the prejudice requirement in

full at the outset).

     In analyzing the “prejudice” component, “the ultimate

focus of inquiry must be on the fundamental fairness of the

proceeding whose result is being challenged.”   Id. at 696; see

also Luchenburg v. Smith, 79 F.3d 388, 391 (4th Cir. 1996).    We

must consider the totality of the evidence before the habeas

court.   Lewis v. Warden, Fluvanna Corr. Ctr., 274 Va. 93, 113,

645 S.E.2d 492, 504 (2007); Strickland, 466 U.S. at 695.     “An

error by counsel, even if professionally unreasonable, does not

warrant setting aside the judgment of a criminal proceeding if

the error had no effect on the judgment.”   Id. at 691.   To

prove the judgment was affected by counsel’s error,

     [t]he [habeas petitioner] must show that there is a
     reasonable probability that, but for counsel’s
     unprofessional errors, the result of the proceeding
     would have been different. A reasonable probability
     is a probability sufficient to undermine confidence
     in the outcome. . . . [T]he question is whether there
     is a reasonable probability that, absent the errors,
     the factfinder would have had a reasonable doubt
     respecting guilt.

Id. at 694-95.

     Dominguez argues that he was prejudiced by his trial

counsel’s failure to object to the malicious wounding


                                8
instruction because the element of “permanence” was a debatable

issue, and had the jury been correctly instructed there is a

reasonable probability it would not have concluded that

Dominguez intended to “permanently” maim, disfigure or disable

Marroquen.   He asserts four main arguments to support his claim

that there is a reasonable probability the result of the

proceeding would have been different.

     First, Dominguez argues that the lack of severity of

Marroquen’s injuries belies any intent to permanently

injure.   He claims that although Marroquen made much of

the assault at times, his testimony was unreliable.

Dominguez points out that Marroquen had no remaining scars

or injuries at the time of trial.   He also notes that the

probation officer chose not to enhance his Sentencing

Guidelines point total based on serious physical injury.

     This argument is without merit.    The jury clearly

resolved any concerns about the credibility of Marroquen’s

testimony in his favor.   Marroquen’s actual injuries are

in no way dispositive of Dominguez’s intent with respect

to the assault.   It is entirely possible for an assailant

to intend to permanently injure a victim, but only succeed

in temporarily injuring him.   The severity and permanence

of the actual wounds are only dispositive when a defendant




                                9
is charged with aggravated malicious wounding. See Code §

18.2-51.2.

     Dominguez next contends that the jury’s questions

during deliberations support a finding of prejudice.       The

jury asked when a photograph of the victim was taken and

for the legal definition of “disable.”      According to

Dominguez, these questions indicate that the permanence of

Marroquen’s injuries was controversial.      Thus, he claims

there is a reasonable probability that, had the jury been

correctly instructed, he would not have been convicted of

malicious wounding.

     We disagree.     Dominguez’s argument starts with the

assumption that the jury’s questions somehow signify its

belief that Marroquen’s injuries were not permanent.       We

do not read the questions that way. 3    Even if we did, we

still would not characterize them as some tacit finding of

fact by the jury.   “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


     3
       The jury asked for the definition of “disable” in the
context of distinguishing between malicious wounding and
unlawful wounding. If anything, this question signifies
confusion, because the definition of “disable” in no way
distinguishes the two charges. See Code § 18.2-51.



                                  10
whole.”   Kennemore v. Commonwealth, 50 Va. App. 703, 709,

653 S.E.2d 606, 609 (2007); see also 8 Wigmore, Evidence §

2348, at 680 (McNaughton rev. 1961).    We decline to

speculate as to the jury’s finding on the permanence of

Marroquen’s injuries based on questions asked during the

deliberative process. 4   See Couture v. Commonwealth, 51 Va.

App. 239, 247, 656 S.E.2d 425, 429 (2008).

     Dominguez next argues that Marroquen’s own theory of

the assault effectively concedes that Dominguez lacked the

intent to permanently injure Marroquen.    He claims that

Marroquen and the Commonwealth’s attorney repeatedly

argued that the purpose of the assault was to steal from

Marroquen, not to permanently injure him.     Marroquen

testified that he assumed the assailants wanted money, and

that they released him as soon as he gave them his wallet.

The Commonwealth reiterated this theory in its closing

argument:   “[Marroquen] gave them the money and that’s

when the attack stopped.    And that’s how you can tell what


     4
       We acknowledge that in Orthopedic & Sports Physical
Therapy Assocs. v. Summit Grp. Props., LLC, 283 Va. 777, 724
S.E.2d 718 (2012), we considered a question raised by the jury
in determining whether to set aside the verdict due to an
erroneous instruction. However, in that case, we used the
jury’s question as proof that we could not conclusively say the
jury had not been misled by the erroneous instruction. Id. at
785, 724 S.E.2d at 722-23. We did not use the question to
speculate as to the jury’s opinion on any specific issue, as
argued by Dominguez.

                                 11
their purpose was.    Because once that purpose was

accomplished, they ceased to beat him.    They were doing

this to take his money.”

