                        UNPUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


ROBERT ROGER TEAL,                    
              Petitioner-Appellee,
                 v.
RONALD J. ANGELONE, Director of                 No. 01-7758
the Virginia Department of
Corrections,
              Respondent-Appellant.
                                      
ROBERT ROGER TEAL,                    
              Petitioner-Appellant,
                 v.
RONALD J. ANGELONE, Director of                 No. 01-8029
the Virginia Department of
Corrections,
               Respondent-Appellee.
                                      
ROBERT ROGER TEAL,                    
              Petitioner-Appellant,
                 v.
RONALD J. ANGELONE, Director of                 No. 02-6502
the Virginia Department of
Corrections,
               Respondent-Appellee.
                                      
           Appeals from the United States District Court
          for the Eastern District of Virginia, at Norfolk.
             Robert G. Doumar, Senior District Judge.
                          (CA-00-871-2)
2                        TEAL v. ANGELONE
                     Argued: October 28, 2002

                     Decided: January 9, 2003

    Before NIEMEYER, Circuit Judge, Joseph R. GOODWIN,
     United States District Judge for the Southern District of
    West Virginia, sitting by designation, and Andre M. DAVIS,
     United States District Judge for the District of Maryland,
                        sitting by designation.



Reversed in part and dismissed in part by unpublished per curiam
opinion. Judge Goodwin wrote an opinion concurring in part and dis-
senting in part.



                            COUNSEL

ARGUED: Paul Christopher Galanides, Assistant Attorney General,
OFFICE OF THE ATTORNEY GENERAL, Richmond, Virginia, for
Appellant. Abigail V. Carter, Supervising Attorney, Appellate Litiga-
tion Program, GEORGETOWN UNIVERSITY LAW CENTER,
Washington, D.C., for Appellee. ON BRIEF: Jerry W. Kilgore,
Attorney General of Virginia, OFFICE OF THE ATTORNEY GEN-
ERAL, Richmond, Virginia, for Appellant. Steven H. Goldblatt,
Director, Scott Joiner, Student Counsel, Matthew Warren, Student
Counsel, Appellate Litigation Program, GEORGETOWN UNIVER-
SITY LAW CENTER, Washington, D.C., for Appellee.



Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
                           TEAL v. ANGELONE                             3
                               OPINION

PER CURIAM:

   Petitioner-appellee/cross-appellant, Robert Roger Teal ("Teal"),
was convicted of breaking and entering and grand larceny in a Vir-
ginia court. Teal sought habeas relief in federal court under 28 U.S.C.
§ 2254, alleging, inter alia, ineffective assistance of counsel. The dis-
trict court granted relief in part, and denied relief in part. Respondent-
appellant/cross-appellee Ronald Angelone, the Director of the Vir-
ginia Department of Corrections ("the Director"), appeals (record no.
01-7758) from the district court’s order insofar as it granted any
relief. Teal appeals (record no. 01-8029) from the district court’s
order insofar as it denied relief. Because Teal’s notice of appeal was
untimely, we remanded the case to the district court for its consider-
ation of Teal’s motion for extension of time. The district court denied
the motion for extension of time, and Teal timely appealed (record no.
02-6502) from that order. The three appeals have been consolidated.
We reverse in part and dismiss in part.

                                    I.

   Teal’s convictions arose out of a burglary at Moore’s Auto Body
Shop in Richmond, Virginia, between 11:30 p.m. on February 20,
1997, and 3:00 a.m. on February 21, 1997. The prosecution’s case
was based on both direct and circumstantial evidence. The shop man-
ager closed and locked the shop at approximately 6:15 p.m. on Febru-
ary 20, 1997. J.A. at 9. When the manager arrived the next morning,
he found that the "place was a mess;" the front window glass was bro-
ken and a board covered a hole in the window. J.A. at 10-11. Soft
drinks and coins had been removed from a soda machine. J.A. at 14.
Other property, including a television and a white Dodge automobile
owned by the City of Richmond and in the shop for repairs, had been
removed from the shop without permission. J.A. at 17, 22.

  The circumstances surrounding Teal’s arrest near the scene of the
burglary were amply established. Constance Jones’s fourth floor
apartment overlooks the alley between the auto body shop and her
apartment building. At approximately 11:30 p.m., Jones saw from her
apartment window a man, later identified as Teal, carrying a board
4                         TEAL v. ANGELONE
through the alley. J.A. at 29, 30. This was the board later found cover-
ing the hole in the shop’s window glass. J.A. at 31. At approximately
3:00 a.m., Jones again looked out of her window into the alley and
saw that her neighbor’s truck had been broken into; a toolbox rested
on the ground in between the truck and her boyfriend’s van. J.A. at
32. She also noticed a white car in the same general area. J.A. at 33-
34.

