[00:00:02] Speaker 03:
Good morning, Your Honors, and may it please the Court, my name is Cliff Gardner.

[00:00:05] Speaker 03:
I represent Mason Alatabi in this case, and I'd like to request five minutes for rebuttal.

[00:00:11] Speaker 03:
I will keep my eye on the large and well-placed clock in front of me, Your Honors.

[00:00:14] Speaker 03:
I could hardly do otherwise.

[00:00:17] Speaker 03:
As the Court is aware from reading the briefs, the case involves trial counsel's decision not to consult with his client about the trial court's offer to instruct on a lesser offense.

[00:00:28] Speaker 03:
As the court is also aware, the state courts have addressed this twice in the context of the two-pronged Strickland test.

[00:00:35] Speaker 03:
The question is whether that decision not to consult fell below the standard of care.

[00:00:40] Speaker 03:
That's the performance prong.

[00:00:41] Speaker 03:
And if so, whether there's prejudice.

[00:00:43] Speaker 03:
That's the prejudice prong.

[00:00:44] Speaker 03:
And the state trial court and the state court of appeal have weighed in on this with somewhat different takes.

[00:00:51] Speaker 03:
The state trial court said that, yes, indeed, the failure to consult fell below the standard of care, but it was harmless and explained a harmless rationale.

[00:01:00] Speaker 03:
And the Court of Appeal did not address performance at all, assumed the violation and found it harmless, but did not adopt the trial court's harmless error analysis, had a very different harmless error analysis.

[00:01:12] Speaker 03:
So I'd like to make a couple of comments

[00:01:15] Speaker 03:
about both the performance prong and the prejudice prong.

[00:01:18] Speaker 03:
And of course, since this case comes from state court, I suspect we'll have a discussion, at least a brief discussion, about 2254D as well.

[00:01:26] Speaker 03:
So let me start if I can.

[00:01:27] Speaker 02:
Can I actually ask you to start on prejudice?

[00:01:30] Speaker 02:
So I have a question about what it seems like the Court of Appeals thought.

[00:01:36] Speaker 02:
And it seems like what the Court of Appeals thought was,

[00:01:40] Speaker 02:
in the line of how this error, assuming that it was deficient performance, how the error could have actually made a difference, has to go through the stage of whether the defendant would have wanted this instruction anyway.

[00:01:53] Speaker 02:
And I read the court to be saying, we just don't have evidence that the defendant would have wanted this.

[00:01:57] Speaker 02:
And I think, as I under this reading between the lines, it's like, why didn't he put in a declaration saying he did?

[00:02:04] Speaker 02:
And am I right that he could have put in a declaration, but didn't?

[00:02:08] Speaker 03:
Yes, you are right.

[00:02:09] Speaker 03:
And I think you're right about the state court of appeals approach as well.

[00:02:13] Speaker 03:
I think that's what they were thinking.

[00:02:14] Speaker 02:
So you're arguing that that's an unreasonable determination of the facts.

[00:02:19] Speaker 02:
But I'm sort of struggling with why.

[00:02:21] Speaker 02:
Because as long as he had the ability to put in a declaration, it wouldn't have been so hard to, presumably.

[00:02:27] Speaker 02:
And if he didn't, why isn't it a reasonable inference that he actually would not have agreed to this instruction anyway?

[00:02:33] Speaker 03:
Sure.

[00:02:33] Speaker 03:
And that gets directly at the 2254D component of the prejudice analysis.

[00:02:39] Speaker 03:
So let me take that on.

[00:02:40] Speaker 03:
Your Honor suggested that I believe that was the unreasonable determination.

[00:02:43] Speaker 03:
That is not why I believe 2254D doesn't bar relief as to prejudice.

[00:02:48] Speaker 03:
What I believe is this, and let me take a step back and give you the general, what I believe the general framework is in this kind of prejudice analysis.

[00:02:56] Speaker 03:
I think the State Court of Appeal asked the right question.

[00:02:58] Speaker 03:
Is there evidence to show that he would have agreed to the lesser?

[00:03:02] Speaker 03:
There's two types of evidence that can be presented to answer that question.

[00:03:06] Speaker 03:
There's subjective evidence and there's objective evidence.

[00:03:09] Speaker 03:
The subjective evidence is, and that's where your Honor's question is directed, I think the Court of Appeal thought we need a declaration from them.

[00:03:16] Speaker 03:
There's subjective evidence.

[00:03:19] Speaker 03:
i will tell you this i know there's a great deal of experience on the bench and uh... i've been practicing criminal law for forty five years i can tell you in this situation in a similar situation when the defendant provides a declaration that says yes i would have accepted the guilty plea or yes i would agree to the instruction

[00:03:35] Speaker 03:
what invariably happens and with good reason, I think, is that both prosecutors and courts say, hey, that's a self-serving declaration.

[00:03:44] Speaker 03:
Of course you're going to say that.

[00:03:45] Speaker 03:
That isn't particularly persuasive.

[00:03:47] Speaker 03:
So counsel didn't present that here.

[00:03:49] Speaker 03:
Could counsel have presented it?

[00:03:50] Speaker 03:
Yes.

