habeas hearing in Georgia

2009However, the document mentioned at the plea hearing, whatever it was, is not contained in the portions of the Fulton County file introduced at the habeas hearing. 3 Boykin, supra, 395 U. S. at 242-243 . 4 Cf. Arnold v. Howerton, 282 Ga. 66, 68 ( 646 SE2d 75 ) (2007); Johnson v. Smith, 280 Ga. 235, 235 ( 626 SE2d 470 ) (2006). 5 See Baisden v. State, 279 Ga. 702, 703 ( 620 SE2d 369 ) (2005); Oreen v. State, 279 Ga. 687, 689 ( 620 SE2d 788 ) (2005). 6 Head v. Thomason, 276 Ga. 434, 436 ( 578 SE2d 426 ) (2003).

2009However, the document mentioned at the plea hearing, whatever it was, is not contained in the portions of the Fulton County file introduced at the habeas hearing. 3 Boykin, supra, 395 U. S. at 242-243 . 4 Cf. Arnold v. Howerton, 282 Ga. 66, 68 ( 646 SE2d 75 ) (2007); Johnson v. Smith, 280 Ga. 235, 235 ( 626 SE2d 470 ) (2006). 5 See Baisden v. State, 279 Ga. 702, 703 ( 620 SE2d 369 ) (2005); Oreen v. State, 279 Ga. 687, 689 ( 620 SE2d 788 ) (2005). 6 Head v. Thomason, 276 Ga. 434, 436 ( 578 SE2d 426 ) (2003).

2026Gibson also contends that the habeas court erroneously based its denial of Gibson’s habeas petition on the conflict-of-interest standard set forth in Cuyler and that the appropriate standard to apply in evaluating Mullis’s conflict of interest is the standard set forth in Sallie v. State, 269 Ga. 446, 448 (1998) (providing that, when counsel is laboring under an obvious and impermissible conflict and the penalty is of vast enormity, there is no need to analyze the 19 adverse effect).

2026Gibson also contends that the habeas court erroneously based its denial of Gibson’s habeas petition on the conflict-of-interest standard set forth in Cuyler and that the appropriate standard to apply in evaluating Mullis’s conflict of interest is the standard set forth in Sallie v. State, 269 Ga. 446, 448 (1998) (providing that, when counsel is laboring under an obvious and impermissible conflict and the penalty is of vast enormity, there is no need to analyze the 19 adverse effect).

2017Pretermitting whether Butler’s filing of his initial habeas petition, while he was still represented by his fourth counsel on the motions for clarification and reconsideration, was void and of no effect, see Tolbert v. Toole, 296 Ga. 357, 363 (3) ( 767 SE2d 24 ) (2014), at the time of Butler’s amended petition, which contained the only claims considered by the habeas court, no other motions were pending, and he represented himself at the habeas hearing.

2017Pretermitting whether Butler’s filing of his initial habeas petition, while he was still represented by his fourth counsel on the motions for clarification and reconsideration, was void and of no effect, see Tolbert v. Toole, 296 Ga. 357, 363 (3) ( 767 SE2d 24 ) (2014), at the time of Butler’s amended petition, which contained the only claims considered by the habeas court, no other motions were pending, and he represented himself at the habeas hearing.

1998See Christenson I, supra at (6), 402 S.E.2d 41 ; Horton v. State, 249 Ga. 871 (1), 295 S.E.2d 281 (1982); Fields v. State, 211 Ga. 335 (5), 85 S.E.2d 753 (1955). [7] Trial counsel testified at the habeas hearing that they were unsure where they obtained these files or who gave them the files. [8] Trial counsel admitted that they did not even look up Dr. Bailey-Smith's diagnosis in the DSM-III. [9] Mr. Kirby testified that his primary purpose in requesting a psychiatric evaluation was not to determine Christenson's mental health, but as a "ploy" to "confuse the issues" and to ensure that Christ

1994Petitioner has not shown a reasonable probability that, if adduced at trial, the psychiatric and background evidence presented in the habeas hearing would have caused the sentencer to conclude "that the balance of aggravating and mitigating circumstances did not warrant death." Strickland, 466 U. S. at 695 .

2026See Harris, 292 Ga. at 496 .

2016Harris, supra; Arrington, supra; Clowers, supra. Accordingly, the judgment of the habeas court must be reversed.

