White v. Kelso, 401 S.E.2d 733 (Ga. 1991). · Go Syfert
White v. Kelso, 401 S.E.2d 733 (Ga. 1991). Cases Citing This Book View Copy Cite
“the claim may be raised for the first time in the direct appeal if the direct appeal marks the first appearance of new counsel”
181 citation events (93 in the last 25 years) across 5 distinct courts.
Strongest positive: Davis v. State (ga, 2017-06-30)
Treatment trajectory · 1991 → 2026 · click a year to view as-of
1991 2008 2026
Top citers, strongest first. 32 distinct citers.
examined Cited as authority (quoted) Davis v. State (3×) also: Cited as authority (rule), Cited "see"
Ga. · 2017 · quote attribution · 1 verbatim quote · confidence low
an attorney cannot reasonably be expected to assert or argue his or her own ineffectiveness
examined Cited as authority (quoted) Davis v. State (3×) also: Cited as authority (rule), Cited "see"
Ga. · 2017 · quote attribution · 1 verbatim quote · confidence low
an attorney cannot reasonably be expected to assert or argue his or her own ineffectiveness
discussed Cited as authority (quoted) Elrod v. State
Ga. Ct. App. · 1996 · quote attribution · 1 verbatim quote · confidence low
the claim may be raised for the first time in the direct appeal if the direct appeal marks the first appearance of new counsel
cited Cited as authority (rule) Patterson v. State
Ga. · 2026 · confidence medium
White v. Kelso, 261 Ga. 32, 32 (1991); see also Patterson v. State, 314 Ga. 167, 171 (2022).
discussed Cited as authority (rule) Sprayberry v. Morris
Ga. · 2025 · confidence medium
The independent claims that trial counsel was ineffective are procedurally defaulted, however, because appellate counsel could 10 have raised these claims on appeal. 2 See, e.g., State v. Butler, 301 Ga. 814 , 817–18 (2017) (ineffective assistance claims were barred where the post-conviction attorney failed to raise the claims at the first possible stage of post-conviction review); Hall v. Lewis, 286 Ga. 767, 769 (2010) (claims barred where counsel appointed to represent the defendant in post-conviction proceeds could have raised the ineffectiveness claims in the motion for new trial and on …
discussed Cited as authority (rule) Cook v. State (2×)
Ga. · 2022 · confidence medium
The majority’s workability concerns do not warrant overruling our precedent. be expected to assert or argue his own ineffectiveness on appeal[,]” particularly in the contexts of determining whether a defendant needs new, conflict-free counsel, see Garland, 283 Ga. at 203, and determining whether a claim of ineffective assistance has been waived, see White v. Kelso, 261 Ga. 32, 32 (401 SE2d 733) (1991).
discussed Cited as authority (rule) Eugene French v. Warden, Wilcox State Prison (2×)
11th Cir. · 2015 · confidence medium
And to what 1 “Because an attorney cannot reasonably be expected to assert or argue his or her own ineffectiveness, claims of ineffective assistance of counsel are often properly raised for the first time in a habeas corpus petition.” White v. Kelso, 401 S.E.2d 733, 734 (Ga. 1991). 26 Case: 12-15385 Date Filed: 06/23/2015 Page: 27 of 27 end?
discussed Cited as authority (rule) Travis Clinton Hittson v. GDCP Warden (2×)
11th Cir. · 2014 · confidence medium
White v. Kelso, 261 Ga. 32, 32 , 401 S.E.2d 733, 734 (1991). 104 Case: 12-16103 Date Filed: 07/09/2014 Page: 105 of 154 assistance of counsel during state post-conviction proceedings cannot serve as cause to excuse procedural default.” Order Den.
discussed Cited as authority (rule) Carter v. State
Ga. Ct. App. · 2005 · confidence medium
