VIRGINIA:
In the Supreme Court of Virginia held at the Supreme Court
Building in the City of Richmond, on Tuesday, the 12th day of June,
2007.
John Allen Muhammad, Petitioner,
against Record No. 061428
Warden of the
Sussex I State Prison, Respondent.
Upon a Petition for a Writ of Habeas Corpus
Upon consideration of the petition for a writ of habeas corpus
filed July 31, 2006, the respondent’s motion to dismiss, and the
petitioner’s reply to that motion, the Court is of the opinion that
the motion should be granted and the writ should not be issued.
John Allen Muhammad was convicted in the Circuit Court of
Prince William County of one count each of conspiracy to commit
capital murder, use of a firearm while committing or attempting to
commit capital murder, and two counts of capital murder for the
murder of Dean Meyers as more than one murder in three years, and
the murder of Dean Meyers in the commission of an act of terrorism.
Finding that the Commonwealth had proven the aggravating factors of
“future dangerousness” and “vileness” beyond a reasonable doubt,
see Code § 19.2-264.2, the jury fixed Muhammad’s sentence at death
on each of the capital murder convictions and fixed sentences
totaling thirteen years’ imprisonment for the non-capital
convictions. The trial court sentenced Muhammad in accordance with
the jury’s verdict. This Court affirmed Muhammad’s convictions and
the sentences of death. Muhammad v. Commonwealth, 269 Va. 451, 619
S.E.2d 16 (2005), cert. denied, ___ U.S. ___, 126 S.Ct. 2035
(2006).
In claim (I), petitioner alleges that his Fifth, Eighth1 and
Fourteenth Amendment rights, and corresponding rights under the
Virginia Constitution were violated by the Commonwealth’s failure
to disclose exculpatory information to petitioner as required by
Brady v. Maryland, 373 U.S. 83 (1963).
As the Court has stated previously, and reiterated in our
opinion affirming petitioner’s conviction and sentence of death:
In Brady [], the United States Supreme Court held
that “the suppression by the prosecution of evidence
favorable to an accused upon request violates due process
where the evidence is material either to guilt or to
punishment, irrespective of the good faith or bad faith
of the prosecution.” Id. at 87. Whether evidence is
material and exculpatory and, therefore, subject to
disclosure under Brady is a decision left to the
prosecution. Pennsylvania v. Ritchie, 480 U.S. 39, 59
(1987). Inherent in making this decision is the
possibility that the prosecution will mischaracterize
evidence, albeit in good faith, and withhold material
exculpatory evidence which the defendant is entitled to
have under the dictates of Brady. If the defendant does
not receive such evidence, or if the defendant learns of
the evidence at a point in the proceedings when he cannot
effectively use it, his due process rights as enunciated
in Brady are violated. United States v. Russell, 971 F.2d
1098 (4th Cir. 1992); United States v. Shifflett, 798 F.
Supp. 354 (1992); Read v. Virginia State Bar, 233 Va.
560, 564-65, 357 S.E.2d 544, 546-47 (1987).
1
The Court rejects petitioner’s claim that the Eighth
Amendment of the United States Constitution supports his claim that
he should be granted habeas relief because the Commonwealth failed
to disclose allegedly exculpatory information. Petitioner has failed
to establish that such a failure implicates the Eighth Amendment.
2
. . . .
Exculpatory evidence is material if there is a
reasonable probability that the outcome of the proceeding
would have been different had the evidence been disclosed
to the defense. “A reasonable probability” is one which
is sufficient to undermine confidence in the outcome of
the proceeding. United States v. Bagley, 473 U.S. 667,
682 (1985); Robinson v. Commonwealth, 231 Va. 142, 151,
341 S.E.2d 159, 164 (1986).
Muhammad, 269 Va. at 510, 619 S.E.2d at 49-50 (quoting Bowman v.
Commonwealth, 248 Va. 130, 133, 445 S.E.2d 110, 111-12 (1994)).
In the first portion of claim (I), petitioner contends that
the Commonwealth was required to, but did not, disclose an FBI
Criminal Investigative Analysis, which stated in part: “There is
likely only one offender. Sniper attacks are generally a solitary
type of murder. It would be extremely unusual for there to be
multiple offenders in this series of attacks.” Petitioner states
he did not receive this information until his prosecution in
Maryland on related offenses.
The Court need not resolve questions related to when the
Commonwealth knew of the analysis, whether the knowledge of the FBI
should be imputed to Prince William prosecutors, or whether the
analysis was material because the Court holds that the analysis was
not favorable to petitioner. The record, including the full text
of the analysis, demonstrates that the paragraph describing
3
“offender characteristics” upon which petitioner relies actually
states:
There is likely only one offender. Sniper type attacks
are generally a solitary type of murder. It would be
extremely unusual for there to be multiple offenders
involved in this series of attacks. If there is a second
offender, he is not likely to be an equal partner in
these crimes, and would be subservient to the primary
offender. (Emphasis added).
In whole, this statement supports the evidence admitted at trial
and the Commonwealth’s theory of the case. Therefore, the portion
of the statement, taken in context, is not exculpatory.