[00:03:51] Speaker 02:
But even if it's sort of

[00:03:52] Speaker 02:
If it's self-serving so it's not enough on its own, it still is a necessary piece, I think.

[00:03:58] Speaker 02:
You could have these surrounding facts and someone could choose to have this instruction or not choose to have this instruction.

[00:04:05] Speaker 02:
So the surrounding facts might support the

[00:04:08] Speaker 02:
Idea that he would have chosen it if he was saying that like maybe maybe you would say well It's not just self-serving here because look at all the surrounding facts But without the piece that he is saying he would actually have chosen it I don't understand how you get past that because that's a necessary chain piece of the chain of causation and

[00:04:25] Speaker 03:
Well, you get past it for purposes of 2254D, I think, Your Honor, because one of the approaches to 2254D is 2254D is designed to give deference to reasoned state court judgments.

[00:04:36] Speaker 03:
Something that's objectively unreasonable will not be given the 2254D deference.

[00:04:42] Speaker 03:
What is a decision that's not objectively unreasonable?

[00:04:45] Speaker 03:
This court has said, and the United States Supreme Court as well, that when a state court ignores facts that are relevant to the calculus, the constitutional calculus, that makes it objectively unreasonable.

[00:04:56] Speaker 03:
It doesn't necessarily mean the petitioner wins.

[00:04:59] Speaker 03:
It means the 2254D deference doesn't apply.

[00:05:02] Speaker 03:
So the question here, for purposes of 2254D, is whether the state court ignored facts that were relevant to the constitutional analysis.

[00:05:10] Speaker 03:
And I believe it did.

[00:05:12] Speaker 03:
In that two sentence harmless error analysis,

[00:05:14] Speaker 03:
The court doesn't refer to any of the objective evidence in this case.

[00:05:19] Speaker 03:
And there's plenty of objective evidence that suggests a reasonable person with proper advice from counsel would have indeed agreed to this lesser instruction.

[00:05:28] Speaker 02:
So what if we think when we look at this, a reasonable person could have made either choice?

[00:05:35] Speaker 02:
Because it seems like a reasonable person could have thought, I want to go with the option that would give a chance of having total innocence.

[00:05:46] Speaker 03:
I disagree, Your Honor, and let me explain why.

[00:05:48] Speaker 03:
I think when you look at all the objective evidence, the only decision a reasonable defendant could make is to say, we need the lesser.

[00:05:56] Speaker 03:
And let me take you through the evidence that I believe supports that conclusion.

[00:06:00] Speaker 01:
But her question is, what if we think that there could be two different reasonable choices?

[00:06:07] Speaker 01:
Then what are we left with?

[00:06:10] Speaker 01:
We're not arguing about whether you think that second choice is reasonable or not, but what if we think there's two reasonable choices?

[00:06:16] Speaker 03:
And I think I have to persuade you that there aren't two reasonable choices, that the only reasonable choice based on the objective evidence was that this any reasonable defendant, any reasonable defendant would have said, let's go for the lesser.

[00:06:27] Speaker 03:
I think that's my burden.

[00:06:29] Speaker 03:
And let me see if I can establish it now in the couple of minutes I have left.

[00:06:32] Speaker 03:
Let's look at the evidence.

[00:06:33] Speaker 03:
First of all, this wasn't a case, and I'm sure the court sees this, I know I see it in my practice, where some defendants insist they are innocent of any criminal wrongdoing.

[00:06:41] Speaker 03:
I wasn't there.

[00:06:44] Speaker 03:
I'm not going to take a deal or accept a lesser because I wasn't there.

[00:06:48] Speaker 03:
I didn't do it.

[00:06:50] Speaker 03:
From the day the crime occurred, Mr. Alatebi admitted criminal conduct.

[00:06:54] Speaker 03:
He admitted having anal intercourse with a 13-year-old.

[00:06:57] Speaker 03:
That's criminal.

[00:06:58] Speaker 03:
That's criminal in every state.

[00:06:59] Speaker 03:
It's criminal in Nevada, California.

[00:07:01] Speaker 01:
But he turned down a plea offer for a lesser crime already.

[00:07:05] Speaker 03:
He did turn down a 10-year plea.

[00:07:07] Speaker 03:
And let me fold that into the context of all the other objective evidence that I believe is there.

[00:07:12] Speaker 03:
So this isn't a case where he's claiming innocence.

[00:07:15] Speaker 03:
He believes he's not guilty of sexual assault.

[00:07:18] Speaker 03:
He's guilty of something lesser.

[00:07:20] Speaker 03:
But he does not say, I didn't commit criminal conduct.

[00:07:24] Speaker 03:
Second, let's look at the evidence in the case.

[00:07:27] Speaker 02:
Wait, can I pause there for a second?

[00:07:28] Speaker 02:
Because if an instruction had been given on sexual seduction, it seems like, especially given what you're saying, he wasn't denying that, he definitely would have been convicted of that.

[00:07:40] Speaker 02:
but he had defenses to the things that actually were charged here.

[00:07:44] Speaker 02:
Like he wouldn't definitely have been convicted of the things he in fact was in the end, but he had defenses to these other things.

[00:07:51] Speaker 02:
He didn't have a defense to sexual seduction.

