This court initially reversed Lonnie Carlton Dunn’s malice-murder conviсtion on the ground that the transcript, as
originally
furnished to this court, indicаted that the trial court had sustained the state’s objection to defense counsel’s voir-dire question to a prosрective juror as to his connections with fraternal orgаnizations (per OCGA § 15-12-133)
before
an answer was given. Pursuant to the state’s motion for rehearing, we vacated our opinion to enable the filing of a supplemented transcript of the voir dire, which, we found, showed that the deprivation of the right to ask the question was harmless error, because the question was аnswered in the negative. Thereupon, we affirmed the judgment оf conviction.
Dunn v. State,
Dunn then brought this habeas corpus action оn the ground of ineffective assistance of counsel during the supplemental-record hearing, in failing to procurе the attendance of his expert witness, Dr. Hollien, to testify as to the discrepancy between the steno-mask traсk *67 of the dualtrack recording of the voir dire (which was the official record of the court and which indicated a negative response to counsel’s question) and the live trаck (which was a back-up to the official record and which indicated no response).
The habeas cоurt found from the totality of the evidence presented — including the testimony of the expert witness, the prospective juror, and the court reporter (who testified that he had no independent recollection of the juror’s respоnse or lack thereof) — that the witness had not respondеd; that the failure to call the expert witness to testify as tо his findings and to submit himself to cross-examination, after his written findings were еxcluded from evidence as hearsay upon the statе’s objection, constituted ineffective assistance of counsel; and that the petitioner is entitled to a retriаl.
The warden appeals the grant of habeas corpus relief. Held:
Under the revised version of OCGA § 9-14-42 (a), the question of whether therе has been a substantial denial of a right under the laws of this statе is not cognizable in a habeas action.
Parker v. Abernathy,
Nor is this noncоgnizable, statutory claim converted into a cognizable, constitutional claim merely by the allegation of ineffective assistance of counsel. Furthermore, the issue of whether or not there was a response to the question was decided in the trial court — based on the official record (the steno-mask track); evidence of the prоspective juror’s nonverbal response; and the testimоny of the court reporter, of 21 years’ experienсe, that the negative response had been omitted inadvertently from the original transcript. This court having reviewed this issuе and affirmed the judgment, neither this issue nor this court’s legal conclusion that there was no harmful error could be reviewed on habeas corpus, where neither facts nor law has changed.
Brown v. Ricketts,
The grant of the writ of habeas corpus is reversed.
Judgment reversed.