PRESENT: ALL THE JUSTICES 

GEORGE JUNIOR GREEN 

v. Record No. 012225 OPINION BY JUSTICE CYNTHIA D. KINSER 

 NOVEMBER 1, 2002 

S.K. YOUNG, WARDEN 

FROM THE CIRCUIT COURT OF THE CITY OF PETERSBURG 

Honorable James F. D’Alton, Jr. 

 In this appeal, a prisoner challenges a circuit 

court’s dismissal of his petition for a writ of habeas 

corpus. The issue is whether the prisoner was denied 

effective assistance of counsel when his attorney failed to 

object to a jury instruction that allowed the jury to find 

the prisoner guilty even if the Commonwealth failed to 

prove beyond a reasonable doubt each element of the charged 

offense. Because we conclude that the prisoner has 

demonstrated that his trial counsel’s performance was 

deficient and that the deficient performance prejudiced his 

defense, we will reverse the judgment of the circuit court. 

I. MATERIAL FACTS AND PROCEEDINGS 

The appellant, George Junior Green, was indicted in 

the Circuit Court of the City of Petersburg on charges of 

first-degree felony murder, two counts of malicious 

wounding, conspiracy to commit robbery, four counts of 

robbery, and seven counts of using a firearm in the 
commission of those felonies.1 In June 1998, a jury found 

Green guilty on all charges except the two counts of 

malicious wounding and the two related firearm charges. 

After exhausting the direct appeal process, Green filed a 

petition for a writ of habeas corpus in the circuit court, 

alleging numerous claims. 

 The circuit court heard evidence and argument of 

counsel at a plenary hearing. In a subsequent order, the 

court dismissed Green’s petition for a writ of habeas 

corpus for the reasons stated in its findings of fact and 

conclusions of law set forth in the record of the plenary 

hearing. We awarded Green an appeal from that judgment, 

limited to one assignment of error: whether Green’s trial 

attorney rendered ineffective assistance of counsel by 

failing to object to an “unconstitutional instruction given 

to the jury.” 

 The instruction at issue was Instruction No. 10, the 

finding instruction for first-degree felony murder. In its 

entirety, Instruction No. 10 reads as follows: 

 George Green is charged with the crime of firstdegree felony murder. The Commonwealth must prove 

 1

 We note that the appellant was indicted and tried 

under the name of “George Green, Jr.” However, the 

appellant used the name of “George Junior Green” when 

filing his petition for a writ of habeas corpus. In this 

opinion, we will use the name appearing on the habeas 

corpus petition. 

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beyond a reasonable doubt each of the following 

elements of that crime: 

 (1) That Karla E. Pettiford was killed; and, 

 (2) That her killing occurred while the 

defendant and others were engaged in the act of 

robbery. 

If you find that the Commonwealth has failed to 

prove beyond a reasonable doubt each of the above 

elements of the offense as charged, then you shall 

find the defendant guilty, but you shall not fix his 

punishment until your verdict has been returned and 

further evidence is heard by you. 

If you find that the Commonwealth has failed to 

prove beyond a reasonable doubt any one of the 

elements of the offense, then you shall find the 

defendant not guilty. 

(Emphasis added.) The portion of the instruction about 

which Green complains is the underscored sentence that 

instructed the jury to find the defendant guilty even if 

the Commonwealth failed to prove the elements of the 

offense beyond a reasonable doubt. The instruction was not 

only provided to the jurors in written form but also read 

to them by the court. Neither the court, the attorney for 

the Commonwealth, nor Green’s trial counsel noticed the 

obvious mistake in the instruction. At the plenary hearing 

on the habeas petition, Green’s trial counsel conceded that 

the underscored language was “clearly erroneous.” 

 In dismissing this particular claim, the circuit court 

characterized the mistake as a “typographical error,” which 

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“had to be read in a common sense fashion.” The court 

reasoned that common sense would have told the jury that 

there was a mistake in the instruction, especially since 

the last sentence contained a correct statement of law, and 

that the jury, therefore, was not confused by the 

instruction. Relying on Strickland v. Washington, 466 U.S. 

