Abdelnabi v. State

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NEHAD SOBHI ABDELNABI v. STATE OF TENNESSEE

No. E2020-01270-CCA-R3-PC

Court of Criminal Appeals of Tennessee, Knoxville

February 18, 2022

Session November 16, 2021.

Appeal from the Criminal Court for Knox County No. 114708 Steven Wayne Sword, Judge.

Petitioner Nehad Sobhi Abdelnabi, appeals the denial of his post-conviction petition, arguing that the post-conviction court erred in denying his claim that he was denied a trial by an impartial jury and in dismissing his second amended petition claiming that trial counsel was ineffective in failing to convey a plea offer. After hearing oral arguments and following a review of the entire record, the briefs of the parties, and the applicable law, we affirm the judgment of the post-conviction court.

Tenn R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

Gregory P. Isaacs, J. Franklin Ammons, Knoxville, Tennessee, for the appellant, Nehad Sobhi Abdelnabi.

Herbert H. Slatery III, Attorney General and Reporter; Garrett D. Ward, Assistant Attorney General; Charme P. Allen, District Attorney General; and Hector Sanchez, Assistant District Attorney General, for the appellee, State of Tennessee.

Jill Bartee Ayers, J., delivered the opinion of the court, in which James Curwood Witt and D. Kelly Thomas, Jr., JJ., joined.

OPINION

JILL BARTEE AYERS, JUDGE.

Factual and Procedural Background

Petitioner was charged with two counts of especially aggravated kidnapping, two counts of aggravated assault, and one count of aggravated burglary. His first trial resulted in a mistrial when his co-defendant, Lowi Fathi Akila referred to a previous incident where Petitioner allegedly threatened another man with a gun. At the second trial, the jury convicted Petitioner of the lesser included offense of aggravated kidnapping in count one, especially aggravated kidnapping in count two, and aggravated assault in counts three and four. The jury found Petitioner not guilty of aggravated burglary as charged in count five. The trial court merged count one into count two and merged count four into count three and ran the sentences concurrently for a total effective sentence of seventeen years in the Tennessee Department of Correction at 100% by operation of law. This court affirmed Petitioner's convictions, and the supreme court denied his application for permission to appeal. State v. Nehad Sobhi Abdelnabi, No. E2017-00237-CCA-R3-CD, 2018 WL 3148003 (Tenn. Crim. App., at Knoxville, June 26, 2018), perm. app. denied (Tenn. Nov. 15, 2018).

The evidence presented at trial showed that Petitioner suspected Naser Ferwanah, who Petitioner knew from high school in Palestine, of having an affair with Petitioner's wife.^[1] Mr. Ferwanah had visited Petitioner and his family and had visited Petitioner at his place of business, Electronics Tech about once per month. Petitioner at one point asked Mr. Ferwanah to swear on his Quran in the presence of his oldest son that he was not having an affair with Petitioner's wife. He was suspicious based upon a pornographic video he had seen of two individuals he thought looked like his wife and Mr. Ferwanah.

Petitioner and Mr. Ferwanah then began having dinner periodically with one of Petitioner's employees, Lowi Akila. On February 1, 2012, Mr. Ferwanah drove to Petitioner's place of business to meet with them for dinner. Petitioner asked Mr. Ferwanah to come into the store stating that he wanted to show him how someone who was tied up could get untied. Petitioner locked the door and tied both Mr. Ferwanah and Mr. Akila to wooden chairs and taped Mr. Ferwanah's chest and legs to the chair. Petitioner released Mr. Akila, and a masked man came in and threw Mr. Ferwanah, still tied to the chair, onto the concrete floor. After the chair broke, the masked man tied Mr. Ferwanah's hands behind his back with a zip tie and hit him with a baseball bat and a "two-by-four", and kicked him. Petitioner told Mr. Ferwanah he would let him go if he gave him the tapes. Mr. Ferwanah replied that he did not have any tapes. Mr. Akila and Petitioner continued assaulting Mr. Ferwanah and opened and closed a gun to show him it was loaded, then pointed it at Mr. Ferwanah's head. The masked man held a gun to Mr. Ferwanah's head and told him he would kill his wife and children if he told the police about the offenses.