In another portion of claim (I), petitioner contends that the
Commonwealth was required to, but did not, disclose a memorandum
attacking the credibility of a witness to the shooting of Baton
Rouge, Louisiana citizen, Hong Im Ballenger. The memorandum was
prepared by the Baton Rouge Police Department in response to a news
report, which aired on a Louisiana television station. The news
report referred to the witness by a pseudonym, “Frances” and the
memorandum upon which petitioner relies includes a transcript of
the report and written “factual” responses. Petitioner believes
that “Frances” and Ingrid Shaw, who testified concerning the
Ballenger murder during his trial, are the same person. Petitioner
states he did not receive this memorandum until his prosecution in
Maryland on related offenses.
4
The Court need not resolve questions related to when the
Commonwealth knew of the analysis, whether the knowledge of the
Baton Rouge Police Department should be imputed to Prince William
prosecutors, or whether the memorandum was material because the
Court holds that petitioner has failed to establish that the
memorandum was evidence favorable to petitioner. Petitioner
speculates, but fails to prove, that “Frances” and Ingrid Shaw are
the same person. Furthermore, evidence at trial proved that the
bullet that killed Ballenger was fired from petitioner’s Bushmaster
rifle.
In another portion of claim (I), petitioner contends that the
Commonwealth was required to, but did not disclose the development
of a suspect, Louis Robinson, in the Ballenger murder. Petitioner
includes page three from supplement number eight to the police
report in the Ballenger investigation, which indicates that the
Baton Rouge police found Robinson as a result of bloodhound
tracking that ended between Robinson’s house and another house.
When police encountered Robinson the next day, he had a knife in
his hand, which, along with another knife and pair of tennis shoes
with blood-like stains, was seized.
The Court need not resolve questions related to when the
Commonwealth knew of this information, whether the knowledge of the
Baton Rouge Police Department should be imputed to Prince William
5
prosecutors, or whether this information was material because the
Court holds that this information was not favorable to petitioner.
The record, including the full police report, demonstrates that,
although Robinson was a suspect, police did not believe he was the
killer because the stains on his tennis shoes were not blood,
Robinson had no gun shot residue on his hands, and Shaw did not
identify him in a photographic line-up. Furthermore, evidence at
trial proved that a bullet fired from petitioner’s Bushmaster rifle
killed Ballenger.
In another portion of claim (I), petitioner contends the
Commonwealth was required to, but did not, disclose the contents of
supplement number sixteen to the Baton Rouge investigation file
concerning the Ballenger murder. Supplement sixteen contains a
summary of the numerous suspects and tips received by the Baton
Rouge Police Department, the investigation concerning these
suspects, and the resolution of the case.
The Court need not resolve questions related to when the
Commonwealth knew of this information, whether the knowledge of the
Baton Rouge Police Department should be imputed to Prince William
prosecutors, or whether this information was material because the
Court holds that this information was not favorable to petitioner.
The record, including the full police report, demonstrates that
police identified several suspects during the course of the
6
investigation, that each suspect was eliminated as a possibility,
and that, after petitioner was arrested for the Virginia and
Maryland sniper shootings, it was determined that he and Lee Boyd
Malvo had been in Baton Rouge at the time of the Ballenger murder
and ballistics tests confirmed that the bullet which killed
Ballenger was fired from the Bushmaster rifle used in the sniper
attacks.
In another portion of claim (I), petitioner contends that the
Commonwealth was required to, but did not, disclose the contents of
investigative reports in connection with the wounding of Caroline
Seawell. The record, including the trial transcript, demonstrates
that a witness to the Seawell wounding, Alex Jones, witnessed the
shooting while waiting for Seawell’s parking place. Jones
initially got out of his car to check on Seawell and then decided
to get help and to protect himself and his wife. He returned to
his car and drove it in a zigzag pattern through the parking lot
until he drove up behind a “dirty” Chevrolet being driven very
slowly. Jones could not drive around the car and had to drive
slowly behind it until the car turned one direction and Jones was
able to turn the opposite direction and drive to a local furniture
store to get help.
While Jones was behind the car, he noticed that the windows
were too dark for the interior of the car to be seen, and Jones was
7
frightened and “felt” that the car did not belong there. He
testified that he noted the license plates were from New Jersey and
that he “was trying to get the numbers but [] was a little
frightened because [he] was only about a half a car away, and [he]
didn’t want anybody in the car – . . . – [he] didn’t want to give
whoever was looking at [him] the impression that [he] was trying to
get their license plate. . . .”
On cross-examination, after having been shown close-up
photographs of the vehicle, Jones testified that he was about 80%
sure the picture was of the vehicle he had seen because he “kind of
remember[ed] those letters; but that was the car.” Jones admitted
he had did not tell the police officers about the three letters and
that the first time he told anyone about remembering the letters
was that moment at trial. Petitioner contends the Commonwealth
should have provided the FBI report that indicated that Jones
“could provide no additional information about the license plate
number” other than that it was a New Jersey license plate.
The Court need not resolve questions related to whether the
knowledge of the FBI should be imputed to Prince William
prosecutors, or whether this information was material because the
Court holds that this information was not favorable to petitioner.
