Lucas v. Clarke

Filing 9

MEMORANDUM OPINION. See Opinion for details. Signed by District Judge Henry E. Hudson on 8/28/2017. (sbea, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division
KEVIN MEREDITH LUCAS,
Petitioner,

v.
HAROLD CLARKE,
Respondent.

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AUG 2 8 2017
K, U.S. DISTRICT COURT
RICHMOND VA

Civil Action No. 3:16CV891-HEH

MEMORANDUM OPINION
(Granting Motion to Dismiss and Denying 28 U.S.C. § 2254 Petition)
Kevin Meredith Lucas, a Virginia inmate proceeding with counsel, brings this
petition pursuant to 28 U.S.C. § 2254 ("§ 2254 Petition," ECF No. 1). In his§ 2254
Petition, Lucas asserts that he received ineffective assistance of counsel at trial, which
resulted in his conviction for second-degree murder and felony child neglect.
Specifically, Lucas contends that his counsel was ineffective when he unreasonably
agreed, or failed to object to, the instructions on felony homicide, involuntary
manslaughter, malice, and felony child neglect. (§ 2254 Pet. 9-20.) Respondent moves
to dismiss. Lucas has responded to Respondent's motion. For the reasons that follow,
the Motion to Dismiss (ECF No. 5) will be granted and the § 2254 Petition (ECF No. 1)
will be denied.

I. Procedural History
On September 13, 2010, a grand jury convened in Henrico County, Virginia,
charged Lucas with first-degree murder and felony child neglect. Indictment,

Commonwealth v. Lucas, Nos. CRl0-3253-F, CRl0-3154-F (Va. Cir. Ct. Sept. 13,
2010). At the conclusion of the Commonwealth's evidence at trial, the Henrico County
Circuit Court ("Circuit Court") sustained Lucas's motion to strike and reduced the firstdegree murder charge to a charge of second-degree murder. (Jan. 26, 2011 Tr. 469.)
Lucas was then convicted of second-degree murder and felony child neglect on January
27, 2011. (Jan. 27, 2011 Tr. 555.) On March 30, 2011, the Circuit Court heard
arguments on Lucas's Motion to Set Aside the Verdict. (Mar. 30, 2011 Tr. 612.) The
Circuit Court overruled Lucas's motion, confirmed his conviction, and imposed the jury
sentence of 50 years of imprisonment, 40 years for his conviction of second degree
murder and 10 years for his conviction of felony child neglect. (Mar. 30, 2011 Tr. 61920.) Lucas appealed.

A. Direct Appeal
On appeal, Lucas challenged, inter alia, the felony homicide, involuntary
manslaughter, malice, and child neglect jury instructions submitted at his trial. Petition
for Appeal 9-23, Lucas v. Commonwealth, No. 0805-11-2 (Va. Ct. App. filed Aug. 23,
2011). On January 6, 2012, a single judge of the Court of Appeals of Virginia refused
Lucas's petition for appeal. Lucas v. Commonwealth, No. 0805-11-2 (Va. Ct. App. Jan.
6, 2012.) On March 9, 2012, a panel of the Court of Appeals of Virginia granted Lucas
an appeal on his assignment of error challenging his jury instructions. Lucas v.

Commonwealth, No. 0805-11-2 (Va. Ct. App. Mar. 9, 2012). After both briefing and
oral argument, the Court of Appeals affirmed Lucas's convictions by an unpublished
opinion dated December 18, 2012. Lucas v. Commonwealth, No. 0805-11-2 (Va. Ct.
2

App. Dec. 18, 2012). The Supreme Court of Virginia refused Lucas's petition for appeal
on April 24, 2013. Lucas v. Commonwealth, No. 0805-11-2 (Va. Apr. 24, 2013).

B. State Habeas
On January 27, 2014, Lucas filed a petition for a writ of habeas corpus with the
Circuit Court wherein he claimed that his trial counsel rendered ineffective assistance by:
Claim A:

Counsel's failure to object to the jury instruction on felony
homicide;

Claim B:

Counsel's failure to object to the JUry instruction on
involuntary manslaughter;

Claim C:

Counsel's failure to object to the instruction on inferring
malice;

Claim D:

Counsel's failure to object to the jury instruction on child
neglect; and,

Claim E:

Counsel's failure to request a jury instruction defining the
term "willful" as used in the child neglect instruction.

Petition for Writ of Habeas Corpus 8-18, Lucas v. Manis, No. CL14-191 (Va. Cir. Ct.
filed Jan. 27, 2014).
After oral arguments, a Final Order was entered on August 17, 2015, wherein the
Circuit Court found that the strength of the evidence prevented Lucas from proving that
but for counsel's errors, a reasonable probability existed of a different trial result as
required under the prejudice prong of Strickland v. Washington. Lucas v. Manis,
No. CL14-191, at 1 (Va. Cir. Ct. Aug. 17, 2015). Lucas appealed the Circuit Court's
habeas decision to the Supreme Court of Virginia, which refused his petition for appeal

3

on May 12,2016. 1 Lucasv. Manis,No.151749(Va.May 12,2016). The parties agree
that Lucas has sufficiently exhausted his state court remedies and that his § 2254 Petition
is timely, making the action ripe for this Court's review.

