☢ test - Í

Whatley v. Terry, 284 Ga. 555, 668 S.E.2d 651 (October 6, 2008). 1. No presumption of prejudice, or ineffective assistance, upon mere showing of large caseload by defendant’s indigent defender. “Whatley argues that his defense counsel, Johnny Mostiler, had such a heavy caseload as the contract defender for Spalding County that this Court should presume that Whatley's defense suffered prejudice. In general, an ineffective assistance claim can succeed only where the prisoner can show actual prejudice to his or her defense that in reasonable probability changed the outcome of the trial. Strickland v. Washington, 466 U.S. 668 (104 S.Ct. 2052, 80 L.Ed.2d 674) (1984); Smith v. Francis, 253 Ga. 782, 783- 784(1) (325 S.E.2d 362) (1985). However, Whatley correctly notes that an exception to this general rule applies and prejudice will be presumed where, ‘although counsel is available to assist the accused during trial, the likelihood that any lawyer, even a fully competent one, could provide effective assistance is so small that a presumption of prejudice is appropriate without inquiry into the actual conduct of the trial. United States v. Cronic, 466 U.S. 648, 659-660(III) (104 S.Ct. 2039, 80 L.Ed.2d 657) (1984).” No such showing here: defendant’s “assertion regarding Mostiler's general caseload is irrelevant. As was noted by the habeas court, it is the amount of time actually spent by Mostiler on Whatley's case that matters, not the number of other cases he might have had that potentially could have taken his time.” Record showed that attorney and his investigator spent well over 200 hours over more than two years on defendant’s case. “[V]ague statistics that fail to shed light on the amount of work actually done in the particular case at issue are insufficient to show the kind of complete breakdown in representation necessary for prejudice to the defense to be presumed. [Cits.]” 2. No showing of conflict of interest, or ineffective assistance, upon mere showing of large caseload by defendant’s indigent defender. “Whatley argues that trial counsel was forced to choose between representing Whatley and representing counsel's other clients.” However, “Whatley's case is not a case involving the joint representation of co- defendants and because it appears not to be a case involving other factors that make prejudice both highly probable and exceptionally difficult to prove. Mickens v. Taylor, 535 U.S. 162, 174-175(III) (122 S.Ct. 1237, 152 L.Ed.2d 291) (2002).” Thus, no presumption of prejudice as in these more traditional conflict of interest cases. “Given the time counsel actually dedicated to Whatley's case and the quality of representation that the record shows that counsel provided, Whatley's vague statistics are not sufficient to show the existence of an actual conflict of interest that adversely affected counsel's performance.” Burnette v. State, 291 Ga.App. 504, 662 S.E.2d 272 (May 13, 2008) (physical precedent only). No presumption of prejudice: “Burnette would have to show, at least, a constructive denial of counsel, which occurs when ‘counsel entirely fails to subject the prosecution's case to meaningful adversarial testing.’ (Citations and punctuation omitted.) Turpin v. Curtis, 278 Ga. 698, 699(1) (606 S.E.2d 244) (2004). Those circumstances are not present here. Counsel subjected Ms. Rouse to a rigorous cross-examination, fully exposing her prior attempt to attack Burnette with a box cutter. Counsel put on a defense witness who recounted the victim’s prior attacks against the defendant. Counsel urged the court to charge the jury on self-defense, although his request was unsuccessful. And any lack of preparation was due to his client’s failure to provide accurate contact information.” Wright v. Van Patten, 552 U.S. 120, 128 S.Ct. 743, 169 L.Ed.2d 583 (January 7, 2008). Defendant Van Patten entered plea of nolo contendere to charge of first-degree reckless homicide in trial court in Wisconsin. “His counsel was not physically present at the plea hearing but was linked to the courtroom by speaker phone.” Defendant lost on state appeal, then sought federal habeas relief, contending that he was denied effective assistance of counsel by his attorney’s physical absence from the courtroom during plea entry and sentencing. Seventh U.S. Circuit Court of Appeals found that presumption of prejudice applied under United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984) due to “the ‘complete denial of counsel,’ that is, when ‘counsel [is] either totally absent, or prevented from assisting the accused during a critical stage of the proceeding,’ id., at 659, and n. 25, 104 S.Ct. 2039.” Supreme Court finds that this is not clearly established, however. “Our precedents do not clearly hold that counsel’s participation by speaker phone should be treated as a ‘complete denial of counsel,’ on par with total absence. Even if we agree with Van Patten that a lawyer physically present will tend to perform better than one on the phone, it does not necessarily follow that mere telephone contact amounted to total absence or ‘prevented [counsel] from assisting the accused,’ so as to entail application of Cronic . The question is not whether counsel in those circumstances will perform less well than he otherwise would, but whether the circumstances are likely to result in such poor performance that an inquiry into its effects would not be worth the time.” Supreme Court doesn’t answer this question, but finding that “our cases give no clear answer to the question presented, let alone one in Van Patten’s favor, ‘it cannot be said that the state court “unreasonabl[y] appli[ed] clearly established Federal law,”’” quoting Carey v. Musladin, 549 U.S. 70, 127 S.Ct. 649, 166 L.Ed.2d 482 (2006). Defendant/petitioner thus was not entitled to federal habeas relief from state conviction under 28 U.S.C. § 2254. Thus, Supreme Court’s “own consideration of the merits of telephone practice, … is for another day.” Hutchens v. State, 281 Ga.App. 610, 636 S.E.2d 773 (September 20, 2006). There was no “complete lack of adversarial