Petition for Writ of Certiorari — Noble U. Ezukanma, Petitioner v. United States

No. ______

In the

Supreme Court of the United States

__________________

NOBLE U. EZUKANMA,

v.

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

__________________

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Fifth Circuit

__________________

PETITION FOR WRIT OF CERTIORARI

__________________

GARY A. UDASHEN

Counsel of Record

BRETT ORDIWAY

UDASHEN|ANTON

8150 N. Central Expressway

Suite M1101

Dallas, Texas 75206

(214) 468-8100

Fax (214) 468-8104

gau@udashenanton.com

brett@udashenanton.com

Attorneys for Petitioner

Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001

i

QUESTION PRESENTED

How do the standards for judging ineffective

assistance of counsel apply to the question of what

advice defense counsel gives to a defendant concerning

whether he should testify at trial?

ii

LIST OF PARTIES

All parties appear in the caption of the case on the

cover page.

LIST OF RELATED PROCEEDINGS

1. United States of America v. Noble U. Ezukanma,

Criminal No. 3:15-CR-00254-1, Civil No. 3:20-CV00318, in the United States District Court for the

Northern District of Texas, Dallas Division.

2. United States of America v. Noble U. Ezukanma,

No. 23-10329, in the United States Court of Appeals for

the Fifth Circuit.

iii

TABLE OF CONTENTS

QUESTION PRESENTED . . . . . . . . . . . . . . . . . . . . i

LIST OF PARTIES. . . . . . . . . . . . . . . . . . . . . . . . . . . ii

LIST OF RELATED PROCEEDINGS . . . . . . . . . . . ii

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . iii

TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . v

PETITION FOR A WRIT OF CERTIORARI . . . . . . 1

I.

OPINIONS BELOW . . . . . . . . . . . . . . . . . . . . 1

II.

JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . 2

III.

RELEVANT CONSTITUTIONAL

PROVISION. . . . . . . . . . . . . . . . . . . . . . . . . . . 2

IV.

STATEMENT OF THE CASE . . . . . . . . . . . . 2

i. Procedural History . . . . . . . . . . . . . . . . 2

ii. Factual Summary . . . . . . . . . . . . . . . . . 3

V.

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . 4

a. Reasons For Granting the Writ . . . . . . . . . 4

b. A Certificate of Appealability Should

Have Been Issued. . . . . . . . . . . . . . . . . . . . 7

c. Factual Background on Issue . . . . . . . . . . 8

d. The Strickland Standard . . . . . . . . . . . . . 10

e. How To Review Claims of Deficient

Performance Related to Interference with

a Defendant’s Right to Testify . . . . . . . . . 11

iv

i. Magistrate’s Report . . . . . . . . . . . . . . 11

ii. District Court’s Order. . . . . . . . . . . . . 18

f. Application of the Prejudice Prong of

Strickland. . . . . . . . . . . . . . . . . . . . . . . . . 21

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

APPENDIX

Appendix A Opinion in the United States Court of

Appeals for the Fifth Circuit

(August 17, 2023) . . . . . . . . . . . . . App. 1

Appendix B Order Accepting Findings and

Recommendation of the United States

Magistrate Judge and Denying

Certificate of Appealability in the

United States District Court for the

Northern District of Texas

(March 9, 2023) . . . . . . . . . . . . . . . App. 3

Appendix C Judgment in the United States

District Court for the Northern

District of Texas

(March 9, 2023) . . . . . . . . . . . . . . App. 11

Appendix D F i n d i n g s ,

Conclusions, and

Recommendation in the United States

District Court for the Northern

District of Texas

(February 3, 2023) . . . . . . . . . . . App. 13

v

TABLE OF AUTHORITIES

CASES

Barefoot v. Estelle,

463 U.S. 880 (1983). . . . . . . . . . . . . . . . . . . . . . . . 7

Brown v. State,

No. 08-12-00026-CR, 2014 WL 172521 (Tex. App.

– El Paso Jan. 15, 2014, pet. ref’d). . . . . . . . . . . 12

Buck v. Davis,

580 U.S. 100 (2017). . . . . . . . . . . . . . . . . . . . . . . . 7

Burton v. State,

438 S.E.2d 83 (Ga. 1994) . . . . . . . . . . . . . . . . . . 12

Cannon v. Mullin,

383 F.3d 1152 (10th Cir. 2004). . . . . . . . . . . 12, 29

Carter v. Lee,

283 F.3d 240 (4th Cir. 2002). . . . . . . . . . . . . . . . 14

Commonwealth v. Gaines,

577 WDA 2017, 2018 WL 2188978 (Pa. Super.

Ct. May 14, 2018) . . . . . . . . . . . . . . . . . . . . . . . . 28

Dixon v. Burt,

No. 17-2292, 2018 WL 2016252 (6th Cir. Apr. 30,

2018) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

Drinkard v. Johnson,

97 F.3d 751 (5th Cir.), cert. denied, 117 S.Ct.

1114 (1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Faretta v. California,

422 U.S. 806 (1975). . . . . . . . . . . . . . . . . 23, 24, 26

vi

Foster v. Delo,

11 F.3d 1451 (8th Cir. 1993), rev’d on other

grounds en banc, 39 F.3d 873 (8th Cir. 1994) . . 13

Green v. United States,

365 U.S. 301 (1961). . . . . . . . . . . . . . . . . . . . . . . 28

Guzman-Correa v. United States,

CR 07-290 (PG), 2018 WL 1725221 (D.P.R.

Mar. 29, 2018) . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

Ledet v. Davis,

No. 4:15-CV-882-A, 2017 WL 2819839 (N.D. Tex.

June 28, 2017) . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

Lozada v. Deeds,

498 U.S. 430 (1991). . . . . . . . . . . . . . . . . . . . . . . . 7

Matter of Salinas,

189 Wash. 2d 747, 408 P.3d 344 (2018) . . . . . . . 28

McCoy v. Louisiana,

138 S.Ct. 1500 (2018) . . . . . . . . . . . . . . . . . . 23, 24

Miller-El v. Cockrell,

537 U.S. 322 (2003). . . . . . . . . . . . . . . . . . . . . . . . 7

Monreal v. State,

546 S.W.3d 718 (Tex. App. - San Antonio 2018,

pet. ref’d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

Newton v. State,

455 Md. 341, 168 A.3d 1 (2017) . . . . . . . . . . . . . 28

Nichols v. Butler,

953 F.2d 1550 (11th Cir. 1992). . . . . . . . . . . . . . 13

vii

Njonge v. Gilbert,

No. C17-1035 RSM, 2018 WL 1737779 (W.D.

