April 16, 1999
Record No. 981269





Robert G. O’Hara, Jr., Judge
Present: All the Justices

On June 28, 1993, Shantel D. Pender was tried
without a jury in the Circuit Court of the City of Petersburg and
convicted of first degree murder. After affirmance of the
conviction on direct appeal, Pender filed a petition for a writ
of habeas corpus with this Court pursuant to Code
Sect. 8.01-654, claiming that he was denied his rights under
the Sixth Amendment to the United States Constitution because his
trial counsel was ineffective. By order entered November 7, 1996,
a writ of habeas corpus was issued pursuant to Code
Sect. 8.01-657 directing the Circuit Court of the City of
Petersburg to determine the issue of ineffective assistance of
counsel. Following an evidentiary hearing, the circuit court
concluded that Pender was not denied effective assistance of
counsel and dismissed Pender’s petition for writ of habeas
corpus. Pender appeals the order of dismissal.

In considering Pender’s appeal, we apply
well-established principles. The Sixth Amendment to the United
States Constitution guarantees a defendant in a criminal trial
the right to effective assistance of counsel. Strickland v.
, 466 U.S. 668, 686 (1984). To prevail in a claim
of ineffective assistance of counsel, a petitioner bears the
burden of showing not only that his counsel’s performance was
deficient but also that he was actually prejudiced as a result. Murray
v. Griffith
, 243 Va. 384, 388, 416 S.E.2d 219, 221 (1992). In
order to establish prejudice, the evidence must show that
"there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have
been different." Strickland, 466 U.S. at 694. The
prejudice analysis includes a focus on "whether the result
of the proceeding was fundamentally unfair or unreliable." Lockhart
v. Fretwell
, 506 U.S. 364, 369 (1993).

The circuit court dismissed Pender’s petition
for a writ of habeas corpus because it found that "[u]pon
the entire record, the errors of counsel were not of the type,
nature or character that would render the result of the
petitioner’s criminal trial unreliable or unfair."
Accordingly, in this appeal, we need not consider whether the
alleged errors of Pender’s criminal trial counsel rendered
counsel’s performance deficient, but, we direct our review to
whether the evidence presented at the habeas trial demonstrated
prejudice as required under Strickland. See Williams
v. Warden of the Mecklenberg Correctional Center
, 254 Va. 16,
23, 487 S.E.2d 194, 198 (1997).

Pender contends that the evidence adduced at
the habeas proceeding, if produced at his criminal trial,
"would have prevented the Commonwealth from meeting its
burden to establish the elements of first degree murder in this
case." Thus, according to Pender, his criminal trial
counsel’s failure to present this evidence was prejudicial under
the standard in Strickland because it rendered the
criminal trial unreliable and unfair in violation of his Sixth
Amendment rights. We disagree.

To sustain the charge of first degree murder in
the criminal trial, the Commonwealth had to show that Pender
committed a "willful, deliberate, and premeditated
killing." Code Sect. 18.2-32. The element that
distinguishes first degree murder from second degree murder is
that of premeditation, a specific intent to kill. Rhodes v.
, 238 Va. 480, 486, 384 S.E.2d 95, 98 (1989). The
specific intent to kill "’may be formed only a moment before
the fatal act is committed provided the accused had time to think
and did intend to kill.’" Id. at 485, 384 S.E.2d at
98 (citations omitted). If a defendant only intended serious
bodily harm to the decedent, the offense is murder in the second
degree. Id. at 486, 384 S.E.2d at 98.

To understand the significance of the evidence
produced in the habeas proceeding, we must first review the
evidence in the criminal proceeding. In that proceeding the
Commonwealth produced two witnesses: Rodney Turner, a friend of
Pender’s who was with him at the time of the murder; and
Detective Patrick Kelleher, the officer who investigated the
murder and interviewed Pender. The defense did not call any

Turner testified that he and two other men,
John E. Taylor and Tony Brown, were standing in front of a
residence when Pender approached them and stated that the
deceased, who "had taken the package of drugs," was
"at the store." Pender told the three men "to come
on and let’s go get him." According to Turner, the four men
chased the deceased down the street, through an alley, and onto
the porch of a house. The deceased then jumped off the porch and
went through the bushes to another house, where he "was
knocking on the door trying to get in." When he could not
get inside, the deceased ran to a third house. The four men
continued the chase to the third house, but only Pender and
Taylor followed the deceased onto the porch. Turner testified
that he heard Pender and the deceased "saying words,"
and that when Taylor and Pender came off the porch, Pender told
Turner that he had stabbed the deceased. Turner also testified
that he did not see any weapons on the deceased and that he could
not see what happened on the porch of the third house because he
was too far away. No weapons were found on the deceased.

Although Pender did not testify at his trial,
his written confession was introduced by the Commonwealth. In his
confession Pender stated that the deceased

stole drugs from 2 of my friends one
week. So he tried to wait till every thing goes down and
comes back. Well he came back and stole my 100 dollar
bill so I started chasing him and my other friends chased
him to [sic]. Well we caught up with him & my friend
started hitting him. Then, he ran some more & he had
some on him because he reached to his side & thats
[sic] when I cut him. I was not trying to kill him. I
just wanted to protect myself. He could of [sic] had a
gun & just wanted us to case [sic] him away from the
crowd. I didn’t try to kill him. I didn’t know he was
dead because he didn’t seem to be hurt. And I was not
tryin [sic] to skip town because it would have made
matters worst [sic]. All I wanted was my money. Not to
kill anyone or be classified as a murderer. I just though
[sic] I had cut him. But I am sorry and scared.

