Sheikh v. Buckingham Correctional Center, Record No. 020677.
| Decision Date | 01 November 2002 |
| Docket Number | Record No. 020677. |
| Citation | 570 S.E.2d 785,264 Va. 558 |
| Parties | Saeed SHEIKH v. BUCKINGHAM CORRECTIONAL CENTER, et al. |
| Court | Virginia Supreme Court |
Thomas Michael Curtis, Alexandria, for appellant.
Robert H. Anderson, III, Senior Asst. Gen. (Jerry W. Kilgore, Atty. Gen., on brief), for appellees.
Present: All the Justices.
Opinion by Justice BARBARA MILANO KEENAN.
In this appeal, we consider whether the trial court erred in dismissing a petition for a writ of habeas corpus in which a petitioner alleged that he was denied effective assistance of counsel during the jury sentencing phase of his trial.
The petitioner, Saeed A. Sheikh, was indicted for assault by mob, in violation of Code §§ 18.2-38 and -41. Sheikh was accused of being a member of a gang that shot and killed a high school student, David Albrecht, with the intent to maim, disable, disfigure, or kill him. Sheikh was convicted of the charged offense in a jury trial in the Circuit Court of Fairfax County. The jury fixed Sheikh's punishment at a term of 17 years' imprisonment and a $10,000 fine, and the trial court sentenced Sheikh in accordance with the jury verdict.
After exhausting his remedies on direct appeal, Sheikh filed a petition for a writ of habeas corpus in the trial court. Sheikh principally asserted, in relevant part, that he was prejudiced by his trial counsel's failure during the sentencing proceeding to present mitigating evidence and to make an effective closing argument.
The Commonwealth filed a motion to dismiss Sheikh's petition on various grounds, including an argument that Sheikh failed to sustain his burden under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), of establishing that trial counsel's performance was deficient and that Sheikh suffered prejudice as a result of his counsel's performance. Based upon a review of the trial record, the pleadings on habeas corpus, and an affidavit submitted by Sheikh's father stating that he and other family members had been available to testify at the sentencing proceeding, the trial court dismissed Sheikh's petition with prejudice. Sheikh appeals.
We first review the evidence presented at Sheikh's criminal trial. That evidence established that Sheikh was a leader in a gang called "TRG." On February 26, 1998, two members of the gang were involved in a violent altercation at a convenience store. One member of TRG, Cham Choup, sustained extensive injuries to his face.
The next morning, Sheikh, Michael Choup, who was Cham Choup's brother, and several other gang members planned to assault John C. Metcalf, one of the men who injured Cham. The gang members waited in vehicles outside Pimmit Hills High School for Metcalf to leave. Some of the members were armed with baseball bats and large sticks.
At 12:15 p.m., Metcalf left the school with Albrecht, who had not been involved in the previous day's fight. Metcalf and Albrecht observed the waiting vehicles and left the school parking lot in Albrecht's car, followed by the gang members in their two vehicles. Sheikh was seated in the back seat of one car behind the car's driver. Michael Choup was seated in the front passenger's seat of the same vehicle.
Albrecht drove his car to a nearby school so that Metcalf could run into the school to escape from the gang members. Before Metcalf could get out of the car, the vehicle carrying Michael Choup "pulled up" along the passenger's side of Albrecht's vehicle. Michael Choup leaned across the driver's seat of the vehicle in which he was riding and fired three shots from a "sawed off" pump rifle into Albrecht's car. Although all three shots missed Metcalf, a bullet struck Albrecht in the head, killing him.
In March 1998, after learning that Michael Choup had implicated Sheikh in a statement made to the police, Sheikh discussed his involvement in the Albrecht killing with Detective Robert J. Murphy of the Fairfax County Police Department. Sheikh admitted that he was one of the gang's leaders, and that he and other gang members intended to assault and batter Metcalf to avenge Cham Choup's beating.
Sheikh stated that he had been sick on the morning of the assault. He maintained that he was unaware that Michael Choup had a gun, and that he did not know that Michael planned to shoot Metcalf. Sheikh asserted that if he had known Michael had a gun, he would not have accompanied Michael to assault Metcalf. However, Sheikh admitted that Michael had said some things before the shooting that made him think that Michael may have had a gun.