2021Any arguments based on the facts that Jones signed a generalized waiver form and was 5 The habeas court stated in its order that “the document the Petitioner reviewed and or signed is not part of the record before this Court.” This was incorrect; the guilty plea statement forms discussed herein in fact were admitted as evidence at the habeas hearing and appear in the appellate record, and Houston addresses the forms in his brief to this Court without raising any suggestion that they are not part of the habeas record. 11 instructed he had a continued right to counsel during a jury trial do not

2021Any arguments based on the facts that Jones signed a generalized waiver form and was 5 The habeas court stated in its order that “the document the Petitioner reviewed and or signed is not part of the record before this Court.” This was incorrect; the guilty plea statement forms discussed herein in fact were admitted as evidence at the habeas hearing and appear in the appellate record, and Houston addresses the forms in his brief to this Court without raising any suggestion that they are not part of the habeas record. 11 instructed he had a continued right to counsel during a jury trial do not

2011See Rickett v. State, 276 Ga. 609 (2) ( 581 SE2d 32 ) (2003) (habeas statute does not require petitioner’s presence at hearing, as habeas court authorized to receive evidence by affidavits, depositions, oral testimony, or otherwise). 4 It is likewise impossible to ascertain the extent to which counsel’s conflict may have affected his diligence in determining the immigration consequences of Mamedov’s guilty plea.

2011See Rickett v. State, 276 Ga. 609 (2) ( 581 SE2d 32 ) (2003) (habeas statute does not require petitioner’s presence at hearing, as habeas court authorized to receive evidence by affidavits, depositions, oral testimony, or otherwise). 4 It is likewise impossible to ascertain the extent to which counsel’s conflict may have affected his diligence in determining the immigration consequences of Mamedov’s guilty plea.

2006While extrinsic evidence can support a finding of compliance with constitutional standards, counsel’s testimony at the habeas hearing did not establish a standard or routine practice of informing clients of the Boykin rights and “fell well short of demonstrating that [Johnson] was fully informed of the constitutional rights he was waiving by pleading guilty. [Cit.]” Bazemore, supra, 273 Ga. at 162 .

2006While extrinsic evidence can support a finding of compliance with constitutional standards, counsel’s testimony at the habeas hearing did not establish a standard or routine practice of informing clients of the Boykin rights and “fell well short of demonstrating that [Johnson] was fully informed of the constitutional rights he was waiving by pleading guilty. [Cit.]” Bazemore, supra, 273 Ga. at 162 .

2001At the habeas hearing, however, trial counsel testified that they informed Britt of the waived right to confront adverse witnesses. [3] Bowers v. Moore, 266 Ga. 893, 894 , 471 S.E.2d 869 (1996) (citation omitted). [4] Bowers, 266 Ga. at 894 , 471 S.E.2d 869 (citation omitted). [5] Roberts v. Greenway, 233 Ga. 473, 475 , 211 S.E.2d 764 (1975).

2001At the habeas hearing, however, trial counsel testified that they informed Britt of the waived right to confront adverse witnesses. [3] Bowers v. Moore, 266 Ga. 893, 894 , 471 S.E.2d 869 (1996) (citation omitted). [4] Bowers, 266 Ga. at 894 , 471 S.E.2d 869 (citation omitted). [5] Roberts v. Greenway, 233 Ga. 473, 475 , 211 S.E.2d 764 (1975).

1978Pitts v. Glass, 231 Ga. 638 ( 203 SE2d 515 ) (1974). 2.

1978Pitts v. Glass, 231 Ga. 638 ( 203 SE2d 515 ) (1974). 2.

2023See Cartwright, 305 Ga. at 379-381 (reversing denial of habeas relief based on counsel’s failure to impeach a key State witness with evidence of a prior inconsistent statement, despite the lack of testimony or an affidavit from the witness showing how he would have responded to the impeachment 19 evidence, given the less than overwhelming evidence of guilt, counsel’s chosen theory of defense, and the importance of the witness’ testimony to the State’s case). (c) Because Chandler has shown that his trial counsel provided ineffective assistance, any deficiency in his appellate counsel’s failure

2023See Cartwright, 305 Ga. at 379-381 (reversing denial of habeas relief based on counsel’s failure to impeach a key State witness with evidence of a prior inconsistent statement, despite the lack of testimony or an affidavit from the witness 19 showing how he would have responded to the impeachment evidence, given the less than overwhelming evidence of guilt, counsel’s chosen theory of defense, and the importance of the witness’ testimony to the State’s case). (c) Because Chandler has shown that his trial counsel provided ineffective assistance, any deficiency in his appellate counsel’s failure

2021Jarvis’ trial counsel testified at the habeas hearing that the omission of the necklace from the warrant “was an 3 The McBee court also relied upon Brown v. State, 187 Ga. App. 714, 715 (371 SE2d 257) (1988).