At the close of the evidence, Pender moved to
strike the first degree murder charge based on the uncontradicted
statement in his confession that he was not trying to kill the
deceased but only stabbed him because he thought the deceased was
armed. The trial court rejected the defense’s motion and found
Pender guilty of the charge, stating that there was "no
evidence" that the deceased resisted or had a weapon
"with the exception of the statement that defendant made to
the police after a time of reflection that he made a move to his

At the sentencing hearing, the defense again
moved to have the charge reduced to second degree murder or
voluntary manslaughter based on Pender’s "unrebutted"
statement that "he struck at his hand believing that [the
deceased] was going to produce a weapon that would endanger
Pender’s life or limb, and that he did not intend to do any more
damage than to a strike of the hand, he did not intend the mortal
wound at all."

The trial court rejected Pender’s claim that he
intended only to cut the deceased’s hand concluding that it was
impossible for Pender to pull out a knife and prepare to
"strike the blow" to the deceased’s hand "in that
second" that the deceased allegedly made a sudden move for
his waistband. According to the trial court, if the deceased

made a quick move there is no
way that [Pender] could have stabbed at his hand
unless [Pender] already had a knife in [his] hand
ready to use it. That’s why the Court infers
intent to kill. That [Pender] planned this from
the very start or somewhere during the chase.

The evidence presented at the habeas hearing,
which Pender asserts makes the result of the criminal trial
unreliable, includes a statement given to the police by Taylor
and the testimony of Crystal Brown, Tony Brown, and Mario
Hawkins. The substance of the testimony by Crystal Brown and Tony
Brown refuted that portion of Turner’s testimony at the criminal
trial that Pender sought to enlist Taylor, Turner, and Brown in a
chase of the defendant because drugs were taken. In Taylor’s
statement to the police, he stated that he saw the deceased reach
in his coat just before Pender stabbed him. Hawkins, whose name
was given to defense counsel by Pender as a possible witness,
testified that the deceased had sold a gun earlier in the evening
and that, while "words were exchanged" just prior to
the chase, the deceased "stepped back and he put his hand
behind his back" like he was going to get a gun.

This testimony, Pender asserts, provided the
evidence the trial court found missing in the criminal trial to
support Pender’s belief that the deceased was armed and may have
been reaching for a weapon when Pender stabbed him. In this
regard, Pender also bases claims of prejudice on trial counsel’s
failure to introduce the videotape of his confession in which he
says that he only intended to cut the hand of the deceased and on
trial counsel’s failure to adequately advise Pender of his right
to testify at the criminal trial. Pender claims that he would
have testified that he only intended to do bodily injury in
stabbing the deceased and that his testimony would have refuted
Turner’s testimony that he urged others to chase and harm the

None of this evidence, however, has any bearing
on the facts upon which the trial court based its finding that
Pender intended to kill the deceased. As recited above, the trial
court concluded that Pender could not have pulled out the knife
and stabbed the deceased "in that second" the deceased
made a movement for his waistband. Thus, the trial court
concluded that Pender had engaged in a prolonged chase of the
deceased with his knife drawn and had formed the intention to
kill the deceased at an earlier point in time.
[1]Whether the purpose of the chase was to recover drugs or
to recover money taken from Pender and whether Pender thought the
deceased was armed or not, are irrelevant distinctions that do
not render unreliable the court’s factual conclusions in the
criminal trial that Pender had his knife drawn during the chase
and intended to use it to kill the deceased.

Further, Pender’s claim that his counsel did
not adequately advise him of his right to testify at the criminal
trial is not borne out by the record. At the criminal trial,
there was an exchange between the trial court and Pender in which
he stated that he had been fully advised of his right to testify
and chose not to do so.

Finally, Pender cites other alleged
shortcomings that he claims affected the outcome of his trial,
including trial counsel’s failure to present evidence of the
deceased’s delay in seeking medical help after the stabbing, as
well as trial counsel’s failure to adequately investigate
witnesses who may have seen the deceased take the $100 bill from
Pender just prior to the chase. Again, such evidence does not
relate to or contradict the facts that formed the basis of the
trial court’s finding of an intent to kill.

In summary, none of the evidence or other
claims asserted in the habeas proceeding relate to the facts that
formed the basis of the trial court’s conclusion that Pender
formed an intent to kill during the chase. Pender admitted to the
persons present at the stabbing and to the investigating officer
that he stabbed the deceased, and he confessed that he chased the
deceased because the deceased had taken drugs and money from him
and two associates. The trial court was entitled to base its
conclusion on this evidence. "Premeditation and formation of
an intent to kill seldom can be proved by direct evidence. A
combination of circumstantial factors may be sufficient." Rhodes,
238 Va. at 486, 384 S.E.2d at 98, citing Epperly v.
, 224 Va. 214, 232, 294 S.E.2d 882, 892-93

The habeas court found that these facts
entitled the trial court in the criminal case to find Pender
guilty of first degree murder and that the evidence at the habeas
proceeding did not support a finding that any errors of counsel
in the criminal trial presented issues or facts that "would
render the result of the petitioner’s criminal trial unreliable
or unfair." Based on our review of the record, we concur and
will affirm the judgment of the circuit court denying the relief
sought by Pender and dismissing the petition for a writ of habeas





[1] Pender apparently does not contest the
trial court’s conclusion that he had the knife drawn prior to his
final confrontation with the deceased. At the habeas proceeding,
Pender testified that the knife was in his hand because it had
fallen out of his boot during the chase. This testimony does not
support a theory that the knife was drawn or held because Pender
believed the deceased was armed, and Pender does not claim he
should have been allowed to give this testimony at the criminal