Nejad v. Attorney General

Case: 15-14856 Date Filed: 07/27/2016 Page: 1 of 30
[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-14856
________________________
D.C. Docket No. 1:12-cv-01502-TWT
ALI NEJAD,
Petitioner - Appellee,
versus
ATTORNEY GENERAL, STATE OF GEORGIA,
Respondent,
WARDEN,
Respondent - Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(July 27, 2016)
Before TJOFLAT, MARCUS, and ROGERS, * Circuit Judges.
*
Honorable John M. Rogers, United States Circuit Judge for the Sixth Circuit, sitting by
designation.
Case: 15-14856 Date Filed: 07/27/2016 Page: 2 of 30
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
2
Case: 15-14856 Date Filed: 07/27/2016 Page: 3 of 30
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
1
We take these facts from the Georgia Court of Appeals’s decision. Nejad v. State
(Nejad I), 674 S.E.2d 60 (Ga. Ct. App. 2009).
3
Case: 15-14856 Date Filed: 07/27/2016 Page: 4 of 30
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
4
Case: 15-14856 Date Filed: 07/27/2016 Page: 5 of 30
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
5
Case: 15-14856 Date Filed: 07/27/2016 Page: 6 of 30
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
6
Case: 15-14856 Date Filed: 07/27/2016 Page: 7 of 30
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
7
Case: 15-14856 Date Filed: 07/27/2016 Page: 8 of 30
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 his behalf. Nejad also said that
the judge never told him that it was his decision whether or not to testify, but if he
had been so informed by the court, he would have testified on his own behalf.
Nejad added, he would have explained that he picked up the victims, who were
working as prostitutes, and that they consented to engage in sex for money. Nejad
denied pulling a gun on either Ms. Hoy or Ms. Lankford, and surmised that the
women must have seen the pellet gun he kept in his glove compartment by
snooping around when he wasn’t in the car.
The lead trial prosecutor, Linda Dunikoski, testified on behalf of the state.
Her account collided with Arora’s. She was asked whether she had “any personal
recollection about whether [Nejad] was informed of his right to testify, specifically
that the decision to testify was his and not the attorney’s.” She answered, “Yes,”
observing that she had “a very, very clear recollection” that he had been informed
8
Case: 15-14856 Date Filed: 07/27/2016 Page: 9 of 30
of his right to testify. Indeed, she “distinctly remember[ed] looking over at
[Nejad], who had stood up; his three attorneys were seated, and [the trial judge]
read[] him the standard admonition about testifying or not testifying because [she]
was going to have to cross[-examine] him.” She “was holding [her] breath looking
over at [Nejad] waiting to see what his answer was going to be to [the trial judge]
about whether he was going to testify or not.” She testified that Nejad said, “No,
I’m not going to testify,” and sat down. Notably, she had “a very clear memory of
that because” it was her first time serving as lead counsel on a rape case, she knew
that she would have to cross-examine the defendant if he testified, and she was
very nervous. Although she did not have a specific recollection that the court
reporter was absent during the trial court’s colloquy with Nejad, she remembered
“several occasions” during the trial when the court began proceedings without
realizing the court reporter was not in the room.
The trial court denied the motion for a new trial in a written order. After
summarizing the testimony taken at the evidentiary hearing, the court concluded
Nejad had “failed to prove [Strickland] prejudice from any failure of trial counsel
to properly define his right to testify.” It unambiguously found as a fact that “the
credible evidence at the hearing show[ed] that Mr. Nejad was in fact so informed
by the trial court that the ultimate decision whether to testify was his alone, made
9
Case: 15-14856 Date Filed: 07/27/2016 Page: 10 of 30
after hearing the advice of his attorneys.” The court rejected Nejad’s other two
claims without discussion. Nejad appealed.
C.
The Georgia Court of Appeals reversed and remanded for a new trial,
finding that Nejad’s ineffective assistance claim and jury instruction challenge
were meritorious. Nejad v. State (Nejad I), 674 S.E.2d 60 (Ga. Ct. App. 2009).
Based on Nejad’s and his trial attorneys’ testimony at the evidentiary hearing, the
intermediate appellate court determined that “trial counsel’s refusal to allow Nejad
to testify and failure to advise Nejad of his right to testify constituted deficient
performance.” Id. at 64. Moreover, after evaluating Nejad’s proffer, the court
concluded Nejad had been prejudiced by counsel’s error. Id. at 64-65. The court
also held the trial court’s jury instruction regarding the pellet gun was erroneous,
but declined to address Nejad’s jury selection claim. Id. at 65.