[00:07:54] Speaker 02:
So it seems

[00:07:55] Speaker 02:
reasonable to not want an instruction on the thing you would definitely be convicted of and to go for trying to defend against the others.

[00:08:01] Speaker 03:
And let me continue with the analysis of why I believe that isn't reasonable.

[00:08:06] Speaker 03:
As I say, he admitted basically criminal conduct, not sexual assault, but criminal conduct.

[00:08:11] Speaker 03:
And this is something I don't think is focused on the briefs, but counsel focuses on it in the state evidentiary hearing.

[00:08:19] Speaker 03:
There was an anti-Arab bias in the jury veneer.

[00:08:21] Speaker 03:
A number of jurors were struck because they said, don't put me on if the defendant is an Arab.

[00:08:27] Speaker 03:
And they managed to kick off a number of people, but there was a general anti-Arab veneer.

[00:08:32] Speaker 03:
That's point two.

[00:08:33] Speaker 03:
Point three.

[00:08:36] Speaker 03:
rebutting consent was fairly strong.

[00:08:39] Speaker 03:
There was video evidence showing that AJ had lied to the officers about being dragged down the hall and being forced into the room.

[00:08:45] Speaker 03:
So he would have gotten the instruction.

[00:08:47] Speaker 03:
We also have, of course, the jurors' comments afterwards.

[00:08:50] Speaker 03:
We don't really believe AJ.

[00:08:51] Speaker 03:
Why wasn't there a statutory rape

[00:08:53] Speaker 03:
And finally, the final objective point.

[00:08:58] Speaker 01:
Well, if they didn't believe him, how could they have returned a verdict of guilty?

[00:09:02] Speaker 03:
And that's exactly the point, because they were in an all-or-nothing position to a gentleman of Arab descent who admitted anal intercourse with a 13-year-old.

[00:09:11] Speaker 01:
But they weren't in all-or-nothing on counts four and six dealing with lewdness.

[00:09:16] Speaker 03:
And they acquitted on counts four and six, Your Honor.

[00:09:18] Speaker 03:
And it's important to note that counts four and six did not present the jury with a consent-based lesser option.

[00:09:24] Speaker 03:
Counts four and six were based on different acts than counts three and five.

[00:09:28] Speaker 02:
But it was a lesser option.

[00:09:30] Speaker 02:
They didn't have all or nothing.

[00:09:31] Speaker 02:
They could have convicted on lewdness.

[00:09:35] Speaker 03:
There was no way for the jury to express a consent-based lesser result.

[00:09:42] Speaker 03:
Counts four and six did not give them that option.

[00:09:44] Speaker 03:
Okay, if we find consent, we can convict them of four and six.

[00:09:47] Speaker 03:
Because four and six, and you can look at the charging documents at pages 165 and 166 of the excerptive record.

[00:09:55] Speaker 03:
Counts four and six were based on different acts of count three and five.

[00:09:59] Speaker 02:
But also had, intoxication would have been a defense.

[00:10:04] Speaker 03:
Yes, intoxication would have been a defense to all the lewdness charges in four, six, seven, and eight.

[00:10:10] Speaker 01:
And it's not really different acts.

[00:10:12] Speaker 01:
If you look at what the defense argued in closing, they were arguing that if Mason's penis went into the boy's mouth, then it's a completed act and not lewdness.

[00:10:22] Speaker 01:
But if it didn't, then it would be lewdness.

[00:10:24] Speaker 03:
Yes, exactly.

[00:10:25] Speaker 03:
And I'm going into my time for rebuttal to answer the question, if that's OK.

[00:10:30] Speaker 03:
And AJ actually denied that these other acts occurred.

[00:10:32] Speaker 03:
And that's why the jury acquitted.

[00:10:35] Speaker 03:
But these acts count four and six.

[00:10:38] Speaker 03:
Counts three and five required penetrative acts.

[00:10:41] Speaker 03:
Counts four and six did not.

[00:10:43] Speaker 03:
So there was no way for the jury to express a consent based lesser based on the penetrative acts.

[00:10:48] Speaker 03:
That would put them in an all or nothing position as to those two.

[00:10:51] Speaker 03:
And because of the four areas I discussed, the evidence, the anti-error bias, the disparity in sentence, I believe that the only reasonable decision a rational client would make

[00:11:05] Speaker 03:
would be, we need to get that lesser.

[00:11:07] Speaker 03:
The jury isn't going to walk me out of here, given what I've admitted.

[00:11:10] Speaker 02:
So I understand that the jury acquitted, but it's kind of confusing, because I don't understand how the lewdness acts wouldn't have to precede the more serious acts, just physically.

[00:11:22] Speaker 03:
What Your Honor says makes logical sense.

[00:11:24] Speaker 03:
The problem is with AJ's testimony, when he was asked, did he do any of these other things?

[00:11:28] Speaker 03:
Did he fondle?

[00:11:29] Speaker 03:
Did he touch?

[00:11:30] Speaker 03:
AJ said no.

[00:11:31] Speaker 03:
And that's why the jury acquitted on counts four and six.

[00:11:36] Speaker 03:
You want to save the rest of your time?

