Present: Hassell, C.J., Keenan, Koontz, Kinser, Lemons, and 

Agee,1 JJ., and Russell, S.J. 

AHMER SHAIKH OPINION BY 

SENIOR JUSTICE CHARLES S. RUSSELL 

v. Record No. 072097 September 12, 2008 

GENE M. JOHNSON, DIRECTOR, 

DEPARTMENT OF CORRECTIONS 

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY 

David T. Stitt, Judge 

 This appeal from an order dismissing a petition for a 

writ of habeas corpus presents two issues questioning whether 

the petitioner was denied his right to the effective 

assistance of counsel. First, the petitioner contends that 

his trial counsel failed in his duty to make a draft jury 

instruction, rejected by the trial court, a part of the record 

for the purpose of appeal. Petitioner’s second contention is 

that his counsel at trial rendered ineffective assistance by 

failing to call as a witness a co-defendant who was the 

immediate perpetrator of the crime for which the petitioner 

was on trial. He further argues that the habeas court erred 

in denying him an evidentiary hearing. For the reasons stated 

below, we find no reversible error in the trial court’s 

judgment. 

 1

 Justice Agee participated in the hearing and decision of 

this case prior to his retirement from the Court on June 30, 

2008. 
Facts and Proceedings

 Applying familiar principles of appellate review, we will 

state the facts leading to the petitioner’s conviction in the 

light most favorable to the Commonwealth, the prevailing party 

in the underlying criminal case. The essential facts relating 

to the habeas corpus proceeding are undisputed. 

 Ahmer Shaikh (Ahmer), the petitioner, lived in an 

apartment in Fairfax County with his father, Altaf Shaikh, his 

sister, Humaira, his younger brother, Furqan Altaf, and 

Humaira’s husband, Faisal Rehman, as well as two younger 

sisters. Humaira had been having an adulterous affair with 

another man, Zahid Ali (Zahid). The affair eventually became 

known to the family, all of whom expressed their angry 

disapproval. On September 9, 2002, Zahid went to the family’s 

apartment to discuss the situation with Humaira’s father. A 

commotion ensued. Ahmer was not present, but his younger 

brother called him on his cellular telephone and he arrived 

soon thereafter. Family members had to restrain Ahmer from 

attacking Zahid. Rehman then came into the room with a 

kitchen knife and stabbed Zahid repeatedly. Ahmer broke free 

from his relatives and joined in the attack, hitting Zahid on 

the head with a stick. Humaira tried to cover Zahid’s head 

wounds with a scarf as Ahmer and Rehman continued to attack 

him. Zahid dove off a second-story balcony to escape his 

2
attackers, falling to a concrete patio below. Ahmer picked up 

the knife, threw it into a pot of water, and called 911, 

giving a false report that an unknown intruder “came to my 

house [t]o attack us . . . with a knife.” Zahid died later 

that night of multiple stab wounds to the head, neck and upper 

body. 

 Ahmer and Rehman were each indicted for the murder of 

Zahid. In separate jury trials, each was convicted of seconddegree murder. Rehman was tried first, and at the time of 

Ahmer’s trial had been convicted but was awaiting sentencing. 

Ahmer’s counsel interviewed Rehman and discussed the case with 

his counsel before Ahmer’s trial, but decided not to call 

Rehman as a witness. 

 At Ahmer’s trial, the court asked counsel whether they 

had agreed on a final set of jury instructions. Counsel 

informed the court that they were in agreement as to all but 

one instruction, that which related to “concert of action.” 

The Commonwealth proposed an instruction in the form set forth 

in 1 Virginia Model Jury Instructions - Criminal No. 3.160, at 

3-11 (repl. ed. 2007): 

The court instructs the jury that if there is 

concert of action with the resulting crime one of 

its incidental probable consequences, then whether 

such crime was originally contemplated or not, all 

who participate in any way in bringing it about are 

equally answerable and bound by the acts of every 

3
other person connected with the consummation of such 

resulting crime. 

Defense counsel stated that the model instruction was accurate 

but incomplete because it lacked language defining “concert of 

action.” The defense proposed “Instruction R,” which is not 

contained in the record. The only indication of its content 

is contained in counsel’s oral argument, apparently quoting 

the initial phrase of the proposed instruction: “Concert of 

action is an action that’s been planned, arranged, adjusted, 

agreed on or settled between the parties acting together, et 

cetera.”2 The Commonwealth objected that if such definitional 

language were to be added, additional language would also be 

necessary. 

