Shaikh v. Johnson

• Decision Date: 12 September 2008
• Docket Number: Record No. 072097.
• Citation: 666 S.E.2d 325,276 Va. 537
• Court: Virginia Supreme Court
• Parties: Ahmer SHAIKH v. Gene M. JOHNSON, Director, Department of Corrections.

666 S.E.2d 325

276 Va. 537

Ahmer SHAIKH v. Gene M. JOHNSON, Director, Department of Corrections.

Record No. 072097.

Supreme Court of Virginia.

September 12, 2008.

David B. Hargett (Hargett & Watson, Glenn Allen; on brief), for appellant.

Virginia B. Theisen, Senior Assistant Attorney General (Robert F. McDonnell, Attorney General; Benjamin H. Katz, Assistant Attorney General, on brief), for appellee.

Present: HASSELL, C.J., KEENAN, KOONTZ, KINSER, LEMONS, and AGEE,¹ JJ., and RUSSELL, S.J.

OPINION BY Senior Justice CHARLES S. RUSSELL.

This appeal from an order dismissing a petition for a writ of habeas corpus presents two issues questioning whether the petitioner was denied his right to the effective assistance of counsel. First, the petitioner contends that his trial counsel failed in his duty to make a draft jury instruction, rejected by the trial court, a part of the record for the purpose of appeal. Petitioner's second contention is that his counsel at trial rendered ineffective assistance by failing to call as a witness a co-defendant who was the immediate perpetrator of the crime for which the petitioner was on trial. He further argues that the habeas court erred in denying him an evidentiary hearing. For the reasons stated below, we find no reversible error in the trial court's judgment.

Facts and Proceedings

Applying familiar principles of appellate review, we will state the facts leading to the petitioner's conviction in the light most favorable to the Commonwealth, the prevailing party in the underlying criminal case. The essential facts relating to the habeas corpus proceeding are undisputed.

Ahmer Shaikh (Ahmer), the petitioner, lived in an apartment in Fairfax County with his father, Altaf Shaikh, his sister, Humaira, his younger brother, Furqan Altaf, and Humaira's husband, Faisal Rehman, as well as two younger sisters. Humaira had been having an adulterous affair with another man, Zahid Ali (Zahid). The affair eventually became known to the family, all of whom expressed their angry disapproval. On September 9, 2002, Zahid went to the family's apartment to discuss the situation with Humaira's father. A commotion ensued. Ahmer was not present, but his younger brother called him on his cellular telephone and he arrived soon thereafter. Family members had to restrain Ahmer from attacking Zahid. Rehman then came into the room with a kitchen knife and stabbed Zahid repeatedly. Ahmer broke free from his relatives and joined in the attack, hitting Zahid on the head with a stick. Humaira tried to cover Zahid's head wounds with a scarf as Ahmer and Rehman continued to attack him. Zahid dove off a second-story balcony to escape his attackers, falling to a concrete patio below. Ahmer picked up the knife, threw it into a pot of water, and called 911, giving a false report that an unknown intruder "came to my house [t]o attack us ... with a knife." Zahid died later that night of multiple stab wounds to the head, neck and upper body.

Ahmer and Rehman were each indicted for the murder of Zahid. In separate jury trials, each was convicted of second-degree murder. Rehman was tried first, and at the time of Ahmer's trial had been convicted but was awaiting sentencing. Ahmer's counsel interviewed Rehman and discussed the case with his counsel before Ahmer's trial, but decided not to call Rehman as a witness.

At Ahmer's trial, the court asked counsel whether they had agreed on a final set of jury instructions. Counsel informed the court that they were in agreement as to all but one instruction, that which related to "concert of action." The Commonwealth proposed an instruction in the form set forth in 1 Virginia Model Jury Instructions—Criminal No. 3.160, at 3-11 (repl. ed.2007):

The court instructs the jury that if there is concert of action with the resulting crime one of its incidental probable consequences, then whether such crime was originally contemplated or not, all who participate in any way in bringing it about are equally answerable and bound by the acts of every other person connected with the consummation of such resulting crime.

Defense counsel stated that the model instruction was accurate but incomplete because it lacked language defining "concert of action." The defense proposed "Instruction R," which is not contained in the record. The only indication of its content is contained in counsel's oral argument, apparently quoting the initial phrase of the proposed instruction: "Concert of action is an action that's been planned, arranged, adjusted, agreed on or settled between the parties acting together, et cetera."² The Commonwealth objected that if such definitional language were to be added, additional language would also be necessary.

