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 
2

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. 
3

. . . . 

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 
4

“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. 
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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 
6

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 
7

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 
8

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 
9

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 
10

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 
11

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 
12

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 
13

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 
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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 
15

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 
16

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 
17

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. 
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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 
19

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 
20

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). 
21

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 
22

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 
23

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 
24

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 
25

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 
26

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 
27

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 
28

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. 
29

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. 
30

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 
31

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 
32

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 
33

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. 
34

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