The record, including the trial transcript and the FBI report
proffered by petitioner, demonstrates that the witness was not
8
expected to testify concerning the license plate number. As
expected, the witness testified on direct examination that he tried
to get the number but was too frightened; and that after being
shown the picture of the license plate and “remembering” the
letters on cross-examination, the witness admitted he had never
informed the police that he knew the letters of the license plate
number. The FBI report is consistent with the witness’ testimony.
The petitioner was able to successfully have the witness testify
that he did not previously inform the FBI of his memory.
Furthermore, the evidence at trial proved that a bullet fired from
petitioner’s Bushmaster rifle wounded Seawell.
In another portion of claim (I), petitioner contends that the
Commonwealth was required to, but did not, disclose the contents of
investigation reports in connection with the shooting death of
Kenneth Bridges in Spotsylvania County. The record, including the
trial transcript, demonstrates that a witness, Christine Goodwin,
saw the Chevrolet Caprice parked at an odd angle at the Exxon
station where Bridges was killed. She paid special attention to
this car because it had New Jersey plates and was parked at an odd
angle in a corner of the lot, the paint was peeling, and the
windows were covered with a dark tint, such that she could not see
the interior, except for the dashboard, which was strewn with
papers on the passenger side. Goodwin was nervous about the car and
9
almost stopped getting gas, but a police cruiser pulled into the
lot and she felt safer.
Later after the shooting was made public and Goodwin saw a
report that the police were seeking a Chevrolet Caprice, she
contacted the hotline. On cross-examination, Goodwin noted that
she read the license number and it began with the letter “N” and
that she had made a mental note of it. Petitioner contends the
Commonwealth should have provided a Spotsylvania County police
report, which indicated that Goodwin “could not remember any of the
tag number.”
The Court need not resolve questions related to whether the
knowledge of the Spotsylvania Sheriff’s Office should be imputed to
Prince William prosecutors, or whether this information was
material because the Court holds that this information was not
favorable to petitioner. The record, including the trial
transcript and the report proffered by petitioner, demonstrates
that the witness was not expected to testify concerning the license
plate number and that, as expected, the witness testified on direct
examination that she recognized the car by its description and
because it bore license plates from New Jersey. It was not until
cross-examination after the witness was shown pictures of the car
that she testified she “remembered” the “N.” Furthermore, evidence
at trial proved that a bullet fired from petitioner’s Bushmaster
10
rifle killed Bridges.
In another portion of claim (I), petitioner contends the
Commonwealth was required to, but did not, disclose the contents of
investigative reports in connection with the wounding of Kellie
Adams and the death of Claudine Parker in Montgomery, Alabama. The
record, including the trial transcript, demonstrates that James A.
Gray was standing across the highway from the location of the
shooting and took chase of Malvo after it appeared that Malvo was
going to get away from police officers. Gray chased Malvo through
a ditch and attempted to “cut him off” from the path he was
running, eventually coming face-to-face with Malvo before losing
him. Gray testified that, at the time, Malvo did not appear to be
a black man, but instead appeared to be “very fair” and possibly
bi-racial. Gray was later called back to Montgomery to look at a
photo line-up, from which Gray picked out Malvo’s picture. Gray
testified that he told the police officers that the person in the
picture was not the right color. Defense counsel asked Gray if he
stated the picture was “a good likeness” to which Gray admitted he
“might have said that.”
Petitioner contends that he was unaware that Gray had
described the person he chased as a black male who was holding a
pistol, as documented in a report prepared by Detective W.D. Favor
of the Montgomery Police Department. Petitioner contends further
11
that Gray told Detective Favor conflicting information later that
same day. The record, including the exhibits proffered by
petitioner, demonstrates that Detective Favor prepared a report
detailing his investigation in which he stated that Gray had come
to the police station at approximately 3:30 p.m. and in which
Detective Favor reports the contents of Gray’s statement to him.
The transcript of the statement made “later that day” to which
petitioner refers, indicates that the interview with Gray actually
began at 4:06 p.m.
Contrary to petitioner’s contention, the Court finds that the
report written by Detective Favor summarizes the interview he
conducted with Gray, and that the references to Gray’s alleged
assertion that he was chasing a black man holding a pistol are a
result of Favor’s inaccurate recollection of the statements
actually made by Gray and reflected in the transcript of the
interview. The portions of Detective Favor’s recollection, which
are not supported by the transcribed version of the interview, do
not constitute exculpatory evidence because they would have been
inadmissible and would not have led to the discovery of exculpatory
evidence as evidenced by Gray’s actual statements to Favor and his
consistent testimony.
Petitioner further contends that the prosecutor should have
provided him with a copy of Gray’s October 24, 2002 interview
12
during which he selected Malvo’s photograph from a photo line-up.
The record, including the trial transcript, demonstrates that
petitioner’s attorney used the transcript of the October 24, 2002
interview in his cross-examination of Gray and quoted directly from
it. Thus, this evidence was not withheld from petitioner and does
not constitute a Brady violation.