II. Summary of the Evidence Presented at Trial
At trial, the Commonwealth produced compelling circumstantial evidence of
Lucas's guilt. For background, the Commonwealth's evidence showed that in early April
20 I 0, Maria Stephens was employed as a mortgage underwriter in Richmond, Virginia,
and had three sons: eight year-old E.S., five year-old A.S., and three year-old C.S. 2 (Jan.
25, 2011Tr.105-06.) In the weeks leading up to April IS, 2010, C.S. was in good
physical health aside from his asthma and an apparent injury on his head that was
healing. 3 (Jan. 25, 2011 Tr. 114-15; Jan. 26, 2011 Tr. 332-33.) The remainder of the
Commonwealth's evidence focused on the events of April 15, 2010, and on the
observations of medical and lay witnesses regarding C.S. on the day in question.
A. April 15, 2010
On April 1S, 2010, Maria Stephens took E.S. to school and went to work, leaving
1

The Supreme Court of Virginia refused Lucas's state habeas appeal in a two-sentence
order where it found "no reversible error in the judgment complained of. Accordingly, the Court
refuses the petition for appeal." Lucas v. Manis, No. 151749, at 1 (Va. May 12, 2016). This
denial constitutes an adjudication on the merits, and the parties have not addressed a contrary
characterization. See Bell v. Jarvis, 236 F.3d 149, 163 (4th Cir. 2000) (en bane); Renoir v.
Virginia, No. 7:99cv580, 2001 WL 34801301, at *8 n. 7 (W.D. Va. July 31, 2001) (holding that
the Virginia Supreme Court adjudicated a claim on the merits where it found "no reversible error
in the judgment complained of').
2

The Court uses the children's initials because they are minors.

3

The trial transcript reads "[C.S.] ... had a (unintelligible) on his head, and that had
been healing. But that was the only, you know, injury that, you know, I could, you know,
physically see that was on him, you know." (Jan. 25, 2011 Tr. 115.)

4

Lucas, Ms. Stephens's occasional live-in boyfriend, as the sole daytime caretaker of A.S.
and C.S. (Jan. 25, 2011 Tr. 112-13, 115-16.) Around 1:30 p.m., Ms. Stephens received
a phone call from Lucas saying that C.S. had hit his head after running out of the
bathroom and had eaten lunch and thrown up, but that he was okay. (Jan. 25, 2011
Tr. 117-18.) When E.S. arrived home from school that afternoon, Lucas told him not to
go into C.S. 's room or wake him up. (Jan. 26, 2011 Tr. 344.) E.S. did "peep[]" in on
C.S. through his bedroom door and saw C.S. in bed, but he did not hear C.S. speak or see
C.S. leave the room. (Jan. 26, 2011 Tr. 345.)
Ms. Stephens arrived home from work shortly after 5:00 p.m. and saw E.S. and
A.S. playing outside. (Jan. 25, 2011 Tr. 118-19.) She asked Lucas about C.S. and he
answered that C.S. was upstairs because he wanted to take a nap. (Jan. 25, 2011 Tr. 119.)
Lucas acted unusual by telling her she was "the best girlfriend [he] ever had" and
indicated that he wanted to have sex with her. (Jan. 25, 2011 Tr. 119-20.) Ms. Stephens
replied that she did not have time because she had to take A.S. to baseball practice. (Jan.
25, 2011 Tr. 120.) Ms. Stephens noticed A.S.'s baseball uniform lying on the end table
in the living room and testified that it was unusual that A.S. changed into his uniform in
the living room, rather than in the bedroom he shared with C.S. (Jan. 25, 2011 Tr. 120-

21.)
Ms. Stephens went upstairs to change out of her work clothes with Lucas
following "right behind [her]." (Jan. 25, 2011 Tr. 121.) Ms. Stephens went briefly into
C.S. 's room and, seeing that the covers were pulled over his body, thought that he was
sleeping. (Jan. 25, 2011 Tr. 121, 157-58.) Ms. Stephens believed she saw mucus
5

coming out of C.S. 's nose, so she retrieved a tissue and wiped his nose with it. (Jan. 25,
2011 Tr. 121-22.) Lucas took the used tissue from her and asked her if she could hear
C.S. snoring. (Jan. 25, 2011 Tr. 122.) Ms. Stephens thought this was "very unusual"
because Lucas knew she was hearing impaired and would not have been able to hear C.S.
snoring. (Jan. 25, 2011 Tr. 122.) After roughly 20-35 seconds in C.S.'s room, Ms.
Stephens "bent down and gave . . . [C.S.] a peck on the cheek" and then left for baseball
practice with A.S. and E.S. around 6:15 p.m. (Jan. 25, 2011 Tr. 122, 124-25.)
On her way, Ms. Stephens received a call from Lucas telling her C.S. was not
breathing. (Jan. 25, 2011 Tr. 126.) Ms. Stephens called 911 and reported that she
believed C.S. was having an asthma attack. (Jan. 25, 2011 Tr. 126.) Paramedics arrived
on the scene at 6:34 p.m. (Jan. 25, 2011 Tr. 82.) Emergency Medical Technicians
(EMTs) found Lucas home alone with C.S. (Jan. 25, 2011 Tr. 83.) C.S.'s body was lying
on the living room floor. (Jan. 25, 2011 Tr. 84.) Robert Arnold, the responding EMT,
determined that C.S. was beyond resuscitation. (Jan. 25, 2011 Tr. 85-86.) Arnold
observed a large bump and laceration on C.S.'s head, bruises on his neck, chest, back,
buttocks, and leg, and that his eyes were black. (Jan. 25, 2011 Tr. 84, 87-89.) C.S. was
pronounced dead at 6:37 p.m. (Jan. 25, 2011 Tr. 91.) Although Ms. Stephens reacted
hysterically to C.S.'s death, Lucas remained "very distant, not upset ... or hysterical."
(Jan. 25, 2011 Tr. 102.)
At the scene, Lucas told the EMTs that C.S. was breathing twenty minutes before
their arrival and that, although C.S. had hit his head and thrown up around 2:00 p.m.,
Lucas "cleaned him up real good" and C.S. rode his bicycle. (Jan. 25, 2011 Tr. 170.)
6

Lucas was overheard telling Ms. Stephens multiple times to "remember [she] kissed him,
he was fine" earlier in the day. (Jan. 25, 2011 Tr. 210.) Lucas spoke with detectives at
the police station later that night where he denied having seen the majority of the injuries
to C.S.'s body. (Jan. 25, 2011 Tr. 235-46.) Lucas provided a written statement to the
police stating that C.S. hit his head on the corner of a wall around I :00 p.m., that Lucas
had cared for him with ice, Neosporin, and a cold rag, that later C.S. played outside for
about 30 minutes and watched TV, and that C.S. laid down around 2:45 p.m. (Jan. 25,
2011 Tr. 171-72.) Lucas also stated that when he checked on C.S. after Ms. Stephens
left that evening, C.S. was still alive and "looked at [him]," but then became
nonresponsive so he attempted CPR. (Jan. 25, 2011 Tr. 172.)