     To begin, Dominguez’s assertion is contradicted by

parts of the record.    Marroquen admitted on cross

examination that Dominguez and his accomplice never asked

for money.   Marroquen also explicitly testified that the

attack “was not for money.    It was just for the sake of

assaulting me.   But I – I offered the money because I want

[sic] to save myself.”    Likewise, Dominguez misinterprets

the Commonwealth’s attorney’s statements during closing

argument.    The Commonwealth’s attorney argued that

Dominguez intended to steal from Marroquen and therefore

was guilty of robbery; however, he never suggested that

Dominguez’s intent to steal supplanted his intent to

permanently injure.    To the contrary, the Commonwealth’s

attorney explicitly stated, “there can be no doubt that in

fact [Dominguez] is guilty of malicious wounding. . . .

[T]here’s zero question.    It can’t even be argued that Mr.

Marroquen was [not] the victim of a malicious wounding and

the victim of a robbery.”    The Commonwealth’s theory

throughout the trial was that Dominguez intended both to

steal from Marroquen and to maliciously wound him in the

process.


                                 12
     Dominguez appears to confuse “intent” with “motive.”

The attack arguably was motivated by a desire to obtain

money.    Nevertheless, to concede that Dominguez’s motive

was to obtain money is not to say that this also was his

intent.    See Banovitch v. Commonwealth, 196 Va. 210, 218,

83 S.E.2d 369, 374 (1954).    “Motive is the moving cause

which induces action, while intent is the purpose to use a

particular means to effect a definite result.”    Id.

Dominguez may well have been motivated by a desire to

obtain money, while at the same time intending to

permanently injure or disable Marroquen as a means to

effectuate that aim.

     Finally, Dominguez claims that the nature of the

attack itself disproves any intent to permanently injure.

He focuses on the fact that Marroquen’s head injuries were

just as likely to have been caused by kicks as blows with

a baseball bat.    Dominguez argues that, while permanent

injury is the natural and probable consequence of blows to

the head with a violent instrument such as a baseball bat,

the same cannot be said for blows to the head with a foot.

See Lee v. Commonwealth, 135 Va. 572, 577-78, 115 S.E.2d

671, 673 (1923).

     We disagree.    “The intent to maliciously wound . . .

‘may, like any other fact, be shown by circumstances.’”


                                 13
Burkeen, 286 Va. at 259, 749 S.E.2d at 175 (quoting

Banovitch, 196 Va. at 216, 83 S.E.2d at 373).     Thus, it is

proper for a jury to consider not only the method by which

a victim is wounded, but also the circumstances under

which that injury was inflicted in determining whether

there is sufficient evidence to prove intent to

permanently maim, disfigure or disable a victim.     See

Dawkins v. Commonwealth, 186 Va. 55, 63, 41 S.E.2d 500,

504 (1947).

       In the recent case of Burkeen v. Commonwealth, we

unanimously held that the intent to permanently injure may

be presumed from a single blow with a bare fist, where

that single blow is combined with circumstances of

violence and brutality.    286 Va. at 259, 749 S.E.2d at

175.   In that case, “the victim did nothing to provoke the

attack, and he was hit with extreme force in a vulnerable

area of his body while he was defenseless and not

expecting such a blow.    The blow resulted in serious and

disfiguring injury.”     Id. at 261, 749 S.E.2d at 175.

Under those circumstances, we held that there was

sufficient evidence of violence and brutality for the

court to conclusively presume that, even though the

assailant delivered only one blow with a bare fist, he




                                  14
intended to permanently injure the victim. Id. at 261, 749

S.E.2d at 176.

     As in Burkeen, the evidence in the present case

clearly gave rise to a conclusive presumption that

Dominguez intended to permanently injure Marroquen.    The

evidence established that the attack was unprovoked;

occurred while Marroquen was unsuspecting and defenseless;

targeted a vulnerable area of Marroquen’s body – his head;

and resulted in head injuries that required medical

attention.   Unlike the attack in Burkeen, Dominguez did

not just deliver a single blow with a bare fist.    He and

his co-assailant repeatedly kicked and struck Marroquen

with enough force to knock him down.   Thus, even if

Marroquen’s head injuries were caused by kicks rather than

blows with a bat, the evidence conclusively established

that Dominguez acted with the requisite intent to

permanently injure Marroquen.   Thus, the erroneous

malicious wounding instruction did not render the trial

fundamentally unfair.   See Strickland, 466 U.S. at 696;

Luchenburg, 79 F.3d at 391.

     Accordingly, Dominguez’s claim for ineffective

assistance of counsel fails to satisfy the “prejudice”

prong of the two-part test enunciated in Strickland. 466

U.S. at 687.   Thus, Dominguez cannot meet his burden of


                                15
proving that there is a reasonable probability that, had

the jury been properly instructed, the result of the trial

would have been different.   Id. at 694.

                        III.    CONCLUSION

     For the reasons stated, we find no error in the habeas

court’s dismissal of Dominguez’s petition.   We will affirm the

judgment of the habeas court.

                                                        Affirmed.




                                 16
