Harris v. Upton, 292 Ga. 491

Harris was convicted in 1999 of felony murder, aggravated assault, and two firearm offenses, receiving a life sentence plus consecutive and concurrent terms; direct appeal upheld in 2005.
In 2008, Harris filed a habeas corpus petition alleging ineffective assistance of appellate counsel, including failure to argue lack of notice of a plea offer and trial counsel’s drug use.
Habeas court held an evidentiary hearing; appellate counsel testified she investigated several issues, spoke with Harris’ family, but could not locate trial counsel to obtain corroboration.
Missouri v. Frye (2012) held that defense counsel must communicate formal plea offers; Georgia precedent likewise required notice of plea offers to be communicated to the defendant.
Harris argued appellate counsel’s deficient investigation caused prejudice, i.e., the State’s plea offer would have been accepted had Harris been properly advised.
The court concluded appellate counsel’s investigation was reasonable under the circumstances and that Harris failed to show a viable defense or witnesses to present; prejudice could not be shown.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Ineffective assistance for failure to investigate plea notice	Harris argues appellate counsel failed to investigate and present evidence of trial counsel’s failure to inform him of the plea offer.	State contends appellate counsel reasonably investigated; scant evidence of the offer was corroborated; absence of notice is not proven.	No reversible error; insufficient prejudice shown.
Ineffective assistance for trial counsel drug-use claim	Harris claims appellate counsel did not adequately develop evidence of trial counsel’s drug use during trial.	State argues trial-counsel drug-use evidence was not substantiated and cannot support ineffectiveness.	No reversible error; prejudice not shown.
Reasonableness of appellate counsel’s investigation	Appellate counsel did not reasonably investigate by locating trial counsel and obtaining corroboration.	Counsel pursued issues, attempted to locate trial counsel, and relied on available evidence; failure to subpoena records was reasonable.	Appellate counsel’s investigation was reasonable under the circumstances.
Impact of undiscovered records and testimony	Additional records (time sheets, disbarment, divorce records) would prove deficient representation and drug issues.	Records were speculative, not admissible, or fail to prove withholding of a plea offer; credibility issues exist.	Evidence insufficient to establish prejudice.

Strickland v. Washington, 466 U.S. 668 (1984) (ineffective assistance requires deficient performance and prejudice)
Barker v. Barrow, 290 Ga. 711 (2012) (deference to counsel's strategic decisions; inattention can be unreasonable)
Terry v. Jenkins, 280 Ga. 341 (2006) (circumstances and hindsight barred inaction-based fault)
Walker v. Hagins, 290 Ga. 512 (2012) (prejudice standard requires reasonable probability of different outcome)
Goodwin v. Cruz-Padillo, 265 Ga. 614 (1995) (prejudice must be shown for ineffective assistance)
Lloyd v. State, 258 Ga. 645 (1988) (failure to convey plea offer renders counsel deficient)
Lafler v. Cooper, 132 S. Ct. 1376 (2012) (plea outcome must be different with competent advice)
Missouri v. Frye, 132 S. Ct. 1399 (2012) (duty to communicate formal plea offers to defendant)
McDaniel v. State, 279 Ga. 801 (2005) (considerations of counsel’s knowledge of law in mitigation)
Shiver v. State, 276 Ga. 624 (2003) (disbarment does not by itself establish deficient performance)
Head v. Ferrell, 274 Ga. 399 (2001) (appellate review of factual findings and credibility)