Buddy Nichols, Cross-Appellee v. Mac Sim Butler, Sheriff Don Siegelman, Attorney General of the State of Alabama, Cross-Appellants

FAY, Circuit Judge:

The state appeals the district court’s granting of habeas corpus relief to Buddy Nichols pursuant to 28 U.S.C. § 2254. A panel of this court affirmed, Nichols v. Butler, 917 F.2d 518 (11th Cir.1990), holding that Nichols’ right to testify was violated by his attorney’s threat to withdraw should Nichols insist on testifying, and that this violation was not harmless. Id. at 521. A majority of the judges of this court in regular active service voted that this case be reheard by this court en banc. Nichols v. Butler, 932 F.2d 900 (11th Cir.1991) (on petition for rehearing and suggestion of rehearing en banc).¹ On rehearing, we AFFIRM the grant of habeas corpus relief.

BACKGROUND

Buddy Nichols was convicted of first-degree robbery in October 1986 following a jury trial in the Circuit Court of Montgomery County, Alabama.² The evidence introduced at trial showed that shortly after midnight two men went into a Zippy Mart.

The first man entered alone and asked for beer. A store employee testified that he glanced at this man for “not even a second.” Shortly thereafter, the second man entered the store carrying a sawed-off shotgun and told the employee to get behind the counter and get the money. The first man then returned to the front of the store, at which time the store employee “glanced at him” for “less than a second.” At trial, the only evidence presented to the jury linking Nichols to the robbery of the Zippy Mart was the store employee’s identification of Nichols as the first man who entered the store. A fingerprint removed from the door of the beer locker at the store did not match those of Nichols, and a tire print next to the store did not match those of Nichols’ vehicle. (1st Supp.R.tTrial R.Vol. I at 101-03). Moreover, a defense witness, Donald Hannah, testified at trial that it was he and another man, not Buddy Nichols, who robbed the Zippy Mart that night. (1st Supp.R.:Trial R.Vol. I at 127-34). Nichols himself did not testify.

The jury nevertheless found Nichols guilty of first-degree robbery. Because of his three prior felony convictions, he was sentenced as an habitual offender to life imprisonment without possibility of parole.

In November 1986, Nichols, with the assistance of new counsel, filed a motion for new trial on several grounds, including that trial counsel was ineffective because he did not permit Nichols to testify in his own defense. After an evidentiary hearing, the trial court denied the motion for new trial. Nichols appealed to the Alabama Court of Criminal Appeals, which affirmed without opinion. Nichols v. State, 524 So.2d 392 (Ala.Ct.App.1988). Nichols then filed this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 in the United States District Court for the Middle District of Alabama.

United States Magistrate Judge Charles S. Coody conducted an evidentiary hearing. Based on that hearing and a review of the state trial court record, the magistrate judge issued a report recommending that the petition be granted. After reviewing all the evidence, the district court adopted the recommendation of the magistrate judge.

The district court found that after the first day of trial, Nichols and his trial counsel had a heated argument about whether Nichols would testify. Nichols’ trial counsel apparently felt that Nichols should not testify because the trial had gone well and there was a significant risk that Nichols’ testifying could prejudice his case. Nichols’ counsel was concerned that Nichols’ prior felony record and serious drug problem might be exposed to the jury and severely damage him.

However, Nichols continued to insist that he testify.³ Trial counsel then told Nichols that if he chose to testify counsel would seek to withdraw from his case.⁴ Counsel apparently did not inform Nichols that he had a right to testify and that the ultimate decision on whether he would testify belonged to Nichols. Nor did counsel inform Nichols that even if counsel sought to withdraw from the case after the first day of trial, the trial court could have refused the request. The district court found that Nichols did not testify because he feared the loss of his counsel in mid-trial, given the extensive work counsel had done in the case. Based on this evidence, the district court found both that Nichols’ right to testify had been violated and that he had received ineffective assistance of counsel because counsel’s threat to withdraw prevented Nichols from testifying at trial.

DISCUSSION

In this case, the district court found that Nichols, did not voluntarily choose not to testify, but instead was coerced into silence by his counsel’s threat to withdraw from the case in mid-trial.⁵ Nichols argues that he was denied both the effective assistance of counsel and his right to testify by the actions of his attorney. We agree.

In United States v. Teague, 953 F.2d 1525 (11th Cir.1992) (en banc), this court held “that a criminal defendant has a fundamental constitutional right to testify in his or her own behalf at trial. This right is personal to the defendant and cannot be waived either by the trial court or by defense counsel.” Id. at 1532. We also held that ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), is a proper framework in which to address a case such as this, where the defendant claims his right to testify was violated, not by the government or the trial court, but by his attorney. Teague, at 1534.

In Strickland, the United States Supreme Court outlined the requirements for a successful claim of ineffective assistance of counsel.

First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.

466 U.S. at 687, 104 S.Ct. at 2064.

The performance of Nichols’ trial attorney in this case was clearly deficient. In Teague, we noted that it is primarily the responsibility of defense counsel to ensure that the defendant’s right to testify is protected by “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.” At 1533. (footnote omitted); see also Ala.Rules of Professional Conduct 1.2(a) (1991) (“In a criminal case, the lawyer shall abide by the client’s decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and whether the client will testify." (Emphasis added.)).⁶ Further, we noted that the first prong of the Strickland test would be met “if defense counsel refused to accept the defendant’s decision to testify and would not call him to the stand.” Teague, at 1534.

