Whether a habeas petitioner who receives a jury instruction that does not contain any of the essential elements of the offense must show prejudice

QUESTION PRESENTED Maurice Andrews was convicted of conspiracy to commit third degree murder in state court after the trial court provided a jury instruction which did not contain any of the correct elements for the charge. Trial counsel failed to notice, and Post-Conviction Relief Act counsel failed to challenge that performance in collateral proceedings. Andrews filed a habeas petition under 28 U.S.C. § 2254 and alleged that he received the ineffective assistance of counsel from PCRA counsel. The magistrate judge found that the instruction was similar to the correct instruction and that Andrews could not show prejudice. The district court adopted the report and recommendation. The Third Circuit denied Andrews a certificate of appealability, finding he did not receive the ineffective assistance of counsel even if the instruction was incorrect because the evidence supported a conviction. A habeas petitioner who challenges trial counsel’s failure to object to a partially incorrect jury instruction must show prejudice. The Court, however, has never addressed the question of whether a habeas petitioner who receives a jury instruction which does not contain any of the essential elements of the offense must still make a showing of prejudice or whether such an instruction amounts to structural error requiring a new trial. Therefore, the question presented is: Whether, in the context of habeas proceedings under 28 U.S.C. § 2254, the failure of trial counsel to object toa jury instruction which does not contain any of the correct elements for the offense charged amounts to structural error which does not require a showing of prejudice in order for the petitioner to receive relief?