☢ test - Í

Tompkins v. Hall, 291 Ga. 224, 728 S.E.2d 621 (June 18, 2012). Habeas court erred in granting relief as to defendant’s convictions for cocaine trafficking and related offenses; defendant couldn’t show ineffective assistance of appellate counsel. Even if counsel were deficient, outcome of defendant’s appeal wouldn’t have been different otherwise because he was a fugitive from justice, which required dismissal of his appeal. Walker v. Hagins, 290 Ga. 512, 722 S.E.2d 725 (February 6, 2012). Following defendant’s voluntary manslaughter conviction, habeas court erred by granting petition based on ineffective assistance of appellate counsel. Court of Appeals affirmed on appeal, in part because of missing hearing transcript covering issue of pre-trial juror excusal by clerk. Habeas court found ineffective assistance based on missing transcript, without any showing of prejudice. Held, “the habeas court erred in simply presuming prejudice from appellate counsel's alleged deficiency. The habeas court should have issued findings explaining how the outcome of Hagins' appeal may have been different if the transcript at issue would have been available for review by the appellate court. The burden is on Hagins to show prejudice, and the habeas court failed to explain how this burden was met.” Court’s review of transcript here shows no prejudice from trial clerk’s unexplained or undocumented excusal of 11 potential jurors out of 500 summoned. “[I]t is undisputed that the clerk was duly appointed to excuse jurors, as permitted by OCGA § 15–12–1.1(a)(1), and followed a standing order issued by the judges of the Ocmulgee Judicial Circuit. … Hagins asserted that his conviction should be reversed due to alleged clerical errors regarding 11 jurors out of a total of 500. We refuse to countenance such an argument by holding that it may have had an effect on the outcome of Hagins' appeal or that there is a reasonable probability that it would undermine confidence in the outcome. Moreover, even if the juror excusals at issue constituted a substantial number of the total, ‘we do not find “such disregard of the essential and substantial provisions of the statute as would vitiate the array( ).” [Cit.]’ Bryant v. State, 288 Ga. 876, 882(6), 708 S.E.2d 362 (2011). Neither the transcript at issue nor any other evidence shows ‘that the excusals or deferrals in this case were allowed in such a manner as to alter, deliberately or inadvertently, the representative nature of the jury lists. [Cit.]’ English v. State, 290 Ga.App. 378, 383(3)(b), 659 S.E.2d 783 (2008). Finally, ‘[t]he jury panels which were put upon the accused contained [115] veniremen, substantially more than required by OCGA § 15–12–160.’ Hall v. State, 254 Ga. 272(3), 328 S.E.2d 719 (1985).” Brown v. Baskin, 286 Ga. 681, 690 S.E.2d 822 (March 15, 2010). Habeas court did not err in finding that Baskin received ineffective assistance from appellate counsel, who failed to raise on appeal trial counsel’s ineffectiveness – specifically, failure to impeach victim with pending criminal charges. 1. Standard of appellate counsel’s effectiveness. “‘To overcome the presumption that his appellate counsel was effective, [the petitioner] must prove that the failure to raise the issue of his trial lawyer's effectiveness was a decision which “only an incompetent attorney would have adopted.” Shorter v. Waters, [275 Ga. 581, 585 (571 S.E.2d 373) (2002)]. See also Battles v. Chapman, [269 Ga. 702, 705(1)(a) (506 S.E.2d 838) (1998)]. [Cit.]’ Walker v. Williams, 282 Ga. 409, 409 (651 S.E.2d 59) (2007).” 2. Habeas court properly found ineffectiveness. “Baskin's appellate counsel never amended his motion to include trial counsel's failure to present to the trial court authority for cross-examining Blalock about his pending charges, or otherwise preserve appellate review of the issue. And, the habeas court certainly did not err in finding that this was deficient performance. ‘This Court [has] recognized that Davis v. Alaska, [415 U.S. 308 (94 S.Ct. 1105, 39 L.Ed.2d 347) (1974)] guarantees a defendant in a criminal trial “both the general right to cross-examine witnesses against him and the more specific right to cross-examine a key state's witness concerning pending criminal charges against the witness.” [Cit.]’ Mangum v. State, 274 Ga. 573, 576(2) (555 S.E.2d 451) (2001).” Davis v. State, 242 Ga.App. 101, 527 S.E.2d 602 (January 7, 2000). After defendant’s robbery conviction, trial court properly denied defendant’s motion for out-of-time appeal, based on trial counsel’s testimony that defendant discharged him when counsel asked defendant if he wanted to appeal. “‘An out-of-time appeal is appropriate where due to the ineffective assistance of counsel, no appeal has been taken. However, an attorney renders effective assistance of counsel with regard to the decision whether to appeal when he advises his client of the appellate rights, and does not preempt his client's decision to appeal. Neither the sixth amendment nor the fourteenth amendment requires that the record reflect that the defendant made a knowing and intelligent decision not to appeal before he can be precluded from appellate review. The grant or denial of a motion for an out-of-time appeal is within the discretion of the trial court, and its decision will not be reversed absent abuse of such discretion.’ (Citations and punctuation omitted.) Lunsford v. State, 237 Ga.App. 696-697, 515 S.E.2d 198 (1999). See also Penrod v. State, 233 Ga.App. 532-533, 504 S.E.2d 757 (1998).” Turpin v. Todd, 271 Ga. 386, 519 S.E.2d 678 (July 14, 1999). Habeas court applied erroneous standard in considering effectiveness of appellate counsel. “‘[W]hen appellate counsel's performance is claimed to be deficient because of a failure to assert an error on appeal, the reviewing court should resolve whether the decision was a reasonable tactical