McCarthy v. State, 301 Ga. 803

In October 1999 Rodney McCarthy was convicted (malice murder, firearm offense, concealing a death, tampering with evidence) and received sentence review but filed no motion for new trial or direct appeal.
McCarthy waited years before seeking the trial transcript; the original court reporter had become incapacitated and portions of the transcript were later unavailable.
In 2004 McCarthy filed a habeas petition alleging ineffective assistance for failure to file a notice of appeal and other trial errors; the habeas court found counsel was not deficient and that McCarthy’s own inaction caused the forfeiture of his direct appeal.
McCarthy made several pro se and later counsel-assisted attempts (2006–2015) to obtain an out-of-time appeal or extraordinary new trial; the trial court denied relief as barred by prior adverse rulings.
The Supreme Court of Georgia affirmed, holding McCarthy’s claims were precluded by collateral estoppel and that transcript unavailability did not excuse his prior inaction.

Issue	McCarthy's Argument	State's Argument	Held
Whether the trial court erred by denying an out-of-time appeal as barred by res judicata/collateral estoppel	Earlier constitutional claims were not finally addressed; relief still available	Earlier habeas and motions adjudicated same issues adversely; relitigation barred	Denied — collateral estoppel applies; trial court did not abuse discretion
Whether unavailable trial transcripts justified an out-of-time appeal	Missing transcript prevented timely appeal and excused delay	McCarthy delayed years before seeking transcript; absence did not cause forfeiture	Denied — transcript unavailability did not excuse McCarthy’s prior inaction
Whether ineffective assistance (failure to file notice of appeal) warranted out-of-time appeal	Trial counsel failed to advise/file appeal; constitutional right violated	Habeas court already found counsel not deficient and appellant’s inaction caused forfeiture	Denied — claim precluded by prior adjudication and lacked merit
Whether errors not raised below may be considered on appeal	N/A (McCarthy raised new grounds on appeal)	Errors not raised in trial court are waived on appeal	Denied — appellate review refused for issues not preserved below

Waller v. State, 299 Ga. 619 (recognizes out-of-time appeals address deprivation of first appeal of right caused by counsel’s professional deficiency)
Sessions v. State, 293 Ga. 33 (precluding relitigation where habeas court decided ineffective-assistance claim adversely to defendant)
Nally v. Bartow County Grand Jurors, 280 Ga. 790 (same issue cannot be relitigated indefinitely)
Sheard v. State, 300 Ga. 117 (missing transcript can justify relief where appellant diligently pursued timely appeal)
Earnest v. State, 262 Ga. 494 (errors not raised in trial court will not be heard on appeal)