 The court refused Instruction R, observing that the 

appellate courts had frequently “cautioned against pulling 

language out of particular cases” in framing jury 

instructions. The court indicated, however, that if counsel 

could agree on an amended version, it would be considered. 

Counsel were unable to agree on language and the court granted 

the model instruction quoted above as Instruction No. 8. The 

court stated that refused Instruction R was a part of the 

record but, for reasons unknown, that instruction was omitted 

 2

 Ahmer points out on brief that this language was taken 

from the opinion of the Court of Appeals in Berkeley v. 

Commonwealth, 19 Va. App. 279, 283, 451 S.E.2d 41, 43 (1994). 

4
from the record and has never appeared in subsequent 

proceedings. 

 One of the agreed instructions given to the jury was: 

INSTRUCTION NO. 9

 A principal in the first degree is the person 

who actually commits the crime. A principal in the 

second degree is a person who is present, aiding and 

abetting, by helping in some way in the commission 

of the crime. Presence and consent alone are not 

sufficient to constitute aiding and abetting. It 

must be shown that the Defendant intended his words, 

gestures, signals or actions to in some way 

encourage, advise, or urge, or in some way help the 

person committing the crime to commit it. 

 A principal in the second degree is liable for 

the same punishment as the person who actually 

committed the crime. 

After the jury had retired to consider its verdict, the jury 

sent the following written question to the court: 

In considering instruction #8, does the jury make a 

decision with regard to it using the criteria in 

instruction #9 for a principle [sic] in the second 

degree? Especially the sentence: "It must be shown 

that the defendant intended his words, questions, 

signals or actions to in some way encourage, advise, 

or urge, or in some way help the person committing 

the crime to commit it." 

At the suggestion of Ahmer's counsel, the court advised the 

jury to follow the instructions as written. 

 The Court of Appeals granted Ahmer an appeal. After 

briefing and oral argument, a divided panel affirmed the 

judgment of the trial court by an unpublished memorandum 

opinion. Shaikh v. Commonwealth, Record No. 2614-03-4 (Jan. 

5
25, 2005). The majority opinion did not address the merits of 

Shaikh’s claim regarding the refusal of Instruction R because 

it was not a part of the record on appeal. The majority 

opinion held, however, that the trial court had not "left a 

vital issue unaddressed by using the model concert of action 

instruction.” Id., slip op. at 9. The Court of Appeals 

thereafter denied Ahmer’s petition for a rehearing en banc, 

noting that an insufficient number of judges had voted to 

grant it. Shaikh v. Commonwealth, Record No. 2614-03-4 (Mar. 

7, 2005). This Court subsequently refused Ahmer’s petition 

for appeal. 

 Ahmer filed the present petition for habeas corpus in the 

circuit court, raising two claims of ineffective assistance of 

counsel: (1) counsel’s failure to ensure that Instruction R 

was made a part of the record,3 and (2) counsel’s failure to 

call Rehman as a defense witness at Ahmer’s trial. Ahmer also 

requested an evidentiary hearing "to resolve the factual 

disputes and to provide [him] the opportunity to prove [his] 

grounds for habeas relief." 

 3

 The record shows that Dale M. Race, Esq., served as 

trial counsel for Ahmer. After Ahmer was sentenced on 

September 16, 2003, Mr. Race informed the trial court that he 

would not represent Ahmer in any post-trial matters. A final 

order was entered on September 16, 2003. On October 23, 2003, 

the court appointed Crystal Meleen, Esq. as appellate counsel. 

James G. Connell, III, Esq. entered the case as Ahmer’s 

retained counsel on December 8, 2003. 

6
 The Attorney General, for the respondent, filed a motion 

to dismiss the petition. The circuit court4 denied the request 

for an evidentiary hearing and, on the arguments of counsel, 

briefs, exhibits and record of Ahmer’s trial and appellate 

proceedings, granted the motion to dismiss. We awarded Ahmer 

an appeal. 