The state petitioned the Georgia Supreme Court for certiorari review. The
court granted the petition and then unanimously reversed the Court of Appeals’s
decision. State v. Nejad (Nejad II), 690 S.E.2d 846 (Ga. 2010). The Georgia
Supreme Court explained that, when a party claims that the trial record does not
accurately reflect the proceedings below, “Georgia law authorizes a trial court to
conduct a hearing . . . to ‘resolve the difference so as to make the record conform
to the truth.’” Id. at 849 (quoting O.C.G.A. § 5-6-41(f)). In denying Nejad’s
10
Case: 15-14856 Date Filed: 07/27/2016 Page: 11 of 30
motion for a new trial, Georgia’s high court determined the trial court had
“effectively supplement[ed] the trial transcript with a finding that the trial judge
did inform Nejad that it was his decision whether or not to testify.” Id. And
significantly, under Georgia law, “[t]he trial court’s adoption of the prosecutor’s
[testimony] was dispositive, and is not subject to [appellate] review.” Id. at 850
(quoting Smith v. State, 393 S.E.2d 229 (1990)).2 Therefore, “the Court of
Appeals was not authorized to reverse the trial court’s determination that Nejad
had been advised of his right to testify by the trial judge.” Id.
In a footnote, the Georgia Supreme Court, although reiterating that “the trial
court’s decision [was] not subject to appellate review,” nevertheless addressed
Nejad’s argument that “the assistant district attorney’s testimony is not sufficient
to support the trial court’s finding because the assistant district attorney[] never
testified as to what the trial judge stated when he addressed Mr. Nejad.” Id. n.4.
While acknowledging that “the assistant district attorney’s words do not set forth
the specific content of the ‘standard admonition’ she testified was given by the trial
judge,” it explained that, fairly read in light of the questions asked, the trial
prosecutor’s testimony “authorized the trial court to find that Nejad was informed
of his right to decide whether to testify and that the decision to testify was his and
2
O.C.G.A. § 5-6-41(g) provides that, “[i]n case of the inability of the parties to agree as
to the correctness of [the trial] transcript, the decision of the trial judge thereon shall be final and
not subject to review.” (emphasis added).
11
Case: 15-14856 Date Filed: 07/27/2016 Page: 12 of 30
not his attorney’s.” Id. “In addition,” the court noted, at the start of the trial and in
Nejad’s presence, the trial court instructed the jury that “a defendant on trial may
testify or not as he chooses.” Id. (quotation marks omitted). “Furthermore,” it
observed, Trost testified that “he had represented Nejad in a criminal prosecution
in DeKalb County which had resulted in a directed verdict of acquittal prior to
Fulton County’s prosecution of Nejad, and to his practice as lead counsel of
informing a defendant that it is his decision whether to testify at trial.” Id.
The Georgia Supreme Court rejected Nejad’s claim that the transcript was
conclusive proof of what occurred at trial, explaining that, while certified
transcripts are presumptively correct under state law, “the presumption of
correctness of a certified transcript is subject to rebuttal.” Id. at 850. It further
determined that state law authorized a new judge to amend the transcript even
though he had not presided over the trial. Id. at 850-51. The Georgia Supreme
Court also concluded the Court of Appeals had erred in finding the trial court’s
deadly weapon instruction incorrect as a matter of state law. Id. at 851. Thus, it
reversed the judgment of the Court of Appeals. Id.
On remand, the Georgia Court of Appeals “vacate[d] [its] earlier opinion
and adopt[ed] the judgment of the Supreme Court as [its] own” with respect to
Nejad’s ineffective assistance and jury instruction claims. It also concluded that
his final claim relating to jury selection was without merit and thus affirmed his
12
Case: 15-14856 Date Filed: 07/27/2016 Page: 13 of 30
convictions and sentence. Nejad v. State, 700 S.E.2d 886, 887-88 (Ga. Ct. App.
2010) (footnote omitted). The Georgia Supreme Court declined discretionary
review on Nejad’s jury selection claim, Nejad v. State, No. S11C0163 (Ga. Feb. 7,
2011), and the United States Supreme Court denied his petition for a writ of
certiorari, Nejad v. Georgia, 132 S. Ct. 101 (2011).
D.