    Jones alerted her boyfriend and returned to the window. She
observed the white car proceed down the alley away from the van.
J.A. at 32-33. At about this same time, Jones and her boyfriend
observed that Teal had broken into and was lying across the seat of
her boyfriend’s van. J.A. at 33, 48. Jones telephoned the police while
her boyfriend and a neighbor left to confront and detain Teal. J.A. at
34-35. Teal fled as the police arrived, J.A. at 35-36; he was appre-
hended by Officer Anthony Papaleo. When Officer Papaleo appre-
hended Teal, he had in his possession several items taken from the
auto body shop. J.A. at 71-72. Meanwhile, Officer Sandy Ledbetter,
who also responded to the scene, located the white Dodge automobile,
which had been parked around the corner from the auto body shop.
Ledbetter discovered inside the car other property that had been taken
from the auto body shop, including the television and a pillow case
filled with sodas from the machine in the body shop. J.A. at 80-82.
Teal was arrested and charged with possession of burglary tools,
breaking and entering the auto body shop, and grand larceny (based
on the theft of the white Dodge automobile from the auto body shop).

   At the close of the prosecution’s case-in-chief, Teal’s counsel
moved to strike the grand larceny charge on the ground that the evi-
dence did not show that "Teal was not associated with the lawful
owner" of the automobile. J.A. at 330. (Counsel did not argue that the
evidence was insufficient to establish that Teal ever had possession
of the white Dodge automobile.) The trial judge denied the motion.
In the defense case, Teal elected to testify. He provided a partially
exculpatory version of the events at issue, specifically denying that he
broke into the auto body shop or that he had any connection to the
theft of the white Dodge automobile. Teal admitted that he broke into
the van. Defense counsel unsuccessfully renewed his motion to strike
the charges after the close of all the evidence. The jury convicted Teal
of breaking and entering and grand larceny and acquitted him of pos-
                           TEAL v. ANGELONE                            5
session of burglary tools. Teal received a sentence of ten years on the
breaking and entering conviction and a consecutive sentence of two
years on the grand larceny conviction.

   Teal effectively exhausted his state law remedies and filed a timely
pro se habeas petition in the United States District Court for the East-
ern District of Virginia alleging, inter alia, that he had received inef-
fective assistance of counsel. J.A. at 264. The district court referred
the case to a magistrate judge for the issuance of a report and recom-
mendation. Subsequently, over timely objections by both parties, the
district court adopted the magistrate judge’s recommendation in an
order entered on September 28, 2001, granting the habeas petition in
part and denying it in part.

   As to the grand larceny conviction, the district court adopted the
magistrate judge’s finding that there was no evidence that Teal was
in actual possession of the white Dodge automobile, and that "no
instructions were given to the jury regarding Teal’s aiding and abet-
ting someone else to take the vehicle." J.A. at 331-32. Thus, the court
below concluded that "the evidence presented proved Teal neither
took the vehicle nor aided in the taking of the vehicle. Failure to argue
this crucial point was ineffective assistance." J.A. at 332. Further-
more, because the prosecution "failed to prove all of the essential ele-
ments of grand larceny," J.A. at 333, counsel’s failure to argue the
insufficiency of the evidence permitted Teal to be convicted of the
grand larceny charge, whereas Teal should have been acquitted of that
charge. The district court set aside the conviction for grand larceny
and the corresponding two-year sentence and ordered a new trial. J.A.
at 357.

   As to the breaking and entering conviction, the district court
adopted the magistrate judge’s view that, contrary to Teal’s conten-
tion, trial counsel had "thoroughly cross-examined [Jones]," J.A. at
39-46, 335, and that counsel did not act unreasonably in failing to
seek relief for an alleged discovery violation. S.A. at 336. Accord-
ingly, the district court denied the habeas petition as to the breaking
and entering conviction. J.A at 323, 357.

  The parties filed cross-appeals from the district court’s mixed judg-
ment. S.A. at 3, 11. Teal’s notice of appeal was untimely. We
6                          TEAL v. ANGELONE
remanded the case to permit the district court to consider Teal’s
motion for an extension of time to appeal. The district court denied
the motion for extension of time. S.A. at 26. Teal timely appealed
from that order. S.A. at 30.

                                   II.