Analysis

A. Standard of Review

 A criminal defendant’s Sixth Amendment right to the 

assistance of counsel in his defense entitles him to 

“reasonably competent counsel who provides assistance that is 

within the range of competence required of attorneys in 

criminal cases.” West v. Director, Dep’t of Corrs., 273 Va. 

56, 62, 639 S.E.2d 190, 194 (2007) (citing Strickland v. 

Washington, 466 U.S. 668, 687 (1984)). The issue whether a 

defendant was deprived of his Sixth Amendment right to 

effective assistance presents a mixed question of law and fact 

that is reviewed de novo on appeal. Strickland, 466 U.S. at 

698. 

Strickland prescribes a two-pronged test that a habeas 

petitioner must satisfy in order to prevail in a claim of 

 4

 Judge David T. Stitt, who had presided at the trial of 

the criminal case, also heard and decided the habeas 

proceeding. 

7
ineffective assistance of counsel, the “deficient performance” 

prong and the “prejudice” prong. To satisfy the first of 

these, the petitioner must show that “counsel’s representation 

fell below an objective standard of reasonableness.” Id. at 

687-88. The court reviewing the habeas petition “must indulge 

a strong presumption that counsel’s conduct falls within the 

wide range of reasonable professional assistance.” Id. at 

689. The second prong of the Strickland test requires the 

petitioner to show that “there is a reasonable probability 

that, but for counsel’s unprofessional errors, the result of 

the proceeding would have been different.” Id. at 694. It is 

not necessary for a court deciding an ineffective assistance 

claim to address both components of the inquiry, or to address 

them in any particular order. If the petitioner makes an 

insufficient showing on either component of the test, the 

other need not be considered. Id. at 697; Johnson v. Tice, 

275 Va. 18, 28, 654 S.E.2d 917, 924 (2008); see also Sheikh v. 

Buckingham Correctional Center, 264 Va. 558, 566-67, 570 

S.E.2d 785, 790 (2002) (unnecessary to address prejudice prong 

because petitioner failed to establish deficient performance); 

Curo v. Becker, 254 Va. 486, 493, 493 S.E.2d 368, 371 (1997) 

(same). 

8
B. Instruction R

 In ruling on the respondent’s motion to dismiss Ahmer’s 

habeas petition, the circuit court held that trial counsel was 

entitled to rely on the court’s statement at trial that 

Instruction R was a part of the record, and that the 

petitioner had not established deficient performance on 

counsel’s part that would satisfy the first part of the 

Strickland test. 

 Ahmer cites Woods v. R. D. Hunt & Son, Inc., 207 Va. 281, 

287, 148 S.E.2d 779, 783 (1966), for the proposition that “the 

onus is upon the appellant to provide [the appellate court] 

with a sufficient record from which [it] can decide whether 

the trial court erred as alleged. A failure to furnish a 

sufficient record will result in an affirmance of the judgment 

appealed from.” Thus, Ahmer contends, it was the duty of his 

counsel to take such steps as might be necessary to ensure 

that the record was complete in order to protect his appellate 

rights.5

 The question whether counsel’s performance fell below the 

standard with respect to Instruction R is subject to the 

 5

 We held, in Miles v. Sheriff, 266 Va. 110, 115-16, 581 

S.E.2d 191, 194 (2003), that counsel’s performance was 

deficient under the first prong of Strickland by failing to 

comply with a specific instruction from his client to appeal a 

criminal conviction. 

9
subsidiary question whether, as the circuit court found, 

counsel was entitled to rely on the court’s statement at trial 

that Instruction R was a part of the record. The question is 

further complicated by the rapid succession of three attorneys 

who assumed responsibility for the defense during the crucial 

period between sentencing and appeal, when the record was 

being assembled in the clerk’s office. 

 Ahmer’s arguments are correct as abstract statements of 

the law. Applying them to the peculiar circumstances of this 

case, however, brings us to consideration of the Supreme 

Court’s observation in Strickland: 

The object of an ineffectiveness claim is not to 

grade counsel’s performance. If it is easier to 

dispose of an ineffectiveness claim on the ground of 

lack of sufficient prejudice, which we expect will 

often be so, that course should be followed. Courts 

should strive to ensure that ineffectiveness claims 

not become so burdensome to defense counsel that the 

entire criminal justice system suffers as a result. 