On April 30, 2012, Nejad filed the instant petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254 in the United States District Court for the
Northern District of Georgia, raising the same three claims for relief. The district
court granted relief on the ineffective assistance of counsel claim, first determining
that the evidence showed trial counsel’s performance was deficient.
Turning to prejudice, the district court recognized that the state court’s
factual finding that the trial judge had advised Nejad of his testimonial rights “is
entitled to deference.” Nevertheless, it concluded that the finding was an
unreasonable determination of the facts. First, the court offered, the transcript did
not reflect the trial judge advising Nejad of his rights. Next, it said, “the
testimony of all three defense attorneys contradicted -- with varying degrees of
force -- the State’s contention that the trial judge fully advised the Defendant of his
right to testify.” Moreover, the trial judge’s notes did not reflect whether he
advised Nejad of his right to testify. The district court added that it was
13
Case: 15-14856 Date Filed: 07/27/2016 Page: 14 of 30
“objectively unreasonable” to rely on the prosecutor’s testimony because she was
young, this was her first big trial, it was about to blow up in her face, and thus her
testimony was “unreliable.”
Finally, the district court determined that, if Nejad had been advised of his
right to testify, there was a reasonable probability that he would have been
acquitted. Accordingly, it granted the writ of habeas corpus, vacated the
petitioner’s conviction, and ordered Georgia to afford him a new trial within ninety
days or release him.
Georgia filed a timely notice of appeal. In September 2015, this Court
vacated the district court’s judgment without prejudice and remanded the case for
the court to adjudicate the remaining grounds asserted in Nejad’s petition.
Thereafter, the district court denied relief on Nejad’s two remaining claims, but
reaffirmed its ruling on the ineffective assistance claim. This timely appealed
followed. The only issue presented in this appeal is the claim of ineffective
assistance of counsel.
II.
We review the grant of a writ of habeas corpus de novo. McNair v.
Campbell, 416 F.3d 1291, 1297 (11th Cir. 2005). The district court’s factual
findings are reviewed for clear error, while mixed questions of law and fact are
14
Case: 15-14856 Date Filed: 07/27/2016 Page: 15 of 30
reviewed de novo. Id. An ineffective assistance of counsel claim is a mixed
question of law and fact subject to de novo review. Id.
Because Nejad filed his federal habeas petition after April 24, 1996, this
case is governed by the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), which “establishes a highly deferential standard for reviewing state
court judgments.” Parker v. Sec’y for Dep’t of Corr., 331 F.3d 764, 768 (11th Cir.
2003). Under AEDPA, a person in custody pursuant to the judgment of a state
court shall not be granted habeas relief on a claim “that was adjudicated on the
merits in the State court proceedings” unless the state court’s decision was “(1) . .
. contrary to, or involved an unreasonable application of, clearly established
Federal law as determined by the Supreme Court of the United States; or (2) . . .
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).
“[C]learly established Federal law” under § 2254(d)(1) refers to the
“holdings, as opposed to the dicta, of th[e Supreme] Court’s decisions as of the
time of the relevant state-court decision.” Williams v. Taylor, 529 U.S. 362, 412
(2000) (quotation marks omitted). “Under § 2254(d)(1)’s ‘contrary to’ clause, we
grant relief only ‘if the state court arrives at a conclusion opposite to that reached
by [the Supreme] Court on a question of law or if the state court decides a case
differently than [the Supreme Court] has on a set of materially indistinguishable
15
Case: 15-14856 Date Filed: 07/27/2016 Page: 16 of 30
facts.’” Jones v. GDCP Warden, 753 F.3d 1171, 1182 (11th Cir. 2014) (alterations
in original) (quoting Williams, 529 U.S. at 413), cert. denied, 136 S. Ct. 43 (2015).
“Under § 2254(d)(1)’s ‘unreasonable application’ clause, we grant relief only ‘if
the state court identifies the correct governing legal principle from [the Supreme]
Court’s decisions but unreasonably applies that principle to the facts of the
prisoner’s case.’” Id. (alteration in original) (quoting Williams, 529 U.S. at 413).
Under § 2254(d)(2), “a state-court factual determination is not unreasonable
merely because the federal habeas court would have reached a different conclusion
in the first instance.” Wood v. Allen, 558 U.S. 290, 301 (2010). Instead, AEDPA
requires that we accord the state court substantial deference. “If reasonable minds
reviewing the record might disagree about the finding in question,” we must yield
to the state court’s factual determination. Brumfield v. Cain, 135 S. Ct. 2269, 2277
(2015) (quotation marks omitted and alteration adopted). “AEDPA also requires
federal habeas courts to presume the correctness of state courts’ factual findings
unless applicants rebut this presumption with ‘clear and convincing evidence.’”
