Nejad v. Attorney Gen., State of Ga.

• Decision Date: 27 July 2016
• Docket Number: No. 15-14856,15-14856
• Parties: Ali Nejad, Petitioner-Appellee, v. Attorney General, State of Georgia, Respondent, Warden, Respondent-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

830 F.3d 1280

Ali Nejad, Petitioner-Appellee

v. Attorney General, State of Georgia, RespondentWarden, Respondent-Appellant.

No. 15-14856

United States Court of Appeals, Eleventh Circuit.

Filed: July 27, 2016

Brian Steel, The Steel Law Firm, PC, Donald Franklin Samuel, Garland Samuel & Loeb, PC, Atlanta, GA, for Petitioner-Appellee.

Paula Khristian Smith, Beth Attaway Burton, Samuel Scott Olens, Attorney General's Office, Atlanta, GA, for Respondent-Appellant.

Before TJOFLAT, MARCUS, and ROGERS,^* Circuit Judges.

MARCUS

, Circuit Judge:

A jury in Fulton County, Georgia, found Ali Nejad guilty of sexually assaulting two women on two separate occasions, for which he was sentenced to a total of thirty-five years in prison by the superior court judge. Pursuant to 28 U.S.C. § 2254

, he petitioned for federal habeas relief on the ground that his trial counsel was ineffective because he failed to inform Nejad that he could testify in his own defense despite counsel's advice to the contrary. After conducting an evidentiary hearing, the state trial court rejected the claim, finding that Nejad could not establish prejudice because the trial judge had in fact advised Nejad of his right to testify. The Georgia Court of Appeals, an intermediate appellate court, rejected the trial court's determination, but the Georgia Supreme Court reinstated the trial court's finding and its ultimate determination rejecting the petitioner's Sixth Amendment ineffective assistance of counsel claim. The ball bounced back into the opposite court once again, when the federal district court rejected the state trial court's finding of fact, granted Nejad a writ of habeas corpus, and ordered Georgia to retry the petitioner within ninety days or to release him.

Georgia brought this rifle-shot appeal, challenging only the district court's decision to cast aside the state court's determination of fact. After thorough review and with the benefit of oral argument, we conclude that the trial court's factual finding was neither “based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding,” 28 U.S.C. § 2254(d)(2)

, nor contradicted by “clear and convincing evidence,” id. § 2254(e)(1). Moreover, the Georgia Supreme Court's Strickland determination was neither contrary to, nor an unreasonable application of, clearly established Supreme Court law. Id. § 2254(d)(1). Accordingly, we reverse the judgment of the district court and remand with instructions to reinstate Nejad's convictions and sentence.

I.

A.

The essential facts and procedural history are these. In May 2005, Nejad was indicted by a Fulton County grand jury for the rape, aggravated sodomy, and aggravated assault with a deadly weapon of Linda Lankford; the possession of a firearm during commission of a felony; and the aggravated assault with a deadly weapon and two counts of aggravated sexual battery of Melissa Hoy. After a nine-day jury trial in December 2005, Nejad was convicted on all counts except the firearm possession count. He was represented by a privately retained trial team.

The evidence adduced at trial established, among other things, that, on May 11, 2004, Ms. Lankford was talking to Nejad at a gas station, and he offered to give her a ride to a hotel where she was staying.¹ She accepted the offer and the two set off in Nejad's SUV. Once in the car, Nejad offered her $200 in exchange for sex; Lankford refused, telling Nejad that she was not a prostitute. After purchasing baby wipes from a grocery store, Nejad drove Lankford to a secluded area and parked the SUV. Nejad then pointed a gun at Lankford and demanded that she take off her clothes and put on a pair of pantyhose. Thereupon, he forced her to perform oral sex on him while pointing the gun at the back of her head. Nejad then had intercourse with her while pointing the gun at her face. Afterwards, he ordered her out of the car while she was still naked. She left with her clothes in her hands, got dressed, and ran to a nearby building, where she asked the people inside to call the police because she had been raped.

On June 5, 2004, Ms. Hoy—the other victim—was working as a prostitute. She voluntarily entered Nejad's SUV after he offered her $150 to perform sexual acts. He gave her thigh-high nylon stockings to wear and drove to a secluded area. Nejad stopped the car, took out a backpack and a black gun, and told Hoy to get into the back seat. Nejad then sexually battered her while holding the firearm. Thereafter, he threw her out of the car.