466 U.S. at 697. 

 That admonition is particularly appropriate to the 

present case. However complex the question of counsel’s 

performance may have been in the circumstances, Ahmer’s 

failure to establish the prejudice prong of the Strickland

test is clear. The jury was fully and fairly instructed. All 

instructions except that relating to “concert of action” were 

agreed upon by the parties. We agree with the majority 

10
opinion of the Court of Appeals in its holding that the trial 

court’s use of the model jury instruction had left no vital 

issue unaddressed. 

 Ahmer argues that the essential content of Instruction R 

can be determined from its apparent quotation by counsel in 

oral argument. Assuming that to be true, we think its 

language would have been more confusing than enlightening. 

The terms “planned, arranged, adjusted, agreed on or settled” 

are stated in the disjunctive, so as to give the jury the 

apparent choice of any single one of them as the definition of 

“concert of action.” In that context, “adjusted” and 

“settled” are themselves in need of definition. There is no 

limitation of the time within which these actions must have 

occurred in order to be significant. Ahmer asserts that the 

terms he advocates were taken from the explanatory language 

contained in an appellate decision. We have frequently 

cautioned against “the danger of the indiscriminate use of 

language from appellate opinions in a jury instruction.” 

Clohessy v. Weiler, 250 Va. 249, 255, 462 S.E.2d 94, 98 (1995) 

(quoting Blondel v. Hayes, 241 Va. 467, 474, 403 S.E.2d 340, 

344 (1991)). Appellate language used to explain a ruling or 

illustrate a point must necessarily be tailored to the facts 

and circumstances of the case then before the court on appeal. 

Unless clearly intended for use as a jury instruction, such 

11
language is inappropriate for that purpose. See National Union 

Fire Ins. Co. v. Bruce, 208 Va. 595, 601, 159 S.E.2d 815, 820 

(1968). 

 The burden is on the proponent of a jury instruction to 

satisfy the trial court that the proposed language is a 

correct statement of the law, applicable to the facts of the 

case on trial, and expressed in appropriate language. If 

Instruction R was phrased as Ahmer contends, his trial counsel 

could not have met that burden. Consequently, the trial court 

did not err in refusing the proposed instruction and its 

refusal would have been unavailing as a ground for reversal 

even if it had been contained in the record on appeal. 

 Accordingly, we conclude that Ahmer suffered no prejudice 

because of the omission of Instruction R from the record and 

we do not reach the “performance” prong of Strickland in 

deciding Ahmer’s assignments of error concerning Instruction 

R. 

C. Rehman as a Witness.

 All but one of the eyewitnesses to the events of 

September 9, 2002 were members of Ahmer’s family. They gave 

wildly varying accounts of those events in their initial 

statements to the police, in subsequent interviews with the 

police, in recorded statements, as witnesses in the separate 

trials of Rehman and Ahmer, and in the sentencing proceedings 

12
thereafter. Because of these discrepancies, most were 

impeached by their prior inconsistent statements. 

 Rehman was no exception. He initially told the police, 

on the night of the murder, that when he entered the 

apartment, he found Ahmer engaged in a fight with Zahid, the 

victim, and that he tried to intervene by grabbing the 

victim’s hand and trying to pull him off Ahmer, after which 

the victim pulled away and jumped off the balcony to escape. 

Later that night, Rehman changed his story and told the police 

that he was angry about the affair between Zahid and Humaira, 

that he entered the apartment, found Zahid in conversation 

with Humaira’s father and struck Zahid with his fist. Rehman 

further stated that Ahmer joined in the fight and both of them 

started punching Zahid, after which Rehman went to the 

kitchen, picked up a knife, returned, and stabbed Zahid 

several times. At the guilt phase of Rehman’s trial, he 

testified that after he stabbed Zahid, someone else pulled him 

away and he saw the door open, whereupon Ahmer came in and 

started hitting Zahid after Rehman had finished. At the 

penalty phase of Rehman’s trial, he testified that the fight 

was entirely between himself and Zahid, and that Ahmer “just 

try to stop us.” By the time of Rehman’s sentencing hearing, 

however, Ahmer had been tried and convicted. At that point, 

Rehman’s counsel argued to the court, “Ahmer Shaikh was the 

13
leader of this family[.] Ahmer Shaikh was the one that wanted 

something to happen to [Zahid]. . . . Your Honor, the jury in 

[Ahmer’s] case . . . recognized Ahmer Shaikh as the leader of 

this, recognized him for the thug that he is.” 