Wash. Apr. 11, 2018). . . . . . . . . . . . . . . . . . . . . . 28

People v. Burden,

288 A.D.2d 821, 732 N.Y.S.2d 758 (2001) . . . . . 14

People v. Cuccia,

97 Cal. App. 4th 785, 118 Cal. Rptr. 2d 668

(2002). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Pirela v. Horn,

710 Fed. Appx. 66 (3d Cir. 2017) . . . . . . . . . . . . 28

Powell v. Alabama,

287 U.S. 45 (1932). . . . . . . . . . . . . . . . . . . . . . . . 10

Rayborn v. United States,

489 Fed. Appx. 871 (6th Cir. 2012) . . . . . . . . . . 12

Roberts v. State,

535 S.W.3d 789 (Mo. Ct. App. 2017) . . . . . . . . . 28

Rock v. Arkansas,

483 U.S. 44 (1987). . . . . . 11, 14, 23, 24, 25, 26, 28

Santillan v. Beto,

371 F.Supp. 194 (S.D. Tex. 1974) . . . . . . . . . . . . 13

State v. Calvert,

2017 UT App. 212, 407 P.Ed 1098

(Utah App. 2017). . . . . . . . . . . . . . . . . . . . . . . . . 28

State v. Rivera,

402 S.C. 225 (South Carolina 2013) . . . . . . . . . . 23

State v. Savage,

120 N.J. 594, 577 A.2d 455 (1990) . . . . . . . . . . . 12

viii

Starkweather v. Smith,

574 F.3d 399 (7th Cir. 2009), as corrected on

denial of reh’g (Aug. 7, 2009) . . . . . . . . . . . . . . . 13

Strickland v. Washington,

466 U.S. 668 (1984). . . . . . . 4, 10-12, 16, 21-28, 30

United States v. Brown,

217 F.3d 247 (5th Cir. 2000). . . . . . . . . . . . . . . . 11

United States v. Ezukanma,

756 Fed. Appx. 360 (5th Cir. 2018) . 3, 4, 8, 14, 15

United States v. Flores-Martinez,

677 F.3d 699 (5th Cir. 2012). . . . . . . . . . . . . 11, 25

United States v. Ganji,

880 F.3d 760 (5th Cir. 2018). . . . . . . . . . . . . . . . 14

United States v. Goodwin,

770 F.2d 631 (7th Cir. 1985). . . . . . . . . . . . . . . . 12

United States v. Poe,

352 F.2d 639 (D.C. Cir. 1965) . . . . . . . . . . . . . . . 13

United States v. Teague,

953 F.2d 1525 (11th Cir. 1992). . . . . . . . . . . 11, 12

United States v. Walker,

772 F.2d 1172 (5th Cir. 1985). . . . . . . . . . . . 13, 29

Weaver v. Massachusetts,

582 U.S. 286 (2017). . . . . . . . . . . . . . . . . 10, 22-28

Woodford v. Visciotti,

537 U.S. 19 (2002). . . . . . . . . . . . . . . . . . . . . . . . 22

ix

CONSTITUTION

U.S. Const. amend. VI . . . . . . . . . . . . . . . . . . 2, 10, 19

STATUTES

28 U.S.C. §1254 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

28 U.S.C. §2253(1)(B). . . . . . . . . . . . . . . . . . . . . . . . . 7

28 U.S.C. §2253(c)(2) . . . . . . . . . . . . . . . . . . . . . . . . . 7

28 U.S.C. §2255 . . . . . . . . . . . . . . . . . . . . . . . 1, 2, 4, 7

OTHER AUTHORITIES

Michael E. Antonio & Nicole E. Arone, Damned If

They Do, Damned If They Don’t: Jurors’ Reaction

to Defendant Testimony or Silence During a

Capital Trial, 89 Judicature 60 (2005) . . . . . . . 29

Mitchell J. Frank & Dr. Dawn Broschard, The

Silent Criminal.

Defendant and the

Presumption of Innocence: In the Hands of Real

Jurors, Is Either of Them Safe?, 10 Lewis &

Clark Rev. 237 (2006) . . . . . . . . . . . . . . . . . 29, 30

Standards for Criminal Justice Standard

4-5.2(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

1

PETITION FOR A WRIT OF CERTIORARI

Petitioner, Noble U. Ezukanma, respectfully

petitions for a writ of certiorari to review the judgment

of the United States Court of Appeals for the Fifth

Circuit.

I.

OPINIONS BELOW

The Order of the United States Court of Appeals for

the Fifth Circuit denying Ezukanma’s Motion for

Certificate of Appealability was issued on August 17,

2023, and is unpublished. The order is included with

this Petition as Appendix A. The Order of the United

States District Court for the Northern District of Texas

denying Ezukanma’s Motion Under 28 U.S.C. §2255 to

Vacate, Set Aside or Correct Sentence By a Person in

Federal Custody and the Order Accepting Magistrate

Judge’s Findings were issued on March 9, 2023, and

are unpublished. Those documents are included with

this Petition as Appendix B and C. The Findings,

Conclusions and Recommendation of the Magistrate

Judge were entered on February 3, 2023, and are

included with this Petition as Appendix D.

2

II.

JURISDICTION

The United States Court of Appeals for the Fifth

Circuit denied Ezukanma’s Motion for Certificate of

Appealability from the District Court’s denial of his

Motion Under 28 U.S.C. §2255. The issue Ezukanma

sought a certificate of appealability concerning was

related to ineffective assistance of counsel under the

Sixth Amendment to the United States Constitution.

Therefore, the Supreme Court has jurisdiction

pursuant to 28 U.S.C. §1254.

III.

RELEVANT CONSTITUTIONAL PROVISION

The Sixth Amendment to the United States

Constitution provides that “[i]n all criminal

prosecutions, the accused shall enjoy the right to…

have the Assistance of Counsel for his defence.”

IV.

STATEMENT OF THE CASE

i. Procedural History

This case involves Noble U. Ezukanma’s Motion

Under 28 U.S.C. § 2255 to Vacate, Set Aside or Correct

Sentence By a Person in Federal Custody. The focus of

this motion was ineffective assistance by defense

counsel related to the advice, or lack of advice, given to

Ezukanma’s by his attorney on whether he should

testify at his trial.