   A claim that counsel’s representation was so defective as to require
reversal of a conviction has two components: the defendant must
establish that (1) counsel’s performance was deficient; and (2) that the
deficient performance prejudiced the defense. Strickland v. Washing-
ton, 466 U.S. 668, 687 (1984). "Deficient performance" is established
by showing that "counsel made errors so serious that counsel was not
functioning as the ‘counsel’ guaranteed by the Sixth Amendment." Id.
"Prejudice" is established by showing that "counsel’s errors were so
serious that they deprived the defendant of a fair trial." Id. Unless a
defendant can make both showings, "it cannot be said that the convic-
tion . . . resulted from a breakdown in the adversary process that
render[ed] the result unreliable." Id. We review de novo the district
court’s grant of Teal’s habeas petition because a claim of ineffective
assistance of counsel presents a mixed question of law and fact. See
United States v. Brown, 155 F.3d 431, 434 (4th Cir. 1998); Williams
v. Kelly, 816 F.2d 939, 946 (4th Cir. 1987).

                                  III.

                                   A.

   Applying the Strickland standard to the record here, we are per-
suaded that the district court erred in its conclusion that counsel was
constitutionally ineffective for failing to move to strike the grand lar-
ceny charge based on insufficiency of the evidence. In Virginia, lar-
ceny is a common law crime defined as the (1) wrongful or fraudulent
taking of (2) another’s property, (3) without his permission, (4) with
the intent to deprive the owner of it permanently. See Tarpley v. Com-
monwealth, 542 S.E.2d 761, 763-64 (Va. 2001); Commonwealth v.
Taylor, 506 S.E.2d 312, 314 (Va. 1998). Under Virginia Code § 18.2-
95, grand larceny is the (1) taking, (2) not from the person of another,
(3) of goods that have value of $200 or more. Tarpley, 542 S.E.2d at
763-64. Two people may commit larceny when they jointly take prop-
                           TEAL v. ANGELONE                            7
erty from another. Carter v. Commonwealth, 163 S.E.2d 589, 594 n.3
(Va. 1968). Furthermore, two people engaged in a criminal enterprise
are each equally responsible for the acts of the other. Rollston v. Com-
monwealth, 399 S.E.2d 823, 825 (Va. Ct. App. 1991).

   It is true, of course, that there was no evidence that Teal was ever
seen driving the white Dodge automobile. It is also true that no one
was inside the car when it was found parked around the corner from
the auto body shop upon the arrival of the police. J.A. at 81-82. Nev-
ertheless, trial counsel’s failure to move to strike the grand larceny
charge based on insufficient evidence did not constitute an unreason-
able omission that was prejudicial to Teal. The record reflects that the
judge presiding at Teal’s trial instructed the jury that "exclusive per-
sonal possession may be joint with another or others, but it must be
under circumstances which cause [one] to believe the defendant has
knowing joint possession." J.A. at 118. The Director argues that, and
we agree, drawing all reasonable inferences in favor of the prosecu-
tion, the jury could have reasonably concluded that the direct and cir-
cumstantial evidence presented at trial supported a finding that Teal
was in joint possession of the white Dodge automobile with the
unidentified driver of the vehicle, such that the "possession" element
of the charge of grand larceny was proved beyond a reasonable doubt.
See Jackson v. Virginia, 443 U.S. 307, 318-19 (1979) (standard of
review for claims of evidentiary insufficiency).

   In sum, we are persuaded that the direct and circumstantial evi-
dence introduced at trial was more than adequate to support the
judge’s instruction on joint possession, and that the court below erred
in concluding that the jury instructions were inadequate to permit the
jury to find concert of action beyond a reasonable doubt.* Accord-

  *The evidence, summarized in text, established that over the course of
some period of time in the middle of the night in February, the auto body
shop was burglarized. Entry was gained by breaking a window glass,
which the perpetrators took pains to cover up using a board which a wit-
ness had earlier observed in Teal’s possession. A vending machine was
ransacked, and soda cans from the machine were loaded into a pillow
case found on the premises. Coins (some quite likely removed from the
soda machine) were found in Teal’s possession upon his arrest after a
short chase near the scene of the break-in, and under circumstances in
8                          TEAL v. ANGELONE
ingly, as Teal was not prejudiced by his counsel’s failure to challenge
the sufficiency of the evidence on the grand larceny charge, we
reverse the district court’s judgment granting relief to Teal as to the
conviction for grand larceny.

                                   B.