Nejad stipulated that an assault kit performed on Lankford and semen found on Hoy's shirt contained his DNA. When he was arrested, a plastic pellet gun resembling a Glock handgun was found in his car. At the conclusion of the state's case-in-chief, the trial court granted Nejad's motion for a directed verdict on the possession of a firearm count. Nejad called three witnesses, two of whom offered an alibi for the night of the assault on Hoy. Nejad did not, himself, testify. On December 16, 2005, the jury found Nejad guilty on all of the remaining counts. Two weeks later, the trial court sentenced him to a total of thirty-five years in prison.

B.

Nejad retained new counsel and moved for a new trial, raising three claims for relief: (1) the trial court erroneously charged the jury that a pellet gun was a deadly weapon; (2) a juror failed to disclose that she was a rape victim, which would have provided a basis to excuse her for cause; and, most pertinent to this appeal, (3) trial counsel was ineffective for failing to advise him that he had a right to testify in his own defense. Nejad also moved to recuse the trial judge because he had written a letter to the Superior Courts Sentence Review Panel urging that the Panel not reduce or alter Nejad's sentence. The trial judge granted the motion to recuse, and the balance of the issues was transferred to another division of the court.

A central point in dispute concerned whether the trial court had, at some point during the trial, advised Nejad that he had a right to testify in his own defense and that his own attorneys could not prevent him from doing so. The state insisted that a testimonial colloquy between the trial court and Nejad had actually occurred during the trial and, therefore, Nejad could not establish the prejudice prong of Strickland even if defense counsel failed to inform him of his right to testify. The trial transcript, however, did not record any colloquy between Nejad and the trial court regarding the petitioner's right to testify, but it did reflect that many off-the-record discussions were conducted during the last day and a half of the trial. The parties also filed a joint stipulation in state court, which provided that they had contacted the trial judge, who reviewed his notes from the trial and said that they did not reflect any indication that he advised Nejad of his right to testify.

In order to resolve this and other factual disputes, the trial court conducted an extensive evidentiary hearing. All three privately retained attorneys who originally represented Nejad at trial testified. First, Michael Trost said that he had previously represented Nejad in another criminal trial in DeKalb County, Georgia, that resulted in a directed verdict of acquittal at the close of the state's case. He noted that it was his regular “practice and procedure to advise clients” that they were responsible for making the ultimate decision whether or not to testify. He was not asked whether he had advised Nejad of his right to testify in the DeKalb County case. But, in this case, he had no “independent recollection” of instructing Nejad to that effect. He added, the trial team had generally agreed it was not in Nejad's interest to testify, and he did not recall anyone telling Nejad he could override their advice. Trost also said he “originally” thought the trial court had advised Nejad of his testimonial rights. But, after examining the transcript, he said he may have incorrectly assumed the colloquy had occurred because “that's consistent with normal practice.”

Similarly, defense counsel Ash Joshi testified that he did not tell Nejad it was Nejad's right to decide whether or not to testify, and that he had no knowledge whether anyone else had so advised Nejad. He could not remember whether the trial judge informed Nejad of his right to testify.

Finally, lead defense counsel Manubir Arora testified that he took over Nejad's case six weeks before trial. He only agreed to work on the case on the understanding that he would “rule with an iron fist” and Nejad would “have to listen to what” he said. Arora said that, shortly before trial, Nejad “asked to testify,” but Arora responded “absolutely not.” However, Arora prepared Nejad to testify just in case the trial went south and he needed to take the stand. Nejad asked Arora many times about testifying, but Arora believed the trial was going well and, therefore, the defendant would not have to testify. Arora explained that he should have said some other things that were required by the law, but instead he “simply ordered” Nejad not to testify. Arora also had a “specific memory” that the trial judge never advised Nejad of his right to testify. Moreover, he opined, there was no “break [in the transcript] where the court reporter could have forgotten something as critical as the judge making the defendant stand up and advising him of his rights.” Defense investigator Nicholas McKnight also was called to testify. He recalled attending a meeting where Nejad told Arora that he wanted to testify, but Arora responded that “under no circumstance was [Nejad] going to testify at his trial.”

Finally, Nejad testified on his own behalf and explained that he had wanted to take the witness stand, but his lawyers did not allow him to do so. He added that nobody told him, in this case or in the earlier DeKalb County prosecution, that he could overrule his lawyer's advice and testify on...