Thus, new counsel must raise the ineffectiveness of previous counsel at the first possible stage of post-conviction review, White v. Kelso, 261 Ga. 32, 33 ( 401 SE2d 733 ) (1991), and request an evidentiary hearing if the claim involved matters outside the record.
discussed Cited as authority (rule) Commonwealth v. Grant (2×)
Pa. · 2002 · confidence medium
See, e.g., Hooks v. Ward, 184 F.3d 1206, 1213 (10 th Cir.1999); White v. Kelso, 261 Ga. 32 , 401 S.E.2d 733, 734 (1991); Tachibana v. State, 79 Hawai'i 226 , 900 P.2d 1293, 1299 (1995); State v. Litherland, 12 P,3d 92, 98 (Utah 2000). .
cited Cited as authority (rule) State v. Smith
Ga. · 2002 · confidence medium
OCGA § 9-14-48 (d); White v. Kelso, 261 Ga. 32, 33 ( 401 SE2d 733 ) (1991).
discussed Cited as authority (rule) Eagle v. Linahan
11th Cir. · 2001 · confidence medium
Although, in Georgia, challenges to the effectiveness of trial counsel are usually cognizable in a habeas corpus proceeding brought after the direct appeal has run its course, where, as here, new counsel is appointed or retained after trial, the "[n]ew counsel must raise the ineffectiveness of [trial] counsel at the first possible stage of post-conviction review.” White v. Kelso, 261 Ga. 32 , 401 S.E.2d 733, 734 (1991).
discussed Cited as authority (rule) Cedric Eagle v. Leland Linahan
11th Cir. · 2001 · confidence medium
Although, in Georgia, challenges to the effectiveness of trial counsel are usually cognizable in a habeas corpus proceeding brought after the direct appeal has run its course, where, as here, new counsel is appointed or retained after trial, the "[n]ew counsel must raise the ineffectiveness of [trial] counsel at the first possible stage of post-conviction review.” White v. Kelso, 261 Ga. 32 , 401 S.E.2d 733, 734 (1991).
discussed Cited as authority (rule) Threlkeld v. State
Ga. Ct. App. · 2001 · confidence medium
In the Matter of Threlkeld, 273 Ga. 331 ( 539 SE2d 823 ) (2001). 2 Simpson v. State, 238 Ga. App. 109, 112 (2) ( 517 SE2d 830 ) (1999). 3 Howard v. State, 233 Ga. App. 724, 729-730 (7) ( 505 SE2d 768 ) (1998). 4 Aikens v. State, 241 Ga. App. 816, 817 ( 527 SE2d 916 ) (2000). 5 Holt v. State, 205 Ga. App. 40, 42 (3) ( 421 SE2d 131 ) (1992). 6 White v. Kelso, 261 Ga. 32, 33 ( 401 SE2d 733 ) (1991). 7 Moore v. State, 236 Ga. App. 889, 890 ( 514 SE2d 73 ) (1999). 8 Jones v. State, 208 Ga. App. 472, 473 ( 431 SE2d 136 ) (1993).
cited Cited as authority (rule) Chu Young Yi v. Gearinger
N.D. Ga. · 2001 · confidence medium
Under Georgia law, “[n]ew counsel must raise the ineffectiveness of previous counsel at the first possible stage of post-conviction review.” White v. Kelso, 261 Ga. 32 , 401 S.E.2d 733, 734 (1991).
cited Cited as authority (rule) Tharpe v. Head
Ga. · 2000 · confidence medium
White v. Kelso, 261 Ga. 32, 33 ( 401 SE2d 733 ) (1991).
cited Cited as authority (rule) Nobles v. State
Ga. Ct. App. · 1998 · confidence medium
White v. Kelso, 261 Ga. 32, 33 ( 401 SE2d 733 ) (1991).
cited Cited as authority (rule) Turpin v. Todd
Ga. · 1997 · confidence medium
OCGA § 9-14-48 (d); Black, 255 Ga. at 240 ; White v. Kelso, 261 Ga. 32, 33 ( 401 SE2d 733 ) (1991).
cited Cited as authority (rule) Martin v. State
Ga. Ct. App. · 1997 · confidence medium
White v. Kelso, 261 Ga. 32, 33 ( 401 SE2d 733 ) (1991).
discussed Cited "see" Tedric Leslie v. State (2×)
Ga. Ct. App. · 2020 · signal: see · confidence high
See generally White v. Kelso, 261 Ga. 32, 32-33 ( 401 SE2d 733 ) (1991) (discussing application of rule, that new counsel must raise claim of previous counsel’s ineffectiveness at first possible stage of post-conviction review, in connection with habeas petitions and direct appeals).