On February 3, 2023, the

Magistrate issued a recommendation that Ezukanma’s

3

motion be denied. Ezukanma timely filed objections to

the Magistrate’s Report and on March 9, 2023, the

District Court rejected Ezukanma’s objections and

entered judgment denying the 2255 motion. Ezukanma

gave notice of appeal and asked the United States

Court of Appeals for the Fifth Circuit to issue a

certificate of appealability. On August 17, 2023, this

request was denied.

ii. Factual Summary

Noble Ezukanma, a practicing medical doctor, was

indicted on one count of conspiracy to commit health

care fraud and six counts of health care fraud for his

alleged role in a scheme to bill Medicare for home visits

by a physician (1) that failed to comply with Medicare

regulations, (2) were medically unnecessary, and

(3) overstated services rendered. Ezukanma pleaded

not guilty and exercised his right to a jury trial. At

trial, the government presented evidence that

Ezukanma attended meetings in which employees of

the relevant home health company were instructed to

overbill, had billing paperwork in his home, admitted

knowledge of the companies submitting claims under

his provider number for visits performed by others, and

signed certifications without reading them. United

States v. Ezukanma, 756 Fed. Appx. 360, 366 (5th Cir.

2018).

Additionally, the government presented

evidence that blank Form 485 certification forms were

found with Ezukanma’s signature, and that he

allegedly signed these forms without reading them. Id.

at 366-67. A jury convicted Ezukanma on all seven

counts, and the District Court sentenced him to 200

months’ imprisonment. Id. at 363.

4

On appeal to the Fifth Circuit Court of Appeals,

Ezukanma argued that the evidence was insufficient to

support his convictions, that the District Court erred in

failing to include Medicare regulations in the jury

instructions, and that the District Court incorrectly

calculated the loss amount. Ezukanma, 756 Fed. Appx.

at 362. The Fifth Circuit affirmed, noting that

Ezukanma had not testified in his defense. Id. at 368.

V.

ARGUMENT

a. Reasons For Granting the Writ

This Petition Under 28 U.S.C. § 2255 raises the very

important question of what advice is adequate from

defense counsel to a defendant concerning the decision

on whether to testify at trial. See, Supreme Court

Rule 10. The specific question raised is, under what

circumstances is counsel ineffective under Strickland

v. Washington, 466 U.S. 668 (1984) in the advice, or

lack of advice, given a defendant on whether he should

testify. This Petition also involves the question of the

application of the standards for issuance of a certificate

of appealability on this important constitutional

question.

The record before the court shows that Ezukanma’s

counsel either gave him no useful advice concerning the

decision on whether to testify, or he gave Ezukanma

incorrect advice. At various points in the evidentiary

hearing, trial counsel stated he did not give Ezukanma

any assessment of the strength of the Government’s

case or the likelihood of a conviction without

Ezukanma testifying. However, trial counsel admitted,

5

both in his affidavit, and at other points in his

testimony at the evidentiary hearing, that he told

Ezukanma that a reasonable doubt had been raised.

Nevertheless, the Magistrate, and later the District

Court, did not find trial counsel’s representation

deficient.

Moreover, trial counsel says that Ezukanma himself

told trial counsel that his own assessment of the

evidence was that the Government had failed to prove

its case beyond a reasonable doubt, and, based on that

belief, he was not going to testify.1 Trial counsel said

that he did not correct Ezukanma’s clear

misunderstanding of the state of the evidence, and did

not tell him that a conviction was a certainty without

Ezukanma’s testimony because he did not want him to

testify for other reasons. Thus, according to trial

counsel, he allowed Ezukanma’s misunderstanding of

the evidence to stand because the result was one that

counsel was seeking, which was for Ezukanma to not

testify.

According to Ezukanma, it was trial counsel who

told him that the Government had failed to prove the

case beyond a reasonable doubt and, for that reason, he

should not testify. If trial counsel told Ezukanma this,

then his assessment of the evidence was egregiously

wrong. In fact, the evidence, without Ezukanma’s

testimony, ensured a conviction. Regardless, whether

trial counsel told Ezukanma this, or Ezukanma told

trial counsel this was his opinion, the result was the

1

Ezukanma strongly denied ever saying this to his counsel.

6

same. Ezukanma chose to not testify based on

erroneous information.

Faced with this conflict in testimony between trial

counsel and Ezukanma, the Magistrate chose to believe

one version of trial counsel’s testimony. However, in

reaching this conclusion, the Magistrate failed to

address several crucial questions. These questions

include:

1. Does trial counsel have a duty to provide a

defendant an assessment of the strength of the

Government’s case and the likelihood of conviction in

order to assist the defendant in making an informed

decision on whether to testify?

2. If the evidence before a jury ensures a conviction

without the defendant’s testimony, does trial counsel

have an obligation to tell the defendant this in order to

assist the defendant in making an informed decision on

whether to testify?

3. If the defendant tells trial counsel that he does not

believe the Government has proven his guilt beyond a

reasonable doubt, and that assessment is clearly

wrong, does trial counsel have a duty to correct the

defendant’s misunderstanding?

4. If the defendant is making a decision on whether to

testify based on a misunderstanding of the strength of

the Government’s evidence against him, does trial

counsel have a duty to correct this misunderstanding?

7

b. A Certificate of Appealability Should Have

Been Issued

In order to appeal from the denial and dismissal of

his §2255 Motion, Ezukanma must first obtain a

certificate of appealability. See, 28 U.S.C. §2253(1)(B);

Miller-El v. Cockrell, 537 U.S. 322 (2003). A certificate

of appealability should issue if the Court finds that

Ezukanma made a substantial showing of the denial of

a constitutional right. 28 U.S.C. §2253(c)(2). This does

not mean that Ezukanma was required to establish

that he will prevail on the merits. In fact, a full

consideration of the merits is not required nor even

permitted by §2253(c)(2). Miller-El v. Cockrell, 537

U.S. at 336. Instead, Ezukanma must “demonstrate

that the issues are debatable among jurists of reason;

that a court could resolve the issue (in a different

manner); or that questions are adequate to deserve

encouragement to proceed further.” Drinkard v.

Johnson, 97 F.3d 751, 755 (5th Cir.), cert. denied, 117

S.Ct. 1114 (1997) (quoting Barefoot v. Estelle, 463 U.S.

880, 893 n. 4 (1983)); accord, Lozada v. Deeds, 498 U.S.

430 (1991). “[A] claim can be debatable even though

every jurist of reason might agree, after the certificate

of appealability has been granted and the case has

received full consideration, that (the Petitioner) will

not prevail.” Miller-El v. Cockrell, 537 U.S. at 337.

The Supreme Court addressed the standards for

issuing a certificate of appealability in Buck v. Davis,

580 U.S. 100 (2017). In Buck, the Court reversed the

Fifth Circuit based on the Fifth Circuit’s failure to

issue a certificate of appealability. In discussing the

requirements for the issuance of a certificate of

8

appealability, the Court emphasized that the question

of issuing a certificate of appealability is not the same

as the question of the proper resolution of the issue

itself. The court restated the rule that the certificate of

appealability should issue if jurists of reason could

disagree on the proper resolution of a case.

c. Factual Background on Issue

The allegations in this case involved a conspiracy to

defraud Medicare. The only question was whether

Ezukanma agreed to join the conspiracy with intent to

defraud Medicare – whether he knowingly and

willingly agreed to defraud Medicare - or whether he

was unwittingly and unknowingly used by the coconspirators.

