United States District Court, N.D. Georgia, Atlanta Division
OPINION AND ORDER
THOMAS W. THRASH, Jr., District Judge.
"Something is rotten in the state of Denmark."
- William Shakespeare, Hamlet, Act I, Scene 4.
This is a habeas corpus action. It is before the Court on the Report and Recommendation [Doc. 15] of the Magistrate Judge recommending denying the Petition. For the reasons set forth below, I decline to adopt in its entirety the Report and Recommendation and grant the Petition for a Writ of Habeas Corpus.
In December 2005, a Fulton County jury convicted Ali Nejad of rape, aggravated sodomy, aggravated assault with a deadly weapon (two counts), and aggravated battery (two counts). He was sentenced to 35 years in prison. In a motion for new trial, Nejad asserted three claims: (1) the trial court erroneously charged the jury that a pellet gun was per se a deadly weapon; (2) a juror failed to disclose that she was a rape victim; and (3) trial counsel was ineffective. The Defendant moved to recuse the trial judge, the Honorable T. Jackson Bedford, Jr., on the grounds that a letter written by the judge to the Superior Courts Sentence Review Panel demonstrated bias and prejudice against the Defendant. Judge Bedford granted the motion to recuse. The motion for new trial was then denied by the Honorable Jerry W. Baxter. On direct appeal, the Defendant raised the same three claims.
After noting that on appeal the evidence is construed in favor of the verdict, the Georgia Court of Appeals summarized the facts of the case as follows:
So viewed, the record shows that there were two alleged victims of the crimes for which Nejad was tried, Linda Lankford and Melissa Hoy. Lankford testified that on May 11, 2004, she was talking to Nejad at a gas station, and he offered her a ride to the hotel where she was staying. Lankford recalled that Nejad was driving a SUV and that there was a baby car seat in the back of the vehicle. During the ride, Nejad offered her $200 in exchange for sex or an agreement to masturbate him, and Lankford refused, telling Nejad that she was not a prostitute. Lankford recalled that they also talked about smoking marijuana and that Nejad told her that he and his friends smoked behind a building where he worked. After purchasing baby wipes from a grocery store, Nejad drove Lankford to a secluded area where he parked the SUV near a factory, which Lankford assumed was Nejad's place of employment. Nejad then pointed a gun at Lankford, demanded that she take off her clothes and put on pantyhose with a hole in the crotch area, and made her perform oral sex on him, while pointing the gun at the back of her head. Nejad also had intercourse with Lankford after ordering her to remove a tampon from her body. Nejad then ejaculated on Lankford's stomach and gave her a baby wipe to clean up. Lankford recalled that the gun was pointed at her face while they had intercourse. When they were done, Nejad ordered Lankford to exit his vehicle, naked with her clothes in her hand. Lankford dressed herself with the clothes that she could find and then ran to a nearby building where she banged on the door and told the people inside to call the police because she had been raped. David Vance, a supervisor at the building, testified that Lankford was pounding on the door and was hysterical as she screamed and hollered that she had been raped. Detective Lisa Roey of the Atlanta Police Department testified that she responded to the scene and interviewed Lankford. Lankford told her that she agreed to accept $200 from Nejad to watch him masturbate because she needed the money as she was new to Atlanta. When Roey went to the scene of the crime, she found Lankford's identification, hotel room key, pictures of Lankford's children, a tampon, and some baby wipes.
Melissa Hoy testified that she was a prostitute and that she voluntarily entered Nejad's white SUV on June 5, 2004, after Nejad offered her $150 to perform sexual acts. Nejad gave her thigh-high nylon stockings to wear and drove to a secluded area. Hoy further testified that once Nejad stopped the vehicle, he took a backpack and a black gun from the back of the vehicle, which was later determined to be a plastic pellet gun, put the baby car seat into the back of the vehicle, and told Hoy to get into the back seat. Nejad urinated and then got into the back seat with Hoy. When asked why she did not run away, Hoy testified that she could have but that it "was a job." Nejad fondled and digitally penetrated Hoy's anus and vagina while holding the gun, then put the gun down while he masturbated. Over two hours later, Nejad ejaculated, using Hoy's clothing to clean up the semen. Nejad gave Hoy her clothes and told her to exit the vehicle and said he would leave $100 on the concrete at the end of the street. Hoy never looked for the money. Instead, she dressed herself then walked to a nearby restaurant where she called a client, who picked her up and with whom she had sex in exchange for money. Weeks later, Hoy spoke to another prostitute to warn her about the driver of the white SUV, and that person advised that she already knew about him.