 As stated above, Ahmer’s counsel interviewed both Rehman 

and his counsel before Ahmer’s trial began. Ahmer’s counsel 

furnished an affidavit which was a part of the record in the 

habeas proceeding. In it, he stated that Rehman “was hasty to 

offer to testify in whatever way might be beneficial to 

[Ahmer] and his family” but when asked about the events that 

led up to Ahmer’s arrival at the crime scene, Rehman did not 

want to talk about them. Rehman’s counsel, however, informed 

Ahmer’s counsel that Rehman would not testify at Ahmer’s 

trial, and, if subpoenaed, would invoke his Fifth Amendment 

privilege. 

 At Ahmer’s sentencing hearing, Ahmer’s counsel informed 

the court that he had experienced great difficulty in dealing 

with the family members. He referred to his efforts in 

gathering the facts from them as akin to an “archaeological 

dig.” The trial court responded: “Well, I really felt at 

trial that you were having a very difficult time because of 

the testimony of the family. . . . every witness that got on 

the stand blew up something.” In the habeas proceeding, the 

14
court recalled that at trial, the witnesses were “[a]ll over 

the place.” 

 In these circumstances, trial counsel’s decision not to 

call Rehman as a witness may well be characterized as a sound 

tactical decision. Counsel could have no assurance what 

Rehman’s testimony might be, but helpful or harmful, counsel 

could rest assured that it would be subject to devastating 

impeachment. Rehman might have given testimony favorable to 

Ahmer, but in that case the jury would have heard impeachment 

evidence equally or more damaging. In view of his prior 

statements, Rehman might also have proved directly hostile. 

Further, counsel could have no assurance that Rehman would 

testify at all. If he refused to testify, the effect of his 

invocation of the Fifth Amendment, if the jury were aware of 

it, would be unpredictable. Rehman’s testimony would have 

“represented a ‘two edged sword’ that counsel often confront 

when constructing the strategy most likely to assist rather 

than harm a client.” Lenz v. Warden of the Sussex I State 

Prison, 267 Va. 318, 337, 593 S.E.2d 292, 303 (2004). 

 A habeas petitioner making a claim of ineffective 

assistance must overcome a “strong presumption that counsel’s 

conduct falls within the wide range of reasonable professional 

assistance; that is, . . . the presumption that, under the 

circumstances, the challenged action might be considered sound 

15
trial strategy.” Strickland, 466 U.S. at 689 (internal 

quotation marks omitted). Ahmer has failed to overcome that 

presumption here. We hold that counsel’s decision not to call 

Rehman as a witness fell within the range of reasonable 

professional assistance. We therefore do not reach 

consideration of the “prejudice” prong of Strickland in 

deciding Ahmer’s assignments of error concerning counsel's 

decision not to call Rehman as a witness. 

D. Evidentiary Hearing

 We find no merit in Ahmer's further contention that he 

was entitled to an evidentiary hearing. Code § 8.01-654(B)(4) 

provides that the court may decide the merits of a habeas 

petition "on the basis of the record" if the allegations can 

be "fully determined on the basis of recorded matters." 

Friedline v. Commonwealth, 265 Va. 273, 277, 576 S.E.2d 491, 

493-94 (2003). Affidavits may be considered along with the 

record in deciding a motion to dismiss a habeas petition. 

Yeatts v. Murray, 249 Va. 285, 288-89, 455 S.E.2d 18, 20-21 

(1995). 

 This is such a case. The record contains transcripts of 

the proceedings in Ahmer's trial and sentencing, the relevant 

parts of Rehman's trial and sentencing, Ahmer's appellate 

proceedings, and affidavits furnished by both trial and 

appellate counsel in Ahmer's case. We find that all issues 

16
17

raised by Ahmer's habeas petition can be "fully determined on 

the basis of recorded matters." Code § 8.01-654(B)(4). 

Conclusion

 Because Ahmer has failed to meet the two-part Strickland

test as to either of his claims of ineffective assistance of 

counsel, and because no evidentiary hearing was necessary, we 

will affirm the judgment of the circuit court. 

Affirmed.