Finally, petitioner contends that the prosecution should have
provided to him the statements made by Clyde Wilson, a man who was
with Gray when the shooting occurred, but whom Gray did not know,
and who also gave chase. Petitioner argues that Gray’s testimony
could have been impeached by evidence that Clyde Wilson described
the suspect as wearing a green or turquoise shirt and that Wilson
could not identify Malvo in the photo line-up. The record,
including Wilson’s statements and the trial transcript of Gray’s
testimony, demonstrates that Wilson followed a different route in
his attempt to aid police, thus, Wilson and Gray viewed the suspect
from different vantage points. Gray had the opportunity to look at
Malvo face-to-face, while Wilson did not. The Court holds that
this evidence could not properly be used to impeach Gray’s
testimony and, as Wilson did not testify, no Brady violation
occurred. Furthermore, the evidence proved that Parker and Adams
were shot with bullets fired from petitioner’s Bushmaster rifle and
that Malvo dropped a .22 caliber handgun, which contained his
13
fingerprints, while he was running.
In another portion of claim (I), petitioner alleges the
Commonwealth was required to, but did not, disclose the contents of
witness statements in connection with the shooting death of Paschal
Charlot in the District of Columbia on October 3, 2002. The
record, including the trial transcript, demonstrates that Gail
Howard testified that she saw a car parked in her parking lot at
the time of Charlot’s murder that looked “pretty much like” the car
in which petitioner and Malvo were arrested. After she heard a gun
shot, she observed the car leave the area, moving slowly with its
lights off. Karl Largie testified that he was standing outside his
establishment near the site of the shooting and heard a “bang
noise” and observed a car leaving the area with its lights off.
Largie described the vehicle as a Chevrolet Caprice, dark in color
with heavily tinted windows.
Petitioner contends that he was unaware of Howard’s statement
on a national news network, CNN, that she did not see the car and
that this statement was exculpatory. The Court holds that this
statement is not encompassed within the requirements of Brady as a
statement made on a public news broadcast such as CNN is public
knowledge and available to the defense.
Petitioner contends that the Commonwealth withheld exculpatory
information because it did not disclose Largie’s statement to
14
police that he believed the car to be brown or burgundy as this
information could have impeached Largie’s trial testimony. The
Court holds that this information is not exculpatory. First,
petitioner attributes the statement that the car was brown or
burgundy made by an anonymous witness as having been made by
Largie. Petitioner speculates that Largie and the anonymous
witness were the same person. Furthermore, even if Largie had made
the statement, it does not contradict Largie’s testimony at trial.
The record, including the trial transcript, demonstrates that
Largie testified that it was dark outside and that the Chevrolet
Caprice was dark in color. When asked what color the car was,
Largie responded, “Well, it was very dark, and I assumed it be like
–.” Petitioner objected to any assumptions the witness would make
and the objection was sustained. Thus, nothing in the record
demonstrates what color Largie assumed the car to be.
Petitioner contends further that he was unaware of a statement
made by Howard to Police Officer Antonio DuVall that she had urged
Largie to talk to the police about the car, as she did not want to
get involved because of her immigration status. Furthermore,
petitioner contends he should have been provided with a letter from
Detective Leadmon to the Immigration and Naturalization Service
that Howard was considered a witness, whose testimony was crucial
to the prosecution. Petitioner argues that this information would
15
have impeached Howard’s testimony. Petitioner next contends that
statements of various witnesses that the sound of the gunshot
appeared to come from near the victim, that the gunshot sounded
like it came from a handgun, and that a puff of smoke was seen
coming from a burgundy Nissan or Maxima, which sped away after the
shooting, were all exculpatory as these statements would have
impeached Howard’s and Largie’s testimony and the Commonwealth’s
theory that Charlot was shot from a gun fired from the Caprice.
The Court holds that this evidence is not favorable to
petitioner. Petitioner does not contend that Howard testified
falsely in exchange for favorable treatment with the Immigration
and Naturalization Service or that the letter written by Detective
Leadmon influenced Howard’s testimony. Neither Howard nor Largie
testified concerning the location of the shooter or the direction
from which the sound of the gunshot came. The testimony from both
Howard and Largie was corroborated by evidence that proved Charlot
was killed by a bullet fired from petitioner’s Bushmaster rifle.
In another portion of claim (I), petitioner alleges the
Commonwealth was required to, but did not, disclose the contents of
witness statements in connection with the wounding of Muhammad
Rashid in Prince George County, Maryland on September 15, 2002.
Rashid testified at trial and identified Malvo as the person who
shot him. Rashid testified further that he recognized the structure
16
of Malvo’s face and that in his first statement he had described
Malvo’s color as not pure black or pure white. When questioned
about his 911 telephone call and his description of the shooter as
being 35 years old, Rashid testified that he had been misunderstood
and that the assailant appeared to be between 25 and 30 years old.
Petitioner contends the Commonwealth should have disclosed a
posting for a “Robbery Lookout” which described the shooter as a
35-year-old black male; Detective Darrell Disque’s investigative
summary indicating that Rashid had named James E. Donmore as a
suspect; Detective Disque’s hand written notes indicating Rashid
had described the assailant as having cream colored skin and as
being probably white; Rashid’s statement that he did not think he
would recognize his assailant; and Rashid’s failure to pick Malvo
from a photo line-up. Petitioner contends this information would
have impeached Rashid’s credibility.