At trial, Nejad stipulated that the semen from Hoy's shirt contained his DNA as did the assault kit performed on Lankford. When Nejad was arrested, a plastic pellet gun, which looked like a Glock handgun, was found in his vehicle.
Initially, the Court of Appeals addressed the claim of ineffective assistance of counsel, and described the testimony at the hearing on the motion for new trial as follows:
During the hearing on the motion for new trial, trial counsel unequivocally stated on several occasions that he told Nejad that he was not testifying; that he ordered Nejad to inform the court that he was not going to testify; that he told Nejad that he ruled with an iron fist and that Nejad would have to do as instructed; that Nejad's family asked about him testifying to explain the situation with the gun and he told them that Nejad was not testifying; and that he did not advise Nejad of his right to make the final decision about testifying at trial. Trial counsel testified that he was proud of his reputation, but that he wrongfully made the decision about whether Nejad would testify. Trial counsel also explicitly recalled that the trial judge did not advise Nejad of his right to testify. Investigator Nicholas McKnight testified that he attended a meeting with Nejad and trial counsel in which Nejad expressed his desire to testify and trial counsel replied that under no circumstances would Nejad be allowed to testify. McKnight also recalled that during that meeting, trial counsel did not inform Nejad of his right to testify. Two attorneys assisted trial counsel in the trial of the case, and both testified that they neither advised Nejad that he was the person who would ultimately decide whether he would testify nor heard anyone else explain this right to Nejad, including the trial judge. The prosecutor testified that she specifically recalled the trial judge reading Nejad the standard admonition about testifying or not testifying and that a couple of months before the new trial hearing, Nejad's defense counsel acknowledged to her that he remembered the judge's admonition as well even though it was not recorded in the transcript. There is a stipulation in the record, however, that the trial judge reviewed his notes from the trial and stated that there was no indication in his notes that he ever advised Nejad of his right to testify.
After citing Eleventh Circuit caselaw holding that the right to testify is personal to the defendant and cannot be waived either by the trial court or by defense counsel, and that a criminal defendant cannot be compelled to remain silent by defense counsel, the Court of Appeals summarized Nejad's testimony at the hearing on the motion for new trial as follows:
Nejad indicated at the motion for new trial hearing that he was compelled to remain silent. Specifically, he testified that he repeatedly told his trial counsel that he wanted to testify both before trial and during the trial, but his attorney would not allow him to do so; that his trial counsel never told him that the final decision about whether to testify was his; that he believed that the decision was to be made by his lawyer; that no one ever explained that it was his decision, including the court; and that had he known it was his right to testify, he would have exercised that right. Accordingly, based on the testimony of defense counsel and Nejad, we find that trial counsel's refusal to allow Nejad to testify and failure to advise Nejad of his right to testify constituted deficient performance and that Nejad has shown that this failure prejudiced his defense.