However, even though Ezukanma explained to

investigators that he did not know how home-visit

billing worked, at trial, Ezukanma did not testify and

explain his mental state. United States v. Ezukanma,

756 Fed. Appx. at 366. The government, by contrast,

presented “copious” circumstantial evidence against

Ezukanma. Id. at 369.

Ezukanma desperately wanted to testify. His

“belief was that [his] testimony would be necessary in

order for the jury to understand things [he] did and the

information [he] had or did not have and to see that

[he] had no intent to violate the law or to do anything

wrong.” Affidavit from Ezukanma, Appendix 2 from

2255 record. And at first, trial counsel supported the

idea and the plan was for Ezukanma to testify in his

defense.

9

But according to trial counsel, after the government

rested, Ezukanma himself – not trial counsel – “said

something to the effect of no, [the government has not]

proven their case beyond a reasonable doubt.”2 And

because counsel feared that, if Ezukanma testified, the

government would introduce evidence that he willfully

and intentionally failed to obey a child-support order,

allegedly lied in a 2009 child-support proceeding, and

spent a short time in jail because of it, counsel urged

Ezukanma not to testify.

Ezukanma vehemently denied that it was his own

estimation of the government’s case that persuaded

him not to testify. In his affidavit filed in the District

Court, he swears it was trial counsel’s estimation:

There was nothing about [the government’s

witnesses’] testimony that changed my opinion

concerning the necessity of me testifying. In

fact, it appeared to me that the testimony from

the government’s witnesses, if not addressed by

me, would result in me being convicted.

During an evening break in the trial, I met with

Mr. Padian. This meeting was close to the time

when it would be my turn to testify, so one of the

things we spoke about was my testimony. Much

to my surprise, in this meeting, Mr. Padian said

he did not think I should testify. He said that he

did not believe the government had presented

evidence that would convince the jury, beyond a

reasonable doubt, that I was guilty. I was

2

At the evidentiary hearing on the 2255 motion, trial counsel

testified about this.

10

surprised by Mr. Padian’s statement because it

seemed to me that the government had

presented enough evidence that the jury was

highly likely to convict me. However, Mr.

Padian told me that his assessment was that the

government had not proven their case and,

therefore, I should not testify. (Appendix 2,

attached to Brief in Support of 2255 Motion).

d. The Strickland Standard

A criminal defendant has a Sixth Amendment right

to effective assistance of counsel at every critical stage

of the proceedings against him. Powell v. Alabama,

287 U.S. 45, 69 (1932). To obtain relief on the basis of

ineffective assistance of counsel, a defendant generally

bears the burden to meet two standards. First, the

defendant must show deficient performance – that

counsel’s representation “fell below an objective

standard of reasonableness.”

Strickland v.

Washington, 466 U.S. 668, 687-88 (1984). Second, the

defendant must show that the attorney’s error

“prejudiced the defense.” Id. “In the ordinary . . . case,

prejudice means ‘a reasonable probability that, but for

counsel’s unprofessional errors, the result of the

proceedings would have been different.” Weaver v.

Massachusetts, 582 U.S. 286 (2017) (quoting

Strickland, 466 U.S. at 694). But the Strickland court

cautioned that the prejudice inquiry is not meant to be

applied in a “mechanical” fashion. Strickland, 466 U.S.

at 696. The ultimate inquiry must concentrate on “the

fundamental fairness of the proceeding.” Id.

11

e. How To Review Claims of Deficient

Performance Related to Interference with a

Defendant’s Right to Testify.

i. Magistrate’s Report

Beginning on page 11 of the findings, the

Magistrate addresses Ezukanma’s argument that

counsel was ineffective in his advice (or lack of advice)

concerning testifying at trial. This discussion involved

the first prong of Strickland: deficient performance.

Initially, the Magistrate recognized that criminal

defendants have the right to testify in their own

defense and that only the defendant may waive this

right. See Rock v. Arkansas, 483 U.S. 44, 51-53 (1987);

United States v. Brown, 217 F.3d 247, 258 (5th Cir.

2000). The Magistrate also noted that a claim that

trial counsel interfered with a defendant’s right to

testify is governed by the standards set out in

Strickland v. Washington, 466 U.S. 668 (1984). (p. 12).

In fact, it is a criminal defendant’s absolute right to

decide whether to testify. See, e.g., United States v.

Flores-Martinez, 677 F.3d 699, 711 (5th Cir. 2012) (“It

is undisputed that the right to testify is a fundamental

and personal constitutional right that only the criminal

defendant himself may waive.”). It is a criminal

defense attorney’s duty to advise him about it. The

Eleventh Circuit has “specifically delineated” the

duties of a defense attorney to include advising the

defendant of the “strategic implications” of testifying or

not. United States v. Teague, 953 F.2d 1525, 1532

(11th Cir. 1992) (en banc) (emphasis added). The

Seventh Circuit has explained that it is a defense

12

attorney’s responsibility “to advise the defendant on

whether or not to testify and to explain the tactical

advantages and disadvantages of doing so.” United

States v. Goodwin, 770 F.2d 631, 637 (7th Cir. 1985).

The Tenth Circuit has said counsel should “discuss

with the defendant the strategic implications of

choosing whether to testify and should make a

recommendation to the defendant.” Cannon v. Mullin,

383 F.3d 1152, 1171 (10th Cir. 2004) (citing Teague,

953 F.2d at 1533-34). And the Sixth Circuit has said

that “[a]ssuring that the defendant’s decision [whether

to testify] is an informed one .. . . necessitates that

counsel discuss the strategic implications involved in

the decision to testify.” Rayborn v. United States, 489

Fed. Appx. 871, 880 (6th Cir. 2012).

State courts, too, have recognized counsel’s duty to

consult with a defendant on the decision whether to

testify. See Burton v. State, 438 S.E.2d 83, 86 (Ga.

1994); State v. Savage, 120 N.J. 594, 630-31, 577 A.2d

455, 473 (1990); Brown v. State, No. 08-12-00026-CR,

2014 WL 172521, at *5 (Tex. App. – El Paso Jan. 15,

2014, pet. ref’d).

And not for nothing, the American Bar Association’s

Standards for Criminal Justice provide that it is up to

the client to decide, after full consultation with defense

counsel, whether to testify in his or her own behalf.