   The parties have joined issue over whether the district court abused
its discretion in denying Teal’s motion for an extension of time within
which to appeal the denial of relief as to the breaking and entering
conviction. That claim is also grounded in an allegation of ineffec-

which Teal was confronted as he was breaking into a van parked near the
burglarized body shop. A television, among other property from the body
shop, had been loaded into a white Dodge automobile, which was on the
premises for repair. The unidentified driver of the white Dodge automo-
bile was present in the vehicle while Teal was rummaging through the
parked van, but abandoned the white Dodge automobile and departed the
area before police arrived. Manifestly, under the circumstances shown in
this record, a reasonable juror could reasonably conclude that Teal was
involved in the break-in of the body shop (indeed, Teal does not even
argue on appeal that there was insufficient evidence to sustain the break-
ing and entering conviction), and such a reasonable juror could reason-
ably discount the likelihood that, by coincidence, two persons, working
wholly independently of each other, burglarized the same auto body shop
on the same winter evening, and calmly divided the loot between them-
selves, with Teal settling for only a few coins and other items, while the
other burglar made off with the sodas, the television, and the automobile,
all of such property having been available for the taking from the shop.
To the contrary, and exactly as the prosecutor argued at trial, a reason-
able juror could reasonably conclude that the unidentified operator of the
white Dodge automobile was waiting for Teal to complete his search of
the van parked in the alley before the night’s joint enterprise was con-
cluded, and further, that the driver elected hastily to abandon the white
Dodge automobile (and the loot from the body shop contained within it)
at the time Teal was confronted by the owner of the van parked in the
alley, inferring (correctly) that the police were on the way. We have no
hesitation in concluding that this evidence shows "circumstances which
[could] cause you to believe the defendant ha[d] knowing joint posses-
sion" of the white Doge automobile with the "other" burglar. J.A. at 118
(trial judge’s instruction to the jury).
                          TEAL v. ANGELONE                            9
tiveness of counsel, i.e., that counsel unreasonably and prejudicially
failed to object to certain evidence supporting the breaking and enter-
ing charge.

   We need not determine whether the district court committed an
abuse of discretion, however, because before an appeal can be taken
to the court of appeals from the final order in a habeas petition pro-
ceeding arising out of process issued by a state court a certificate of
appealability must issue. See 28 U.S.C. § 2253(c)(1)(A). A certificate
of appealability may issue only if the applicant has made a substantial
showing of the denial of a constitutional right. See 28 U.S.C.
§ 2253(c)(2); Jones v. Cooper, 311 F.3d 306, 309-10 (4th Cir. 2002).
Having reviewed the record and the district court’s order, and having
had the benefit of oral argument, we deny a certificate of appealability
because Teal has not made a substantial showing of the denial of a
constitutional right. Id.

                                  IV.

  For the reasons set forth, we reverse the judgment in Case No. 01-
7758, and we dismiss the appeals in Case Nos. 01-8029 and 02-6502.

                  REVERSED IN PART AND DISMISSED IN PART

GOODWIN, District Judge, concurring in part and dissenting in part:

   The majority concludes that the evidence was sufficient to support
a jury finding that Teal was in joint possession of the stolen car.
Accordingly, the majority holds that Teal’s counsel was not constitu-
tionally ineffective for failing to move for acquittal on the ground of
insufficient evidence to establish the elements of grand larceny. I
believe that the majority’s conclusion can only be reached by conflat-
ing two distinct concepts of criminal liability under Virginia law —
joint possession, on the one hand, and aiding and abetting, on the
other. The jury was only instructed on the former theory, and the evi-
dence was only sufficient to support a finding of guilt on the latter
theory. Thus, Teal’s counsel was constitutionally ineffective for fail-
ing to make a post-trial motion for acquittal on the ground of insuffi-
ciency of the evidence. I respectfully dissent from the reversal of the
10                         TEAL v. ANGELONE
district court’s grant of the writ of habeas corpus on the grand larceny
charge. I concur in the majority’s denial, in Part III.B of the majority
opinion, of a certificate of appealability on Teal’s cross-appeal.

   I agree with the majority’s description of the facts, so I will spend
no time retelling the story. In light of those facts, the majority con-
cludes that "drawing all reasonable inferences in favor of the prosecu-
tion, the jury could have reasonably concluded that the direct and
circumstantial evidence presented at trial supported a finding that
Teal was in joint possession of the white Dodge automobile with the
unidentified driver of the vehicle, such that the ‘possession’ element
of the charge of grand larceny was proved beyond a reasonable
doubt." Ante at 7. I respectfully disagree that the evidence was suffi-
cient to support a finding of joint possession. Instead, the evidence
establishes that Teal was guilty as a principal in the second degree —
an aider and abettor. But the prosecution did not request a principal
in the second degree instruction, and the judge did not give one.
Accordingly, we cannot affirm Teal’s conviction on that ground.