Schriro v. Landrigan, 550 U.S. 465, 473-74 (2007) (quoting 28 U.S.C.
§ 2254(e)(1)). “Clear and convincing evidence is a ‘demanding but not insatiable’
standard, requiring proof that a claim is highly probable.” Bishop v. Warden,
GDCP, 726 F.3d 1243, 1258 (11th Cir. 2013) (quoting Ward v. Hall, 592 F.3d
1144, 1177 (11th Cir. 2010)). “[H]ighly probable” is a standard that requires
16
Case: 15-14856 Date Filed: 07/27/2016 Page: 17 of 30
“more than a preponderance of the evidence but less than proof beyond a
reasonable doubt.” Ward, 592 F.3d at 1177 (quotation marks omitted).
Under 28 U.S.C. § 2254(d), we review the Georgia Supreme Court’s
decision rejecting Nejad’s Strickland claim, which was “the highest state court
decision reaching the merits of the petitioner’s claim.” Kokal v. Sec’y, Dep’t of
Corr., 623 F.3d 1331, 1345 (11th Cir. 2010); see also Newland v. Hall, 527 F.3d
1162, 1199 (11th Cir. 2008). In reviewing that court’s ultimate merits
determination, we also apply AEDPA’s presumption of correctness to factual
findings by the state trial court that were adopted or relied on by the state high
court. See Bui v. Haley, 321 F.3d 1304, 1312-14 (11th Cir. 2003); see also Hodges
v. Att’y Gen., State of Fla., 506 F.3d 1337, 1347 n.2 (11th Cir. 2007) (explaining
that AEDPA deference applies “[r]egardless of whether we consider the finding of
voluntariness to have originated in the trial court or in the Florida Supreme
Court”).
III.
A.
It is by now abundantly clear that a criminal defendant has a fundamental
right to testify on his own behalf at trial. Rock v. Arkansas, 483 U.S. 44, 52
(1987); United States v. Teague, 953 F.2d 1525, 1532 (11th Cir. 1992) (en banc).
That right “cannot be waived either by the trial court or by defense counsel,” and a
17
Case: 15-14856 Date Filed: 07/27/2016 Page: 18 of 30
“criminal defendant cannot be compelled to remain silent by defense counsel.”
Teague, 953 F.2d at 1532. We analyze Nejad’s claim that “defense counsel never
informed [him] of the right to testify, and that the ultimate decision belong[ed] to
[Nejad],” as a claim of ineffective assistance of counsel under Strickland v.
Washington, 466 U.S. 668 (1984). Teague, 953 F.2d at 1534.
In order to establish a claim for ineffective assistance of counsel under the
Sixth Amendment, Nejad must show both that (1) his counsel’s performance was
deficient and “fell below an objective standard of reasonableness,” and that (2) the
deficient performance prejudiced his defense. Strickland, 466 U.S. at 687-88. For
the deficient performance prong of Strickland, we are obliged to determine
“whether, in light of all the circumstances, the identified acts or omissions were
outside the wide range of professionally competent assistance.” Id. at 690.
“Defense counsel bears the primary responsibility for advising the defendant of his
right to testify or not to testify, the strategic implications of each choice, and that it
is ultimately for the defendant himself to decide.” Teague, 953 F.2d at 1533.
“Where defense counsel has not informed the defendant of his right to testify,
defense counsel has not acted within the range of competence demanded of
attorneys in criminal cases.” Morris v. Sec’y, Dep’t of Corr., 677 F.3d 1117, 1129
(11th Cir. 2012) (quotation marks omitted and alteration adopted).
18
Case: 15-14856 Date Filed: 07/27/2016 Page: 19 of 30
“Under Strickland, a defendant is prejudiced by his counsel’s deficient
performance if ‘there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.’”
Porter v. McCollum, 558 U.S. 30, 40 (2009) (quoting Strickland, 466 U.S. at 694).