Standards for Criminal Justice Standard 4-5.2(b); see

Strickland, 466 U.S. at 688 (“[p]revailing norms of

practice as reflected in American Bar Association

standards and the like are guides to determining what

is reasonable” representation by an attorney”).

13

Incorrect advice does not amount to a discussion of the

advantages and disadvantages of testifying.

Indeed, “a number of cases have held that incorrect

advice that induces a defendant to waive his right to

testify can constitute ineffective assistance.”

Starkweather v. Smith, 574 F.3d 399, 403 (7th Cir.

2009), as corrected on denial of reh’g (Aug. 7, 2009)

(emphasis in original) (citing Foster v. Delo, 11 F.3d

1451, 1457 (8th Cir. 1993), rev’d on other grounds en

banc, 39 F.3d 873 (8th Cir. 1994); Nichols v. Butler, 953

F.2d 1550, 1553 (11th Cir. 1992); United States v. Poe,

352 F.2d 639, 640 (D.C. Cir. 1965); Santillan v. Beto,

371 F.Supp. 194, 196 (S.D. Tex. 1974)).

In some cases, the necessity of testimony from the

defendant is clearly necessary. When it’s undisputed

that criminal activity took place, but “the very point of

a trial is to determine whether an individual was

involved in [the] criminal activity, the testimony of the

individual himself must be considered of prime

importance.” United States v. Walker, 772 F.2d 1172,

1179 (5th Cir. 1985); People v. Cuccia, 97 Cal. App. 4th

785, 792, 118 Cal. Rptr. 2d 668, 673 (2002) (“Although

several of his witnesses testified to receiving cash

payments from him on occasion, defendant’s testimony

was nonetheless necessary to show the source of that

cash. In sum, his testimony was necessary to defend

against some elements of the charges against him.”).

Among the questions Ezukanma’s testimony could

address: What did Ezukanma hear in those meetings

in which employees were instructed to overbill? Did

Ezukanma know that the home health companies were

submitting claims under his provider number for visits

14

performed by others? Did Ezukanma sign certifications

without reading them? And was Ezukanma’s actual

signature on blank Form 485s?

In many ways, this case is the mirror reflection of

Carter v. Lee, 283 F.3d 240 (4th Cir. 2002), and People

v. Burden, 288 A.D.2d 821, 732 N.Y.S.2d 758 (2001). In

Carter, the court held that “the advice of Carter’s

lawyers that he testify in his trial’s guilt phase was a

sound strategy,” and his attorneys “were not

constitutionally deficient in recommending that [the

defendant] testify,” because “his testimony was

necessary for success of the diminished capacity

defense.” 283 F.3d at 252. Similarly, in Burden, the

court held that the defendant “received [the] effective

assistance of counsel” where counsel advised defendant

to testify because “[d]efendant’s testimony was

necessary to attempt to establish the agency defense,

and thus defendant failed to demonstrate the lack of a

strategic basis for the decision to allow defendant to

testify[.]” 732 N.Y.S.2d at 759.

Here, like “in many criminal cases,” “the most

important witness for the defense . . . [was] the

defendant himself.” Rock v. Arkansas, 483 U.S. 44, 52

(1987). And indeed, on appeal, the Fifth Circuit

distinguished this case from United States v. Ganji, 880

F.3d 760 (5th Cir. 2018) – a similar case, in which the

court held that there was insufficient evidence to prove

a physician agreed to defraud Medicare – by noting the

absence of testimony from Ezukanma. Ezukanma, 756

Fed. Appx. At 368. The court acknowledge that there

were “factual similarities between Dr. Ganji and Dr.

Ezukanma’s cases: both were hired by home health

15

agencies as medical directors, the agencies committed

Medicare fraud, and both physicians allege there was

insufficient evidence to prove their role in the

conspiracies beyond a reasonable doubt.” Id. What’s

more, “both cases had evidence of blank, signed

certification forms.” Id. Ultimately, however, the court

rejected the comparison because, “unlike Ezukanma,

who did not testify and argued the signatures could be

forgeries, Ganji testified that these blank forms were

preceded by medical records she reviewed before

signing the forms.” Id. In advising Ezukanma that his

testimony was unnecessary, then, counsel was simply

incorrect.

The Magistrate ultimately concluded that there was

no deficiency in trial counsel’s representation

concerning Ezukanma’s right to testify. (pp. 15-18).

Ezukanma’s objection to this finding was rejected by

the District Court.

However, in reaching the conclusion that counsel

was not deficient in this regard, the Magistrate failed

to address the argument that, “. . . if it was Ezukanma

- not trial counsel - who ‘said something to the effect of

no (the Government has not) proven that case beyond

a reasonable doubt,” it was unreasonable of counsel not

to dispel Ezukanma’s massive misconception.”

(Movant’s Brief in Support of Motion to Vacate, Set

Aside, or Correct A Sentence By A Person in Federal

Custody, p. 14). Ezukanma, therefore, objected to the

failure of the Magistrate to address his argument that,

even if the facts were as the Magistrate found, counsel

still was ineffective in not correcting the statements

made by Ezukanma. This is an important argument

16

concerning a key question of the application of the

Strickland standards that the Magistrate failed to

address.

Nevertheless, among the reasons cited by the

Magistrate in finding no deficiency in counsel’s

representation was that the Magistrate found that

counsel did not tell Ezukanma that a reasonable doubt

had been raised and, therefore, he did not need to

testify. However, the Magistrate’s findings in this

regard are directly contrary to the following statements

in trial counsel’s affidavit. (See Appendix to Response

to Ezukanma’s 28 U.S.C. § 2255 Motion, Affidavit of

Defense Counsel).

“I spoke to Noble Ezukanma during the break

about the case the Government had presented to

that point, the reasonable doubts that I believed

had been raised, and the burden of proof. We

also discussed proof beyond a reasonable doubt,

its definition and application, not only then, but

in the lead up to trial as well. I was thorough in

our discussions. I did say to him that I thought

that reasonable doubts were raised and if the

jury had those doubts, then the Government had

not proven their case beyond a reasonable

doubt.” (Appendix to Government Response).

Additional testimony from trial counsel at the

evidentiary hearing shows that he was deficient in his

advice to Ezukanma about testifying. At the hearing,

trial counsel testified:

“Q.

So I’m -- I’m -- I want to make sure it’s

clear. What was your assessment to him of the

17

strength of the Government’s case at the time

the Government rested?

A. I -- I did not make an assessment to him at

the time.” (Evidentiary Hearing, p. 43).

...

“A. . . he said something like, “It hasn’t been

proven beyond a reasonable doubt,” or “There is

a reasonable doubt,” something like that.