When asked what his testimony would have been at trial, Nejad testified that on the night in question, he drove to an area where he knew he could find prostitutes; that Lankford approached his car, they talked, and he agreed to give her a ride; that Lankford asked him if he were a cop and when he said he was not, told him it would be $200 for everything; that he purchased condoms, pantyhose, and snacks for Lankford; and that when Lankford asked him about the pantyhose, he told her that he thought they were sexy. Nejad further testified that Lankford voluntarily performed oral sex on him and then when they were about to have intercourse, told him that she was on her period, which annoyed him; that Lankford assured him that it would not be a problem but asked for a napkin to remove her tampon, and he gave her a baby wipe; that he decided he no longer wanted to have sex with Lankford after watching her remove the tampon; and that he asked Lankford for half of the money back, and she refused. Nejad recalled that he exited the car to fix his clothes then saw Lankford jump out with only her shirt on and the rest of her clothes in her hand and run across the parking lot and that he yelled at her that he would send the cops to her hotel. Nejad then left the scene after throwing Lankford's personal items from the window. Nejad testified that he told his trial counsel what happened. He denied that he committed any of the acts for which he was charged against Lankford. Regarding the second victim, Hoy, Nejad testified that he picked her up from the same area; that Hoy asked him to stop and buy her some doughnuts and he complied; that they went to a secluded location where she willingly performed oral sex on him in exchange for $40; and that she asked him to drop her off at a hotel, which he did. Again, Nejad denied that he committed any of the indicted offenses or that he had a replica of a gun. When asked about the fact that both women talked about a gun, Nejad explained that he kept a pellet gun in his glove compartment, which is where he kept his money clip, so both women would have seen it when he retrieved his money clip and both women were left alone in his car at some point. Nejad maintained that he never removed the pellet gun from the glove compartment. Nejad also testified that on the night that Hoy claims she was assaulted by him, he was with his wife and friends at a club. One of the friends and Nejad's wife at the time of the incident both testified that they were with Nejad on that night.
As to the claim of ineffective assistance of counsel, the Court of Appeals concluded:
In this case, the jury heard the testimony of the victims and Nejad's stipulation that the physical evidence contained his DNA but did not hear from Nejad that the sexual acts involved were consensual. A defendant's testimony could be crucial in any trial, and as an appellate court, we cannot conclude that the jury would not have found Nejad's testimony credible, and thus the error was harmless. Therefore, despite the evidence against Nejad, we cannot ignore the violation of his constitutional right to testify and must reverse the convictions due to trial counsel's ineffectiveness.
The Court of Appeals also reversed the conviction on the grounds that the trial court erroneously charged that a pellet gun in the shape of an automatic weapon is per se a deadly weapon.
The Georgia Supreme Court granted certiorari and reversed the Court of Appeals. As to the claim of ineffective assistance of counsel, the Supreme Court noted that "[t]he transcript of Nejad's trial certified by the court reporter does not reflect that the trial judge informed Nejad of his right to testify and that the decision whether to testify was to be made by Nejad after consulting with counsel." The Supreme Court rejected Nejad's argument that the filing of a written motion to supplement the record was a necessary prerequisite to a trial court's decision to make the record speak the truth. It then stated:
The trial court conducted an evidentiary hearing regarding the conflict and resolved it by concluding that the trial judge had made Nejad aware of his right to testify and his right to decide whether he would testify. "The trial court's adoption of the prosecutor's [testimony] was dispositive, and is not subject to our review." In effect, the trial transcript has been amended by the trial court's determination to show that Nejad was made aware of his right to testify and to have the final say in whether he exercised that right. In light of the finality of that decision, 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.
The Supreme Court then held that Judge Bedford (the recused trial judge) could not correct the transcript, and that only Judge Baxter (the motion for new trial judge) could do so. The Supreme Court also held that the Court of Appeals erred when it ruled that the issue of the deadliness of the weapon was for the jury.
Nejad filed this federal habeas corpus action on April 30, 2012. He raises the same three claims that he raised in the motion for new trial and in the direct appeal: (1) the trial court erroneously charged the jury that a pellet gun was per se a deadly weapon; (2) a juror failed to disclose that she was a rape victim; and (3) trial counsel was ineffective. The State agreed that these claims were exhausted and were not procedurally defaulted. The Magistrate Judge concluded that no evidentiary hearing was necessary, and issued his Report and Recommendation on March 28, 2013. The Magistrate Judge correctly summarized the law governing federal habeas corpus relief with respect to a state court conviction. He also properly set forth the standard for ineffective assistance of counsel in Strickland v. Washington. The Magistrate Judge concluded that trial counsels' performance was deficient in that they failed to ensure that the Defendant's right to testify was 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. After suggesting that there were reasons why the Defendant would not have testified, the Magistrate Judge concluded that he had not shown prejudice. "Based on the foregoing, it appears that Petitioner was not prejudiced by his counsel's deficient performance because the trial court informed him of his right to testify and because it is unlikely that the outcome of his trial would have been different had he testified." Nejad filed timely objections to the Report and Recommendation.