668 (1984), the court concluded that Green had failed to 

show any prejudice resulting from his trial counsel’s 

failure to object to Instruction No. 10. 

II. ANALYSIS 

 In a collateral attack on a judgment of conviction, a 

prisoner has the burden of proving by a preponderance of 

the evidence the claims asserted in the petition for a writ 

of habeas corpus. Curo v. Becker, 254 Va. 486, 489, 493 

S.E.2d 368, 369 (1997); Nolan v. Peyton, 208 Va. 109, 112, 

155 S.E.2d 318, 321 (1967). The question whether a 

prisoner is entitled to habeas relief is a mixed question 

of law and fact. Curo, 254 Va. at 489, 493 S.E.2d. at 369. 

Consequently, a circuit court’s conclusions of law are not 

binding on this Court but are subject to review to 

ascertain whether the circuit court correctly applied the 

law to the facts. Id.

 As previously stated, Green alleges a violation of his 

right to effective assistance of counsel as guaranteed by 

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the Sixth Amendment and made applicable to the states under 

the Fourteenth Amendment. In order to establish 

ineffective assistance of counsel, Green must prove that 

his trial counsel’s “performance was deficient,” meaning 

that “counsel made errors so serious that counsel was not 

functioning as the ‘counsel’ guaranteed the defendant by 

the Sixth Amendment.” Strickland, 466 U.S. at 687. Green 

must also show that “the deficient performance prejudiced 

the defense,” that is to say “counsel’s errors were so 

serious as to deprive the defendant of a fair trial[.]” 

Id. Unless Green establishes both prongs of this two-part 

test, his claim of ineffective assistance of counsel will 

fail. Id.

 To satisfy the first prong of the Strickland test, 

Green “must show that counsel’s representation fell below 

an objective standard of reasonableness.” Id. at 688. In 

order to do so, he must “identify the acts or omissions of 

counsel that are alleged not to have been the result of 

reasonable professional judgment.” Id. at 690. Then, we 

must “determine whether, in light of all the circumstances, 

the identified acts or omissions were outside the wide 

range of professionally competent assistance.” Id.

 The alleged deficient performance in this case is the 

failure of Green’s trial counsel to object to Instruction 

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No. 10. That instruction, as admitted by the Commonwealth 

and Green’s trial counsel, was an erroneous statement of 

law. The particular sentence at issue violated a basic 

procedural safeguard required by the Due Process Clause, 

i.e., that the prosecution prove beyond a reasonable doubt 

every element of the charged offense. See Sullivan v. 

Louisiana, 508 U.S. 275, 277-78 (1993); In re Winship, 397 

U.S. 358, 363 (1970); Dobson v. Commonwealth, 260 Va. 71, 

74, 531 S.E.2d 569, 571 (2000); Stokes v. Warden, 226 Va. 

111, 117, 306 S.E.2d 882, 885 (1983). That safeguard is a 

firmly established component of our criminal justice 

system. See Sullivan, 508 U.S. at 278 (citing Winship, 397 

U.S. at 364) (noting that the beyond-a-reasonable-doubt 

standard is followed by virtually all common law 

jurisdictions). Since Instruction No. 10, without 

question, violated Green’s due process rights, any 

reasonably competent attorney would have known that it was 

incumbent upon him or her to object to the instruction. 

See Stokes, 226 Va. at 118, 306 S.E.2d at 885; see also

Gray v. Lynn, 6 F.3d 265, 269 (5th Cir. 1993). Thus, we 

conclude that the performance of Green’s trial counsel 

“fell below an objective standard of reasonableness.” 

Strickland, 466 U.S. at 688. 

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 Of course, that determination does not necessarily 

mean that Green is entitled to habeas relief. He must also 

establish that his counsel’s deficient performance 

prejudiced his defense. To demonstrate prejudice, Green 

“must show that there is a reasonable probability that, but 

for counsel’s unprofessional errors, the result of the 

proceeding would have been different.” Id. at 694. In 

this particular case, our prejudice analysis must be guided 

by the Supreme Court’s decision in Sullivan v. Louisiana. 

