Rоdney Cox seeks habeas relief on the grounds that he received ineffective assistance of counsel, leading to his conviction and incarceration for second-degree murder., Cox argues, that counsel’s failure to object to an erroneous jury instruction on intent prejudiced the outcome of his trial. The United States District Court for the Eastern District of New York, Jack B. Weinstein,
Judge,
granted Cox’s habeas petition, finding that Cox’s Sixth Amendmеnt right to effective counsel was violated when his trial counsel made no objections to an unconstitutional jury instruction that relieved the state of its burden of proof on intent to kill. We agree with the district court that counsel’s performance was deficient and prejudicial, and find that the state courts acted unreasonably in denying Cox’s appeal. However, Cox’s trial counsel was not given a hearing in the district court to explain his conduct as required by
Sparman v. Edwards,
BACKGROUND
In October 1993, Cox was visiting Tanisha Brewster in her apartment when her boyfriend, Eric Copeland, came to the door. Brewster refused to open the door and Copeland, who was a large man, kicked it in. When Copeland saw Cox in Brewster’s living room, he told Cox to leave. After an altercation betwеen the men, Cox left the apartment.
Later that day, Cox called Brewster and asked to come to her apartment to retrieve the Walkman he had left behind. Brewster agreed and Cox went to the apartment, where Brewster was alone with her one-year-old son. Shortly after Cox arrived, Brewster’s friend Paschell Petty rang the doorbell. Brewster opened the door for Petty, at which point Copeland, who had been hiding around thе corner, came toward the door asking who was inside the apartment. Although Brewster tried to keep Copeland from entering, he angrily pushed her aside and went in.
Scared by Copeland’s anger, Petty went down the hall to Brewster’s bedroom to get Brewster’s son. Cox was in the bedroom loading a gun. Petty went into the room and closed the door. Meanwhile, Brewster and Copeland went into the adjoining bedroom where they argued and shouted for a few minutes. Despite Brewster’s efforts to restrain Copeland, he eventually went into her bedroom and found Cox, who was still holding the gun.
Copeland and Cox began talking, then started arguing loudly and angrily for about fifteen minutes. The bedroom was very small, with Cox in one corner, Copeland in the other, and the two women with the child standing in the middle. Finally, Copeland said, “What are you going to do, shoot me?” In response, Cox fired one shot into Copeland’s face, killing him.
Cox was charged principally with two counts of murder in the second degree, to wit, one count of intentional murder and one count of murder by depraved indifference. In conference with the trial judge, after all the evidence had been presented, defense counsel moved to dismiss the depraved indifference murder count charged in the indictment. The court denied this request, announcing it would submit both the depravеd indifference murder count and the intentional murder count to the jury. Defense counsel also asked that the jurors be instructed on the defense of jus *196 tification, which the trial court refused. For its part, the state requested that the jury be charged with the lesser included crime of first-degree manslaughter. Defense counsel objected to any lesser included charges being submitted to the jury and the trial court denied the state’s requested charge.
When the trial judge charged the jury, he issued a charge on intentional second-degree murder instructing that “the law states that a person intends the natural consequences of his acts.” Although the court solicited objections from the parties after delivery of the charge, defense counsel did not object. The charge was later repeated twice during the jury deliberations, once in response to a note from the jury rеquesting “the legal definition of intent to kill.” Again, though provided an opportunity to object, defense counsel did not do so. After deliberating into a second day, the jury declared itself deadlocked and was directed by the court to continue deliberations. The jury finally reached a verdict of guilty of intentional murder and not guilty of depraved indifference murder.
Cox appealed his conviction to the state appellatе court, arguing, among other things, that the judge had erred in not instructing the jury on justification and that he had received ineffective assistance of counsel when counsel failed to object to the trial judge’s intent charge. The court affirmed Cox’s conviction without discussing the ineffective assistance claim.
See People v. Cox,
In December 1999, Cox filed a petition for a writ of habeas corpus in federal court. His petition raised the single claim that his counsel had been ineffective for failing to object to the trial judge’s intent charge. Cox argued that the language used in the charge, that “a person intends thе natural consequences of his acts,” violated the Supreme Court’s holding in
Sandstrom v. Montana,
DISCUSSION
When considering on appeal a district court’s grant of a habeаs petition, we review
de novo
the court’s legal conclusions and review its factual findings for clear error.
Anderson v. Miller,
Additionally, as with all habeas petitions brought after the effective date of the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA), a federal court cannot grant habeas in a case in
*197
which there was an adjudication on the merits in a state court proceeding unless the adjudication “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law as determined by the Supremе Court of the United States.” 28 U.S.C. § 2254(d)(1) (2003);
see also Williams v. Taylor,
The test for ineffective assistаnce of counsel established in
Strickland
requires a defendant to show that counsel’s performance “fell below an objective standard of reasonableness” and 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.”
Neither the Appellate Division nor thе New York Court of Appeals addressed Cox’s ineffectiveness argument beyond a brief statement that the argument was without merit. In the absence of any expressed reasoning behind this conclusion, we turn directly to the facts of the case to determine whether
Strickland
was applied unreasonably.
See Aeid v. Bennett,
The claim made by Cox is straightforward: that in giving its intent to kill instruction, the trial court clearly violated
Sandstrom,
There can be no doubt that the trial court’s instruction on intent contravened the longstanding holding of
Sandstrom.