discussed Cited "see" James Hawes v. Grady Perry (2×)
11th Cir. · 2015 · signal: see · confidence high
See White v. Kelso, 261 Ga. 32 , 401 S.E.2d 733, 734 (1991).
discussed Cited "see" McClure v. Kemp (2×)
Ga. · 2009 · signal: see · confidence high
See White v. Kelso, 261 Ga. 32 ( 401 SE2d 733 ) (1991).
discussed Cited "see" Sims v. State (2×)
Ga. Ct. App. · 2009 · signal: see · confidence high
See Marcus v. State, 149 Ga. 209, 210 ( 99 SE 614 ) (1919). 8 Dorminey v. State, 258 Ga. App. 307, 310 (2) ( 574 SE2d 380 ) (2002), citing Werner v. State, 246 Ga. App. 677, 680 (3) ( 538 SE2d 168 ) (2000). 9 See, e.g., Durham v. State, 181 Ga. App. 155, 158 (4) ( 351 SE2d 683 ) (1986). 10 260 Ga. 840 ( 400 SE2d 922 ) (1991). 11 262 Ga. 541 ( 422 SE2d 543 ) (1992). 12 Id. at 542 (3). 13 266 Ga. 183, 183-185 (2) ( 465 SE2d 659 ) (1996). 14 Trauth v. State, 283 Ga. 141, 143 (3) ( 657 SE2d 225 ) (2008), citing White v. Kelso, 261 Ga. 32 ( 401 SE2d 733 ) (1991). 15 Had appellate counsel been allow…
discussed Cited "see" Hills v. State (2×)
Ga. Ct. App. · 2009 · signal: see · confidence high
See generally White v. Kelso, 261 Ga. 32 ( 401 SE2d 733 ) (1991) (discussing *103 application of rule, that new counsel must raise claim of previous counsel’s ineffectiveness at first possible stage of post-conviction review, in connection with habeas petitions and direct appeals). 9 Id. at 242. 10 Id. at 241. 11 Id. at 241 (citation omitted); see also Freeman v. State, 282 Ga. App. 185, 189 (3) ( 638 SE2d 358 ) (2006). 12 See McCroskey v. State, 280 Ga. App. 638, 641-642 (2) ( 634 SE2d 824 ) (2006). 13 See Portilla v. State, 285 Ga. App. 401, 404 (2) ( 646 SE2d 277 ) (2007).
discussed Cited "see" Gibson v. Head (2×)
Ga. · 2007 · signal: see · confidence high
See White v. Kelso, 261 Ga. 32 ( 401 SE2d 733 ) (1991).
discussed Cited "see" Simmons v. State (2×)
Ga. · 2006 · signal: see · confidence high
See Ryan v. Thomas, 261 Ga. 661 ( 409 SE2d 507 ) (1991) (counsel cannot be expected to raise ineffective assistance of counsel claim against coworker in same law firm or public defender’s office). 5 White v. Kelso, 261 Ga. 32, 32 ( 401 SE2d 733 ) (1991).
cited Cited "see" Head v. Taylor
Ga. · 2000 · signal: see · confidence high
See id.
discussed Cited "see" Turpin v. Lipham (2×)
Ga. · 1998 · signal: see · confidence high
See id.
examined Cited "see" Turpin v. Mobley (4×) also: Cited "see, e.g."
Ga. · 1998 · signal: see · confidence high
See id.
examined Cited "see" Kennebrew v. State (4×)
Ga. · 1996 · signal: see · confidence high
See White v. Kelso, 261 Ga. 32 , 401 S.E.2d 733 (1991).
discussed Cited "see, e.g." Williams v. Moody (2×)
Ga. · 2010 · signal: compare · confidence low
Compare White v. Kelso, 261 Ga. 32 ( 401 SE2d 733 ) (1991) (a convicted defendant pursuing habeas relief was procedurally barred from raising ineffective assistance of trial counsel because appellate counsel who did not serve as trial counsel had not raised ineffective assistance of trial counsel “at the first possible stage of post-conviction review”).
discussed Cited "see, e.g." Head v. Ferrell (2×)
Ga. · 2001 · signal: compare · confidence low
Compare White v. Kelso, 261 Ga. 32 ( 401 SE2d 733 ) (1991).
White
v.
Kelso
S90A1563.
Supreme Court of Georgia.
Mar 15, 1991.
401 S.E.2d 733
Victor White, pro se., Michael J. Bowers, Attorney General, C. A. Benjamin Woolf, for appellee.
Clarke.
Cited by 75 opinions  |  Published
2 passages pin-cited by 3 cases
Pinpoint authority: #20,572 of 633,719
Citer courts: Supreme Court of Georgia (2) · Court of Appeals of Georgia (1)
Clarke, Chief Justice.

