               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.
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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

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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).



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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


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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


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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


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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


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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


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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




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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


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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).



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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


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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


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“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




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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


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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


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“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

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“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).




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      “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.


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      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




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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.”).



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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.




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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


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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


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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)
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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.


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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




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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.”



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       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.



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      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