Petitioner ultimately cleaned Mr. Ferwanah up, put him in the passenger seat of Mr. Ferwanah's vehicle and drove him to Mr. Ferwanah's home where Petitioner helped give him a bath and put him into bed, telling Mr. Ferwanah's wife that he had been in an accident. Eventually, after Petitioner left, Mr. Ferwanah's wife called 911, and he was taken by ambulance to a hospital. He sustained fractures in his left ankle, right wrist and left wrist, and bruising and lacerations on his body as well as an injury to his head. He was out of work for four and a half months.

Petitioner's wife testified that she had never had an affair with Mr. Ferwanah. At the time of trial, she and Petitioner were in the process of a divorce. Knoxville Police Department officers who investigated the assault testified at trial, noting that during their investigation, the garage area of Petitioner's building was very clean and had a strong smell of cleaner. They also noticed a bucket with bloody blankets and blood on some of the tools. Officers also recovered a blue blanket, large plastic sheet and pieces of a broken chair from a dumpster at an apartment complex in west Knoxville. One of Petitioner's employees also testified about the strong smell of bleach when he walked into the business the next day and noticed that the floor was very clean.

Mr. Akila pled guilty to accessory after the fact and testified at trial describing the assault and admitting that he helped Petitioner clean up the garage area after the assault. He put the tarp, towels and broken chair in a dumpster at a nearby apartment complex. Petitioner called several witnesses at trial who testified about his good reputation and character.

Post-Conviction Proceedings

The record shows that Petitioner, through counsel, filed a timely petition for post-conviction relief on January 25, 2019 alleging the following grounds for relief:

Pursuant to Strickland v. Washington, 466 U.S. 668 (1984), Ineffective assistance of counsel was provided to the Petitioner in violation of his 6th Amendment right to assistance of counsel.

Counsel's performance fell below an objective standard of reasonableness.

Counsel's performance gives rise to a reasonable probability that if counsel had performed adequately, the result would have been different.

Counsel failed to adequately explore and present certain evidence of the affirmative defense of duress.

The conviction was based upon the unconstitutional failure of the Government to disclose to [Petitioner] evidence that would be favorable to the defense.

Conviction was based upon a violation of protections against double jeopardy.

The conviction was based on inadmissible evidence.

That trial counsel has failed to include these matters in [Petitioner's] direct appeal, as such amend (sic) in the alternative Petitioner respectfully requests that he be granted a delayed appeal on these and any matter that were not included in any original direct appeals.

The original petition was not verified under oath by Petitioner or certified by counsel. See T.C.A. § 40-30-104(d); Tenn. R. Sup. Ct. R. 28, § 6(C)(3).

On February 5, 2019, the post-conviction court entered a preliminary order directing the State to respond within sixty days of its order, or sixty days of any amendment filed by Petitioner. As the post-conviction court later acknowledged, the preliminary order did not set a deadline for Petitioner to file an amendment or a notice that no amendment would be filed. Instead, the post-conviction court held that it would determine whether Petitioner was entitled to an evidentiary hearing once the State filed its answer or "after the expiration" of the sixty-day deadline "if no answer is filed." And "[i]f an evidentiary hearing is warranted," the court indicated that it would place the case on its docket for May 16, 2019.

On February 9, 2019, the State filed an answer denying the allegations in general and demanding strict proof. In its answer, the State did not object to the lack of verification of the original petition. The parties agreed to continue the matter to July 18, 2019, and then agreed to continue the hearing to September 19, 2019. On September 11, 2019, Petitioner filed a first amended post-conviction petition incorporating the same issues he raised in the original petition and adding one new claim of juror misconduct. Unlike the claims he raised in his original petition, Petitioner provided lengthy factual allegations for the juror misconduct claim and alleged that he uncovered evidence of juror misconduct during "post-trial investigation." The first amended petition was not verified under oath and was not certified by counsel.

The case was again continued by agreement of the parties to November 21, 2019. Three days before the hearing, the State filed its answer to the first amended petition denying the allegations in general, demanding strict proof, and objecting to the jury misconduct claim on the grounds that post-conviction relief is not the proper remedy for newly discovered evidence. The State did not object to the petition for lack of verification or certification in its answer.

On the morning of the hearing, November 21, 2019, Petitioner filed a second amended petition verified under oath, incorporating the claims raised in the original petition and the first amended petition, and alleging for the first time that his trial counsel was ineffective for failing...