 In that case, which was an appeal of a state court 

judgment of conviction, the question was “whether a 

constitutionally deficient reasonable-doubt instruction may 

be harmless error.” 508 U.S. at 276. In addressing that 

question, the Court first noted “that the Fifth Amendment 

requirement of proof beyond a reasonable doubt and the 

Sixth Amendment requirement of a jury verdict are 

interrelated[,]” meaning that “the jury verdict required by 

the Sixth Amendment is a jury verdict of guilty beyond a 

reasonable doubt.” Id. at 278. Such a verdict was not 

returned in Sullivan because the trial judge’s jury 

instruction defining the term “reasonable doubt” was 

unconstitutional. Id. Consequently, the Court concluded 

that the instruction could not be harmless error. Id. at 

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280. The Court’s explanation for that conclusion is 

important to our analysis here: 

 Harmless-error review . . . is not whether, in a trial 

that occurred without the error, a guilty verdict 

would surely have been rendered, but whether the 

guilty verdict actually rendered in this trial was 

surely unattributable to the error. That must be so, 

because to hypothesize a guilty verdict that was never 

in fact rendere–no matter how inescapable the findings 

to support that verdict might be–would violate the 

jury-trial guarantee. 

* * * 

There being no jury verdict of guilty-beyond-areasonable-doubt, the question whether the same

verdict of guilty-beyond-a-reasonable-doubt would have 

been rendered absent the constitutional error is 

utterly meaningless. There is no object, so to speak, 

upon which harmless-error scrutiny can operate. The 

most an appellate court can conclude is that a jury 

would surely have found petitioner guilty beyond a 

reasonable doubt–not that the jury’s actual finding of 

guilty beyond a reasonable doubt would surely not have 

been different absent the constitutional error. That 

is not enough. 

Id. at 279-80. 

 As we have already pointed out, Instruction No. 10 

contained an incorrect statement of law–a statement that 

violated the Due Process Clause. While we recognize that 

the last sentence of the instruction correctly told the 

jury to find Green not guilty if the Commonwealth failed to 

prove beyond a reasonable doubt each of the elements of 

first-degree felony murder, the fact remains that the jury 

received inconsistent directions with regard to that 

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offense. “ ‘[J]uries are presumed to follow their 

instructions.’ ” Zafiro v. United States, 506 U.S. 534, 

540 (1993) (quoting Richardson v. Marsh, 481 U.S. 200, 211 

(1987)); see also Strickland, 466 U.S. at 695 (“assessment 

of prejudice should proceed on the assumption that the 

decisionmaker is reasonably, conscientiously, and 

impartially applying the standards that govern the 

decision”). But, the jury in this case could not have 

followed Instruction No. 10 in its entirety because of the 

internal inconsistency. Although the circuit court 

believed that the jury would have recognized that there was 

a mistake in the instruction, we conclude that it would be 

pure speculation to assume that the jury ignored the 

misstatement of law in Instruction No. 10 but followed the 

correct one. See Sullivan, 508 U.S. at 281 (misdescription 

of burden of proof vitiated jury’s finding, thus reviewing 

court would be engaging in speculation to determine what a 

jury would have done). 

 Since the jury in this case could have found Green 

guilty of first-degree felony murder without finding that 

the Commonwealth had proved the elements of that offense 

beyond a reasonable doubt, we have the same situation here 

as the Supreme Court dealt with in Sullivan, the absence of 

a verdict of guilty-beyond-a-reasonable-doubt. Without 

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such a verdict, there was no “object” in Sullivan upon 

which to apply a harmless error analysis, and the absence 

of that verdict in this case leaves us with no “result” 

upon which to apply a prejudice analysis. In other words, 

we cannot determine whether, but for counsel’s deficient 

performance, the result of the proceeding would have been 

different because there was no “result,” i.e., no verdict 

of guilty-beyond-a-reasonable-doubt. Accordingly, we 

conclude that Green has demonstrated his trial counsel’s 

error was so serious as to deprive him of a fair trial.2 

See Strickland, 466 U.S. at 687. 