It is beyond question that an attorney cannot threaten to withdraw during a trial in order to coerce the defendant to relinquish his fundamental right to testify. All attorneys have an ethical obligation to represent their clients competently and zealously. An attorney should seek to withdraw from representation only where there are compelling circumstances, Model Code of Professional Responsibility EC 2-32 (1986), and only “if withdrawal can be accomplished without material adverse effect on the interests of the client.” Ala.Rules of Professional Conduct 1.16(b) (1991); see also Model Code of Professional Responsibility DR 2-110(A)(2) (1986) (“a lawyer shall not withdraw from employment until he has taken reasonable steps to avoid foreseeable prejudice to the rights of his client, including giving due notice to his client, allowing time for employment of other counsel ... and complying with applicable laws and rules”). Where a trial has already begun, the risk of prejudice to the client from withdrawal of counsel is significant. The decision by a defendant to exercise his fundamental right to testify at his own criminal trial, without more, is clearly not a sufficient reason for his attorney to seek to withdraw, even where that decision is against the advice of counsel.⁷ Of course, counsel should advise his client in the strongest terms possible if he feels that it would be unwise for the client to testify.⁸ However, to coerce his client into remaining silent by threatening to abandon him mid-trial goes beyond the bounds of proper advocacy. We agree with the district court that Nichols’ trial counsel was not functioning as the “counsel” guaranteed Nichols by the Sixth Amendment.

We also find that the second requirement of Strickland — that counsel’s errors prejudiced the defense — has been met. The testimony of a criminal defendant at his own trial is unique and inherently significant. “The most persuasive counsel may not be able to speak for a defendant as the defendant might, with halting eloquence, speak for himself.” Green v. United States, 365 U.S. 301, 304, 81 S.Ct. 653, 655, 5 L.Ed.2d 670 (1961). When the defendant testifies, the jury is given an opportunity to observe his demeanor and to judge his credibility firsthand. As the United States Supreme Court noted in Rock v. Arkansas, 483 U.S. 44, 52, 107 S.Ct. 2704, 2709, 97 L.Ed.2d 37 (1987), “the most important witness for the defense in many criminal cases is the defendant himself.” Further, in a case such as this where the question was not whether a crime was committed, but whether the defendant was the person who committed the crime, his testimony takes on even greater importance. Indeed, “[w]here the very point of a trial is to determine whether an individual was involved in criminal activity, the testimony of the individual himself must be considered of prime importance.” United States v. Walker, 772 F.2d 1172, 1179 (5th Cir.1985).

This was a very close case; the only evidence that Nichols was the person involved in the robbery was the eyewitness identification of him by a store employee who had glimpsed him only briefly. If Nichols had testified, he could have presented his version of the events of that evening in his own words. The jury would then have been able to weigh his credibility against that of the store employee’s perception. Moreover, Nichols’ testimony would have been supported by the exculpatory testimony of Donald Hannah. Under these circumstances, there is at least a reasonable probability that, but for counsel’s unprofessional conduct, the result in this case would have been different. See Strickland, 466 U.S. at 694, 104 S.Ct. at 2068. We hold that Nichols received constitutionally ineffective assistance of counsel.⁹

CONCLUSION

For the reasons set forth above, we AFFIRM the judgment of the district court.

1 . This order vacated the previous panel's opinion. Nichols v. Butler, 932 F.2d 900 (11th Cir.1991) (on petition for rehearing and suggestion of rehearing en banc).

2 . Nichols was originally convicted of first-degree robbery in April 1986. However, the court later granted Nichols a new trial because of newly discovered evidence.

3 .Nichols testified at the evidentiary hearing that he wanted to testify at the second trial

[bjecause I was found guilty at the first trial, and I didn’t testify. I didn't get up there and tell nobody where I was at, or whatever, and I know this, you know. And I just felt like I should get up there because they didn't have any evidence against me, Judge, except a man said he had two quick sudden glances at me; that’s no evidence. And I just felt like I should tell them where I was at, because I was the only one that knew. If I didn’t tell them, then nobody would tell them.

(R2 at 39).

4 . Nichols' counsel testified and the district court found that the reasons counsel felt Nichols should not testify were purely strategic and not based on any concern that Nichols would commit perjury.

5 . Upon review of the record, we cannot say that these findings of fact are clearly erroneous, and they are therefore binding on this court. See Anderson v. Bessemer City, 470 U.S. 564, 573-74, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518 (1985); United States v. Teague, 953 F.2d 1525 (11th Cir.1992); Wiley v. Wainwright, 793 F.2d 1190, 1193 (11th Cir.1986).

6 . The Alabama Rules of Professional Conduct are based on the American Bar Association Model Rules of Professional Conduct.

7 . Of course, the client does not have the right to commit perjury. See Nix v. Whiteside, 475 U.S. 157, 106 S.Ct. 988, 89 L.Ed.2d 123 (1986). In this case, however, counsel testified that his decision concerning whether or not Nichols would testify was based purely on tactical considerations, not any concern that Nichols would commit perjury.

8 .In this case, the reasons counsel felt Nichols should not testify appear reasonable. However, the reasons given by Nichols for wanting to testify also appear reasonable.

9 . Nichols also cross-appeals the district court’s findings that the identification of Nichols by the store employee was "not unreliable,” and that trial counsel was not ineffective because he failed to call an expert witness on the unreliability of eyewitness identification. . Because we find the district court correctly held that. Nichols’ trial counsel was ineffective because he prevented Nichols from testifying, we decline to address these other claims.