“A reasonable probability is a probability sufficient to undermine confidence in the
outcome.” Strickland, 466 U.S. at 694. We have recognized that “[t]he testimony
of a criminal defendant at his own trial is unique and inherently significant”
because, “[w]hen the defendant testifies, the jury is given an opportunity to
observe his demeanor and to judge his credibility firsthand.” Nichols v. Butler,
953 F.2d 1550, 1553-54 (11th Cir. 1992). The defendant’s testimony is of “prime
importance” when “the very point of a trial is to determine whether an individual
was involved in criminal activity.” Id. at 1554 (internal quotation marks omitted).
Under AEDPA, “[t]he question ‘is not whether a federal court believes the
state court’s determination under the Strickland standard ‘was incorrect but
whether that determination was unreasonable -- a substantially higher threshold.’”
Knowles v. Mirzayance, 556 U.S. 111, 123 (2009) (quoting Schriro, 550 U.S. at
473). “[B]ecause the Strickland standard is a general standard, a state court has
even more latitude to reasonably determine that a defendant has not satisfied that
standard.” Id.
B.
19
 Case: 15-14856 Date Filed: 07/27/2016 Page: 20 of 30
We begin our analysis by assuming that Nejad’s trial counsel did not inform
him of his right to testify and that this amounted to deficient performance under
Strickland. See Morris, 677 F.3d at 1129. Thus, we proceed directly to the
prejudice inquiry. See Strickland, 466 U.S. at 697.
We start with the trial court’s factual finding -- which, the Georgia Supreme
Court unambiguously said, was “not subject to [appellate] review,” Nejad II, 690
S.E.2d at 850 -- that “the credible evidence at the hearing show[ed] that [] Nejad
was in fact . . . informed by the trial court that the ultimate decision whether to
testify was his alone, made after hearing the advice of his attorneys.” As we see it,
the trial court logically had to make two interrelated findings in order to reach that
conclusion. First, because the court reporter’s certified transcript does not show
any conversation on the subject, the court had to find that the transcript did not
completely and accurately capture the trial proceedings. Second, the court had to
determine that the prosecutor’s testimony was more credible than that of the other
witnesses at the evidentiary hearing on the motion for a new trial. Each of these
findings is reasonable in light of the state court record.
For starters, the trial court could reasonably have determined that the trial
transcript did not reflect everything that was said during the trial. Like federal
20
Case: 15-14856 Date Filed: 07/27/2016 Page: 21 of 30
law, 3 Georgia law imbues a certified trial transcript with a presumption of
completeness and correctness. See O.C.G.A. § 15-14-5. Indeed, transcripts would
be of little value in appellate proceedings without such a presumption. But it is
only a presumption, and, consistent with courtroom experience and common sense,
the presumption of correctness is “subject to rebuttal.” Nejad II, 690 S.E.2d at
850.4 In this case, the transcript explicitly made note of eight off-the-record
discussions and many more recesses and pauses in the few hours of proceedings
between the close of the prosecution’s case-in-chief and the close of evidence,
which is when we would expect a judge to advise the defendant of his right to
testify. There are also at least three missing pages from the trial transcript during
that same timeframe. Moreover, the prosecutor testified that there were several
times throughout the trial when the court began proceedings before noticing the
court reporter was absent, and her testimony was uncontroverted on that point. In
light of the many off-the-record discussions, recesses, and pauses noted in the
transcript, as well as the prosecutor’s unrebutted testimony, it would have been
manifestly unreasonable to treat the trial transcript as reflecting every word that
3
28 U.S.C. § 753(b) (“The transcript in any case certified by the reporter or other
individual designated to produce the record shall be deemed prima facie a correct statement of
the testimony taken and proceedings had.”).
4
See also O.C.G.A. § 5-6-41(f) (“Where any party contends that the transcript or record
does not truly or fully disclose what transpired in the trial court and the parties are unable to
agree thereon, the trial court shall set the matter down for a hearing with notice to both parties
and resolve the difference so as to make the record conform to the truth.”).