The Court holds that this evidence is not exculpatory because
it was not material. The evidence at trial proved that Rashid was
shot with the .22 caliber gun that Malvo dropped while being chased
in Montgomery, Alabama. Furthermore, as evidence connecting
petitioner to numerous other shootings was abundant, petitioner
cannot demonstrate that impeaching Rashid as to his identification
of Malvo would undermine the confidence in the outcome of his
trial.
17
Petitioner argues that all of the allegedly exculpatory
evidence must be considered in its totality when determining the
materiality of the evidence. Petitioner is correct that when
considering materiality, we consider the suppressed evidence as a
whole, not item by item. Workman v. Commonwealth, 272 Va. 633,
644-45, 636 S.E.2d 368, 375 (2006); Kyles v. Whitley, 514 U.S. 419,
436 (1995). However, we do not reach the issue of materiality
unless we first determine that the evidence is favorable to the
accused because it is exculpatory or because it may be used for
impeachment. Workman, 272 Va. at 644-45, 636 S.E.2d at 374. We
have already determined that, other than petitioner’s allegations
concerning the Rashid shooting, none of the suppressed evidence
upon which petitioner relies constituted evidence favorable to
petitioner. However, even if it were all favorable to petitioner,
none of the suppressed evidence would have been material because,
taken as a whole, it does not undermine confidence in the forensic
evidence admitted at trial that tied petitioner to both the
Bushmaster rifle used in many of the shootings, and the .22 caliber
handgun Malvo dropped in Alabama, which was used in other
shootings. Furthermore, petitioner does not challenge the evidence
that proved he was involved in at least nine other shootings,
including the murder of Dean Meyers. Thus, petitioner cannot
establish that there is a reasonable probability that his knowledge
18
or use of the alleged exculpatory evidence would have undermined
the confidence in the outcome of the trial.
In claim (II), petitioner alleges the trial court’s decision
to permit petitioner to represent himself at trial violated
petitioner’s right to the effective assistance of counsel
guaranteed by the Sixth and Fourteenth Amendments to the
Constitution of the United States. Although petitioner uses the
terminology associated with a claim alleging the denial of the
“effective assistance of counsel” as defined in Strickland v.
Washington, 466 U.S. 668, 686 (1984), the Court holds that this
claim, in fact, involves petitioner’s Sixth Amendment right to
counsel and actions taken by the trial court as opposed to any act
or omission of counsel.2
In a portion of claim (II), petitioner alleges the trial court
violated his Sixth Amendment right to counsel when the court
allowed him to represent himself without adequately warning him of
its dangers. The record, including the petition for appeal filed
with this Court on direct appeal of petitioner’s capital
convictions, demonstrates that petitioner argued only that the
2
In a portion of claim (II), petitioner attempts to
incorporate, by reference, arguments related to his capacity to
choose not to present evidence of his serious mental health illness
during the penalty phase of his trial. The Court declines to
consider “by reference” these arguments and holds that this claim,
as it relates to actions taken by the trial court, is conclusional
and, therefore, will not support the issuance of a writ of habeas
corpus. Penn v. Smyth, 188 Va. 367, 370-71, 49 S.E.2d 600, 601
19
trial court erred because it had failed to adequately explain the
limitations it was imposing on petitioner’s access to “standby
counsel.”
To the extent petitioner is reiterating the arguments raised
on direct appeal, the Court holds that this portion of claim (II)
is barred because this issue was raised and decided in the trial
court and on direct appeal from the criminal conviction and,
therefore, it cannot be raised in a habeas corpus petition. Henry
v. Warden, 265 Va. 246, 249, 576 S.E.2d 495, 496 (2003). To the
extent petitioner is challenging any other aspect of the trial
court’s inquiry or warnings to petitioner, the Court holds this
claim is procedurally defaulted because this non-jurisdictional
issue could have been raised at trial and on direct appeal and,
thus, is not cognizable in a petition for a writ of habeas corpus.
Slayton v. Parrigan, 215 Va. 27, 29, 205 S.E.2d 680, 682 (1974),
cert. denied, 419 U.S. 1108 (1975).
In another portion of claim (II), petitioner alleges the trial
court violated his Sixth Amendment right to counsel when the court
allowed him to represent himself without assessing petitioner’s
competence to waive his right to counsel. The Court holds that
this portion of claim (II) is procedurally defaulted because this
non-jurisdictional issue could have been raised at trial and on
direct appeal and, thus, is not cognizable in a petition for a writ
(1948). 20
of habeas corpus. Id.
In another portion of claim (II), petitioner alleges the trial
court violated his Sixth Amendment right to counsel because the
court placed restrictions that were too burdensome on petitioner’s
use of standby counsel during that part of the trial. The Court
holds that this portion of claim (II) is barred because this issue
was raised and decided in the trial court and on direct appeal from
the criminal conviction and, therefore, it cannot be raised in a
habeas corpus petition. Henry, 265 Va. at 249, 576 S.E.2d at 496.
In a portion of claim (III)(A), petitioner alleges he was
denied the right to the effective assistance of trial counsel
because information regarding petitioner’s mental condition was not
presented to the trial court when petitioner sought to represent
himself.
