Tennessee Reports


AL-ALI v. STATE, M2006-00144-CCA-R3-PC (Tenn.Crim.App.
M2006-00144-CCA-R3-PC. Court of Criminal Appeals of
Tennessee, at Nashville. Assigned on Briefs August 15,
2006. Filed December 13, 2006.

[EDITOR’S NOTE: This case is unpublished as indicated by the
issuing court.] Direct Appeal from the Circuit Court of
Rutherford County No F-56066 James K. Clayton, Jr., Judge.

Petitioner, Faris Adb Al-Ali, was convicted by a Rutherford
County jury of rape of a child and received a twenty-two
year sentence. The conviction and sentence were affirmed on
direct appeal. Petitioner timely filed his pro se
post-conviction petition. Following the appointment of
counsel and filing of an amended petition, the
post-conviction court conducted an evidentiary hearing on
the petition. On December 1, 2005, the post-conviction court
entered an order dismissing the petition. Petitioner
appealed. We affirm the post-conviction court.

Judgment of the Circuit Court is Affirmed.

Paul G. Summers, Attorney General and Reporter; Jennifer L.
Bledsoe, Assistant Attorney General, William Whitesell,
District Attorney General; Laural A. Nutt, Assistant
District Attorney General, for Respondent, State of

Adam T. Dodd, Murfreesboro, Tennessee, Attorney for the
Petitioner, Faris Abd Al-Ali.

J. S. DANIEL, SR., J., delivered the opinion of the court,

J. S. DANIEL, Senior Judge.



The Petitioner, Faris Abd Al-Ali, was charged in October
2001 with rape of a child. Following a jury trial in October
2002, the petitioner was found guilty and sentenced to
twenty-two years. On direct appeal, the conviction and
sentence were affirmed. See State v. Faris Abd Al-Ali, No.
M2003-00662-CCA-R3-CD, 2004 WL 840082 (Tenn.Crim.App. filed
Apr. 16, 2004 at Nashville).

On August 2, 2004, petitioner filed his pro se petition for
post conviction relief. Following the appointment of
counsel, the petitioner filed an amended post-conviction
petition. The post-conviction court conducted a bifurcated
evidentiary hearing on August 30 and November 28, 2005.
Petitioner and trial counsel testified at the hearing.

At the evidentiary hearing, petitioner acknowledged he was
charged with rape of a child in October 2001. He said an
assistant public defender represented him at the trial which
resulted in a guilty verdict, and at the sentencing hearing
where a twenty-two year sentence was imposed. Petitioner
said the public defender also represented him on

Petitioner was shown a copy of his pro se post-conviction
petition. He identified the petition and confirmed the
issues he raised in his petition. Among his claims, he
maintained that trial counsel only met with him three times
over the course of the year from indictment to trial for a
total of three to four hours. He added that trial counsel
lacked familiarity with the case and failed to investigate
it properly.

Specifically, he argued trial counsel failed to call two
witnesses — his wife Lisa and Detective Peach. Even
though he admitted counsel called his wife, he was disturbed
that counsel only asked one question of her. Petitioner
wanted the jury to hear that his wife felt petitioner was a
very controlling man. Petitioner wanted to call Detective
Peach as a witness to show that even though the detective
was with him for over five hours, petitioner never gave him
a statement. Petitioner said the detective also would have
supported his claim that he did not read or write in

Petitioner testified that when he returned to Rutherford
County, he was questioned by Detective Liehr. He said the
detective not only questioned him about the instant charges
but also asked him about the September 11, 2001, incident in
New York City. He told the detective he had nothing to do
with those events. When questioned about a written statement
taken by Detective Liehr, petitioner said he told him he did
not want to give a written statement but that the detective
“begged” him to do so. He claimed the detective wrote
incorrect information into the prepared statement and that
Detective Liehr lied about his statement. Petitioner said he
was asked to place his signature at the top of the
statement. As a result, petitioner claimed the detective or
someone else filled in the balance of the statement at a
later time. He insisted the statement was not his own and
that it was taken against his will.

