311 Ga. 485
Ga.2021Background
- Waseem Daker was convicted of malice murder and related offenses in 2012 after waiving trial counsel and proceeding pro se; multiple attorneys had been appointed and later withdrawn or served as standby.
- After conviction and sentence, Daker repeatedly requested appointment of appellate counsel and filed pro se a motion for new trial and a direct appeal; the trial court denied appointment based on prior Circuit Defender Office (CDO) determinations that Daker was not indigent.
- Daker filed a 2017 habeas petition raising 438 grounds; he later limited his certificate-of-probable-cause application to two issues: (1) denial of his right to appellate counsel, and (2) improper delegation/denial of indigency determination to the CDO.
- The Georgia Supreme Court granted the application and remanded to the habeas court to identify and analyze the specific grounds implicated by those two claims.
- On remand the habeas court (confusingly) both found the record did not show a valid waiver of appellate counsel and, inconsistently, recited prior summary denials of all 438 grounds and remanded to the trial court to determine entitlement to appellate counsel.
- The Supreme Court held that the record does not show a valid waiver of appellate counsel, reversed the habeas court to the extent it summarily denied relief or remanded to the trial court, and directed the habeas court to grant relief in the form of an out-of-time direct appeal so Daker may pursue post-conviction proceedings anew.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Validity of waiver of right to appellate counsel | Daker: he never knowingly, intelligently, and voluntarily waived appellate counsel; he repeatedly requested counsel and the record lacks admonitions about appellate self-representation | Warden: trial record shows conduct and prior statements that support waiver; if unclear, remand appropriate | Court: No valid express or functional waiver of appellate counsel; appellate-rights violation—grant out-of-time direct appeal |
| Who determines indigency for appointed appellate counsel | Daker: trial court should have made a proper indigency determination and CDO improperly denied appointment | Warden: Indigent Defense Act delegates indigency determinations to circuit public defender; CDO acted within authority | Court: IDA assigns determinations to CDO; record shows CDO found Daker not indigent; if Daker disputes future determinations he may seek mandamus |
| Proper role of habeas court vs. trial court on remand | Daker: habeas court should grant relief without remanding to trial court | Warden: remand to trial court appropriate to resolve factual questions | Court: Habeas court may not remand to trial court to resolve habeas claims; habeas court must make findings—court reversed habeas court’s remand instruction and directed relief |
| Scope of remedy (relief to grant) | Daker: obtain new direct appeal and vacatur of prior direct-appeal result | Warden: contest relief and procedural posture | Court: Affirmed habeas court to extent it found no waiver; reversed inconsistent denials; remanded to habeas court to grant out-of-time direct appeal and set aside prior trial-court denial of new-trial relief and appellate affirmance |
Key Cases Cited
- Faretta v. California, 422 U.S. 806 (1975) (right to self-representation; waiver must be knowing and voluntary)
- Evitts v. Lucey, 469 U.S. 387 (1985) (lawyer normally necessary to present an appeal; right to counsel on first appeal of right)
- Merriweather v. Chatman, 285 Ga. 765 (2009) (waiver of appellate counsel requires on-the-record admonitions showing knowing, intelligent, voluntary waiver)
- Hall v. Jackson, 310 Ga. 714 (2021) (Georgia constitutional right to counsel extends through trial, motion for new trial, and direct appeal)
- Roberson v. State, 300 Ga. 632 (2017) (Indigent Defense Act vests circuit public defenders with authority to determine indigency)
- Porter v. State, 358 Ga. App. 442 (2021) (non-indigent defendant may functionally waive counsel by failing to exercise reasonable diligence to retain counsel)
- Bryant v. State, 268 Ga. 616 (1997) (functional waiver may be found where defendant’s manipulation of counsel is dilatory)
- Calmes v. State, 312 Ga. App. 769 (2011) (mandamus is proper remedy when CDO fails to fulfill IDA duties)
- Trauth v. State, 295 Ga. 874 (2014) (complete unconstitutional denial of counsel on direct appeal renders prior pro se appeal of no validity)
- Newsome v. Black, 258 Ga. 787 (1989) (habeas court is not authorized to remand the proceeding to another superior court)