[00:11:37] Speaker 03:
I can see Your Honor's skeptical look, but that does explain the acquittals, and if I can reserve the rest of my time.

[00:11:42] Speaker 00:
Would you tell me again, remind me what the sentencing difference was?

[00:11:45] Speaker 03:
Yes.

[00:11:46] Speaker 03:
The sentencing difference, and this counsel was under a misapprehension when he made the decision not to consult with his client.

[00:11:52] Speaker 03:
The disparity is enormous.

[00:11:54] Speaker 03:
The sentence for sexual seduction is one to five years.

[00:12:00] Speaker 03:
Sexual assault is a life term in prison with eligibility for parole after 35 years.

[00:12:07] Speaker 03:
A reasonable defendant advised about all the evidence in the case, the anti-error bias, the fact that you can probably get this instruction, is going to say 35 years to life, I'm going to serve 35 years, I will take the lesser.

[00:12:23] Speaker 03:
I've dealt with many clients over the years and I work with them and I believe that's the reasonable decision they would make.

[00:12:31] Speaker 00:
Is there any evidence of a plea, just out of curiosity, that there was a plea offer?

[00:12:37] Speaker 03:
There was a plea offer of something, as I recall, it would have given him about 10 years.

[00:12:41] Speaker 03:
And one of the factors, when counsels directly ask at the state evidentiary hearing, why didn't you consult with him, he says, well, he was offered 10 years, and the sentence for seduction is about 10 years.

[00:12:54] Speaker 03:
He would have gotten four years for each count.

[00:12:56] Speaker 03:
It's one to 10.

[00:12:57] Speaker 03:
So there's no difference.

[00:12:58] Speaker 03:
So that's why I didn't even consult with him.

[00:13:01] Speaker 03:
And that, of course, is a mistake.

[00:13:03] Speaker 03:
He was wrong about that.

[00:13:04] Speaker 03:
And under Hinton versus Alabama, we're getting back to the performance prong, which, Your Honor, we skipped over.

[00:13:10] Speaker 03:
But that's why in the performance prong, I think that's why the trial court and state court found that, in fact, this did fall below the standard of care.

[00:13:18] Speaker 03:
Because at least in part, he based the decision not to consult with his client on a mistake of law.

[00:13:25] Speaker 02:
Let's let you save the rest of your time.

[00:13:26] Speaker 02:
Thank you.

[00:13:44] Speaker 04:
Good morning, Your Honors.

[00:13:45] Speaker 04:
My name is Michael Bongard.

[00:13:47] Speaker 04:
I'm with the Nevada Attorney General's Office, and I'm representing Warden Breitenbach, the respondent in this matter.

[00:13:55] Speaker 04:
Briefly, just to follow up on Judge Hurst's question, the plea offer in this case was to either one or two counts of lewdness.

[00:14:06] Speaker 04:
The attorney couldn't remember for sure, but he thought it was one, and it makes sense, because that would have been the penalty.

[00:14:11] Speaker 04:
So 10 years, he rejected that.

[00:14:15] Speaker 04:
Your Honor, I'm going to start my discussion with the prejudice prong.

[00:14:18] Speaker 04:
And I'm going to focus initially on the state court decision.

[00:14:22] Speaker 04:
And then I'll move to a de novo review of that prong, and then finally to the deficient conduct if there's any questions.

[00:14:30] Speaker 04:
My colleague talks a lot about subjective evidence in the record regarding consent.

[00:14:37] Speaker 04:
But there was an objective piece of evidence in the record that

[00:14:43] Speaker 04:
gets in the way of that.

[00:14:44] Speaker 04:
That's during the evidentiary hearing.

[00:14:48] Speaker 04:
Trial counsel testified that they talked about the instructions, they talked about consent, they were going round and round, he said.

[00:14:59] Speaker 04:
And there were two things that counsel, or two questions that counsel wanted answered at that point.

[00:15:08] Speaker 04:
One was the court's question on whether they wanted a statutory sexual seduction issue.

[00:15:12] Speaker 04:
But counsel's overriding concern was the fact that at that point, his client had changed his mind and was inclined not to testify.

[00:15:22] Speaker 04:
And that would have prevented some effective and compelling testimony regarding what they called the victim's withdrawal of consent.

[00:15:32] Speaker 04:
Was that actually there?

[00:15:34] Speaker 04:
Did that actually happen?

[00:15:37] Speaker 04:
The defendant said, you're the lawyer, you make the decision.

[00:15:44] Speaker 04:
And that sounds so much like counsel under Strickland gets to make reasonable strategic decisions.

[00:15:58] Speaker 02:
Sorry, I'm not clear if you're arguing prejudice or deficient performance.

[00:16:04] Speaker 02:
It sounds like you're saying it wasn't deficient performance.

[00:16:07] Speaker 04:
It actually fits to both.

[00:16:08] Speaker 04:
And here's why it fits to both.

[00:16:10] Speaker 04:
Because the state court of appeals said that there's no evidence in the record that the defendant would have consented to a statutory sexual seduction instruction.

[00:16:21] Speaker 04:
And again, the defendant said, you make that decision.

[00:16:25] Speaker 04:
It's a strategic decision.

[00:16:26] Speaker 04:
You make it.