Next, petitioner complained about references to his
nationality made during individual juror questioning. He
said jurors were told individually that he was an Iraqi
national. Petitioner said he considered himself an American
and that it was unnecessary to mention his nationality. He
said due to the events of September 11, 2001, he was not
considered by the general public to be an American.
Petitioner said his only post-trial meeting with trial
counsel was at the sentencing hearing. He insisted he never
met with counsel during preparation of the appeal.

On cross-examination, petitioner admitted he had a Muslim
or Arab name and appearance. He also acknowledged the
current anti-Arabic sentiment. He reiterated his argument
that he did not make the statement taken by the detective
because he did not speak English. He also confirmed he had
wanted his wife to testify at trial that he was Muslim and a
controlling man. Petitioner said he wanted his counsel to
ask questions of his wife so the jury could see her dislike
of him.

Next, the assistant district attorney recited portions of
the suppression hearing testimony of Detective Peach. In the
earlier testimony, the detective said he was with petitioner
for approximately five hours during the trip back to
Rutherford County, and during that time neither he nor other
individuals had difficulty communicating with petitioner. He
added that petitioner never indicated he was having any
difficulty understanding English and never requested an

Petitioner said his children speak English and Arabic even
though a trial reference indicated petitioner had said the
children only speak English. He said the reference likely
was to his step-children who speak English.

Trial counsel testified that he was employed by the public
defender’s office and was appointed to represent petitioner.
He said he and petitioner met several times prior to trial.
Although he could not quantify the precise number of hours,
counsel said he spent a lot of time on the case due to his
concerns surrounding the events of September 11, 2001, and
the petitioner’s Arabic descent. He feared these additional
factors might inhibit petitioner’s ability to have a fair

Counsel said an interpreter, Mr. Kayatt, accompanied him
during visits with petitioner. He noted that petitioner
would spend most of the session conversing with the
interpreter. He believed the interpreter provided comfort to
petitioner because could speak petitioner’s native tongue.

Counsel said he wanted to be sure the September 11, 2001,
incident did not influence or otherwise become a factor in
petitioner’s trial. Counsel filed motions in limine to
prevent unnecessary references to nationality and also
participated in individual voir dire in the judge’s
chambers. A few potential jurors indicated they had problems
sitting on the jury due to the Arabic sentiment at that
time. Those jurors were immediately dismissed for cause.
Counsel read portions of the trial transcript which revealed
some jurors were asked if they would have a problem serving
as a juror if petitioner was an Iraqi national. Those jurors
who remained in the jury pool expressed their ability to be
fair and impartial. The jury was also instructed by the
trial court that the petitioner was in the United States

Counsel said he also challenged the admissibility of
petitioner’s statement given to the detective because of the
language barrier through a motion to suppress. He argued
that the petitioner did not sufficiently understand English
to be able to knowingly waive his rights and to give a
statement. The challenge not only touched upon the language
barrier but also upon the issue of petitioner’s signature
being placed at the top of the statement rather than at the
bottom of the statement as is traditional. Further, counsel
was concerned that a large portion of the statement was
written in Detective Liehr’s handwriting. Counsel
acknowledged, however, that the trial court denied the
suppression motion.

Trial counsel said he felt no need to hire an expert to
examine petitioner’s understanding of the English language.
He felt petitioner, who had been in the United States for
some time, had been employed in various capacities and had
children, had a working knowledge of the English language.

Counsel recalled that Afghanistan was the first country
attacked following September 11, but he wanted to be sure
the jury did not allow the anti-Arabic sentiment to deprive
petitioner of a fair trial. He had hoped to show the jury
that petitioner had fought for the United States in the Gulf
War; however, when petitioner decided not to testify, the
opportunity never presented itself.