    Under Virginia law, a principal in the first degree is "the actual or
immediate perpetrator[ ] of the crime." Gardner v. Commonwealth,
225 S.E.2d 354, 356 (Va. 1976). In contrast, a principal in the second
degree is one who is "present, aiding and abetting in [the] commission
[of the crime]." Id. By statute, "every principal in the second degree
. . . may be indicted, tried, convicted and punished in all respects as
if a principal in the first degree." Va. Code Ann. § 18.2-18 (West
2002). Accordingly, there is no difference in punishment as between
principal in the first and second degree. Nonetheless, the two concepts
are distinctly different theories of criminal culpability.

   To be found guilty of grand larceny as a principal in the first
degree, a defendant must have possessed the object of the larceny.
Under Virginia law, as at common law, the concept of "possession"
of the object of a larceny is a pragmatic one — the defendant need
not be holding an object to possess it. See, e.g., Vest v. Common-
wealth, No. 0803-99-3, 2000 WL 154847, at *1 (Va. Ct. App. Feb.
15, 2000) (appellant had joint possession over firearm because "ap-
pellant was aware of the presence of the .25 caliber semiautomatic
pistol located in the dresser drawer in the bedroom he shared with his
girlfriend and that it was subject to his dominion and control"). Two
                          TEAL v. ANGELONE                           11
or more people may jointly possess the same object simultaneously,
and possession may be actual or constructive. Nonetheless, whether
possession is actual, constructive, joint, or sole, the defendant at the
very least must have dominion and control over the object. The Vir-
ginia Court of Appeals has explained:

    Establishing constructive possession requires proof "that the
    defendant was aware of both the presence and character of
    the [item] and that it was subject to his dominion and con-
    trol." Powers v. Commonwealth, 316 S.E.2d 739, 740 (Va.
    1984). A person’s ownership or occupancy of premises on
    which the subject item is found, proximity to the item, and
    statements or conduct concerning the location of the item
    are probative factors to be considered in determining
    whether the totality of the circumstances supports a finding
    of possession. Archer v. Commonwealth, 492 S.E.2d 826,
    831-32 (Va. App. 1997). Possession "need not always be
    exclusive. The defendant may share it with one or more."
    Josephs v. Commonwealth, 390 S.E.2d 491, 497 (Va. App.
    1990) (en banc).

Pitchford v. Commonwealth, No. 1582-01-1, 2002 WL 31110796, at
*2 (Va. Ct. App. Sept. 24, 2002).

   If Teal and his cohort had gotten in the car in the repair shop and
driven it away together, then they would have been in joint possession
of the car and both would be guilty as principals in the first degree.
But the evidence in this case indicates that Teal was guilty of grand
larceny as a principal in the second degree. The witness Jones testi-
fied that she saw Teal walking towards Moore’s with the board that
was used to cover the broken window. Several hours later, Teal was
later found in possession of items stolen from the shop. I agree with
the majority that it is implausible to imagine that Teal and the other
robber coincidentally happened upon the same auto body shop on the
same night with independent intentions to commit robberies. The evi-
dence is sufficient for a jury to infer, beyond a reasonable doubt, that
Teal was "present, aiding and abetting in [the] commission" of the
theft of the car, Gardner, 225 S.E.2d at 356, and thus that he is guilty
as a principal in the second degree.
12                         TEAL v. ANGELONE
   The only evidence as to possession of the car, however, is that
another person drove the car away from the scene. The evidence cer-
tainly suggests that Teal played a central role in the theft of the auto-
mobile — indeed, one could plausibly conclude that he and his cohort
were co-equal participants in the crime. But possession does not
depend on the centrality of Teal’s role in the theft — it depends on
whether he exercised dominion and control over the vehicle. Of
course, it is possible that Teal was in possession of the car at some
point, but there is no evidence to prove (or even suggest) that he was.
If anything, the record suggests the opposite. As recited above, the
evidence indicates that Teal assisted his cohort in breaking into the
body shop, that the cohort drove the car out of the shop, that Teal
exited on foot and continued to commit other larcenies by breaking
into vehicles parked in the alley, and that the cohort waited nearby in
the stolen car. This evidence suggests that Teal was never in posses-
sion of the car — that he never exercised dominion and control over
the vehicle. Accordingly, I respectfully disagree with the majority’s
conclusion that the evidence was sufficient for a jury to find that Teal
was himself ever in actual or constructive possession of the car, joint
or otherwise.