[00:16:27] Speaker 04:
You're the attorney.

[00:16:28] Speaker 02:
So are you arguing that he wouldn't have consented if the lawyer hadn't wanted him to?

[00:16:36] Speaker 04:
No, I don't think so.

[00:16:37] Speaker 04:
But it certainly lends support to the lawyer's decision not to.

[00:16:42] Speaker 04:
Because before that, if you look at the excerpts of the record, and specifically the trial transcripts when they were settling instructions, and I believe it starts around 888, where there was discussion that

[00:16:58] Speaker 04:
Trial counsel wanted to make sure that his defense with his client was going to be acceptable both to the court and was going to be unobjectionable to the prosecution.

[00:17:08] Speaker 04:
And that was he was going to argue consent.

[00:17:12] Speaker 04:
as far as a defense to the sexual assault instructions.

[00:17:17] Speaker 04:
And he was going to argue inability to form specific intent as the defense to the lewdness charges and the other specific intent crimes.

[00:17:26] Speaker 04:
And I'm just going to refer to them as the other crimes because they're really not an issue here.

[00:17:30] Speaker 04:
So we've got, as the jury was instructed, we've kind of got a layer.

[00:17:34] Speaker 04:
We've got sexual assault.

[00:17:38] Speaker 04:
Then we have the lewdness charges, four and six, the ones that

[00:17:42] Speaker 04:
Ultimately, the jury didn't return guilty verdicts on, and then we have not guilty.

[00:17:49] Speaker 04:
However, and first of all, that's not an all or nothing choice.

[00:17:53] Speaker 04:
Both the state court found that, and both the district court found that.

[00:17:58] Speaker 04:
There wasn't an all or nothing.

[00:17:59] Speaker 04:
This wasn't a straight all or nothing.

[00:18:01] Speaker 04:
And I believe this court's decision in Crace talked about that.

[00:18:06] Speaker 04:
Again, it's different because it deals with lesser included as opposed to lesser related instructions.

[00:18:12] Speaker 04:
But I think the framework is similar, that in this case, the jury didn't have that all or nothing.

[00:18:18] Speaker 04:
There was a middle ground.

[00:18:21] Speaker 00:
I'm a little confused.

[00:18:23] Speaker 00:
The state court found that on the deficient performance, we had a finding in the state court that the performance was deficient.

[00:18:33] Speaker 00:
Did we not?

[00:18:34] Speaker 04:
It was confusing because, and I deal with this all the time, that I often see in the state district court decisions where they talk

[00:18:48] Speaker 04:
The district court, state district court in this case found that it was deficient conduct not to confer about the instructions.

[00:18:55] Speaker 04:
But they didn't find it was deficient to not request the statutory sexual seduction instruction.

[00:19:02] Speaker 04:
They found that that was based on strategy.

[00:19:05] Speaker 00:
And so to the extent that there was kind of a one A, one B. They found it was deficient not to give the client the opportunity to choose.

[00:19:14] Speaker 04:
They found it was deficient not to confer with him about the instructions.

[00:19:18] Speaker 04:
But they didn't find that.

[00:19:20] Speaker 04:
They found that it was a strategic decision not to request it.

[00:19:25] Speaker 04:
Right.

[00:19:25] Speaker 04:
And again, I'm kind of bouncing around here, but the crux of the state appellate court decision was that there was no evidence in the record that the defendant would have given his consent to that instruction.

[00:19:41] Speaker 04:
And that's because we got his statement, you're the attorney, you make the choice.

[00:19:45] Speaker 04:
He was given control of that to his attorney.

[00:19:50] Speaker 04:
So counsel made what he thought was a strategic decision, that instead of three choices with the best case scenario, you're going to be convicted.

[00:20:01] Speaker 02:
I'm still really confused about how you're connecting the dots here.

[00:20:04] Speaker 02:
Are you basically saying he was given the choice and he gave it to the attorney?

[00:20:08] Speaker 02:
Because he wasn't given this specific choice.

[00:20:10] Speaker 02:
I'm very confused by how you're using this statement to answer the question that's at issue here.

[00:20:17] Speaker 04:
OK.

[00:20:20] Speaker 04:
Let me see if I can make it a little bit clearer, Your Honor.

[00:20:23] Speaker 04:
Before the break, where he went to talk to his client, he told the court, yes, I'll discuss the instructions with my client.

[00:20:32] Speaker 04:
He talked about a number of things.

[00:20:34] Speaker 04:
He talked about the issue of consent.

[00:20:35] Speaker 04:
He talked about some of the instructions.

[00:20:38] Speaker 04:
The record reflects that the defendant was confused that there was so much repetition in there.

[00:20:43] Speaker 04:
But ultimately,

[00:20:46] Speaker 04:
The trial counsel said that him and Mr. Alitabi went round and round.

[00:20:51] Speaker 04:
And Mr. Alitabi eventually said, you're the attorney, you make the decision.

[00:20:56] Speaker 04:
Now, why that fits under the prejudice prong for the state court is because the state court said there was no evidence that he would have consented to that statutory sexual seduction instruction.

[00:21:10] Speaker 02:
He told counsel, you make the decision.