2021Jarvis’ trial counsel testified at the habeas hearing that the omission of the necklace from the warrant “was an 3 The McBee court also relied upon Brown v. State, 187 Ga. App. 714, 715 (371 SE2d 257) (1988).

2021Id. at 738 (2).

2021Any arguments based on the facts that Jones signed a generalized waiver form and was 5 The habeas court stated in its order that “the document the Petitioner reviewed and or signed is not part of the record before this Court.” This was incorrect; the guilty plea statement forms discussed herein in fact were admitted as evidence at the habeas hearing and appear in the appellate record, and Houston addresses the forms in his brief to this Court without raising any suggestion that they are not part of the habeas record. 11 instructed he had a continued right to counsel during a jury trial do not

2021Any arguments based on the facts that Jones signed a generalized waiver form and was 5 The habeas court stated in its order that “the document the Petitioner reviewed and or signed is not part of the record before this Court.” This was incorrect; the guilty plea statement forms discussed herein in fact were admitted as evidence at the habeas hearing and appear in the appellate record, and Houston addresses the forms in his brief to this Court without raising any suggestion that they are not part of the habeas record. 11 instructed he had a continued right to counsel during a jury trial do not

2021At the same time, while awaiting a ruling on the 8 Though such motions are nullities and must be dismissed, see White, 302 Ga. at 319-320 (2), it bears noting that trial courts are not precluded from taking action sua sponte, once the specter of a conflict is raised, to determine whether counsel should be replaced. 9 While the potential conflict first arose when Bryant sought to replace his counsel during the initial motion for new trial proceedings, this potential conflict ceased to exist when Bryant withdrew that request and affirmatively requested that Wyatt stay on as counsel. 10 We also n

2021At the same time, while awaiting a ruling on the 8 Though such motions are nullities and must be dismissed, see White, 302 Ga. at 319-320 (2), it bears noting that trial courts are not precluded from taking action sua sponte, once the specter of a conflict is raised, to determine whether counsel should be replaced. 9 While the potential conflict first arose when Bryant sought to replace his counsel during the initial motion for new trial proceedings, this potential conflict ceased to exist when Bryant withdrew that request and affirmatively requested that Wyatt stay on as counsel. 10 We also n

2021The question is whether that decision was reasonable or, instead, was “so patently unreasonable that no competent attorney would have chosen it.” Romer v. State, 293 Ga. 339, 344 (3) (745 SE2d 637) (2013) (citation and punctuation omitted).

2021The question is whether that decision was reasonable or, instead, was “so patently unreasonable that no competent attorney would have chosen it.” Romer v. State, 293 Ga. 339, 344 (3) (745 SE2d 637) (2013) (citation and punctuation omitted).

2021Any arguments based on the facts that Jones signed a generalized waiver form and was 5 The habeas court stated in its order that “the document the Petitioner reviewed and or signed is not part of the record before this Court.” This was incorrect; the guilty plea statement forms discussed herein in fact were admitted as evidence at the habeas hearing and appear in the appellate record, and Houston addresses the forms in his brief to this Court without raising any suggestion that they are not part of the habeas record. 11 instructed he had a continued right to counsel during a jury trial do not

2021Any arguments based on the facts that Jones signed a generalized waiver form and was 5 The habeas court stated in its order that “the document the Petitioner reviewed and or signed is not part of the record before this Court.” This was incorrect; the guilty plea statement forms discussed herein in fact were admitted as evidence at the habeas hearing and appear in the appellate record, and Houston addresses the forms in his brief to this Court without raising any suggestion that they are not part of the habeas record. 11 instructed he had a continued right to counsel during a jury trial do not

2021Compare Jones, 279 Ga. at 624 (“[I]t is undisputed that Jones was not informed in 5The habeas court stated in its order that “the document the Petitioner reviewed and or signed is not part of the record before this Court.” This was incorrect; the guilty plea statement forms discussed herein in fact were admitted as evidence at the habeas hearing and appear in the appellate record, and Houston addresses the forms in his brief to this Court without raising any suggestion that they are not part of the habeas record. 11 any fashion, whether scripted or non-specific, about his right to counsel duri

2021McBee, 228 Ga. App. at 21 (3).