   The Virginia cases finding evidence sufficient to establish "posses-
sion" are based on facts indicating dominion and control, facts absent
here. For example, in Pitchford the evidence established that the
defendant "resided at 103 Hawk Lane and was aware of the presence
of the firearm under the mattress, as well as the large quantity of
cocaine and distribution paraphernalia in plain view nearby, and that
both the gun and the drugs were subject to his dominion and control."
Pitchford, 2002 WL 31110796, at *2. Given these facts, the evidence
was sufficient to prove that the defendant possessed the gun and the
drugs. Id. See also Carrington v. Commonwealth, No. 1909-00-2,
2001 WL 1084986, at *2 (Va. Ct. App. Sept. 18, 2001) ("[T]he evi-
dence established that appellant had at least constructive possession
of . . . the cocaine thrown out of his father’s car as the police
attempted to stop it. . . . Harrison had obtained the cocaine from
appellant and had not yet paid him for it, and Harrison testified that
both he and appellant owned the cocaine. Thus, the evidence estab-
lished that appellant was aware of the presence and character of the
cocaine thrown from the window and that he possessed it jointly with
Harrison."); Vest, supra.
                           TEAL v. ANGELONE                            13
   In contrast to these cases, in Reese v. Commonwealth, 335 S.E.2d
266 (Va. 1985), the court found insufficient evidence to establish pos-
session, be it constructive, joint, or otherwise. In Reese, the defendant
had been a passenger in a stolen car. The Virginia Supreme Court
explained:

     The Commonwealth relies on the theory of joint exclusive
     possession of recently stolen property. But, giving the Com-
     monwealth the benefit of all reasonable inferences, as we
     must, we conclude that the evidence fails to establish joint
     exclusive possession. There must be evidence of joint con-
     trol to justify the inference of joint possession. The Com-
     monwealth presented no evidence that Reese exercised any
     degree of dominion or control over the station wagon.

Id. at 267-68. In all of these cases, the key to finding possession —
joint or otherwise — is the defendant’s awareness of the object and
his dominion and control over that object.

   Contrast the analysis in Reese with that of Davidson v. Common-
wealth, No. 2514-97-2, 1998 WL 373357 (Va. Ct. App. July 7, 1998).
In Davidson, the court found:

     that the evidence was sufficient to establish that appellant
     exercised dominion and control over the [stolen] Cadillac
     and that he thus had joint, exclusive possession of the vehi-
     cle. Appellant, as well as Kirk and Wilson, used the Cadillac
     to execute the robbery, establishing joint control, and thus
     joint possession, of the Cadillac. Specifically, appellant used
     the Cadillac to escape after the robbery he committed in
     concert with the other defendants. This fact alone is suffi-
     cient to demonstrate the required factual predicate for the
     finding that appellant had exclusive joint possession of the
     stolen vehicle.

Id. at *3. The court in Davidson did not impute possession to the
appellant simply because he was a co-conspirator of the other defen-
dants in the robbery. Rather, the court relied on the fact that the appel-
lant, along with the co-conspirators, used the car to escape from the
robbery. None of the Virginia cases cited by the Commonwealth, and
14                         TEAL v. ANGELONE
none that I have discovered, impute possession to a defendant simply
because his co-conspirator possessed the object. Thus, even though a
defendant is equally responsible for the acts of a co-conspirator, that
does not mean that the defendant possesses everything that the co-
conspirator possesses. The key to joint possession is not equal culpa-
bility with another defendant, but rather dominion and control over
the object in question.

   As stated above, the judge did not instruct the jury on principal in
the second degree. While a principal in the second degree is equally
culpable and faces the same punishment as a principal in the first
degree, this does not mean that it does not matter whether the judge
instructs on both theories. There are many Virginia cases in which the
judge instructs on both principal in the first degree and principal in
the second degree. See, e.g., Gardner, 225 S.E.2d at 356; Hash v.
Commonwealth, No. 1290-01-4, 2002 WL 2004853 (Va. Ct. App.
Sept. 3, 2002); Rollston v. Commonwealth, 399 S.E.2d 823 (Va. App.
1991). Moreover, there are cases in which a defendant challenges the
sufficiency of the evidence and the court responds by explaining that
while there may not be evidence to find that the defendant was a prin-
cipal in the first degree, the evidence was sufficient to find the defen-
dant guilty as a principal in the second degree, consistent with the
judge’s instructions to the jury. For example, in Rollston, the defen-
dant argued that "the evidence was insufficient to sustain the first
degree murder convictions and the firearm conviction." Id. at 828.
The judge had instructed the jury on both principal in the first degree
and principal in the second degree. Id. at 825. The Virginia Court of
Appeals reviewed the evidence against Rollston and concluded that
"the evidence is sufficient beyond a reasonable doubt for the jury to
have concluded that Rollston was the lookout and ‘getaway’ driver
for the murders and thus, guilty as a principal in the second degree."
Id. at 831. See also Grant v. Commonwealth, 217 S.E.2d 806, 808
(Va. 1975) ("While there is no direct evidence that the defendant was
present at the scene of the robbery and actively participating in the
crime, the circumstantial evidence points unerringly to his guilt as an
aider and abettor of the offense. . . . Accordingly, he was properly
convicted as a principal in the second degree.").