[00:21:14] Speaker 02:
And you think that statement related to this specific question of whether this charge should be given?

[00:21:21] Speaker 04:
Well, it certainly goes to the question that the court wanted answered.

[00:21:24] Speaker 04:
There was no evidence in the record that Mr. Al-Tabi would have requested a statutory sexual seduction instruction.

[00:21:32] Speaker 02:
But I did not understand your brief to be arguing that in this break where they were talking, the lawyer actually asked the client, do you want to give this instruction?

[00:21:47] Speaker 04:
And again, that goes back to the state.

[00:21:49] Speaker 00:
It went back to a different colloquy, didn't it?

[00:21:52] Speaker 04:
I'm sorry, Your Honor?

[00:21:52] Speaker 00:
I thought that happened in a different colloquy between the lawyer and the client.

[00:22:02] Speaker 04:
Well, there were a couple colloquies that obviously took place here.

[00:22:06] Speaker 04:
One was after they broke for lunch, after they discussed the instructions, and trial counsel said I was going to discuss the instructions.

[00:22:15] Speaker 04:
During that time, they discussed the notes reflecting, and this is again trial counsel's testimony that they discussed a lot of things.

[00:22:26] Speaker 04:
They got to the issue of consent.

[00:22:28] Speaker 04:
They got to the issue of whether Mr. El-Tabey would testify, and Mr. El-Tabey changed his mind.

[00:22:37] Speaker 04:
So at that point, again, he tried to

[00:22:39] Speaker 04:
impress upon him the importance of him testifying because he felt it was, trial counsel felt it was very important to the case.

[00:22:48] Speaker 04:
But both before and after that break, trial counsel said that it was, his decision was gonna be that he was gonna not request that instruction.

[00:23:03] Speaker 04:
When he tried to explain those things to Mr. Alatabi, that's when he said during that colloquy, you're the attorney, you make the choice.

[00:23:10] Speaker 02:
But he never explained that this instruction was an option.

[00:23:16] Speaker 04:
He said that either Mr. Alatabi understood and was being difficult or that he didn't understand.

[00:23:30] Speaker 04:
But ultimately, at the end of that was when he told trial counsel, you're the attorney, you make the decision.

[00:23:35] Speaker 02:
Wait, didn't the lawyer admit that he never talked to him about this instruction?

[00:23:40] Speaker 02:
I don't understand where you're getting the facts you're saying to us today.

[00:23:43] Speaker 04:
Well, he was getting into the issue of consent.

[00:23:47] Speaker 04:
He was getting into the issue of the instructions.

[00:23:53] Speaker 04:
And again, I'm

[00:23:56] Speaker 04:
going on his notes in that.

[00:23:58] Speaker 02:
I mean, it was an assumption of the state court that no one ever talked about this instruction because that's what counsel said.

[00:24:03] Speaker 02:
We never talked about this instruction.

[00:24:05] Speaker 02:
And it seems like you're coming in today now and trying to change those facts.

[00:24:08] Speaker 02:
Is that what's happening?

[00:24:10] Speaker 04:
Well, if I'm saying it wrong, I apologize.

[00:24:14] Speaker 04:
But the crux of that was that there was no evidence at that point that Mr. El-Tabi would have consented.

[00:24:22] Speaker 02:
okay that's a different question than whether when he was asked about the instruction he said it's your choice because you're trying to say that today i think and that is not what anyone has ever said about what happened in the facts of this well during

[00:24:35] Speaker 04:
When Mr. El-Tabe was confused, that's what he ended up saying.

[00:24:40] Speaker 04:
Trial counsel ended up saying that we went round and round.

[00:24:44] Speaker 04:
He got confused.

[00:24:45] Speaker 04:
He was either intentionally or unintentionally not understanding.

[00:24:49] Speaker 04:
And he said, you're the attorney.

[00:24:52] Speaker 04:
You make the decision.

[00:24:53] Speaker 02:
But if that was, I mean, they could have been talking about whether to strike a juror, and he could have said, you're the attorney, make that.

[00:24:58] Speaker 02:
Oh, no, that wasn't.

[00:25:00] Speaker 02:
I'm just saying, hypothetically, the fact that those words came out of his mouth don't tell us whether he would have accepted this instruction unless what they were discussing was this instruction.

[00:25:09] Speaker 02:
And everyone has always assumed in this case that they were not discussing this instruction.

[00:25:12] Speaker 02:
So you're trying to change that today.

[00:25:14] Speaker 04:
Well, my take from that discussion was that he was attempting to under,

[00:25:21] Speaker 04:
Attempting to explain the issue of consent and attempting to explain the instructions and trying to put everything into a big picture But ultimately Again, mr. Alatabi said that it's counsel's it's counsel's choice, but what that Irrespective of that there's no evidence in the record that mr. Alatabi would have agreed to that at the evidentiary hearing and

[00:25:49] Speaker 04:
they had a chance to put them on.

[00:25:51] Speaker 04:
As Your Honor said in the question to opposing counsel, they had a chance to put a declaration in the record.

[00:25:59] Speaker 00:
Well, that was the reason that the state court, as I understand it, said that there was no prejudice.

[00:26:08] Speaker 00:
was that there was no showing that he would have accepted it.