Q. And you disagreed with his assessment,

right?

A. No, I -- I didn’t have an opinion about his

assessment. All I was trying to figure out was

whether he was going to testify or not.

Q. So when he said that, did it seem to you like

you needed to give him your assessment since he

was giving you his assessment?

A. No, I didn’t feel that need at the time.

Q. Did it seem to you that his assessment might

be wrong?

A. Yes, his assessment might be wrong.

Q. Did you tell him his assessment might be

wrong?

A. No, I didn’t have those thoughts going

through my mind at the time.

Q. So in retrospect, do you think you should

have told him his assessment might be wrong?

A. No. No, I don’t.” (Evidentiary Hearing,

pp. 61-62).

Despite this evidence being before the Court, the

Magistrate failed to address the question of whether it

was deficient conduct for the trial attorney to not

provide Ezukanma with a professional assessment of

the case in order for Ezukanma to have all of the

18

necessary information on which to base a decision

whether to testify. Additionally, the Magistrate failed

to address the question of whether the defense attorney

had a duty to correct a massive misconception allegedly

expressed by Ezukanma concerning what the

Government had established at trial.

In fact, the Magistrate incorrectly failed to

recognize that trial counsel was ineffective in not

giving Ezukanma his professional assessment of the

evidence in order that an informed decision could be

made by Ezukanma on whether to testify. The failure

of trial counsel to give this assessment to Ezukanma,

or correct any misunderstanding Ezukanma had, is

ineffective assistance. Likewise, if trial counsel told

Ezukanma that there was a reasonable doubt in the

case, then he was ineffective in telling Ezukanma

something that was objectively incorrect.

Additionally, all of trial counsel’s reasons for

advising Ezukanma to not testify are invalid for one

simple reason. The evidence that the Government had

introduced at trial was certain to result in a conviction.

The only hope Ezukanma had of not being convicted

was that his testimony could convince the jury that he

was not guilty. The failure of trial counsel to tell

Ezukanma this is ineffective assistance.

ii. District Court’s Order

In addition to accepting the findings and

recommendation of the United States Magistrate

Judge, the District Court added the following

comments:

19

“. . . Movant objects to the FCR on the bases that

it failed to address whether counsel’s

performance was constitutionally deficient with

respect to Movant’s right to testify where

counsel did not (1) give Movant a specific

assessment of the strength of the Government’s

case and the likelihood of conviction; (2) tell

Movant that the evidence before the jury

ensured a conviction without his testimony;

(3) correct a “clearly wrong” assessment by

Movant regarding whether the Government had

proven his guilt beyond a reasonable doubt; and

(4) correct Movant’s misunderstanding of the

strength of the Government’s evidence. (doc. 27

at 5-6). Movant has not directed the Court to

any binding case law supporting the imposition

of such duties on defense counsel under the

Sixth Amendment, especially where, as here,

counsel testified that he discussed with Movant,

before and during the trial, the Government’s

burden of proof, the credibility of the witnesses

at trial, problems with the Government’s case,

and the sufficiency of the Government’s evidence

to satisfy its burden, that Movant’s assessment

of the case might have been wrong, and that he

could not predict what the jury would do or

whether they had a reasonable doubt.”

(Doc. 28).

In these comments, the District Court expressed

doubt as to whether it is even part of the duties of

defense counsel to give a defendant an assessment of

the likelihood of conviction to assist the defendant in

deciding whether to testify. This is certainly a question

20

on which other reasonable jurists could come to a

different conclusion, and for this reason, a certificate of

appealability should have issued. Moreover, these

comments by the District Court illustrate why the

Supreme Court should grant this Petition for Writ of

Certiorari.

Additionally, the District Court questioned whether

a defense counsel should tell a defendant that the

evidence ensured his conviction without his testifying

(if those are the facts) in order to assist the defendant

in deciding whether to testify. Likewise, the District

Court doubted whether it was within the duty of

defense counsel to correct a defendant’s expressed

misunderstanding of the strength of the government’s

evidence. These matters seem like the type of things

that defense counsel should discuss with a defendant

and jurists of reason could certainly disagree with

these comments by the District Court. For this

additional reason, a certificate of appealability should

have issued and this Petition should be granted.

Moreover, the District Court’s statement that

counsel discussed with Ezukanma that his assessment

of the case “might have been wrong,” is not supported

by the record. In fact, defense counsel did not do this

and he made no effort to let Ezukanma know that the

jury would certainly find him guilty without his

testimony.

Additionally, the record does not support the

District Court’s conclusion that counsel discussed with

Ezukanma the credibility of the witnesses and the

problems with the government’s case. In fact, defense

counsel did not discuss these things with Ezukanma.

21

The District Court also took the position that a

general discussion with a defendant of the

government’s burden of proof suffices in place of a real

discussion of the likelihood of conviction. Again, this is

a point on which reasonable jurists could disagree,

making both the granting of a certificate of

appealability and this Petition for Writ of Certiorari

appropriate.

The District Court also characterizes the argument

that the jury’s guilty verdict “was a foregone

conclusion,” as being based on the “distorting lens of

hindsight.” However, that is not at all the situation in

this case. Here, it was clear that Ezukanma would be

convicted based on the evidence before the jury and the

only hope of changing that inevitable outcome was

testimony from Ezukanma himself. This was not at all

based on hindsight – rather, it was obvious at the time

of the trial.

f. Application

Strickland

of

the

Prejudice

Prong

of

The second prong of Strickland requires a showing

that, but for counsel’s errors, there was a reasonably

probability of a different outcome.

Under Strickland, the defendant, “. . . must show

that the deficient performance prejudiced the defense.

This requires showing that counsel’s errors were so

serious as to deprive the defendant a fair trial, a trial

whose result is reliable.” Strickland, 466 U.S. at 687.

The Strickland court made it clear that a

“reasonable probability” of a different outcome is but a

probability sufficient to undermine confidence in the

22

outcome. Strickland, 466 U.S. at 692-94. “[Strickland]

specifically rejected the proposition that the [applicant]

had to prove it more likely than not that the outcome

would have been altered.” Woodford v. Visciotti, 537

U.S. 19, 22 (2002). Instead, a reviewing court’s

adjudication of an ineffective assistance claim should

ultimately focus on “the fundamental fairness of the

proceeding whose result is being challenged.”

Strickland, 466 U.S. at 696. “The benchmark for

judging any claim of ineffectiveness must be whether

counsel’s conduct so undermined the proper functioning

of the adversarial process that the trial cannot be relied

on as having produce a just result. Id. at 686.