B. Additional Trial Testimony
At trial, the Commonwealth produced two medical experts to explain the severity
of the injuries to C.S.'s body and several lay witnesses to rebut Lucas's story that C.S. hit
his head and then rode his bicycle on the day of his death. Additional testimony about
C.S.'s clothing, the scene of the crime, Lucas's behavior on the day in question, and
Lucas's attitude towards C.S. was offered as further evidence of his guilt.
Dr. Kevin Whaley testified that he performed the autopsy on C.S.'s body. (Jan.
25, 2011 Tr. 264-65.) The autopsy revealed that C.S. had eleven severe contusions
affecting his face and scalp, as well as additional trauma to his eyes, abdomen, chest,
back, buttocks, arm, legs, and genitalia, including hemorrhaging in his brain, stomach,
pancreas, and colon. (Jan. 25, 2011 Tr. 266-98.) Dr. Whaley explained that some of the
bruises to C.S.'s body were "fingertip contusions," signifying that someone had
7

forcefully grabbed him. (Jan. 25, 2011 Tr. 295.) Even more telling, the injuries to C.S.'s
genitals indicated that the area had been pinched and grabbed, which Dr. Whaley opined
is consistent with a "caretaker [who] gets angry because the kids wet their pants." (Jan.
25, 2011 Tr. 297-98.)
Dr. Whaley explained that, based on the paramedics' description of C.S. 's cold
body at the scene and the fact that any blankets covering C.S. would slow his body
cooling, it had taken hours for C.S. 's external temperature to fall below the average of
98.6 when it was recorded as 74 degrees at 11 :00 p.m. (Jan. 25, 2011 Tr. 284-87.)
Significantly, the autopsy revealed that the injuries to C.S.'s head were 360 degrees,
demonstrating that "something ... struck [C.S.'s] head multiple times around the head."
(Jan. 25, 2011 Tr. 267-68.) Dr. Whaley further explained that it is common for such
extensive head trauma to cause vomiting. (Jan. 25, 2011 Tr. 305.) Ultimately, Dr.
Whaley concluded that C.S.'s injuries had occurred within 10 hours of the paramedics'
arrival, (Jan. 25, 2011 Tr. 300-01), that he had died of blunt force trauma to the head,
(Jan. 25, 2011 Tr. 275), and that the extensive injuries to his body could not have been
the result of force by another child, (Jan. 25, 2011 Tr. 289, 292), attempted CPR, (Jan.
25, 2011Tr.283-84, 290), or C.S. having run into a wall. (Jan. 25, 2011 Tr. 301-02.)
Further, Dr. Whaley and Dr. Robin Foster, Division Chairman of Pediatric
Emergency Services at Virginia Commonwealth University Health Systems, testified that
once C.S. suffered the head trauma described above, he would not have been able to
subsequently talk, eat, watch TV, or ride his bicycle given its severity. (Jan. 25, 2011 Tr.
304-05; Jan. 26, 2011 Tr. 352, 364.) Dr. Foster also opined that the injuries to C.S.'s
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genitals were a "pattern of injury [that] is seen in toddler-aged children ... who are potty
training or who may not be continent of their urine all the time, and in response to a toilet
training accident, that area will get pinched by the caretaker." (Jan. 26, 2011 Tr. 357.)
Dr. Foster further explained that the bruising on both sides of C.S.'s ears indicated an
"inflicted injury in the form of the ear being grabbed and pulled." (Jan. 26, 2011 Tr.
357.)
The Commonwealth also put on testimony from the Stephenses' neighbors and
C.S.'s brothers, E.S. and A.S., to further refute Lucas's story and establish his guilt. The
Stephens' neighbor, William Shoaf, testified that as a frequent smoker, he would often
see C.S. and his brothers riding their bicycles outside when he was out on his smoke
breaks. (Jan. 26, 2011Tr.333.) On April 15, 2010, however, Shoaf never saw C.S.; he
did see Lucas around 3:00 p.m. acting "pretty, pretty irate, pretty mad, pretty upset."
(Jan. 26, 2011 Tr. 334-36.) Another neighbor, Sandra Hardney, testified that the three
times she saw Lucas that day he was dressed in different clothing. (Jan. 25, 2011 Tr.
218-19.) E.S. testified that Lucas would get mad at C.S. for "pee[ing] on the sofa" and
that C.S. would respond to Lucas's anger by "crying and pee[ing] on himself." (Jan. 26,
2011 Tr. 342-43.) A.S. testified that on April 15, 2010, C.S. "pooped in the bathtub" and
that Lucas spanked him for it. (Jan. 26, 2011 Tr. 386-87.) A.S. further testified that
Lucas got mad that day and that he saw Lucas throw C.S. on the ground, after which
Lucas "picked [C.S.] up and put him in his bed," which was the last time A.S. saw or
heard from C.S. (Jan. 26, 2011Tr.381-82.)