[00:26:11] Speaker 00:
Right.

[00:26:11] Speaker 04:
Is that correct?

[00:26:12] Speaker 04:
That's correct, yes.

[00:26:14] Speaker 00:
And we have some deference to that, do we not?

[00:26:17] Speaker 04:
Well, I think you can owe a lot of deference to that because of the fact that the things that are brought up about there being an all or nothing option, that there was

[00:26:36] Speaker 04:
evidence that AJ withdrew his consent, gave his consent, or gave his consent and then withdrew the consent when he said things started getting too weird.

[00:26:52] Speaker 04:
I think, Your Honor, that the case that is cited in the opposing brief for the fact that

[00:27:04] Speaker 04:
you can deviate from the findings if there's something in the record that is really not considered.

[00:27:13] Speaker 04:
And that was Taylor versus Maddox.

[00:27:15] Speaker 04:
And in that case, what apparently the state courts rejected or didn't even discuss in their decisions, you had the defendant saying, this is what happened.

[00:27:25] Speaker 04:
You had the law enforcement officer saying, this is what happened.

[00:27:28] Speaker 04:
But what you had in addition was you had the attorney that

[00:27:32] Speaker 04:
the defendant said he wanted a call coming in and testifying that we had a discussion immediately after his release.

[00:27:40] Speaker 04:
This is what he said, which kind of gave some additional credit to what the defendant said.

[00:27:46] Speaker 04:
And he had both state courts, the appellate court and the district court, not even considering it.

[00:27:51] Speaker 04:
We don't have that here.

[00:27:53] Speaker 04:
We have a record where there's evidence, yes, that Mr. Alatabi said that this was consensual.

[00:28:01] Speaker 04:
But ultimately, the question is how many lesser relateds do you want in there?

[00:28:08] Speaker 04:
Do you want it so watered down that ultimately what happens is that acquittals off the table, period.

[00:28:18] Speaker 01:
So normally when we look at prejudice, you have to see if there's subjective evidence that's supported by the objective evidence.

[00:28:29] Speaker 01:
Subjective would normally be Mr. Alatabi saying, I would have asked for this instruction.

[00:28:36] Speaker 01:
Is that supported by the objective evidence?

[00:28:38] Speaker 01:
But here, we have really, really strong objective evidence because there's such a huge disparity between the sentencing

[00:28:47] Speaker 01:
Does there really need to be subjective evidence to back that up?

[00:29:01] Speaker 04:
Well, you have a couple things in the record that I don't say they watered down, but there's some questions that are created.

[00:29:11] Speaker 04:
And one is the fact that

[00:29:18] Speaker 04:
Counsel and Mr. El-Tabi had agreed that he was going to testify and that there were going to be a lot of things about AJ's consent that they were going to get into to really bolster their case.

[00:29:32] Speaker 04:
But that didn't happen.

[00:29:33] Speaker 04:
He changed his mind.

[00:29:36] Speaker 04:
And counsel said that his not testifying was against his request.

[00:29:40] Speaker 04:
But you also, again, you had a statement and

[00:29:45] Speaker 04:
Putting it in the worst light to the state, you had Mr. Altebi stating that the attorney needs to make the legal decision.

[00:29:54] Speaker 04:
And in this case, requesting not a lesser included, a lesser related instruction, which again would have required some consent because a lesser related has facts in it that are not in the charging document.

[00:30:13] Speaker 04:
I think realistically, if you came, let's assume the opposite of what happened actually happened, happened.

[00:30:24] Speaker 04:
Mr. Altebi requested the statutory sexual seduction.

[00:30:28] Speaker 04:
He was colloquied by the court.

[00:30:36] Speaker 04:
At that point, what happens is you've got still the two levels that were there, but as a third alternative, you have a, not going home, you have a conviction.

[00:30:48] Speaker 02:
You're over your time unless my colleagues have other questions.

[00:30:51] Speaker 02:
Thank you.

[00:30:54] Speaker 04:
Okay.

[00:30:54] Speaker 04:
I was going to just wrap it up real quick, but saying that ultimately there was not an all or nothing.

[00:31:01] Speaker 04:
What would have happened had the statutory sexual seduction instruction been requested is you have prison, and there's no other alternative.

[00:31:14] Speaker 04:
He's not going to walk out the door.

[00:31:16] Speaker 02:
Thank you.

[00:31:17] Speaker 02:
We understand the argument.

[00:31:18] Speaker 02:
Let's put four minutes on the clock for rebuttal, please.

[00:31:24] Speaker 03:
Very kind, Your Honor.

[00:31:24] Speaker 03:
I appreciate it.

[00:31:26] Speaker 03:
I have three points to make in what I thought was the minute and 38 I have, so we may get out early.

[00:31:33] Speaker 03:
Based on my colleague's argument, I was a little confused about the record as well, about what the argument was with respect to whether this specific instruction was even discussed.

[00:31:42] Speaker 03:
And at EUR page 1242, this is during the evidentiary hearing where counsel is being questioned.

[00:31:48] Speaker 03:
They're talking about the hour and 15 minutes break after the instructional conference.

[00:31:53] Speaker 03:
Recall they started the instructional conference, defendant wasn't even there.