The Court holds that this portion of claim (III)(A) satisfies
neither the “performance” nor the “prejudice” prong of the two-part
test enunciated in Strickland, 466 U.S. at 687. The record,
including the trial transcript, demonstrates that there was no
indication that petitioner suffered from any mental illness as
petitioner answered the court’s questions and insisted that he
understood the risks and conditions associated with representing
himself at trial. Petitioner fails to point to expert evidence,
available at that time, upon which counsel could have relied and
21
which would have established that petitioner’s ability to make
decisions and understand the proceedings was impaired. The trial
transcript demonstrates that counsel found petitioner to be “a very
bright man” and petitioner has failed to proffer any evidence to
the contrary. Thus, petitioner has failed to demonstrate that
counsel’s performance was deficient or that there is a reasonable
probability that, but for counsel's alleged errors, the result of
the proceeding would have been different.
In another portion of claim (III)(A), petitioner alleges he
was denied the right to the effective assistance of trial counsel
because information regarding petitioner’s mental condition was
never presented to the jury during the penalty phase of his trial.
Petitioner claims that counsel was “well aware” of his “severe
mental illness and his bizarre behavior” but never investigated or
presented this information to the jury. Petitioner claims that,
had this evidence been presented, he would not have been sentenced
to death.
The Court holds that this portion of claim (III)(A) satisfies
neither the “performance” nor the “prejudice” prong of the two-part
test enunciated in Strickland. The record, including the trial
transcript, demonstrates that petitioner refused to cooperate with
the Commonwealth’s mental health expert and understood that his
refusal would result in the trial court barring him from presenting
22
mental health experts to testify at the penalty phase of the trial.
Additionally, despite counsel’s inability to present expert
testimony as to petitioner’s mental health, counsel did present lay
testimony from petitioner’s friends regarding changes in his
personality and demeanor prior to the shootings. Furthermore,
petitioner has failed to proffer the records from the mental health
exams to which he subjected himself and, therefore, has failed to
demonstrate that the mental health evidence available at the time
of trial would have aided in his defense. Thus, petitioner has
failed to demonstrate that counsel’s performance was deficient or
that there is a reasonable probability that, but for counsel's
alleged errors, the result of the proceeding would have been
different.
In another portion of claim (III)(A), petitioner alleges he
was denied the right to the effective assistance of trial counsel
because counsel failed to advise petitioner about the consequences
he faced by refusing to cooperate with the Commonwealth’s expert
mental health witness.
The Court holds that this portion of claim (III)(A) satisfies
neither the “performance” nor the “prejudice” prong of the two-part
test enunciated in Strickland. The record, including the trial
transcript, demonstrates that any alleged inadequacy in counsel’s
advice was cured when the trial court informed petitioner of the
23
consequences he faced by refusing to cooperate with the
Commonwealth’s mental health expert. Thus, petitioner has failed
to demonstrate that counsel’s performance was deficient or that
there is a reasonable probability that, but for counsel's alleged
errors, the result of the proceeding would have been different.
In another portion of claim (III)(A), petitioner alleges he
was denied the right to the effective assistance of trial counsel
because counsel failed to object when the trial court prevented all
evidence of mental illness from being presented at trial even
though the court did not inquire into the effect the evidence might
have on the jury.
The Court holds that this portion of claim (III)(A) satisfies
neither the “performance” nor the “prejudice” prong of the two-part
test enunciated in Strickland. Petitioner has failed to state on
what grounds trial counsel should have objected to the trial
court’s ruling, which was properly within its discretion pursuant
to Code § 19.2-264.3:1(F)(2), as a result of petitioner’s decision
to refuse to cooperate with the Commonwealth mental health expert.
See Muhammad, 269 Va. at 508, 619 S.E.2d at 48. Additionally,
while the trial court did not permit expert testimony, counsel did
present lay testimony from petitioner’s friends at sentencing
regarding changes in his personality and demeanor. Thus,
petitioner has failed to demonstrate that counsel’s performance was
24
deficient or that there is a reasonable probability that, but for
counsel's alleged errors, the result of the proceeding would have
been different.
In another portion of claim (III)(A), petitioner alleges he
was denied the right to the effective assistance of trial counsel
because counsel failed to argue that recent opinions from the
United States Supreme Court in Roper v. Simmons, 543 U.S. 551
(2005) (defendants under the age of eighteen not eligible for the
death sentence) and Atkins v. Virginia, 536 U.S. 304 (2002)
(defendants who are mentally retarded not eligible for the death
sentence) and evolving standards of decency require that a person
suffering from a mental illness should not be sentenced to death.
The Court holds that this portion of claim (III)(A) satisfies
neither the “performance” nor the “prejudice” prong of the two-part
test enunciated in Strickland. Petitioner does not articulate a
factual basis to support this claim, as he has not demonstrated
that he was, in fact, mentally ill at the time of the murders or at
trial. Thus, petitioner has failed to demonstrate that counsel’s
performance was deficient or that there is a reasonable probability
that, but for counsel’s alleged errors, the result of the
proceeding would have been different.