In this appeal, petitioner claims the trial court erred in
dismissing his petition for post-conviction relief. He
specifically claims trial counsel failed to fully and
adequately inquire into proof of petitioner’s ability to
acknowledge and voluntarily waive his Fifth Amendment
privilege against self-incrimination because of his limited
understanding of the English language. Next, he contends he
was denied his Fifth Amendment right to a fair and impartial
jury due to trial counsel’s failure to object to the jury
being informed that petitioner was an Iraqi citizen.

Burden of Proof

Tennessee Code Annotated section 40-30-103 (2003) provides
that in order for a petitioner to obtain post-conviction
relief, the petitioner must show that his or her conviction
or sentence is void or voidable because of the abridgement
of a constitutional right. The petitioner bears the burden
of proving the factual allegations in the Petition for
Post-Conviction Relief by clear and convincing evidence.
Tenn. Code Ann. § 40-30-110(f) (2003). Evidence is
clear and convincing when there is no serious or substantial
doubt about the accuracy of the conclusion drawn from the
evidence. Hicks v. State, 983 S.W.2d 240, 245
(Tenn.Crim.App. 1998). On appeal, it is the burden of the
petitioner to show that the evidence preponderates against
the lower court’s findings. Clenny v. State, 576 S.W.2d 12,
14 (Tenn.Crim.App. 1978).

When a petitioner seeks post-conviction relief on the basis
of ineffective assistance of counsel, he must first
establish that the services rendered or the advice given
were below the “range of competence demanded of attorneys in
criminal cases.” Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn.
1975). Second, he must show that the deficiencies “actually
had an adverse effect on the defense.” Strickland v.
Washington, 466 U.S. 668, 693 (1984). Should the petitioner
fail to establish either factor, he is not entitled to
relief. Our supreme court described the standard of review
as follows:

Because a petitioner must establish both prongs of the
test, a failure to prove deficiency or prejudice provides
a sufficient basis to deny relief on the ineffective
assistance claim. Indeed, a court need not address the
components in any particular order or even address both
if the defendant makes an insufficient showing of one

Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996).

To establish prejudice or the second prong of the
Strickland analysis, a petitioner must demonstrate a
reasonable probability that, but for counsel’s deficient
performance, the result of the proceeding would have been
different. Strickland 466 U.S. at 687-88, 692, 694. “A
reasonable probability is a probability sufficient to
undermine confidence in the outcome.” Id. at 694.

On claims of ineffective assistance of counsel, the
petitioner is not entitled to the benefit of hindsight, may
not second-guess a reasonably based trial strategy, and
cannot criticize a sound, but unsuccessful, tactical
decision made during the course of the proceedings. Adkins
v. State, 911 S.W.2d 334, 347 (Tenn.Crim.App. 1994). Such
deference to the tactical decisions of counsel, however,
applies only if the choices are made after adequate
preparation for the case. Cooper v. State, 847 S.W.2d 521,
528 (Tenn.Crim.App. 1992). When reviewing a defense
attorney’s actions, this Court may not use hindsight to
second-guess counsel’s decisions regarding trial strategy
and tactics.

Here, the petitioner’s first claim is that trial counsel
was ineffective for failing to adequately inquire into proof
of petitioner’s ability to acknowledge and voluntarily waive
his Fifth Amendment privilege against self-incrimination. As
evidenced in the record, petitioner gave a statement to
Detective Liehr. Although the statement was primarily
written by the detective, the petitioner signed the
statement at the top. Trial counsel testified that he
challenged the statement and waiver rights form in a
suppression motion and subsequent suppression hearing.
Counsel attacked the statement based on petitioner’s
inability to waive his Fifth Amendment privilege and also
inquired into the unusual request by the detective that
petitioner place his signature at the top of the statement.

On direct appeal, petitioner challenged the trial court’s
denial of his suppression motion based on his claim that his
statement was not knowing and intelligent because of his
inadequate grasp of the English language. This Court
specifically addressed the “knowing and voluntary” issue and
referenced petitioner’s claim that he did not speak English.
This Court upheld the trial court’s denial of the
suppression motion and concluded that petitioner had
sufficient understanding of the English language.