A federal court may issue a writ of habeas corpus on behalf of a person held in custody pursuant to a judgment of a state court if that person is held in violation of his rights under federal law. This power, however, is limited. A federal court may not grant habeas corpus relief for claims previously decided on the merits by a state court unless the decision (1) "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, " or (2) "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." A state court's determination of a factual issue is presumed correct unless the petitioner rebuts that presumption "by clear and convincing evidence."
If the federal habeas court determines that the state court decision is not contrary to clearly established federal law, it then considers whether the decision is an "unreasonable application" of that law, i.e., whether "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." "For purposes of § 2254(d)(1), an unreasonable application of federal law is different from an incorrect application of federal law." "Under § 2254(d)(1)'s unreasonable application' clause... a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly [but r]ather, that application must also be unreasonable." Thus, "[a]s a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement."
As discussed below, the Defendant's claim that trial counsel denied him the choice of whether to testify is assessed as a constitutional claim of ineffective assistance of counsel. The standard for evaluating ineffective assistance of counsel claims was set forth in Strickland v. Washington. The analysis is two-pronged, and the court may "dispose of ineffectiveness claims on either of its two grounds."
First, Nejad must show that "in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance." The Court must be "highly deferential, " and must "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Furthermore, "[a] strategic decision... will be held to constitute ineffective assistance only if it was so patently unreasonable that no competent attorney would have chosen it.'" Second, Nejad must also demonstrate that trial counsel's unreasonable acts or omissions prejudiced him. To show prejudice, he must show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different."
As to the first prong of the Strickland test, this case is controlled by the en banc decision of the Eleventh Circuit in United States v. Teague. There, the 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." "[T]he right to testify essentially guarantees the right to ultimately choose whether or not to testify." Accordingly, "[a] criminal defendant clearly cannot be compelled to testify by defense counsel who believes it would be in the defendant's best interest to take the stand. It is only logical, as the Supreme Court has recognized, that the reverse also be true: A criminal defendant cannot be compelled to remain silent by defense counsel." Critically, as it relates to both prongs of the Strickland test, the court stated:
The decision whether a criminal defendant should take the witness stand in his own trial unquestionably has tremendous strategic importance. Nevertheless, the mere fact that such a decision involves trial strategy does not itself mandate that the decision ultimately rest with defense counsel. Nor does our conclusion place the right to testify in conflict with the right to counsel. 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. This advice is crucial because there can be no effective waiver of a fundamental constitutional right unless there is an "intentional relinquishment or abandonment of a known right or privilege." Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938) (emphasis added). Moreover, if counsel believes that it would be unwise for the defendant to testify, counsel may, and indeed should, advise the client in the strongest possible terms not to testify. The defendant can then make the choice of whether to take the stand with the advice of competent counsel.
After further discussion of the importance to the defendant of making the ultimate decision as to whether or not to tell his side of the story, the court concluded:
In summary, we hold that a criminal defendant has a fundamental constitutional right to testify on his behalf, that this right is personal to the defendant, and that the right cannot be waived by defense counsel. Where the defendant claims that this right was violated by defense counsel, this claim is properly framed as a claim of ineffective assistance of counsel.
The essential holdings of Teague have been reaffirmed many times.
On the first question of deficient performance, the Magistrate Judge was certainly correct that the performance of Nejad's trial counsel was deficient under the Sixth Amendment. His lead counsel, Mr. Arora testified as follows:
Q. [Mr. Steel] AND I KNOW YOUR REPUTATION IS VERY, VERY GOOD. WERE YOU ASKED TO REPRESENT MR. ALI NEJAD?
A. [Mr. Arora] ABOUT A YEAR BEFORE THE TRIAL, HE CAME TO HIRE US, AND I TOLD HIM I DIDN'T WANT TO TAKE THE CASE BECAUSE HE HAD ALREADY HIRED MR. TROST AND ANOTHER LAWYER OUT OF DEKALB COUNTY. HE CAME BACK TO ME ABOUT 6 WEEKS BEFORE THE TRIAL AND ASKED IF I COULD WORK ON HIS CASE, AND I AGREED, AND I GAVE HIM VERY SPECIFIC CONDITIONS ON HOW I WOULD WORK ON THE CASE BECAUSE IT WAS SO CLOSE TO TRIAL.