9

The responding paramedics and investigators testified about C.S. 's clothing and
the scene of the crime. EMT Arnold and Investigator Doug Hedrick testified that C.S.
was not wearing underwear and that his pants smelled of urine. (Jan. 25, 2011 Tr. 88,
180.) Hedrick added that a pair of children's underwear and a pair of small blue pants
were found in the washer and smelled of urine. (Jan. 25, 2011 Tr. 187.) Hedrick also
testified that C.S.'s bed was missing its fitted sheet and that a fitted twin-sized sheet and
Spider-Man blanket were located in the dryer of the apartment. (Jan. 26, 2011 Tr. 18485, 197.) Additional testimony from Hedrick suggested that alcohol was consumed at the
scene and that the living room floor "smelled of cleaner [and] had vomit ... on it." (Jan.
25, 2011 Tr. 187-88.)

Finally~

the jury heard a recorded 911 call placed on April 5,

2010, in which C.S. can be heard saying, "I'm going to tell Mommy," and Lucas
responds saying, "I'm going to wear your ass out" and "[i]f you cry again, I'm going to
whip your little ass." (Jan. 25, 2011Tr.134-35.)
After hearing all of the evidence, the jury found that the Commonwealth's
evidence disproved Lucas's version of events and established beyond a reasonable doubt
that he was the cause of C.S. 's death. Accordingly, Lucas was convicted of seconddegree murder and felony child neglect.

III. Standard of Review
In order to obtain federal habeas relief, at a minimum, a petitioner must
demonstrate that he is "in custody in violation of the Constitution or laws or treaties of
the United States." 28 U.S.C. § 2254(a). The Antiterrorism and Effective Death Penalty
Act of 1996 limits this Court's authority to grant relief by way of a writ of habeas corpus.
10

Specifically, "[s]tate court factual determinations are presumed to be correct and may be
rebutted only by clear and convincing evidence." Gray v. Branker, 529 F.3d 220, 228
(4th Cir. 2008) (citing 28 U.S.C. § 2254(e)(l)). Additionally, under 28 U.S.C. § 2254(d),
a federal court may not grant a writ of habeas corpus based on any claim that was
adjudicated on the merits in state court unless the adjudicated claim:
(I) resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as detennined by the
Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination
of the facts in light of the evidence presented in the State court proceeding.
28 U.S.C. § 2254(d). The Supreme Court has emphasized that the question "is not
whether a federal court believes the state court's determination was incorrect but whether
that determination was unreasonable-a substantially higher threshold." Schriro v.

Landrigan, 550 U.S. 465, 473 (2007) (citing Williams v. Taylor, 529 U.S. 362, 410
(2000)).
IV. Ineffective Assistance of Counsel
To demonstrate ineffective assistance of counsel, a convicted defendant must
show first, that counsel's representation was deficient and second, that the deficient
perfonnance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687
( 1984). To satisfy the deficient performance prong of Strickland, the convicted defendant
must overcome the "'strong presumption' that counsel's strategy and tactics fall 'within
the wide range of reasonable professional assistance.'" Burch v. Corcoran, 273 F.3d 577,
588 (4th Cir. 2001) (quoting Strickland, 466 U.S. at 689). The prejudice component

11

requires a convicted defendant to "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." Strickland, 466 U.S. at 694. In analyzing ineffective assistance of counsel
claims, it is not necessary to determine whether counsel performed deficiently if the
claim is readily dismissed for lack of prejudice. Id. at 697.

V. Analysis of Lucas's Claims
At trial, the Commonwealth's attorneys and Lucas's counsel agreed to a total of
ten jury instructions, including a single "cascading homicide instruction" that listed the
greatest charge of second-degree murder and the lesser included offenses of felony
homicide and involuntary manslaughter. Sheldon Aff. 2;4 see Jury Instructions,

Commonwealth v. Lucas, No. CRl0-3154-F (Va. Cir. Ct. Jan. 26, 2011). The "cascading
homicide instruction" was submitted as Jury Instruction No. 3. Sheldon Aff. 2; Jury
Instruction No. 3, Commonwealth v. Lucas, No. CRI0-3154-F (Va. Cir. Ct. Jan. 26,
2011).
It is helpful to clarify that in the present action, Lucas does not challenge the jury
instruction on second-degree murder-the crime for which he was actually convicted.
Rather, Lucas contends that the instructions on the lesser included offenses of felony
homicide and involuntary manslaughter were flawed. Lucas also questions the jury

4

The record includes an affidavit from Lucas's trial counsel, Gregory Sheldon,
explaining his trial strategy in accepting the charged jury instructions. Motion to Dismiss, Ex. I,
Lucas v. Manis, No. CL14-191 (Va. Cir. Ct. filed Mar. 28, 2014). Where appropriate, the Court
will cite to Mr. Sheldon's Affidavit as "Sheldon Aff."
12

instruction on child neglect-of which he was convicted-and the instruction on malice.
As to all these claims, the Circuit Court found on state habeas review that the strength of
the evidence foreclosed Lucas from proving that but for counsel's errors, a reasonable
probability existed of a different trial result, as required under the prejudice prong of

Stricklandv. Washington, 466 U.S. 668, 687 (1984). Lucas v. Manis, No. CL14-191, at
I (Va. Cir. Ct. Aug. 17, 2015). This Court will analyze Lucas's claims as they are
presented in his § 2254 Petition.

