PRESENT: All the Justices
SAEED SHEIKH
v. Record No. 020677 OPINION BY JUSTICE BARBARA MILANO KEENAN
November 1, 2002
BUCKINGHAM CORRECTIONAL
CENTER, ET AL.
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Michael P. McWeeny, Judge
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 (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
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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
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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."
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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
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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:
Ladies and gentlemen of the jury, I thank you for
the efforts that you have put in today.
You've heard my arguments before. I'm not going
to repeat them again. You know what the involvement
was here and I respect your decisions.
I understand the prosecution's position as far as
his asking for the high end. You've heard the
evidence. You've heard my argument previously.
Obviously, you know I would ask for the lower
end. We do not minimize what has happened, but we're
trying to somehow figure out what the future's going
to hold. Please search your hearts. Thank you.
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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 (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. 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.
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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. To prevail on
a claim of ineffective assistance of counsel, a petitioner
ordinarily must satisfy both parts of the two-part test set
forth in Strickland.
First, the petitioner must show that "counsel's
representation fell below an objective standard of
reasonableness." Id. at 688. In making this determination, the
court considering the habeas corpus petition "must indulge a
strong presumption that counsel's conduct falls within the wide
range of reasonable professional assistance." Id. at 689.
Second, if counsel's performance is found to have been
deficient, the petitioner also must 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." Id. at 694.
In United States v. Cronic, the Supreme Court recognized
three very limited circumstances in which the Strickland test
will not be applied and prejudice will be presumed from
counsel's performance. The first such situation arises when a
defendant is denied counsel at a critical stage of a criminal
proceeding. Cronic, 466 U.S. at 659. The second circumstance
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is when a defendant is represented by counsel at trial, but
counsel "entirely fails to subject the prosecution's case to
meaningful adversarial testing." Id. Under the third
exception, prejudice will be presumed when circumstances
surrounding a trial prevent counsel from providing effective
assistance to a defendant. Id. at 659-60.
Sheikh relies on the second exception recognized in Cronic,
and argues that he thereby is relieved of establishing prejudice
under the Strickland test. We observe, however, that the United
States Supreme Court recently stressed the limited scope of this
second exception in Bell v. Cone, ___ U.S. ___, 122 S.Ct. 1843
(2002). There, the Court emphasized its language in Cronic that
a presumption of prejudice will arise under this second
exception only when "counsel entirely fails to subject the
prosecution's case to meaningful adversarial testing." Id. at
___, 122 S.Ct. at 1851 (quoting Cronic, 466 U.S. at 659).
In Bell, the petitioner, who had been convicted of capital
murder, complained that his trial counsel rendered ineffective
assistance by failing to produce mitigating evidence at the
sentencing proceeding, and by waiving a closing argument at that
proceeding. Id. at ___, 122 S.Ct at 1851. In rejecting the
petitioner's claim, the Court observed that counsel's alleged
errors "are plainly of the same ilk as other specific attorney
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errors we have held subject to Strickland's performance and
prejudice components." Id. at ___, 122 S.Ct. at 1851-52.
Sheikh's claims similarly target his counsel's failure
during the sentencing proceeding to present mitigation evidence
and to make an effective closing argument to the jury. 1 Guided
by the Supreme Court's analysis in Bell, we find no merit in
Sheikh's assertion that his ineffective assistance claim falls
within the second exception stated in Cronic. Sheikh's counsel
rendered assistance to his client at the sentencing proceeding
by asking the jury to sentence Sheikh at the "lower end" of the
sentencing range, and by reminding the jury that he already had
presented evidence and argument on behalf of his client. In
that earlier evidence and argument, counsel emphasized
repeatedly that Sheikh did not share Michael Choup's intent to
kill Metcalf. Counsel also brought to the jury's attention
Sheikh's illness on the date of the offense, the fact that his
mother had cancer, and the poor state of his family's financial
circumstances.
Based on these facts, we hold that counsel did not entirely
fail during the sentencing proceeding to subject the
prosecutor's case to meaningful adversarial testing. See Bell,
1
We do not consider Sheikh's claim on appeal that his
counsel's performance also was deficient as a result of
counsel's waiver of opening statement at the sentencing
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___ U.S. at ___, 122 S.Ct. at 1851-52; Cronic, 466 U.S. at 659.
Thus, Sheikh's claim fails under Cronic and we will consider the
claim further under the standard set forth in Strickland. In
accordance with that standard, we will assess "the
reasonableness of counsel's challenged conduct on the facts of
the particular case, viewed as of the time of counsel's
conduct." Strickland, 466 U.S. at 690.
At the sentencing proceeding, Sheikh's counsel pursued a
strategy that conceded the seriousness of the offense and the
Commonwealth's interest in obtaining a significant sentence,
while minimizing the prosecutor's ability to put evidence before
the jury. Under Code § 19.2-295.1, Sheikh's counsel's decision
not to present evidence during the sentencing phase precluded
the prosecutor from introducing any evidence other than a record
of Sheikh's prior offenses. See also Rule 3A:17.1(e). Thus, by
adopting this strategy, Sheikh's counsel was able to remind the
jury of the evidence and argument he recently presented in the
guilt phase of the trial, while shielding Sheikh from further
cross-examination and preventing the prosecution from presenting
any rebuttal evidence.
We also note the temporal context in which Sheikh's counsel
implemented these tactical decisions. The sentencing phase of
proceeding, because Sheikh did not assert this claim in his
petition filed in the trial court.
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the trial took place only one hour after the conclusion of the
guilt phase evidence and argument, and the prosecutor had
elected to waive an opening statement in the sentencing
proceeding. Therefore, the evidence and argument that had been
presented to the jury in the guilt phase was still fresh in the
jurors' minds. We also observe that the substantive content of
the evidence Sheikh claims should have been presented during the
sentencing phase, summarized in the affidavit of Sheikh's
father, was not materially different from the evidence of
Sheikh's family life and work experience presented to the jury
in the guilt phase of the trial. 2 Therefore, we hold that trial
counsel's strategy, viewed as of the time of its implementation,
did not fall below "an objective standard of reasonableness."
Strickland, 466 U.S. at 687-90.
Because Sheikh has not established that trial counsel's
performance was deficient, we need not address the "prejudice"
component of the Strickland test. See id. at 697; Curo v.
Becker, 254 Va. 486, 493, 493 S.E.2d 368, 371 (1997). Sheikh
has failed to meet his evidentiary burden under Strickland, and
we conclude that he was not denied his Sixth Amendment right to
effective assistance of counsel. Accordingly, we hold that the
2
We do not consider the additional affidavits Sheikh
submitted after the trial court entered its final order on
December 18, 2001.
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trial court did not err in dismissing with prejudice Sheikh's
petition for a writ of habeas corpus.
For these reasons, we will affirm the trial court's
judgment.
Affirmed.
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