In Weaver v. Massachusetts, 582 U.S. 286 (2017),

the court discussed ineffective assistance claims as

related to structural errors. In this regard, the court

said that, when a defendant raises a structural error in

the context of an ineffective assistance claim,

Strickland prejudice is not shown automatically. The

court said, in these circumstances, the defendant must

show either a reasonable probability of a different

outcome or, “as the court has assumed for these

purposes,” . . . to show that the structural error

violation “was so serious as to render his or her trial

fundamentally unfair.” Id. at 301. Based on Weaver,

Ezukanma argued below that the denial of his right to

testify was structural error, and therefore the modified

Strickland prejudice approach applied to an ineffective

assistance claim related to the right to testify.

The Magistrate rejected Ezukanma’s argument that

a showing of a reasonable probability of a different

outcome under Strickland is unnecessary because

23

counsel’s interference with the right to testify

constitutes the type of structural error identified in

Weaver. The District Court adopted the Magistrate’s

findings and denied Ezukanma’s 2255 motion.

In his 2255 motion, Ezukanma pointed out that

errors that infringe on a defendant’s right to testify are

structural. The Supreme Court has recognized that the

right to testify at trial is a right granted to the accused

“personally” that is “essential to due process of law in

a fair adversary process.” Faretta v. California, 422

U.S. 806, 820 (1975). The right to testify is “[e]ven

more fundamental to a personal defense than the right

of self-representation,” Rock v. Arkansas, 483 U.S. 44,

52 (1987), and in McCoy v. Louisiana, 138 S.Ct. 1500,

1511 (2018), the court concluded that denial of a

“protected autonomy right” or decision that is “within

[the defendant’s] sole prerogative” ranks as structural

error. Given that both rights are premised on the

principle of safeguarding the dignity and autonomy of

the defendant, it follows that if violation of one right is

structural error, violation of the second must be

structural error too. State v. Rivera, 402 S.C. 225, 249

(South Carolina 2013) (reversing and remanding

conviction in denial of right to testify case because “the

right of an accused to testify in his defense is

fundamental to the trial process . . [and] its deprivation

cannot be harmless . . . As such, the error is

structural[.]”) (citation omitted).

When raised in a claim of ineffective assistance,

Weaver suggests that errors that always result in

fundamental unfairness are immune from requiring an

outcome-determinative showing of prejudice. Weaver,

24

582 U.S. 286 (2017). Strickland prejudice is shown

automatically if the structural error will always “lead

to a fundamentally unfair trial” or “deprive[ ] the

defendant of a reasonable probability of a different

outcome.” Weaver, 582 U.S. 286 (2017). See also,

McCoy v. Louisiana, 138 S.Ct. 1500, 1511 (2018) (not

applying normal ineffective assistance jurisprudence

when question concerns client’s autonomy, not

counsel’s competence).

However, the Magistrate stated that neither

“Weaver nor the Fifth Circuit have classified Movant’s

ineffective assistance claim as Strickland error

requiring automatic reversal.” (p. 14). Ezukanma

objected to this conclusion because the Magistrate

failed to recognize that Weaver changes any previous

analysis concerning this issue.

Under Weaver,

counsel’s failure to properly advise his client about his

right to testify is the kind of structural constitutional

error that is subject to automatic reversal - whether it

always “lead to a fundamentally unfair trial” or

“deprives the defendant of a reasonable probability of

a different outcome.” But like the right to selfrepresentation, the right to testify in one’s own defense

is “basic to our system of justice” and rooted in

decisions made decades ago to respect the autonomy

and competency of the individual defendant. Rock, 483

U.S. at 49-51 (explaining that right to testify in one’s

own defense is “essential to due process of law in a fair

adversary process”) (quoting Faretta, 422 U.S. at 819,

n.15). And the right to testify in your defense is

deemed “even more fundamental to a personal defense

than the right of self-representation.” Rock, 483 U.S.

at 52; see also McCoy, 138 S.Ct. at 1507 (recognizing

25

that “[t]he right to defense is personal, and a

defendant’s choice in exercising that right must be

honored out of that respect for the individual which is

the lifeblood of the law”). Indeed, denying a defendant

the opportunity to testify robs him of the “right to

present his own version of events in his own words” to

the jury. Rock, 483 U.S. at 52. And it cuts against

foundational promises of the criminal justice system:

that every accused deserves his or her day in court, and

that every defendant will be afforded an opportunity to

be heard. Until a defendant who wants to testify is

permitted to do so, the opportunity to conduct one’s

own defense is “incomplete.” Id.

Nevertheless, the

argument, stating:

Magistrate

rejected

this

“Even assuming that the underlying

constitutional violation of the denial of the right

to testify constitutes structural error requiring

automatic reversal without a prejudice inquiry

in the direct review context, under Weaver,

Movant must still show Strickland prejudice in

the context of a claim of ineffective assistance of

counsel because it does not appear that

interference with that right always results in a

fundamentally unfair trial or always deprives

the movant of a reasonable probability of a

different outcome. See, e.g., United States v.

Flores-Martinez, 677 F.3d 699, 708-09 (5th Cir.

2012) (discussing limits to the right to testify);

see also Weaver, 137 S.Ct. at 1911. In the

absence of controlling precedent obviating or

modifying the Strickland prejudice inquiry, the

26

Court declines to apply Weaver as proposed by

Movant in this habeas action.” (Doc. 24, pp. 1415).

Ezukanma objected to these findings by the

Magistrate and submits this as a reason the certificate

of appealability and this Petition for Writ of Certiorari

should be granted.

First, the Magistrate is incorrect in stating that the

interference with the right to testify does not always

result in a fundamentally unfair trial or deprive the

Movant of a reasonable probability of a different

outcome. Since the right to testify has been recognized

by Faretta v. California, supra, as “essential to due

process,” the Magistrate’s conclusion that interference

with the right to testify does not always result in a

fundamentally unfair trial is incorrect. Likewise, when

Rock v. Arkansas, supra, recognized that the right to

testify is, “[e]ven more fundamental to a personal

defense than the right of self-representation,” the court

was recognizing that interference with that right

always results in a fundamentally unfair trial.

Likewise, the denial of his right to testify always

deprives the defendant of a reasonable probability of a

different outcome.

When a defendant, such as

Ezukanma, is allowed to testify and present his side of

the story, a jury would have substantial evidence on

which to base an acquittal. Thus, when the defendant

is denied this right, there is always a probability of a

different outcome.

The Magistrate’s analysis of this argument, as

adopted by the District Court and how Weaver affects

27

this question, is something on which reasonable jurists

could disagree. For this reason, a certificate of

appealability should have issued and this Petition

should be granted.