 2

 In Henderson v. Kibbe, 431 U.S. 145, 154 (1977), the 

Supreme Court of the United States held that the “burden of 

demonstrating that an erroneous instruction was so 

prejudicial that it will support a collateral attack on the 

constitutional validity of a state court’s judgment is even 

greater than the showing required to establish plain error 

on direct appeal.” Id. The question there was whether a 

trial judge’s failure to instruct on the issue of causation 

was constitutional error requiring habeas corpus relief. 

Id. at 147. The Court framed the relevant test as 

“ ‘whether the ailing instruction by itself so infected the 

entire trial that the resulting conviction violates due 

process,’ . . . not merely whether ‘the instruction is 

undesirable, erroneous, or even “universally 

condemned.” ’ ” Id. at 154 (quoting Cupp v. Naughten, 414 

U.S. 141, 147 (1973)); see also, United States v. Frady, 

456 U.S. 152, 169 (1982). Unlike the present case, 

Henderson did not involve a claim of ineffective assistance 

of counsel. Nevertheless, Instruction No. 10 “so infected” 

the trial that we cannot be confident that the jury found 

Green guilty beyond a reasonable doubt of first-degree 

felony murder. Thus, Green’s conviction violated the Due 

Process Clause. 

10
 Even if we treat the jury’s verdict in this case as a 

“result” to which the Strickland prejudice analysis can be 

applied, we reach the same conclusion. The right to a jury 

verdict of guilty-beyond-a-reasonable-doubt is a “ ‘basic 

protectio[n]’ whose precise effects are unmeasurable, but 

without which a criminal trial cannot reliably serve its 

function.” Sullivan, 508 U.S. at 281 (quoting Rose v. 

Clark, 478 U.S. 570, 577 (1986)). “The right to trial by 

jury reflects . . . ‘a profound judgment about the way in 

which law should be enforced and justice administered.’ ” 

Id. (quoting Duncan v. Louisiana, 391 U.S. 145, 155 

(1968)). 

 When, as here, a jury is not properly instructed about 

its responsibility to find a defendant not guilty if the 

prosecution fails to prove the elements of the offense 

beyond a reasonable doubt, there is a reasonable 

probability, sufficient to undermine our confidence in the 

outcome, that, but for trial counsel’s failure to object to 

the erroneous instruction, the result of the trial would 

have been different. See Strickland, 466 U.S. at 694-95. 

Thus, Green has demonstrated prejudice to his defense as a 

result of his counsel’s deficient performance. In our 

opinion, there can be no doubt that deprivation of the 

right to a verdict of guilty-beyond-a-reasonable-doubt is 

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prejudicial and has “consequences that are necessarily 

unquantifiable and indeterminate.” Sullivan, 508 U.S. at 

282. 

 We are not persuaded otherwise by the Commonwealth’s 

argument that the error did not occur in a vacuum because 

the jury was told during voir dire, opening statements, 

closing arguments, and in other instructions that the 

Commonwealth must prove Green’s guilt beyond a reasonable 

doubt. We note that those other instructions primarily 

defined the elements of the additional charges for which 

Green was standing trial and that the jury, with proper 

instructions, found Green not guilty of the two malicious 

wounding charges and the two related firearm offenses. 

Instruction No. 10 was the only instruction that addressed 

the elements of first-degree felony murder. Just as the 

jury instruction in Sullivan was a “structural defect[] in 

the constitution of the trial mechanism,” the instruction 

in this case also qualifies as a “structural error.” 

Sullivan, 508 U.S. at 281-82. 

III. CONCLUSION 

 For these reasons, we will reverse the judgment 

appealed from, set aside Green’s convictions for felony 

first-degree murder and the use of a firearm in the 

commission of that felony, and remand the case to the 

12
circuit court with directions to issue the writ of habeas 

corpus and require that Green be returned to the custody of 

said court to be tried on the indictments at issue. 

Reversed and remanded. 

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