A. Ineffective assistance of counsel with respect to the felony homicide
instruction
In his first claim, Lucas contends that trial counsel was ineffective for
unreasonably agreeing to, or failing to object to, the felony homicide instruction because
it "negated the element of malice, omitted the element of causal connection, and
misstated another element by referencing child neglect (which, on its own, was
incorrect)." (§ 2254 Pet. 9.)5
At trial, Instruction No. 3 stated, in relevant part:
If you find that the Commonwealth has failed to prove
beyond a reasonable doubt that the killing was malicious but that the
Commonwealth has proved beyond a reasonable doubt that the
defendant killed [C.S.] and further:

1. That the killing was accidental and contrary to the intention
of the defendant; and
2. That the defendant was then committing a felony, to wit:
felony child neglect.
Then you shall find the defendant guilty of felony homicide ....

s The Court omits the emphasis in quotations from Lucas's submissions.
13

Jury Instruction No. 3, Commonwealth v. Lucas, No. CRl0-3154-F (Va. Cir. Ct. Jan. 26,
2011).
At the time ofLucas's trial, felony homicide was defined under Virginia law as
"[t]he killing of one accidentally, contrary to the intention of the parties, while in the
prosecution of some felonious act." Va. Code Ann.§ 18.2-33 (West 2011).
Lucas first claims that the instruction on felony homicide "negated" the element of
malice. However, malice is not a required element of felony homicide under Virginia
law. 6 Rather, malice is imputed from the underlying felony. See Hickman v.

Commonwealth, 398 S.E.2d 698, 699-700 (Va. Ct. App. 1990) (findingjury instruction
on felony homicide sufficient where no element required a finding of malice). Lucas's
trial counsel correctly recognized that a separate finding of malice is not required for a
conviction of felony homicide. See Sheldon Aff. 3. Thus, he was not constitutionally
deficient in his performance for failing to object to a correct statement of Virginia law.

See Rueda v. Clarke, No. 1:14CV699 LMB/100, 2015 WL 1236226, at *18 (E.D. Va.
Mar. 17, 2015) (citation omitted), appeal dismissed, 607 F. App'x 306 (4th Cir.), cert.

denied, 136 S. Ct. 427 (2015).
Second, Lucas argues that the felony homicide instruction "omitted the element of
causal connection, and misstated another element by referencing child neglect." (§ 2254

r, The

Virginia Model Jury Instruction on felony homicide likewise does not include an
element of malice. See Va. Model Jury Instruction No. 033.340.
14

Pet. 9.) In support of his argument, Lucas references several Virginia cases 7 and Virginia
Model Jury Instruction G33.340 for the proposition that the instruction on felony
homicide given at Lucas's trial failed to require a finding of a causal connection between
Lucas's actions and C.S.'s death. (See id. at 10-12.) While none of the cases cited by
Lucas directly supports the proposition that this jury instruction negated the required
causal element necessary for a finding of felony homicide, Virginia Model Jury
Instruction No. G33.340 does contain two references to causation, namely: "[t]hat the
killing was caused by acts performed in the commission of (name of felony); and [t]hat
the killing and (name of felony) were parts of one continuous transaction and were
closely related in time and place." Va. Model Jury Instruction G33.340 (emphasis
omitted). 8 Thus, Lucas argues, "[i]n place of these two elements, the jury was instructed

7

Specifically, Lucas cites: Heacock v. Commonwealth, 323 S.E.2d 90 (Va. 1984); Davis
v. Commonwealth, 404 S.E.2d 377 (Va. Ct. App. 1991); King v. Commonwealth, 368 S.E.2d 704
(Va. Ct. App. 1988); Barrett v. Commonwealth, 530 S.E.2d 437 (Va. Ct. App. 2000); Doane v.
Commonwealth, 237 S.E.2d 797 (Va. 1977); Griffin v. Commonwealth, 533 S.E.2d 653 (Va. Ct.
App. 2000).
8

The Virginia Model Jury Instruction for second-degree felony homicide states:

The defendant is charged with the crime of felony homicide. The
Commonwealth must prove beyond a reasonable doubt each of the following
elements of that crime:
(I) That the defendant killed (name of person); and

(2) That the killing was accidental and contrary to the intention of
the defendant;

(3) That the killing was caused by acts performed m the
commission of (name of felony); and
15

that they need only find that 'the defendant was then committing a felony,' requiring no
causal connection between the death and the felony." (§ 2254 Pet. 12.) Lucas
misconstrues the operative language of the instruction.
The instruction required more than simply a finding that Lucas was committing
just any felony. Specifically, the jury could only have found Lucas guilty of felony
homicide if they found, inter alia, that Lucas "killed [C.S.]" and that he "was then
committing a felony, to wit: felony child neglect." Jury Instruction No. 3,

Commonwealth v. Lucas, No. CRl 0-3154-F (Va. Cir. Ct. Jan. 26, 2011 ). In other words,
the lethal act must have occurred during the course of the commission of felonious child
neglect. Further, under Virginia law, "then committing" is a sufficient causal connection
to support a felony homicide conviction. 9 See Hickman, 398 S.E.2d at 700 n. l (finding
jury instruction on felony homicide sufficient where jury was required to find defendant
"was then committing the felonies of ..."), ajf'd, 410 S.E.2d 88 (Va. 1991); accord

Talbert v. Commonwealth, 436 S.E.2d 286, 290 (Va. Ct. App. 1993) (finding jury
instruction on felony homicide insufficient where it required a finding that the defendant
"had committed" the felony). Moreover, "[e]ven if [a] jury instruction issued was not
(4) That the killing and (name of felony) were parts of one
continuous transaction and were closely related in time and
place.
If you find from the evidence that the Commonwealth has proved beyond a
reasonable doubt each of the above elements of the crime as charged, then you
shall find the defendant guilty ....
Va. Model Jury Instruction No. 033.340 (emphasis omitted).
9

The construction Lucas complains of was even incorporated in a past Virginia Model
Jury Instruction. See Ellison, 2001 WL 34062434, at *3.
16

part and parcel identical to the model jury instruction, federal habeas courts cannot grant
relief simply because the instruction is slightly deficient." Ellison v. Angelone, No. CIV.