In another portion of claim (III)(A), petitioner alleges the
trial court erred in allowing petitioner to represent himself and
25
by denying petitioner’s use of his mental health expert at trial.
The Court holds that this claim is barred because these issues were
raised and decided in the trial court and on direct appeal from the
criminal conviction and, therefore, they cannot be raised in a
habeas corpus petition. Henry, 265 Va. at 249, 576 S.E.2d at 496.
In claim (III)(B), petitioner alleges that, after he
acquiesced to representation by counsel, he was denied the
effective assistance of trial counsel because counsel failed to
object to improper arguments by the prosecution during the penalty
phase of the trial. During closing argument in the penalty phase,
the Commonwealth commented that the “original” Muhammad that people
knew years ago “no longer exists,” was “dead,” and had been
“murdered” by the man that was on trial. Petitioner claims that
these remarks were improper and should have been objected to as the
remarks effectively told the jury not to consider the mitigation
evidence that had been presented and it minimized the importance of
the jury’s decision regarding sentencing.
The Court holds that claim (III)(B) satisfies neither the
“performance” nor the “prejudice” prong of the two-part test
enunciated in Strickland. The record, including the trial
transcript, demonstrates that the jury was presented with
mitigation evidence from various witnesses who knew petitioner in
both a personal and professional capacity and who interacted with
26
petitioner and his family. Witnesses described changes in the
petitioner’s personality and demeanor that caused petitioner to
become someone that the witnesses no longer knew. The
Commonwealth’s remarks, therefore, were based on this testimony.
Additionally, the jury was instructed that its sentence was to be
based upon all of the evidence, “including evidence in mitigation.”
It is presumed that a jury will follow the instructions given by
the trial court. Green v. Young, 264 Va. 604, 611, 571 S.E.2d 135,
139 (2002). Petitioner has failed to articulate any factual basis
upon which the Court could conclude that the jury did not follow
the court’s instructions. Thus, petitioner has failed to
demonstrate that counsel’s performance was deficient or that there
is a reasonable probability that, but for counsel's alleged errors,
the result of the proceeding would have been different.
In claim (III)(C), petitioner alleges he was denied the
effective assistance of trial counsel because counsel failed to
consult with or request expert assistance on subjects upon which
the Commonwealth relied upon expert testimony.
The Court holds that claim (III)(C) satisfies neither the
“performance” nor the “prejudice” prong of the two-part test
enunciated in Strickland. Petitioner has failed to proffer the
names of any experts he contends counsel should have consulted and
fails to proffer any expert affidavits to demonstrate what
27
information these experts could have provided at trial. Thus,
petitioner has failed to demonstrate that counsel’s performance was
deficient or that there is a reasonable probability that, but for
counsel's alleged errors, the result of the proceeding would have
been different.
In claim (III)(D), petitioner alleges he was denied the
effective assistance of counsel because trial and appellate counsel
failed to allege and preserve the claims made under claims (I),
(II), (IV) and all subparagraphs.
The Court holds that claim (III)(D) satisfies neither the
“performance” nor the “prejudice” prong of the two-part test
enunciated in Strickland. Petitioner does not articulate a factual
basis to support this claim and does not identify with specificity
any act or omission of counsel which was objectively unreasonable.
Furthermore, petitioner does not attempt to demonstrate how these
failures were prejudicial.3 Thus, petitioner has failed to
demonstrate that counsel’s performance was deficient or that there
is a reasonable probability that, but for counsel’s alleged errors,
the result of the proceeding would have been different.
In claim (III)(E), petitioner alleges he was denied the
effective assistance of trial and appellate counsel because counsel
failed to allege and preserve the errors assigned in his direct
3
There is no claim (IV) in the petition for a writ of habeas
corpus.
28
appeal of his convictions to the Supreme Court of Virginia.
Petitioner contends that, to the extent this Court holds any of the
claims found in sections (I), (II) or (IV)4 could have been raised
at trial or on direct appeal, counsel’s failure to raise and
preserve the issues constitutes ineffective assistance of counsel.
The Court holds that claim (III)(E) satisfies neither the
“performance” nor the “prejudice” prong of the two-part test
enunciated in Strickland. Petitioner does not articulate a factual
basis to support this claim and, therefore, cannot demonstrate that
any omission of counsel was objectively unreasonable. Furthermore,
petitioner does not attempt to demonstrate how these failures were
prejudicial. Thus, petitioner has failed to demonstrate that
counsel’s performance was deficient or that there is a reasonable
probability that, but for counsel’s alleged errors, the result of
the proceeding would have been different.
In a portion of claim (III)(F), petitioner alleges he was
denied the effective assistance of trial counsel as counsel
allegedly failed to adequately protect petitioner’s rights to due
process and an impartial jury because “the indictment, jury
instructions and verdict forms did not require the jury to agree
that the elements of capital murder under Virginia Code §§ 18.2-
31(8), (13) and 18.2-46.4 were proven beyond a reasonable doubt in
4
As noted previously, there is no claim (IV) in the petition
for a writ of habeas corpus.
29
order to find [Petitioner] guilty.” Petitioner contends the
indictments, jury instructions, and verdict forms were inadequate
because they did not specify which other person petitioner had
killed within a three-year period or which act of terrorism
petitioner had committed.
