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.
2

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 
3

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.
4

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 
5

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.
6

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 
7

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.
8

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 
9

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.
10

• 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.
11

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)
12

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)).
13

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.
14

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.
15

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 postconviction 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 
16

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).
17

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.
18

“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.
19

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 
20

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 
21

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.
22

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.
23

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 
24

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.
25

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. 
26

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.
27

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
28

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 
29

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)
30

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).
31

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 
32

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 
33

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