21
Case: 15-14856 Date Filed: 07/27/2016 Page: 22 of 30
was said during the trial. Therefore, the trial court’s decision to look beyond the
transcript to determine whether Nejad was advised of his right to testify was
reasonable.5
We are left, then, with a straightforward “swearing match” that required the
trial court “to make a credibility choice and resolve the dispute” between the
conflicting testimony adduced at the evidentiary hearing. See Collier v. Turpin,
177 F.3d 1184, 1193-94 (11th Cir. 1999). “Determining the credibility of
witnesses is the province and function of the state courts, not a federal court
engaging in habeas review.” Consalvo v. Sec’y for Dep’t of Corr., 664 F.3d 842,
5
On this point, the district court also determined that the state courts could not look
beyond the trial transcript because, in its view, the state had not properly followed Georgia’s
procedures for supplementing a transcript. It further held that the Georgia Supreme Court was
“objectively unreasonable” to hold that “by participating in” the evidentiary hearing on his
motion for a new trial, Nejad “acquiesced to the court adopting the position taken by” the state
regarding what occurred in the unrecorded portions of the proceedings. The district court
misunderstood its role on federal habeas review and, moreover, misread the state supreme
court’s opinion. On habeas review, a federal court cannot revisit a state court’s interpretation of
its own procedural rules. See Landers v. Warden, Atty. Gen. of Ala., 776 F.3d 1288, 1296 (11th
Cir. 2015) (“If the Alabama state habeas court violated Alabama state law, that is for the
Alabama appellate courts to determine -- unless the fact-finding procedure itself violated federal
law[.]”).
What’s more, the Georgia Supreme Court did not hold that Nejad had acquiesced in the
state’s position that he had been advised of his right to testify. Rather, it held that he had waived
any objection to the state’s failure to follow the usual procedures for amending the transcript. In
the court’s own words, “Nejad acquiesced in the State’s presentation of its theory that the trial
transcript was incomplete and in the State’s effort to have the discrepancy resolved so as to make
the record conform to the truth.” Nejad II, 690 S.E.2d at 850 (emphasis added). The Georgia
Supreme Court’s determination that Georgia’s procedural rules were sufficiently followed -- and
that Nejad waived any objection to noncompliance with those procedures under state law -- is
not subject to review in this collateral federal proceeding.
22
Case: 15-14856 Date Filed: 07/27/2016 Page: 23 of 30
845 (11th Cir. 2011). “Federal habeas courts have no license to redetermine
credibility of witnesses whose demeanor has been observed by the state trial court,
but not by them.” Id. (quotation marks omitted). The deference compelled by
AEDPA “requires that a federal habeas court more than simply disagree with the
state court before rejecting its factual determinations.” Turner v. Crosby, 339 F.3d
1247, 1273 (11th Cir. 2003) (quotation omitted). Instead, “[i]n the absence of clear
and convincing evidence, we have no power on federal habeas review to revisit the
state court’s credibility determinations.” Bishop, 726 F.3d at 1259 (emphasis
added).
Here, the trial court was presented with squarely conflicting testimony on
the critical factual dispute. On the one hand, both Arora and Nejad testified
unequivocally that the trial judge never instructed Nejad of his right to testify. On
the other hand, the prosecutor swore she had a “very, very clear recollection” of
exactly the opposite. Plainly, somebody was -- to use the district court’s generous
characterization -- engaged in “wishful thinking” or afflicted by an “inaccurate
memory. Having listened to the testimony live and observed the demeanor of the
witnesses, the trial court credited the prosecutor’s testimony. Unless there is clear
and convincing evidence in the record to rebut this credibility judgment, we are
powerless to revisit it on federal habeas review. See id. Nejad points to three
categories of evidence that, in his view, severely undercut the state court’s decision
23
Case: 15-14856 Date Filed: 07/27/2016 Page: 24 of 30
to trust the prosecutor over Nejad and his attorney: the trial transcript, other
testimony adduced at the evidentiary hearing, and potential reasons for doubting
the prosecutor’s credibility. We are unpersuaded.
To discredit the prosecutor’s testimony, Nejad, like the district court, relies
first and foremost on the absence of any testimonial colloquy in the transcript.
Indeed, the district court identified the trial transcript as the “most important[]”
evidence supporting its decision to discard the state court’s factual finding. But, as
we’ve already explained, the trial transcript does not conclusively resolve the
matter because, as the state trial court obviously found, the transcript failed to
capture the entirety of the proceedings. It is for that reason that the trial court
looked to resolve conflicting testimony in order to decide what happened in the
unrecorded portions.