The Court holds that this portion of claim (III)(F) satisfies
neither the “performance” nor the “prejudice” prong of the two-part
test enunciated in Strickland. Regarding the charge and conviction
under Code § 18.2-31(8), there is no requirement that the
indictment, jury instructions, or verdict forms specify which other
killing is being included within the three year period. The
Commonwealth only needs to prove that the defendant was a principal
in the first degree in the capital murder charged in the indictment
and at least an accomplice in any other killing within a three-year
period. Burlile v. Commonwealth, 261 Va. 501, 510-11, 544 S.E.2d
360, 365-66 (2001); Code § 18.2-31(8). Here, the evidence was
sufficient to show petitioner’s involvement at least as an
accomplice in multiple other killings.
With regard to the charge and conviction of capital murder
based upon the terrorism predicate in Code §§ 18.2-31(13) and 18.2-
46.4, we previously rejected on direct appeal petitioner’s argument
that the indictment must specify the intent of the petitioner under
the two separate subsections of § 18.2-46.4. Muhammad, 269 Va. at
30
494-95, 619 S.E.2d at 40-41. Petitioner proffers no other valid
arguments he contends counsel should have made. As such,
petitioner cannot meet his burden to prove that counsel failed to
adequately preserve petitioner’s rights and that he was prejudiced
as a result.
On direct appeal of petitioner’s convictions for the capital
murder of Dean Meyers in the commission of an act of terrorism, we
held that an act of terrorism is proven either by showing that
petitioner intended to “(i) intimidate the civilian population at
large; or (ii) influence the conduct or activities of the
government of the United States, a state or locality through
intimidation” or both. Muhammad, 269 Va. at 494, 619 S.E.2d at 40.
The record, including the trial transcript, demonstrates that the
jury was instructed, “An act of terrorism is any murder committed
with the intent to intimidate the civilian population at large or
to influence the conduct or activities of the government of the
United States, a state or locality through intimidation.” As to
petitioner’s claim that counsel should have argued that the jury
instructions and verdict forms must specify which act of terrorism
petitioner intended to commit at the time of the killing,
petitioner has failed to demonstrate that the specific acts of
terrorism constitute separate elements of the offense rather than
the means by which an act of terrorism is accomplished. The
31
elements the jury was required to find unanimously in order to
convict petitioner of capital murder were the killing of Dean
Meyers and that the killing occurred during the commission of an
act of terrorism. Intimidating the civilian population and
influencing the conduct of government constitute “possible sets of
underlying brute facts [that] make up [the] particular element,” of
having committed an act of terrorism. See Richardson v. United
States, 526 U.S. at 813, 817 (1999). Petitioner has failed to
demonstrate that counsel’s performance was deficient.
Furthermore, as the record demonstrates that the evidence
overwhelmingly proved both sets of facts which can comprise an act
of terrorism, petitioner has failed to demonstrate that there is a
reasonable probability that, had counsel asked for such
specification in the jury instructions or verdict form, the result
of the proceeding would have been different.
In another portion of claim (III)(F), petitioner alleges he
was denied the effective assistance of counsel because counsel
failed to “require” that the indictments include the aggravating
factors that had to be proven in order to make petitioner eligible
for the death penalty.
The Court finds that this claim is without merit. The record,
including the trial transcripts and this Court’s opinion on direct
appeal, demonstrates that counsel filed a motion to dismiss and
32
properly preserved this issue, which was addressed on direct appeal
as this Court found that “aggravating factors are not
constitutionally required to be recited in a capital murder
indictment.” Muhammad, 269 Va. at 494, 619 S.E.2d at 40.
In another portion of claim (III)(F), petitioner alleges he
was denied the effective assistance of counsel because counsel
failed to “argue the Court’s improper application of harmless
error.” Presumably, this contention refers to the direct appeal of
petitioner’s convictions.
The Court holds that this portion of claim (III)(F) satisfies
neither the “performance” nor the “prejudice” prong of the two-part
test enunciated in Strickland. Petitioner does not articulate a
factual basis in support of this claim, fails to identify with
specificity how this Court’s application of harmless error
occurred, and fails to state how or on what ground counsel could
have objected to this Court’s application of harmless error.
Therefore, petitioner cannot demonstrate that any omission of
counsel was objectively unreasonable. Furthermore, petitioner does
not attempt to demonstrate how this failure was prejudicial. Thus,
petitioner has failed to demonstrate that counsel’s performance was
deficient or that there is a reasonable probability that, but for
counsel’s alleged errors, the result of the proceeding would have
been different.
33
In another portion of claim (III)(F), petitioner alleges that
the various verdict forms did not comply with Code § 19.2-264.4(D).
The Court holds that this portion of claim (III)(F) is procedurally
defaulted as this non-jurisdictional issue could have been raised
at trial and on direct appeal and, thus, is not cognizable in a
petition for a writ of habeas corpus. Slayton, 215 Va. at 29, 205
S.E.2d at 682.
Accordingly, the petition is dismissed.
This order shall be published in the Virginia Reports.
A Copy,
Teste:
Patricia L. Harrington, Clerk
34