Ezukanma also objected to the Magistrate’s

conclusion that, “. . . he fails to show a reasonable

probability that the outcome of his trial would have

been different, but for counsel’s alleged deficiencies.”

(p. 19). The District Court also rejected this objection.

As the Supreme Court emphasized in Weaver, the

court in Strickland, immediately after setting out its

outcome - determinative test, cautioned that “[a]

number of practical considerations are important for

the application of the standards we have outlined.”

Strickland, 466 U.S. at 696. “Most important, in

adjudicating a claim of actual ineffectiveness of

counsel, a court should keep in mind that the

principles we have stated do not establish mechanical

rules.” Id. And “the ultimate focus of inquiry must be

on the fundamental fairness of the proceeding whose

result is being challenged.” Id. The Supreme Court in

Weaver thus “assumed” “that under a proper

interpretation of Strickland, even if there is no showing

of a reasonable probability of a different outcome, relief

still must be granted if the convicted person shows that

attorney errors rendered the trial fundamentally

unfair.” Weaver, 582 U.S. 286 (2017) (emphasis added)

(citing Strickland, 466 U.S. at 969, 698).

Put another way, the Supreme Court assumed that

even if the underlying error won’t always lead to a

fundamentally unfair trial, if in the case at issue it did

lead to a fundamentally unfair trial, relief must be

28

granted, no matter whether there is a showing of a

reasonable probability of a different outcome. And

indeed, since the Weaver court’s assumption, numerous

state and federal courts have continued to embrace this

theory of Strickland prejudice.3

Here, counsel’s unreasonable advice, affecting

Ezukanma’s decision to testify, rendered Ezukanma’s

trial fundamentally unfair. The testimony of a

criminal defendant at his own trial is unique and

inherently significant. “The most persuasive counsel

may not be able to speak for a defendant as the

defendant might, with halting eloquence, speak for

himself.” Green v. United States, 365 U.S. 301, 304

(1961). When the defendant testifies, the jury is given

an opportunity to observe his demeanor and to judge

his credibility firsthand. Again, as the Supreme Court

noted in Rock, 483 U.S. at 52, the “most important

witness for the defense in many criminal cases is the

defendant himself.” Further, in a case like this –

where the question was not whether a crime was

3

See Dixon v. Burt, No. 17-2292, 2018 WL 2016252, at *2 (6th Cir.

Apr. 30, 2018); Pirela v. Horn, 710 Fed. Appx. 66, 83 n. 16 (3d Cir.

2017); Newton v. State, 455 Md. 341, 168 A.3d 1, 10 (2017); State

v. Calvert, 2017 UT App. 212, 407 P.Ed 1098, 1111 (Utah App.

2017); Ledet v. Davis, No. 4:15-CV-882-A, 2017 WL 2819839, at *14

(N.D. Tex. June 28, 2017); Monreal v. State, 546 S.W.3d 718, 728

(Tex. App. – San Antonio 2018, pet. ref’d); Guzman-Correa v.

United States, CR 07-290 (PG), 2018 WL 1725221, at *6 (D.P.R.

Mar. 29, 2018); Commonwealth v. Gaines, 577 WDA 2017, 2018

WL 2188978, at *3 (Pa. Super. Ct. May 14, 2018); Roberts v. State,

535 S.W.3d 789, 797 (Mo. Ct. App. 2017); Matter of Salinas, 189

Wash. 2d 747, 761, 408 P.3d 344, 350 (2018); Njonge v. Gilbert, No.

C17-1035 RSM, 2018 WL 1737779, at *12 (W.D. Wash. Apr. 11,

2018).

29

committed, but whether the defendant was the person

who committed the crime – the defendant’s testimony

takes on even greater importance. Again, “[w]here the

very point of a trial is to determine whether an

individual was involved in criminal activity, the

testimony of the individual himself must be considered

of prime importance.” Walker, 772 F.2d at 117.

Courts and empirical studies have long recognized

that testimony from a defendant exerts a powerful

influence on jury members, who expect the defendant

to testify and who often punish a defendant who does

not. See, e.g., Cannon v. Mullin, 383 F.3d 1152, 1172

(10th Cir. 2004) (recognizing the significance of

defendant testimony and the “power of a face-to-face

appeal,” and observing that the defendant’s “demeanor

while testifying, could have special significance to the

jury”); Michael E. Antonio & Nicole E. Arone, Damned

If They Do, Damned If They Don’t: Jurors’ Reaction to

Defendant Testimony or Silence During a Capital Trial,

89 Judicature 60, 62 (2005) (reporting that jurors

“reacted negatively” when a defendant did not testify

and that “[m]any believed not testifying was an obvious

admission of guilt”). Jurors often draw adverse

inferences from a defendant’s decision not to testify,

despite having been explicitly instructed by the court

not to do so. See id.; Mitchell J. Frank & Dr. Dawn

Broschard, The Silent Criminal. Defendant and the

Presumption of Innocence: In the Hands of Real Jurors,

Is Either of Them Safe?, 10 Lewis & Clark Rev. 237,

263-65 (2006) (reporting that even after having been

instructed on a defendant’s Fifth Amendment privilege

and that it is a defendant's fundamental right not to

testify, almost 40% of jurors still discussed the

30

defendant’s failure to testify). Over 20% of jurors

admitted that “it mattered” that the defendant did not

testify, and almost the same number concluded that

the defendant “had an obligation to testify.” Id. at 265.

Jurors’ deeply held presumptions about defendant

testimony increase the likelihood that the jurors in

Ezukanma’s case considered it significant that he did

not testify. The effects this might have had on the jury

members are myriad and unknowable; they could have

affected how jurors framed the evidence they received

throughout the trial, or how they interpreted the

testimony they heard, undermining the framework of

the entire trial. Even if unreasonable advice as to the

right to testify does not always lead to a fundamentally

unfair trial, then, in this case it did. Under Strickland,

relief thus should be granted, no matter whether there

is a showing of a reasonable probability of a different

outcome.

For all of the reasons previously stated, the

deficient performance by trial counsel in advising

Ezukanma to not testify rendered this trial

fundamentally unfair. This is a highly important issue

on which this Petition should be granted.

31

CONCLUSION

This Petition for Writ of Certiorari raises important

questions that should be addressed by the Supreme

Court. For this reason, Ezukanma prays that his

Petition be granted.

Respectfully submitted,

GARY A. UDASHEN

Counsel of Record

BRETT ORDIWAY

UDASHEN|ANTON

8150 N. Central Expressway

Suite M1101

Dallas, Texas 75206

(214) 468-8100

Fax (214) 468-8104

gau@udashenanton.com

brett@udashenanton.com

Attorneys for Petitioner