Next, Nejad contends, the district court correctly found that “overwhelming
evidence” in the record showed he was never advised of his right to testify. But, as
we see it, the evidence was not so one-sided. There were only three witnesses who
took a definitive stance on this central disputed issue. The prosecutor was certain
Nejad had been advised of his rights by the court, and Nejad and Arora were
certain he had not been. The remaining three witnesses who were in the courtroom
during trial -- two members of the defense team and the trial judge -- did not offer
much helpful evidence on this point. Trost initially thought the trial court had
24
Case: 15-14856 Date Filed: 07/27/2016 Page: 25 of 30
advised Nejad of his rights, but then attributed that to a mistaken recollection once
he saw it was not in the transcript. Joshi could not remember whether it had
occurred. And the parties stipulated that the trial judge’s notes did not indicate
whether he had advised Nejad of his right to testify. With one witness swearing to
one version of events, two witnesses swearing to the opposite, and three witnesses
unable to recall one way or the other, we can’t say the evidence overwhelmingly
favored Nejad’s position.
Third, Nejad says the district court was right to conclude that the
prosecutor’s testimony “was unreliable and it was objectively unreasonable for the
state courts to rely upon her testimony rather than the certified transcript.” The
district court offered two reasons for discounting the prosecutor’s credibility,
neither of which amounts to the “clear and convincing” evidence necessary to
discard the state court’s credibility determination. First, it explained, the
prosecutor’s “memory conflicted with the certified trial transcript on at least three
points.”6 We’ve already explained that the trial court could reasonably have
6
The district court may have overstated the weight of the evidence on this point. The
three contradictions it identified were: “(1) whether the trial judge advised the Defendant of his
right to testify; (2) whether a juror stated during voir dire that she had been raped; and (3)
whether there was a stipulation about DNA evidence.” The prosecutor’s testimony on the
second issue was corroborated by the juror in question, who testified that she “thought she had
revealed during voir dire that she had been raped and she did not think that she would get picked
for the jury for that reason.” Moreover, with respect to the DNA stipulation, we cannot find any
testimony by the prosecutor about a DNA stipulation at the evidentiary hearing, and the parties
have not mentioned this alleged contradiction on appeal. In any event, we note that the Georgia
(continued on next page)
25
Case: 15-14856 Date Filed: 07/27/2016 Page: 26 of 30
concluded that the transcript was not a complete reflection of the state proceedings.
The trial court was not required to completely disregard the prosecutor’s testimony
just because she claimed to remember things that were unrecorded, especially
where the transcript explicitly noted so many unrecorded proceedings. Second, the
district court said, the trial court shouldn’t have credited the prosecutor’s testimony
because she “was a young prosecutor whose first big trial was about to blow up in
her face.” If so, like any interested witness, her testimony had to be evaluated in
light of all of the circumstances -- including that this was her first big trial and that
she would be required to cross-examine the defendant if he chose to take the
witness stand. But a federal court engaged in habeas review is not empowered to
second guess a state court’s credibility determination based on speculation about
the interests of a witness “whose demeanor has been observed by the state trial
court, but not by [the federal court].” Consalvo, 664 F.3d at 845. The
freewheeling credibility inquiry engaged in by the district court is inconsistent with
the limited scope of federal review under AEDPA.
What’s more, it seems to us that the district court’s rationale -- that
interested witnesses should not be credited -- applies with equal, if not greater
force to the testimony on the other side of the ledger. Of all the witnesses, Nejad
Court of Appeals accepted, without discussion, that the parties had agreed to a stipulation about
DNA evidence. See Nejad I, 674 S.E.2d at 62.
26
Case: 15-14856 Date Filed: 07/27/2016 Page: 27 of 30
had (and has) the strongest interest in the outcome of the new trial proceeding --
after all, he’s been sentenced to serve thirty-five years in prison. And, in addition
to the interest that any lawyer would have in helping his client, Arora testified that
he “put [his] life into this case,” had no other ongoing practice during the trial, and
“put night and day into this case backwards and forwards.” Since all of the
witnesses who offered definite testimony on the disputed issue had an interest in
the outcome of the proceeding, we can’t fault the trial court for siding with an
interested witness. The fact that the prosecutor was personally involved in
prosecuting Nejad does not render it “highly probable” that she was less credible
than the other witnesses. Bishop, 726 F.3d at 1258. All told, Nejad has not
identified clear and convincing evidence that undercuts the prosecutor’s testimony,
so we must defer to the state court’s decision to credit her version of events. See
id.