Therefore, this issue has essentially been previously
determined. As such, petitioner would not be entitled to
relief under the post-conviction statute. However, even if
we expand our review of this issue to include counsel’s
action or inaction relating to petitioner’s ability to
knowingly and intelligently waive his Fifth Amendment
privilege we reach the same result. Trial counsel testified
about the suppression motion and his concern with the
statement. Counsel admitted he did not call an expert to
inquire fully into petitioner’s understanding of English.
Counsel added that he did not believe such an expert would
have been beneficial in this case. This Court notes that no
such expert was presented at the post-conviction hearing.

Having reviewed the record, including evidence of
petitioner’s social interaction and general employment
history, we find that counsel adequately protected
petitioner’s rights and conducted an adequate inquiry into
petitioner’s ability to understand English. Having filed the
motion to suppress and securing the services of an Arabic
interpreter, we find no deficiency in counsel’s performance.
This issue is without merit.

In his final issue, petitioner maintains counsel was
ineffective for failing to object to the jury being informed
that he was an Iraqi citizen. Petitioner adds that this
failure resulted in a denial of his Fifth Amendment right to
a fair and impartial jury. Without question, the court and
counsel expressed concern about the petitioner’s
nationality. As indicated throughout the record, the parties
openly discussed the September 11, 2001, terrorist incident
in New York City and D.C. and the perceived anti-Arabic
sentiment in America. Petitioner testified that he is from
Iraq but considers himself an American. He admitted that his
name sounds Arabic. However, counsel was concerned from the
beginning of his representation that petitioner’s Iraqi (or
Arabic) nationality might impede his ability to receive a
fair trial.

Counsel expressed these concerns in a motion in limine but
also addressed the issue openly with the trial court. The
trial court recognized the concern and took steps to ensure
that the jury eventually empaneled would not be predisposed
to finding guilt simply due to petitioner’s nationality. To
that end, the trial court conducted individual voir dire of
the jurors on the issue. Potential jurors were questioned
about their sentiments following September 11 and were asked
whether they could be fair and impartial. Some potential
jurors indicated they could not be fair and that the
petitioner’s Iraqi connection could or would affect their
decision. Those jurors were excused for cause.

Based on excerpts in the record, other jurors were informed
that petitioner was an Iraqi national. Again, these
questions were posed in an attempt to uncover bias or
prejudice on the part of any potential juror. Those jurors
who indicated they would not be influenced by petitioner’s
nationality were permitted to stay in the potential jury
pool. The record also indicates the trial court informed the
chosen jury that petitioner was in this country legally.

Petitioner now claims counsel erred in failing to object to
the jury being informed he was an Iraqi national. We
disagree. Counsel made it clear that he was concerned about
the Arabic connection in light of September 11. He stated
that he was aware of the issues and wanted to be sure
petitioner received a fair and impartial trial. Rather than
ignoring the issue, counsel brought the matter before the
trial court. The trial court took precautions to address the
issue. These safeguards were reasonable under the
circumstances. Nothing in the record indicates the jurors
could not be fair and impartial. In fact, the individual
questioning gave the petitioner the unique opportunity to
inquire specifically into the nationality issue.

This Court finds that counsel took extraordinary steps to
ensure his client received a fair trial by fair and
impartial jurors. Therefore, we find this claim is without

In post-conviction proceedings, the petitioner must prove
the allegations by clear and convincing evidence. Here, he
has failed to so do. Accordingly, the judgment of the
post-conviction court is hereby affirmed.

[fn1] According to petitioner, the assistant public defender
was appointed to represent petitioner. When petitioner’s
family sought to hire private counsel, the public defender
was released. However, when the family could not secure
adequate funds, the public defender was re-appointed to
represent petitioner.