   This case is similar to Rollston and Grant in that the evidence is
insufficient to find the defendant guilty as a principal in the first
                            TEAL v. ANGELONE                             15
degree, but sufficient to find him guilty as a principal in the second
degree. However, this case differs from Rollston or Grant in that here
the jury was not instructed on the theory of principal in the second
degree.1 The question, then, is whether a jury verdict of guilty can
stand when (1) the jury was instructed on the theory of principal in
the first degree but not on the theory of principal in the second degree
and (2) the evidence is insufficient to establish that Teal was a princi-
pal in the first degree but is sufficient to establish that he was a princi-
pal in the second degree.

   The Supreme Court has explained that "[t]his Court has never held
that the right to a jury trial is satisfied when an appellate court retries
a case on appeal under different instructions and on a different theory
than was ever presented to the jury. Appellate courts are not permitted
to affirm convictions on any theory they please simply because the
facts necessary to support the theory were presented to the jury."
McCormick v. United States, 500 U.S. 257, 270 n.8 (1991). See also
Chiarella v. United States, 445 U.S. 222, 236 (1980) ("We need not
decide whether this theory has merit for it was not submitted to the
jury. . . . [W]e cannot affirm a criminal conviction on the basis of a
theory not presented to the jury. . . ."); United States v. Hill, 835 F.2d
759, 764 n.7 (10th Cir. 1987); State v. Schmidt, 540 A.2d 1256, 1259
(N.J. 1988).

   This case bears a striking similarity to United States v. Brito, 136
F.3d 397 (5th Cir. 1998). There, one of the defendants had been con-
victed of possession with intent to distribute marijuana as a principal
in the first degree. Id. at 409-10. The evidence presented suggested
that he had arranged drivers and vehicles for others who transported
drugs. But "[t]here [was] no evidence that [the defendant] accompa-
nied them on this trip or ever took possession of the drugs." Id. at 410.
Because evidence of possession, either constructive or actual, was
lacking, the court reversed his conviction. The court noted that "[t]he
government argues on appeal that the conviction could also be
affirmed on an aiding and abetting theory." Id. at 410 n.18. The court
  1
   In Rollston the jury was instructed on principal in the second degree.
Grant was a trial to the court, so there were no jury instructions, but the
court nonetheless "properly convicted [Grant] as a principal in the sec-
ond degree." Grant, 217 S.E.2d at 808.
16                        TEAL v. ANGELONE
rejected this argument as "misplaced [because] . . . [t]he jury was not
instructed on that theory; therefore we cannot sustain a conviction
based upon it." Id. In this case, the Commonwealth conceded at oral
argument that the Virginia courts could not "have affirmed a convic-
tion for principal in the first degree if the evidence was insufficient
to support a conviction for principal in the first degree."

   The Commonwealth, in its brief, argues that "[i]n Virginia, two
people engaged in a criminal enterprise are each equally responsible
for the acts of the other. Thus, Teal faced the same consequences even
had he been convicted as a principal in the second degree." Angelone
Br. at 12 (citations omitted) (emphasis added). This is a correct state-
ment of Virginia law, but the language of the brief reveals the error
in this case. Teal would have faced the same consequences had he
been convicted as a principal in the second degree. The problem is,
he was not convicted as a principal in the second degree, because the
jury was not instructed on principal in the second degree liability. See
Brito, 136 F.3d at 410 n.18. Moreover, that non-instructed theory is
the only theory of liability that the evidence is sufficient to support.

   To show constitutionally ineffective assistance of counsel, a defen-
dant must show (1) that defense counsel’s representation fell below
"an objective standard of reasonableness" and (2) that the defendant
was prejudiced as a result of this failure. Strickland v. Washington,
466 U.S. 668, 688-92 (1984). The "defendant bears the burden of
proving that counsel’s representation was unreasonable under prevail-
ing professional norms and that the challenged action was not sound
strategy." Kimmelman v. Morrison, 477 U.S. 365, 381 (1986).