A. 01-751-AM, 2001 WL 34062434, at *4 (E.D. Va. Nov. 8, 2001) (citing Estelle v.
A1cGuire, 502 U.S. 62, 72 (1991)).
Ultimately, Lucas's claim of ineffective assistance of counsel with respect to the
jury instruction on felony homicide fails. The language at issue has been upheld by
Virginia courts as an adequate explanation of the causal element; therefore, counsel
cannot be said to be constitutionally deficient for acceding to the felony homicide
instruction. See Rueda 2015 WL 123 6226, at * 18. Perhaps more importantly, Lucas was
not prejudiced by the felony homicide instruction because he was not convicted of that
offense. Lucas was convicted of second-degree murder, which unequivocally required a
finding of malice and causation, both of which were supported by the evidence presented
at trial. Obviously, Lucas suffered no prejudice because he was not convicted of the
lesser offense of felony murder. See Strickland, 466 U.S. at 691 (explaining that "[a]n
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").
Therefore, the Circuit Court's holding that he was not prejudiced under Strickland was
well founded.

B. Ineffective assistance of counsel with respect to the involuntary manslaughter
instruction
In his second claim, Lucas contends that his trial counsel was ineffective for
unreasonably agreeing to, or failing to object to, "[t]he involuntary manslaughter

17

instruction, which omitted the element of a causal connection between the criminal act and
the death." (§ 2254 Pet. 10.) At trial, Jury Instruction No. 3 stated, in relevant part:
If you find that the defendant did not kill [C.S.], but that [C.S.]
accidently injured himself and died as a result thereof, and, that the
defendant's failure to obtain medical treatment for [C.S.] was so gross,
wanton, and culpable as to show a callous disregard for human life, then
you shall find the defendant guilty of involuntary manslaughter ....

Jury Instruction No. 3, Commonwealth v. Lucas, No. CRl0-3154-F (Va. Cir. Ct.
Jan. 26, 2011 ).
The Court need not reach the issue of whether the instruction was deficient
because it finds that Lucas was not prejudiced under Strickland. Again, Lucas was
convicted of the greater offense of second-degree murder, the instruction for which
unambiguously required a finding that Lucas's actions were the sole cause of C.S.'s
death. The jury rejected Lucas's defense that C.S. died of self-inflicted injuries. Rather,
the jury found that the evidence proved that Lucas killed C.S. by striking him numerous
times about his head. Thus, a reasonable probability does not exist that had counsel
objected to the involuntary manslaughter instruction for its omittance of a causal element,
Lucas would not have been convicted of second-degree murder. The Circuit Court's
finding that he was not prejudiced under Strickland is not unreasonable.

C. Ineffective assistance of counsel with respect to the inference of malice
instruction
In his third claim, Lucas challenges "[t]he inference of malice instruction, which
did not define 'unlawful killing,' contained no specific references to other instructions,
did not limit the presumption to death which resulted from the Petitioner's actions, and

18

did not require that malice accompany the killing." (§ 2254 Pet. 10.) At trial, Jury
Instruction N9. 6 stated, in relevant part:
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.
Jury Instruction No. 6, Commonwealth v. Lucas, No. CRI0-3154-F (Va. Cir. Ct. Jan. 26,
2011).
Although Lucas makes a hyper-technical argument challenging what he deems
"the inference of malice instruction," 10 his ineffective assistance of counsel claim
founders on federal habeas review. The instruction is nearly a verbatim recital of
Virginia Model Jury Instruction No. 33.300, 11 and the Supreme Court of Virginia has
held that the Commonwealth is entitled to an inference of second-degree murder
instruction. See Thomas v. Commonwealth, 688 S.E.2d 220, 237 (Va. 2010). Further, the
United States Court of Appeals for the Fourth Circuit has previously rejected an
ineffective assistance of counsel claim challenging the exact instruction to which Lucas
now objects. See Hargrove v. Johnson, No. 88-7704, 1989 WL 7284, at *l, n.1 (4th Cir.
Jan. 27, 1989). Thus, any objection by counsel to the instruction would have been
meritless, and counsel cannot be deemed ineffective for failing to raise a meritless claim.
10

Virginia Model Jury Instruction No. 33.300 is entitled "Inference of Second Degree
Murder" and states that in accordance with Virginia law all unlawful homicides may be inferred
by the trier of fact to be murder in the second degree. See Warlitner v. Commonwealth, 228
S.E.2d 698, 700 (Va. 1976).
11

Virginia Model Jury Instruction No. 33.300 states: "Once the Commonwealth has
proved there was an unlawful killing, then you may infer that 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."
19

See United States v. Moore, 934 F. Supp. 724, 731 (E.D. Va. 1996).

D. Ineffective assistance of counsel with respect to the combination of Claims

A-C
Lucas not only challenges the jury instructions submitted at his trial individually,
but also collectively. Specifically, Lucas contends that "[a]lthough [Lucas] was
convicted of second-degree murder rather than felony homicide or involuntary
manslaughter, the flaws in the instructions for felony homicide and involuntary
manslaughter, when combined with the objectionable instruction on inference of malice
for any unlawful killing, rendered the trial unfair." (§ 2254 Pet. 17.) Lucas contends that
under all of the instructions viewed in the aggregate, a verdict of second degree murder
was "required" if the jury found any of the following:
-

That [Lucas] accidently killed [C.S.] and committed child neglect, even
if the child neglect had no connection to the death;

-

That [C.S.] accidently killed himself and [Lucas] committed child
neglect, even ifthe child neglect had no connection to the death;

-

That [C.S.] accidently killed himself and that [Lucas] did not obtain
medical treatment, even if that medical treatment would not have
prevented the death.