This appeal from the denial of a petition for habeas corpus was granted to consider whether a claim of ineffective assistance of trial counsel is waived by petitioner if his appellate counsel, who was not his trial counsel, fails to assert it on direct appeal. We conclude that the ineffective assistance claim was waived.

Victor White was convicted of three counts of armed robbery and received three life prison terms. He was represented at trial by a court-appointed attorney. After his trial, another attorney was appointed to handle his appeal. The only issue raised in the appeal was the sufficiency of the evidence. The Court of Appeals affirmed the conviction.

White filed a pro se petition for habeas corpus asserting that his trial counsel was ineffective. The habeas corpus trial court held a hearing and received the testimony of petitioner and the deposition of petitioner’s trial counsel into evidence. The court then denied the petition, stating that the claim was waived by the failure to assert it on appeal.

We hold that the court correctly ruled that the ineffectiveness claim was waived. It is a well established rule that any allegation of a violation of the right to counsel should be made at the earliest practicable moment. See Smith v. State, 255 Ga. 654 (341 SE2d 5) (1986). Because an attorney cannot reasonably be expected to assert or argue his or her own ineffectiveness, claims of ineffective assistance of counsel are often properly raised for the first time in a habeas corpus petition. However, in Thompson v. State, 257 Ga. 386 (359 SE2d 664) (1987), we held that where new counsel appointed or retained after the trial amends the motion for new trial without raising the issue of ineffective assistance, the claim was waived. In Johnson v. State, 259 Ga. 428 (383 SE2d 115) (1989), we held that the claim may be raised for the first time in the direct appeal if the direct appeal marks the first appearance of new counsel. The rule is consistent: New counsel must raise the ineffectiveness of previous counsel at the first possible stage of post-conviction review.

[*33] Decided March 15, 1991. Victor White, pro se. Michael J. Bowers, Attorney General, C. A. Benjamin Woolf, for appellee.

A pro se petitioner is in a position similar to that of new counsel. The petitioner may raise the ineffectiveness of previous counsel at the first practicable moment. But, in this case “previous counsel” is not the trial counsel, but appellate counsel. When petitioner made his first appearance in his own behalf, the claim of ineffectiveness of trial counsel had already been waived by his appellate counsel. Appellate counsel did not raise petitioner’s claim of ineffectiveness of trial counsel in a motion for new trial or on direct appeal. The claim is therefore procedurally barred unless petitioner can demonstrate cause for the failure to raise the claim and prejudice arising therefrom. Black v. Hardin, 255 Ga. 239 (336 SE2d 754) (1985).

Petitioner argues that he did not intend to waive his ineffective assistance of counsel claim. He says that his state-appointed appellate counsel did not raise the issue for him. This argument is of no avail. Our rule regarding procedural bar does not require the intentional relinquishment of known rights. See OCGA § 9-14-42, Valenzuela v. Newsome, 253 Ga. 793 (325 SE2d 370) (1985). Rather, the procedural bar does not apply when the petitioner shows cause and prejudice as described in Black v. Hardin, supra, or when the procedural bar will work a miscarriage of justice. Id. Petitioner here does not argue or point to any facts in the record that indicate either cause for appellate counsel’s failure to raise the claim or any prejudice arising therefrom. Further, the record does not reflect any miscarriage of justice. Finally, petitioner does not argue that his appellate counsel rendered ineffective assistance. Under these circumstances, the claim of ineffective assistance of trial counsel is defaulted.

Judgment affirmed.

All the Justices concur.