Q. OKAY. YOU SAID HIRE US, AND THEN YOU SAID HIRE ME, AND ARE WE TALKING ABOUT -
A. THE LAW FIRM, THE GARLAND, SAMUEL LAW FIRM. I WAS GOING TO BE THE PRIMARY COUNSEL. HE WANTED TO HIRE ME A YEAR BEFORE TRIAL. I SAID YOU HAVE ALREADY GOT GOOD LAWYERS. LET THEM DEAL WITH IT. THEN WHEN THE TRIAL WAS COMING UP A YEAR LATER, HE INSISTED, HIS FAMILY INSISTED, AND I DECIDED TO TAKE THE CASE.
Q. AND WHAT WERE THE SPECIFIC GROUND RULES - I DON'T KNOW IF THAT'S THE WORD YOU USED - ON YOUR DECISION THAT YOU WOULD AGREE TO REPRESENT MR. NEJAD?
A. I WANTED MOST OF THE LAWYERS OUT OF THE CASE. THERE WERE TOO MANY PEOPLE THERE. I RULE WITH AN IRON FIST. I TOLD HIM YOU HAVE TO LISTEN TO WHAT I SAY.
Q. AND WHO BECAME WHEN YOU WERE HIRED WHAT THE PRACTICE OF LAW WOULD KNOW AS THE LEAD LAWYER?
A. THAT WAS ME.
Q. YOU STATED THAT YOU CONDUCTED THIS CASE OR THE REPRESENTATION OF MR. NEJAD WITH AN IRON FIST. WHAT DID YOU MEAN BY THAT?
A. I LIKE TO HAVE SOLID CONTROL. YOU KNOW, I GO THROUGH IT. I TELL THEM THIS IS WHAT'S GOING TO HAPPEN. THIS IS HOW WE ARE GOING TO DO THINGS. AND I SAID AT THIS TIME, I DON'T HAVE TIME TO DEBATE WITH YOU ABOUT DIFFERENT ISSUES. IT IS TOO CLOSE TO TRIAL, AND THIS IS HOW WE ARE GOING TO DO IT, AND WE STARTED, FIRST OF ALL, WITH WHO THE LAWYERS WOULD BE. WE WENT FROM THERE.
Q. WHEN YOU SAY YOU RULE WITH AN IRON FIST CONCERNING CLIENT CONTROL, LET'S TALK JUST SPECIFICALLY ABOUT MR. NEJAD'S CASE. IS THAT HOW YOU CONDUCTED YOURSELF WITH MR. NEJAD, WITH MR. NEJAD'S DEFENSE IN THIS CASE?
A. YES. THERE WAS A LOT OF MOTIONS THAT NEEDED TO BE FILED THAT HADN'T BEEN FILED, AND THERE WAS A LOT TO DO WITH THIS CASE. I STARTED DRAFTING THEM RIGHT AWAY. THERE WAS AN ALIBI ISSUE THAT HADN'T BEEN FILED WHEN IT WAS DUE MONTHS IN ADVANCE OF THAT. SO THERE WAS A LOT OF THOSE THINGS THAT I WAS VERY SPECIFIC ON WITH HIM.
Q. AND HOW MUCH TIME DID YOU SPECIFICALLY SPEND, IF YOU CAN GIVE U.S. A GENERALITY OF HOW YOU WERE GETTING READY FOR TRIAL AND DURING TRIAL WITH MR. NEJAD HIMSELF?
A. BETWEEN DEALING WITH HIM AND HIS FAMILY, GETTING THE ALIBI WITNESSES TOGETHER, FINING EXPERTS IN PSYCHIATRY TO DEAL WITH REOFFENDER ISSUES THAT WE ALL PLANNED FOR JUST IN CASE THERE IS A SENTENCING ...