Nejad v. Olens

Filing 32

ORDER that the 1 Petition for Writ of Habeas Corpus is DENIED on the claims that the trial court erroneously charged the jury that a pellet gun was per se a deadly weapon, and a juror failed to disclose that she was a rape victim. The Writ of Habeas Corpus is GRANTED on the claim of ineffective assistance of counsel. The State is ordered to give the Petitioner a new trial within 90 days or release him. Signed by Judge Thomas W. Thrash, Jr on 10/20/15. (dr)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
ALI NEJAD
GDC #0001206892; Macon State
Prison,
Petitioner,
v.

CIVIL ACTION FILE
NO. 1:12-CV-1502-TWT

GREGORY MCLAUGHLIN, Warden,
Respondent.

ORDER

In December 2005, a Fulton County jury convicted Ali Nejad of rape,
aggravated sodomy, aggravated assault with a deadly weapon (two counts), and
aggravated battery (two counts). He was sentenced to 35 years in prison. In a motion
for new trial, Nejad asserted three claims: (1) the trial court erroneously charged the
jury that a pellet gun was per se a deadly weapon; (2) a juror failed to disclose that she
was a rape victim; and (3) trial counsel was ineffective. After the conviction was
upheld by the Georgia Supreme Court, the Petitioner filed this federal habeas corpus
action. The Magistrate Judge issued a Report and Recommendation [Doc. 15]
recommending denying relief on the same three grounds asserted in the motion for
new trial. On January 13, 2015, I issued an Order declining to adopt the Report and
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Recommendation in its entirety and granting the writ on habeas corpus on the claim
of ineffective assistance of counsel. The State appealed and the Court of Appeals has
remanded the case with directions for me to rule on the other two claims for relief.
As to the jury charge that a pellet gun was a dangerous weapon per se, I adopt
the Report and Recommendation as the judgment of the Court. The two victims both
testified that they were threatened with guns. The erroneous jury charge was harmless
error. With regard to the claim that a juror failed to reveal that she had been a rape
victim, I adopt the Report and Recommendation as the judgment of the Court. The
Petitioner has not shown that the juror could not be impartial and that she should have
been struck for cause. The Petitioner has not shown that his trial was fundamentally
unfair. The Petition for a Writ of Habeas Corpus [Doc. 1] is DENIED on both of these
grounds. For the reasons set forth in my Opinion and Order of January 13, 2015, the
Writ of Habeas Corpus [Doc. 1] is GRANTED on the claim of ineffective assistance
of counsel. The State is ordered to give the Petitioner a new trial within 90 days or
release him.

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SO ORDERED, this 20 day of October, 2015.

/s/Thomas W. Thrash
THOMAS W. THRASH, JR.
United States District Judge

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