Beyond the state court’s credibility determination, Nejad contends the
district court correctly concluded that there was “no evidence” to support the trial
court’s finding that the trial judge told Nejad “the ultimate decision whether to
testify was [Nejad’s] alone, made after hearing the advice of his attorneys.” He
insists that the prosecutor’s testimony, even if credited, is too vague to establish
exactly what the trial court told Nejad. We’re unpersuaded. The Georgia Supreme
27
Case: 15-14856 Date Filed: 07/27/2016 Page: 28 of 30
Court already considered and rejected this argument, accurately summarizing the
prosecutor’s testimony in the following manner:
While the assistant district attorney’s words do not set forth the
specific content of the “standard admonition” she testified was given
by the trial judge, the questions propounded to her did. The assistant
district attorney’s testimony was in response to an inquiry whether she
had any personal recollection if Nejad “was informed of his right to
testify, specifically that the decision to testify was his and not the
attorney’s,” and, on cross-examination she was asked about her
memory of the trial judge’s “giving the law to Mr. Nejad explaining
that it is Mr. Nejad’s right whether to testify or not to testify, the
decision belongs solely with Mr. Nejad. . . .” Consequently, there was
evidence presented at the hearing that authorized the trial court to find
that Nejad was informed of his right to decide whether to testify and
that the decision to testify was his and not his attorney’s.
Nejad II, 690 S.E.2d at 850 n.4 (alterations adopted). We agree with the state high
court that, in light of the questions she was asked, the prosecutor’s testimony can
reasonably be read to support the trial court’s finding that Nejad was told he could
overrule his attorney’s advice and choose to testify. 7
7
Moreover, as noted by the Georgia Supreme Court, see Nejad II, 690 S.E.2d at 850 n.4,
there was additional evidence tending to show that, at the time of this trial, Nejad knew he held
the ultimate decision whether to testify. First, Trost testified that he had previously represented
Nejad in a criminal trial and that it was his regular “practice and procedure to advise clients” that
they held the ultimate decision whether they would testify. We’ve previously found an
attorney’s testimony about her regular practice and procedure of informing defendants of their
right to testify sufficient to support a finding that the attorney acted consistently with that
practice. See McGriff v. Dep’t of Corr., 338 F.3d 1231, 1237-38 (11th Cir. 2003) (affirming
district court’s finding that defendant had been told of his right to testify based on attorney’s
testimony that “her ordinary practice was to advise her clients as to the consequences of
testifying, and she never prevented clients from taking the stand”). Moreover, at the beginning
of Nejad’s trial and in Nejad’s presence, the court instructed the jury that “a defendant on trial
may testify or not as he chooses.”
28
Case: 15-14856 Date Filed: 07/27/2016 Page: 29 of 30
Accepting the state trial court’s finding of fact that Nejad was informed by
the trial judge that he had the right to testify and his lawyers could not overrule his
exercise of that right -- as AEDPA requires that we must -- we conclude that the
Georgia Supreme Court reasonably applied Strickland and its progeny. If the trial
judge told Nejad that “the ultimate decision whether to testify was his alone, made
after hearing the advice of his attorneys,” then Nejad knew he could testify,
regardless of what his attorneys told him. 8 At the very least, “fairminded jurists
could disagree,” Harrington, 562 U.S. at 102, as to whether there is a reasonable
probability that counsel’s failure to tell him the same thing affected his decision
whether to testify. Thus, the Georgia Supreme Court could reasonably have
concluded there was no “reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.”
Strickland, 466 U.S. at 694.
8
Nejad admitted he would have testified if the trial court had instructed him that he could
overrule Arora’s advice. Nevertheless, he seems to suggest that, in view of Arora’s insistence
that he not testify, the trial court’s colloquy would have been insufficient to protect his rights
because he still would have felt barred from testifying. In certain circumstances -- for example,
where an attorney “threaten[s] to withdraw during a trial in order to coerce the defendant to
relinquish his fundamental right to testify,” Nichols, 953 F.2d at 1553 -- an attorney’s conduct
might prejudice the right to testify even though the trial court instructs the defendant that he
holds the ultimate decision on that matter. But in this case, while Arora may have forcefully told
Nejad that he would not testify, there is no evidence that he threatened to withdraw or otherwise
coerced Nejad when it came time to testify.
29
Case: 15-14856 Date Filed: 07/27/2016 Page: 30 of 30
The long and short of it is, the state courts reasonably determined the facts
and reasonably applied federal law to those facts in rejecting Nejad’s ineffective
assistance of counsel claim. Accordingly, we REVERSE the district court’s grant
of habeas corpus relief and REMAND this case with the instruction that the district
court reinstate Nejad’s convictions and sentence.
REVERSED and REMANDED with instructions.
30