   Teal’s counsel failed to make a motion for judgment of acquittal
on the ground that the evidence was only sufficient to establish aiding
and abetting, not possession. By failing to make the motion, Teal’s
lawyer missed the opportunity for a judgment of acquittal and waived
the issue for the purpose of further appellate review. Because Virginia
law is clear on the difference between joint possession and aiding and
abetting, defense counsel’s failure to make the motion "was unreason-
able under prevailing professional norms." Id.

  That said, Teal’s lawyer’s performance was not deficient if there
was some strategic reason for his failure to make this motion. See id.
                          TEAL v. ANGELONE                           17
The Commonwealth argues that if defense counsel had made this
motion at the close of the prosecution’s case in chief, then the prose-
cution would have been alerted to the issue of possession and would
have asked the judge to instruct the jury on the theory of principal in
the second degree liability. Instead, the Commonwealth argues,
defense counsel made a strategic decision not to draw attention to this
issue, because his client had a better shot at acquittal if the jury was
not instructed on principal in the second degree. I agree. It was a rea-
sonable trial strategy for counsel to refrain from doing anything dur-
ing the trial that would bring the prosecution’s attention to the fact
that it should request a principal in the second degree instruction.

   However, as Teal points out, this strategy only explains defense
counsel’s failure to make a motion for acquittal at the close of the
government’s case. It does not explain why defense counsel failed to
make a post-trial motion to set aside the verdict on the same grounds
(i.e., insufficient evidence to prove possession). At the post-trial
stage, there was no risk that the motion would prompt the government
to ask for a principal in the second degree instruction. So there was
no longer any strategic reason not to bring this motion. By bringing
the motion, Teal’s lawyer would have squarely presented the issue to
the trial judge and also would have preserved the issue for appeal. See
McGee v. Commonwealth, 357 S.E.2d 738, 739-40 (Va. Ct. App.
1987) (challenge to sufficiency of evidence preserved for appeal if
presented in post-trial motion to set aside verdict, even if defense
counsel failed to make motion to acquit at the end of prosecution’s
case). Accordingly, defense counsel’s failure to make a motion for
judgment of acquittal on the ground of sufficiency of the evidence to
prove possession was "unreasonable under prevailing professional
norms and . . . the challenged action was not sound strategy." Kim-
melman, 477 U.S. at 381.

   The second prong of Strickland — that the defendant was preju-
diced by defense counsel’s failure — is also met in this case. As dis-
cussed above, the evidence was insufficient to support a finding
beyond a reasonable doubt that Teal was in possession of the stolen
vehicle. While Teal could have been convicted of grand larceny had
the jury been instructed on principal in the second degree liability,
once the trial had ended and the jury had returned its verdict, the
Commonwealth would not have been able to retry Teal under this
18                          TEAL v. ANGELONE
alternate theory not presented at the initial trial. Rather, Teal would
have been acquitted, either by the trial judge on a post-trial motion or
by an appellate court. See Ortega-Rodriguez v. United States, 507
U.S. 234, 249 (1993) ("In the class of appeals premised on insuffi-
ciency of the evidence, . . . retrial is not permitted in the event of
reversal.").

  Thus, for the reasons given above, I would affirm the district
court’s grant of the writ of habeas corpus on Teal’s grand larceny
conviction, and remand for a new trial on that count.2

  2
    Teal argues that the proper remedy for his claim is acquittal, not
retrial. Because the majority has affirmed his conviction, the majority
naturally does not address the remedy question. Because I believe that
Teal’s right to effective assistance of counsel has been violated, I will
briefly note my position on the proper remedy for that violation.
   Teal argues that his ineffective assistance of counsel claim is, at bot-
tom, a sufficiency of the evidence claim. As such, he argues that he
should be acquitted. See Ortega-Rodriguez, 507 at 249. It is true that
Teal’s claim does involve a determination that the evidence presented at
trial was insufficient to sustain his conviction. But Teal is not presenting
a sufficiency of the evidence claim — that claim is procedurally barred.
Teal’s only preserved claim here is that he was deprived of a fair trial
because his lawyer failed to adequately represent him. The remedy for
that deprivation is to give Teal a second trial, not to effectuate the result
that would have occurred had defense counsel’s representation been ade-
quate. Thus, I would remand for a new trial, not grant a judgment of
acquittal.