The court refused Instruction R, observing that the appellate courts had frequently "cautioned against pulling language out of particular cases" in framing jury instructions. The court indicated, however, that if counsel could agree on an amended version, it would be considered. Counsel were unable to agree on language and the court granted the model instruction quoted above as Instruction No. 8. The court stated that refused Instruction R was a part of the record but, for reasons unknown, that instruction was omitted from the record and has never appeared in subsequent proceedings.

One of the agreed instructions given to the jury was:

INSTRUCTION NO. 9

A principal in the first degree is the person who actually commits the crime. A principal in the second degree is a person who is present, aiding and abetting, by helping in some way in the commission of the crime. Presence and consent alone are not sufficient to constitute aiding and abetting. It must be shown that the Defendant intended his words, gestures, signals or actions to in some way encourage, advise, or urge, or in some way help the person committing the crime to commit it.

A principal in the second degree is liable for the same punishment as the person who actually committed the crime.

After the jury had retired to consider its verdict, the jury sent the following written question to the court:

In considering instruction #8, does the jury make a decision with regard to it using the criteria in instruction # 9 for a principle [sic] in the second degree? Especially the sentence: "It must be shown that the defendant intended his words, questions, signals or actions to in some way encourage, advise, or urge, or in some way help the person committing the crime to commit it."

At the suggestion of Ahmer's counsel, the court advised the jury to follow the instructions as written.

The Court of Appeals granted Ahmer an appeal. After briefing and oral argument, a divided panel affirmed the judgment of the trial court by an unpublished memorandum opinion. Shaikh v. Commonwealth, Record No. 2614-03-4, 2005 WL 146972 (Jan. 25, 2005). The majority opinion did not address the merits of Shaikh's claim regarding the refusal of Instruction R because it was not a part of the record on appeal. The majority opinion held, however, that the trial court had not "left a vital issue unaddressed by using the model concert of action instruction." Id., at *5. The Court of Appeals thereafter denied Ahmer's petition for a rehearing en banc, noting that an insufficient number of judges had voted to grant it. Shaikh v. Commonwealth, Record No. 2614-03-4 (Mar. 7, 2005). This Court subsequently refused Ahmer's petition for appeal.

Ahmer filed the present petition for habeas corpus in the circuit court, raising two claims of ineffective assistance of counsel: (1) counsel's failure to ensure that Instruction R was made a part of the record,³ and (2) counsel's failure to call Rehman as a defense witness at Ahmer's trial. Ahmer also requested an evidentiary hearing "to resolve the factual disputes and to provide [him] the opportunity to prove [his] grounds for habeas relief."

The Attorney General, for the respondent, filed a motion to dismiss the petition. The circuit court⁴ denied the request for an evidentiary hearing and, on the arguments of counsel, briefs, exhibits and record of Ahmer's trial and appellate proceedings, granted the motion to dismiss. We awarded Ahmer an appeal.

Analysis

A. Standard of Review

A criminal defendant's Sixth Amendment right to the assistance of counsel in his defense entitles him to "reasonably competent counsel who provides assistance that is within the range of competence required of attorneys in criminal cases." West v. Director, Dep't of Corrs., 273 Va. 56, 62, 639 S.E.2d 190, 194 (2007) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). The issue whether a defendant was deprived of his Sixth Amendment right to effective assistance presents a mixed question of law and fact that is reviewed de novo on appeal. Strickland, 466 U.S. at 698, 104 S.Ct. 2052.

Strickland prescribes a two-pronged test that a habeas petitioner must satisfy in order to prevail in a claim of ineffective assistance of counsel, the "deficient performance" prong and the "prejudice" prong. To satisfy the first of these, the petitioner must show that "counsel's representation fell below an objective standard of reasonableness." Id. at 687-88, 104 S.Ct. 2052. The court reviewing the habeas petition "must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689, 104 S.Ct. 2052. The second prong of the Strickland test requires the petitioner to 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, 104 S.Ct. 2052. It is not necessary for a court deciding an ineffective assistance claim to address both components of the inquiry, or to address them in any particular order. If the petitioner makes an insufficient showing on either component of the test, the other need not be considered. Id. at 697, ...