Although Sheikh recognized that Michael Choup's actions were "wrong and stupid," he stated that he did not blame Michael for his conduct. Sheikh further stated, in relevant part:
If I saw my brother like that, I'd probably do the same [thing]. I'd go crazy. I wouldn't [care] if it was daylight out. Get a[gun] or whatever, I'd go out and kill `em. I mean I'd wear a mask ... . I'd go out in daylight. I mean I'd try to do it at night. But if I caught `em [outside] in the day, hell, yeah, I'd shoot that [motherf_cker]. I'd back my brother with my life.
Detective Murphy read Sheikh's entire statement to the jury. On cross-examination, trial counsel established that Sheikh had been cooperative with Detective Murphy, and that Murphy's investigation did not reveal any indication Sheikh had handled the gun used to shoot Albrecht or that Sheikh had given "any directives of who to shoot."
At the conclusion of the Commonwealth's case, Sheikh's counsel moved to strike the prosecution's evidence on the ground that any "mob" that Sheikh may have belonged to did not share Michael Choup's intent to shoot and kill Metcalf. The trial court denied the motion.
Sheikh was the only witness to testify on behalf of the defense. He stated that he would not have gone with the other gang members if he had been aware of Michael Choup's intent. Sheikh also testified concerning his personal and family circumstances at the time of the offense. He related that he was sick on the date of the offense, that his mother was ill with cancer, and that he worked on a construction project to help pay his family's expenses. At the conclusion of all the evidence, Sheikh's counsel renewed his motion to strike, which the trial court again denied.
During closing arguments in the guilt phase, Sheikh's counsel reiterated his argument that Michael Choup was not a member of any "mob" that may have included Sheikh, because Michael's intent to kill Metcalf was not shared by the other "mob" members. Counsel also reminded the jury that after the shooting, Sheikh had stopped Michael from getting out of the vehicle to continue his attack on Metcalf.
After the jury returned its verdict finding Sheikh guilty of the offense charged in the indictment, the trial court began the penalty phase of the trial. Neither party presented an opening statement.
The Commonwealth presented evidence that Sheikh had prior convictions for felonious defacement and damage to private property, unlawful entry of a building, and assault and battery. The defense did not present any evidence.
In his closing statement to the jury, the prosecutor made brief remarks emphasizing that the gang members "took the life of an innocent young man" who had not participated "in the quarrels that the gang was worried about." The prosecutor asked the jury to fix Sheikh's punishment at "the high end" of the sentencing range because of the magnitude of the crime and Sheikh's "background as a criminal."
In response, Sheikh's counsel made the following argument to the jury:
In a later sentencing hearing before the trial court, Sheikh's counsel moved the court to set aside the verdict on various grounds, including the argument that Sheikh had not shared Michael Choup's intent to kill Metcalf. The trial court denied the motion.
Sheikh argues on appeal that he was denied his Sixth Amendment right to effective assistance of counsel. He contends that his trial counsel's performance during the sentencing phase of the trial should be assessed under the standard set forth in United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984), because there was a total collapse of the adversarial process during that proceeding. In support of this conclusion, Sheikh emphasizes trial counsel's failure to introduce any evidence concerning his character or the mitigating circumstances of the crime, or to provide any argument supporting a lesser sentence by the jury. We disagree with Sheikh's arguments.
A defendant's right to counsel under the Sixth Amendment includes the right to effective assistance of counsel. Strickland v. Washington, 466 U.S. at 685-86, 104 S.Ct. 2052. Under this constitutional guarantee, a defendant is entitled to counsel who is reasonably competent and who provides advice that is within the range of competence required of attorneys in criminal cases. Id. at 687, 104 S.Ct. 2052.
The issue whether a defendant received effective assistance of counsel at trial presents a mixed question of law and fact that is reviewed de novo on appeal. Id. at 698, 104 S.Ct. 2052. To prevail on a claim of ineffective assistance of counsel, a petitioner ordinarily must satisfy both parts of the twopart test set forth in Strickland.
First, the petitioner must show that "counsel's representation fell below an objective standard of reasonableness." Id. at 688, 104 S.Ct....
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