(Id. at 16.)
However, as previously discussed, Lucas's arguments are meritless because the
strength of the evidence presented at trial undermines his allegation of prejudice under
Strickland v. Washington. Moreover, Lucas's arguments ignore Jury Instruction No. 3,
which explained that the jurors could find Lucas guilty of a lesser degree of homicide if

20

they believed Lucas accidently killed C.S. or that C.S. accidently killed himself and
Lucas merely failed to provide appropriate medical care.
The Supreme Court has cautioned that when analyzing the prejudice component
under Strickland, "the ultimate focus of inquiry must be on the fundamental fairness of
the proceeding whose result is being challenged," Strickland, 466 U.S. at 696, and habeas
review courts "must consider the totality of the evidence before the judge or jury." Id. at
695. Further, "[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." Lee v. Clarke, 781 F.3d 114, 122-23 (4th Cir. 2015)
(quoting United States v. Luck, 611F.3d183, 186 (4th Cir. 2010)). "An error by counsel,
even if professionally unreasonable, does not warrant setting aside the judgment of a
criminal proceeding ifthe error had no effect on the judgment.'' Strickland, 466 U.S. at
691.
Lucas highlights the alleged flaws in the felony homicide and involuntary
manslaughter instructions, but does not challenge the jury instruction on second-degree
murder, the crime of which he was convicted. 12 Lucas's habeas argument turns on the

12

The instruction on second-degree murder given at Lucas's trial read:
The defendant is charged with the crime of second degree
murder. The Commonwealth must prove beyond a reasonable
doubt each of the following elements of that crime:
(1)

That the defendant killed [C.S.]; and

(2)

That the killing was malicious;
21

speculative contention that but for counsel's acquiescence to all of the flawed
instructions, the jury would have opted to convict Lucas of felony homicide or
involuntary manslaughter. Lucas maintains that under the instructions actually given, the
jury was required to find him guilty of second-degree murder even if Lucas "accidently"
killed C.S. or if C.S. "accidently" killed himself. But this position ignores the fact that
Lucas's defense throughout the trial was that C.S. died of accidental, self-inflicted
injuries and that, at most, Lucas could be faulted for failing to seek timely and
appropriate medical attention. See Sheldon Aff. 3. The jury obviously rejected this
defense by making a factual finding that Lucas maliciously killed C.S. The Court
similarly finds that the strength of the evidence presented at trial was such that, even if
Lucas's counsel's failure to object did constitute error, the error would not have had an
effect on the jury's ultimate judgment.
Therefore, this Court concludes that Lucas has failed to demonstrate a reasonable
probability that any alleged errors of counsel were sufficient to undermine confidence in
his second-degree murder conviction. See Strickland, 466 U.S. at 694; Lee, 781 F.3d at
122-23. 13 Accordingly, Lucas's Claims A-C will be dismissed.

If you find from the evidence that the Commonwealth has proved
beyond a reasonable doubt each of the above elements of the
offense as charged, then you shall find the defendant guilty of
second degree murder ....

Jury Instruction No. 3, Commonwealth v. Lucas, No. CRI0-3154-F (Va. Cir. Ct. Jan. 26, 2011).
13

This case stands in stark contrast to Lee v. Clarke, 781F.3d114 (4th Cir. 2015). In
Lee, the Fourth Circuit found that counsel's failure to request a heat of passion jury instruction
amounted to ineffective assistance. Id at 123. The Court determined that the defendant was
prejudiced by counsel's inaction because the heat of passion instruction was "crucial to Lee's
22

E. Ineffective assistance of counsel with respect to the felony child neglect
instruction
Finally, Lucas contends that his trial counsel was ineffective for failing to object
to, or unreasonably agreeing to, the jury instruction on felony child neglect. Specifically,
Lucas argues: ( 1) counsel was ineffective for accepting the child neglect instruction
because the adjective "willful" does not appear to modify the action of"refusal to provide
care for the health of C.S.;" and (2) counsel was ineffective for failing to request an
additional jury instruction defining the term "willful" as used in the child neglect
instruction. (§ 2254 Pet. 19.) Jury Instruction No. 7 stated, in relevant part:
The defendant is charged with the crime of child neglect. The
Commonwealth must prove beyond a reasonable doubt each of the
following elements of that crime:
(1) That on April 15, 2010 Kevin Lucas was responsible for the care
of [C.S.]; and
(2) That [C.S.] was under the age of eighteen years; and
(3) That Kevin Lucas did by willful act or omission or by a refusal to
provide care for the health of [C.S] cause or permit serious injury
to the life or health of [C.S.].
If you find from the evidence that the Commonwealth has proved
beyond a reasonable doubt each of the above elements of the offense
defense," and had the instruction been given, there was a reasonable probability that the jury
would not have convicted the defendant of second-degree murder. Id. at 116, 129. However,
such a situation is not presented here. In Lee, the evidence supported a rational finding that heat
of passion, an affirmative defense against a finding of malice, was present. Id. at 123. In
Lucas's case, his defense was that C.S. died of self-inflicted injuries, a defense that Lucas
acknowledges was adequately presented in the jury instructions. Further, in Lee, the jury
demonstrated its unease with the jury instructions and evidence presented by communicating
with the trial court no less than three times during deliberations-once with a question about the
jury instructions and twice to inform the Court it was deadlocked. Id. at 120-21. In Lucas's
case, the record reflects that the jury did not communicate with the trial Court to inquire about
the jury instructions or to inform the Court that it was having difficulty reaching a verdict.
23

charged, you shall find the defendant guilty ....
Jury Instruction No. 7, Commonwealth v. Lucas, No. CRl0-3154-F (Va. Cir. Ct. Jan. 26,
2011).
Pertinent to this issue, and at the time of Lucas's trial, Virginia's child abuse and
neglect statute provided:
Any parent, guardian, or other person responsible for the care of a child
under the age of 18 who by willful act or omission or refusal to provide any
necessary care for the child's health causes or permits serious injury to the
life or health of such child shall be guilty of a Class 4 felony.
Va. Code Ann.§ 18.2-371.l{A) (West 2011) (emphasis added).
Initially, Lucas maintains that trial counsel was ineffective for not objecting to the
child neglect instruction because the adjective ''willful" does not appear to modify the
action of"refusal to provide care for the health of [C.S.]" The language complained of
was taken straight from the Virginia statute, and the Virginia model jury instruction on
child neglect likewise does not include "willful" immediately preceding "refusal." 14