[00:31:56] Speaker 03:
And then he arrives sometime thereafter, and the court says, well, the only reason we started without you is because your lawyer has promised to go over, quote, every single thing with you, end quote.

[00:32:06] Speaker 03:
Even then, his interpreter isn't there.

[00:32:08] Speaker 03:
His interpreter arrives at the very end of the instructional conference, and the court repeats that and says, don't worry, he's going to go over everything.

[00:32:16] Speaker 03:
And in questioning defense counsel about that hour and 15 minutes, here's the question defense counsel asked.

[00:32:23] Speaker 03:
Would it be fair to say you basically gave up on trying to make him understand what the statutory seduction was about?

[00:32:29] Speaker 03:
No.

[00:32:30] Speaker 03:
I think it is better to say I just didn't even bother to try.

[00:32:34] Speaker 03:
So there's no doubt that this wasn't discussed.

[00:32:36] Speaker 03:
Any confusion that the arguments, I just want to clear that up.

[00:32:41] Speaker 03:
Counsel made the point that there was

[00:32:43] Speaker 03:
defense counsel made a strategic decision not to request it.

[00:32:47] Speaker 03:
And that's sort of a talismanic word.

[00:32:49] Speaker 03:
If it's strategic, it's all over.

[00:32:51] Speaker 03:
Strickland says there's no problem.

[00:32:53] Speaker 03:
The problem is that that strategic decision was marred by a fundamental misunderstanding of the punishment

[00:32:59] Speaker 03:
for the sexual seduction charges.

[00:33:01] Speaker 03:
And we know under Hinton versus Alabama that a decision made based on a mistake of law cannot be strategic.

[00:33:07] Speaker 03:
It's not reasonable.

[00:33:08] Speaker 03:
The decision not to consult was not a reasonable one.

[00:33:11] Speaker 03:
And that's why the trial court, I think, decided that, in fact, that decision not to consult fell below the standard of care.

[00:33:18] Speaker 03:
Let me get back to the questions.

[00:33:21] Speaker 03:
I received a number of them, and my colleague received them as well, about the subjective declaration.

[00:33:26] Speaker 03:
Could counsel have provided one?

[00:33:28] Speaker 03:
Sure, he could have, but there's something

[00:33:30] Speaker 03:
I guess I'll use the word irony.

[00:33:32] Speaker 03:
It may be inappropriate.

[00:33:33] Speaker 03:
There's something ironic about saying that, yeah, the objective evidence, there's a lot of objective evidence here, including the enormous disparity, including the presence of the anti-Arab sentiment, including the obvious evidence.

[00:33:44] Speaker 03:
There's a lot of objective evidence that you would have taken it.

[00:33:46] Speaker 03:
But we're going to bar you from relief because you didn't provide a declaration that every single prosecutor and virtually every court has said is self-serving and unpersuasive.

[00:33:56] Speaker 03:
To me, I don't think that there's a legal barrier to relying on powerful objective evidence.

[00:34:02] Speaker 03:
And for purposes of 2254D, as opposed to the merits, the question isn't whether this objective evidence carries the day.

[00:34:08] Speaker 02:
The question is whether... Can I just ask, because we don't have this declaration, I'm not sure I'm familiar with the cases on this, have courts said that such a declaration is irrelevant or just not sufficient?

[00:34:19] Speaker 03:
No, they've said it's unpersuasive self-serving, but it's not irrelevant.

[00:34:23] Speaker 03:
But the fact that you may not present a piece of relevant evidence doesn't foreclose relief if there's other evidence that carries your burden.

[00:34:30] Speaker 03:
It is the defendant's burden to prove that, in fact, there's evidence showing that there would have been a request for that lesser instruction.

[00:34:37] Speaker 03:
And I believe the objective evidence is sufficient in this case.

[00:34:40] Speaker 03:
Yes, in a perfect world, I go back and talk to counsel who's creating this record and say, hey, put it in a deck.

[00:34:47] Speaker 03:
I know it's going to be viewed as self-serving, but it dots an I and it crosses a T. And I don't think that the fact that an I wasn't dotted and a T wasn't crossed is the reason to bar relief in this case.

[00:34:57] Speaker 03:
And for 2254-D purposes, a more basic purpose is that

[00:35:02] Speaker 03:
Whatever we may disagree on the objective evidence, Your Honors may go back and confer and say, well, Gardner's discussion of the objective evidence isn't sufficient.

[00:35:10] Speaker 03:
And that may be the case.

[00:35:11] Speaker 03:
But what we agree in is that evidence is relevant.

[00:35:15] Speaker 03:
And the state court of appeal did not discuss any of that relevant evidence.

[00:35:19] Speaker 03:
And that's why this isn't the kind of state decision the 2254-D was designed to require this court to defer to, because relevant evidence that's discussed in Taylor versus Maddox wasn't even discussed.

[00:35:31] Speaker 03:
I am out of time, even the kind additional time your honors were able to give me.

[00:35:36] Speaker 02:
Thank you both sides for the helpful arguments.

[00:35:38] Speaker 02:
This case is submitted.

[00:35:39] Speaker 03:
Thank you, your honors.