In that case, the Supreme Court rejected an intent instruction stating “the law presumes that a person intends the ordinary consequences of his voluntary acts” because it violated the Fourteenth Amendment’s requirement that every element of an offense be proved beyond a reasonable doubt.
The inquiry we are faced with, then, is whether Cox’s trial counsel provided ineffective assistance to him by failing to object to the constitutionally defective intent instruction on any of the three occasions it was issued. In order for us to conclude that he did, we must determine both that counsel’s conduct was objectively unreasonable and that the outcome of Cox’s trial would likely have been different had the objection been made.
See Pavel v. Hollins,
In considering the reasonableness of counsel’s failure to object, we “indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.”
Strickland,
The state argues that Cox’s counsel made thе strategic choice not to argue intent and was instead fully committed to the defense that intentional, deadly force was necessary in order to stop Copeland. The state contends that counsel’s multiple failures to object to the erroneous intent charge were consistent with this overall strategy. In support of this argument, the state points to our decision in
Tsirizotakis v. LeFevre,
*199
There is a significant difference, however, between
Tsirizotakis
and this case: here, intent was not only at issue, it was the
sole
issue on which Cox’s conviction depended at the time the defective instruction was given. Despite the state’s argument that counsel conceded intent, it does not point to any record evidence of an intent concession by Cox’s counsel. Indeed, there appears to be none. It is well established that the merе assertion of justification or self-defense does not concede intent,
see Harris v. Scully,
Moreover, the three erroneous charges on intent came
after
the trial judge had refused to instruct the jury on a justificаtion defense. Whatever his prior strategy may have been, counsel had to be aware at that point that justification was no longer an option, leaving intent the only issue for the jury to decide. The fact that two of the defective charges came in direct response to the jury’s questions further underscores the importance intent had assumed at the time deliberations occurred.
See People v. Ciaccio,
Under such circumstances, we cannot characterize counsel’s failure to object to any of the three unconstitutional intent instructions as “reasonable.” We find implausible the state’s suggestion that counsel’s silence was a deliberate tactic; counsel’s inaction in the facе of the defective intent charges, even as the jury indicated the importance of intent in its deliberations, cannot be deemed a “conscious, reasonably informed decision” made “with an eye to benefitting” Cox.
Pavel,
In order to meet the second prong of the
Strickland
test, Cox must show that his counsel’s unreasonable conduct prejudiced the outcome of his trial, such that our confidence in the outcome is undermined.
See Strickland,
We find that standard has been met here. In addition to hearing the original defective charge, the jury made two requests for supplemental instruction on in
*200
tent and, on both occasions, the defective charge was given again without objection from counsel. First, the jurors asked for re-instruction on the elements of the crime сharged; later, they specifically requested “the legal definition of intent to kill.”
See Cox,
The evidence of Cox’s intent to kill Copeland was not, as the state characterizes it, “overwhelming.” Cox did not seek out a confrontation with Copeland, he hid when Copeland charged into Brewster’s apartment, and he did not immediately fire on Copeland when Copeland came into the bedroom where Cox was hiding. Additionally, Cox fired only one shot at Copeland before fleeing the scene. The state’s decision to charge Cox with depraved indifference murder, and to argue before summations that this charge should be submitted to the jury, indicates its awareness of the possibility that Cox lacked the intent to kill Copeland. In fact, the prosecutor acknowledged in his summation that “at the very lеast, [Cox] intended to cause Eric Copeland serious physical injury.” In the absence of overwhelming proof of intent to kill, and in light of the fact that a justification defense was not considered by the jury, it is more likely than not that the trial court’s intent instruction had the effect of directing a verdict against Cox.
Cf. Lancaster v. Newsome,
The conclusion that counsel’s inaction substantially prejudiced Cox’s rights and impacted the outcome of his trial is, we think, an unavoidable one. The jury in this case seemed headed for a deadlock until, after receiving the erroneous intent charge for the third time, it returned a verdict of guilty of intentional murder and not guilty of depraved indifference murder. We therefore find that but for counsel’s deficient performance, the likely outcome of Cox’s trial would have been different. Counsel’s failure to protect Cox’s rights was of sufficient magnitude to undermine our confidence in the outcome of the trial proceedings.
Although we have found that Cox likely meets both prongs of the
Strickland
test, his habeas petition can only be granted if the state courts’ decision that he did not receive ineffective assistance of counsel represents an “unreasonable,” not simply incorrect or erroneous, application of federal law.
See Williams,
In sum, we hold that Cox has likely shown that the performance of his appellate counsel was objectively unreasonable and prejudiced his appeal in satisfaction of the Strickland test, and that the state courts’ denial of Cox’s appeal “involved an unreasonable application of clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1).
Typically, a grant of habeas corpus would follow from this holding. Here, however, we find no evidence in the record that the district court afforded Cox’s trial counsel an opportunity to explain his deficient performance as required by
Sparman v. Edwards. See
CONCLUSION
In light of the foregoing, we vacate the decision of the district court and remand for further proceedings.
Notes
. If Cox demonstrates this level of prejudice as a rеsult of his attorney’s failure to object to the jury charge, he will also demonstrate that the state court's
Sandstrom
error was not harmless, regardless of the standard used to measure harmlessness on collateral review.
Cf. Cotto
v.
Herbert,