2021See Hambrick v. Brannen, 289 Ga. 682, 685 (715 SE2d 89) (2011) (“Speculation will not satisfy the prejudice prong of Strickland.”).13 As to the failure to impeach Bridges, Bryant did not make a proffer of what Bridges’ testimony would have been on any of the subjects of impeachment the habeas court identified, and thus there is no substantiated basis for any determination of prejudice.

2021See Hambrick v. Brannen, 289 Ga. 682, 685 (715 SE2d 89) (2011) (“Speculation will not satisfy the prejudice prong of Strickland.”).13 As to the failure to impeach Bridges, Bryant did not make a proffer of what Bridges’ testimony would have been on any of the subjects of impeachment the habeas court identified, and thus there is no substantiated basis for any determination of prejudice.

2017Thus, the report would have also enabled the defense attorneys to further their attack on the thoroughness of the police investigation, see Kyles v. Whitley, 514 U.S. 419, 446 (IV) (B) ( 115 SCt 1555 , 131 LE2d 490) (1995), and allowed them to present an alternative theory regarding the actors responsible for the shooting.

2017Thus, the report would have also enabled the defense attorneys to further their attack on the thoroughness of the police investigation, see Kyles v. Whitley, 514 U.S. 419, 446 (IV) (B) ( 115 SCt 1555 , 131 LE2d 490) (1995), and allowed them to present an alternative theory regarding the actors responsible for the shooting.

2016See Petty, 279 Ga. at 276 (“where the evidence the State has produced at a guilty plea hearing establishes the existence of a certain fact, a habeas court cannot discount that fact unless proof to the contrary is otherwise adduced at the habeas hearing”).

2015Parrott makes no contention that the sentences thus imposed (for voluntary manslaughter and possession of a firearm during the commission of a crime) fell outside their respective statutory limits. 33 See Baines v. State, 201 Ga. App. 354, 355 ( 411 SE2d 95 ) (1991); see also Zant, supra at 97-98 (2) (determining that petitioner failed to show a reasonable probability that, if adduced at the sentencing phase of the trial, psychiatric and background evidence presented in the habeas hearing would have resulted in a lighter sentence, where such evidence did “not paint an entirely sympathetic pict

2015Parrott makes no contention that the sentences thus imposed (for voluntary manslaughter and possession of a firearm during the commission of a crime) fell outside their respective statutory limits. 33 See Baines v. State, 201 Ga. App. 354, 355 ( 411 SE2d 95 ) (1991); see also Zant, supra at 97-98 (2) (determining that petitioner failed to show a reasonable probability that, if adduced at the sentencing phase of the trial, psychiatric and background evidence presented in the habeas hearing would have resulted in a lighter sentence, where such evidence did “not paint an entirely sympathetic pict

2015Parrott makes no contention that the sentences thus imposed (for voluntary manslaughter and possession of a firearm during the commission of a crime) fell outside their respective statutory limits. 33 See Baines v. State, 201 Ga. App. 354, 355 ( 411 SE2d 95 ) (1991); see also Zant, supra at 97-98 (2) (determining that petitioner failed to show a reasonable probability that, if adduced at the sentencing phase of the trial, psychiatric and background evidence presented in the habeas hearing would have resulted in a lighter sentence, where such evidence did “not paint an entirely sympathetic pict

2015Parrott makes no contention that the sentences thus imposed (for voluntary manslaughter and possession of a firearm during the commission of a crime) fell outside their respective statutory limits. 33 See Baines v. State, 201 Ga. App. 354, 355 ( 411 SE2d 95 ) (1991); see also Zant, supra at 97-98 (2) (determining that petitioner failed to show a reasonable probability that, if adduced at the sentencing phase of the trial, psychiatric and background evidence presented in the habeas hearing would have resulted in a lighter sentence, where such evidence did “not paint an entirely sympathetic pict