14

The Virginia Model Jury Instruction on Child Abuse or Neglect - Serious Injury reads:

The defendant is charged with the crime of child abuse or neglect
resulting in serious injury. The Commonwealth must prove beyond a
reasonable doubt each of the following elements of that crime:
( 1) That the defendant was a parent, guardian, or other person
responsible for the care of (name of victim); and
(2) That the (name of victim) was a child under the age of
eighteen ( 18); and
(3) That the defendant, by willful act, or omission, or refusal to
provide any necessary care for the health of (name of victim),
caused or permitted serious injury to the life or health of (name
of victim).
24

Therefore, trial counsel was not deficient in agreeing to this instruction. See Rueda, 2015
WL 1236226, at *18.
Second, Lucas faults counsel for failing to request an additional jury instruction
defining the term "willful" as used in the child neglect instruction's phrase "[t]hat Kevin
Lucas did by willful act or omission or by a refusal to provide care for the health of [C.S.]
cause or permit serious injury to the life or health of [C.S.]." Jury Instruction No. 7,

Commonwealth v. Lucas, No. CRl0-3154-F (Va. Cir. Ct. Jan. 26, 2011). When
reviewing a claim that counsel's failure to request a jury instruction amounted to
ineffective assistance, the inquiry "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.
Virginia Model Jury Instruction No. 29.360, pertaining to child neglect cases,
provides:
A willful act is one done with a bad purpose, or without justifiable excuse,
or without ground for believing it is lawful. A willful act is intentional, or
knowing, or voluntary, as distinguished from accidental. The terms "bad
purpose" or "without justifiable excuse" require knowledge that the
particular conduct will likely result in injury or illegality.
Lucas cites to a case from the Court of Appeals of Virginia in support of his
proposition that "[t]he definition of willful is required by Virginia law." (§ 2254 Pet. 19.)
If you find that the Commonwealth has proved beyond a reasonable doubt
each of the above elements of the crime as charged, then you shall find the
defendant guilty ....
Va. Model Jury Instruction No. G29.330.

25

Assuming that Lucas posits that the definition of willful is required to be included in any
jury instruction on felony child neglect, the case Lucas cites, Ellis v. Commonwealth, 513
S.E.2d 453 (Va. Ct. App. 1999), is inapposite. 15
However, even assuming arguendo that Lucas would have been entitled to a jury
instruction defining "willful," there was no probability, much less a reasonable one, that
Lucas would have been acquitted of child neglect on the record evidence if such an
instruction had been given. According to the evidence, three year-old C.S. was killed by
numerous blows to his head and injuries to nearly every part of his body while in Lucas's
care. See supra Part II. At trial, Lucas's defense hinged on the theory that C.S. died of
self-sustained injuries. See Sheldon Aff. 3. The jury rejected Lucas's contrived defense
and found him guilty of second-degree murder. It is therefore highly likely that the jurors
would have found Lucas guilty of simple child neglect, even had the definition of willful
as defined in Virginia Model Jury Instruction No. 29.360 been given. Indeed, the
evidence overwhelmingly supports a finding that Lucas beat C.S. to death and then
sought to conceal his abuse of the child.
Therefore, because it is not reasonably likely that the outcome of the trial would
have been different, counsel's performance was not deficient for failing to request a jury
instruction defining the term "willful" with respect to the child neglect instruction.
Lucas' s Claims D-E will therefore be dismissed.
15

In Ellis, the Virginia Court of Appeals found that the sufficiency of the evidence was
inadequate to sustain a conviction for felony child neglect with the requisite ''willful" intent
where the defendant left her two children unattended and a fire subsequently erupted in the
apartment where the children were staying. Ellis, 513 S.E.2d at 555. Ellis does not support the
proposition that a jury instruction defining "willful" is required in all felony child neglect cases.
26

VI. Conclusion
Viewing the record as a whole, Lucas fails to demonstrate that his trial counsel's
representation fell below an objective standard of reasonableness. Lucas's perception of
ineffectiveness flows from his misunderstanding of the law. Despite an array of
challenges to the wisdom and judgment of his counsel, Lucas has not demonstrated that
counsel's performance was inadequate, ineffective, or prejudicial. Lucas's § 2254
Petition will therefore be denied.
An appeal may not be taken from the final order in a § 2254 proceeding unless a
judge issues a certificate of appealability ("COA"). 28 U.S.C. § 2253(c)(l)(A). A COA
will not issue unless a prisoner makes "a substantial showing of the denial of a

constitutional right." 28 U.S.C. § 2253(c)(2). This requirement is satisfied only when
"reasonable jurists could debate whether (or, for that matter, agree that) the petition
should have been resolved in a different manner or that the issues presented were
'adequate to deserve encouragement to proceed further."' Slackv. McDaniel, 529 U.S.
473, 484 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 & n.4 (1983)). Lucas
fails to meet this standard. Accordingly, a certificate of appealability will be denied.
An appropriate Order will accompany this Memorandum Opinion.

~
Date:

Isl

HENRY E. HUDSON
UNITED STATES DISTRICT JUDGE

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Richmon~ Virlinia

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27