593 S.E.2d 388 | Ga. Ct. App. | 2004
On November 1, 1994, appellant Charles Jefferson Mitchell, Jr. (“Jeff” or “Mitchell”), his brother Michael Stephen Mitchell, and Kyle Dalton Spell were indicted on charges of malice murder, felony murder, and possession of a firearm during the commission of a crime in connection with the death of Danny Hucks. The Mitchell brothers were tried jointly. Appellant Jeff Mitchell was convicted of voluntary manslaughter and possession of a firearm.
Subsequently, Jeff Mitchell filed a state habeas corpus petition, in which he raised ineffective assistance claims against both his trial and appellate counsel. The habeas court found that appellate counsel was ineffective by failing to cite Brown v. State, 250 Ga. 862 (302 SE2d 347) (1983), in support of the argument that the evidence was
Next, Jeff Mitchell filed a federal petition for writ of habeas corpus in the Southern District of Georgia, alleging ineffective assistance of appellate counsel and the insufficiency of the evidence. The federal magistrate judge recommended that the writ be granted conditionally and that the trial court permit Jeff Mitchell to file a new direct appeal.
Mitchell now appeals the denial of his motion for new trial. Based on the “right for any reason” rule, we affirm the denial of the motion. See, e.g., Lyherger v. Robinson, 207 Ga. App. 845, 846 (429 SE2d 324) (1993) (“A judgment right for any reason must be affirmed.”).
As a practical matter, the motion for new trial was untimely. OCGA § 5-5-40 (a) mandates that “[a]ll motions for new trial, except in extraordinary cases, shall be made within 30 days of the entry of the judgment on the verdict.” Judgment in this case was entered on February 9, 1995; therefore, the motion was filed well outside of the time provided in the statute. Mitchell did not file an extraordinary motion for new trial based on newly discovered evidence. See Crowe v. State, 265 Ga. 582, 590-591 (15) (458 SE2d 799) (1995). We also note that because Mitchell’s conviction had already been affirmed on direct appeal, the trial court lacked jurisdiction to consider a subsequent motion for new trial. See Young v. State, 254 Ga. App. 262, 264 (3) (562 SE2d 231) (2002).
Further, Mitchell has not sought an out-of-time appeal, nor is he
The Antiterrorism and Effective Death Penalty Act of 1996, 28 USC § 2254 et seq., and the federal habeas corpus statute, 28 USC § 2243 et seq., give the district courts broad discretion in granting habeas relief. See Hilton v. Braunskill, 481 U. S. 770, 775 (107 SC 2113, 95 LE2d 724) (1987).
Judgment affirmed.
Stephen Mitchell was convicted of those charges, as well as felony murder. Stephen Mitchell’s felony murder conviction was subsequently reversed by our Supreme Court in Mitchell v. State, 266 Ga. 197 (467 SE2d 503) (1996); however, his voluntary manslaughter conviction was affirmed.
The factual basis for Mitchell’s convictions was stated by this Court on direct appeal as follows:
Stephen [Mitchell] and Hucks were involved with the same woman, Melissa Clark, for a number of years before the homicide. Hucks was extremely jealous and physically abused her. Although Clark broke off their relationship, his jealousy continued, as did his abuse toward Clark and her friends. After Hucks went to prison, Clark moved in with Stephen. When Hucks was released, he began making harassing telephone calls and continually threatened to kill them.
According to Stephen, on the night of the killing, Hucks spoke to him on the telephone and said that if Stephen did not meet him to fight, he would come and kill both Stephen and Clark. Stephen agreed to meet Hucks at an area known as the “sandpits.” Hucks told one of his friends that he was going to fight Stephen and kill some boys. [Appellant] Jeff [Mitchell] and Spell accompanied Stephen to the site. Spell suggested to Stephen that they purchase shells for Spell’s shotgun, and while en route in Spell’s truck, Jeff purchased them.
At the sandpits, Hucks appeared with a group of his friends. Jeff stated he did not want any part of it and that they should let his brother and Hucks fight it out. Hucks initiated the fighting by. running over to Spell’s truck, striking Stephen and Jeff with a large stick and smashing the windshield of Spell’s truck. He then said, “It 'ain’t worth going back to the penitentiary for;. . . let’s go,” and started walking back toward his truck. Stephen retrieved the shotgun from the truck. As Hucks was returning to his truck, Stephen fired at Hucks, wounding him in the shoulder (the first assault). Stephen, Jeff, and Spell began beating Hucks with sticks. Jeff and Spell walked off but Stephen kept up the beating for a short time. Spell reloaded the shotgun and Stephen returned to Hucks, lowered the shotgun, and fired when the shotgun was in Hucks’ mouth, blowing off most of his head (the second assault). Jeff was 30 to 50 feet away. They loaded the body on Spell’s truck and left, with Jeff driving. He assisted his brother in disposing of Hucks’ body.
Mitchell v. State, 225 Ga. App. at 26-27.
The Report and Recommendation issued by the magistrate judge is contained in the record and provides that “[t]his conditional writ should become unconditional and permanent unless the State of Georgia allows Mitchell a new direct appeal of his convictions within sixty (60) days of the date of this Court’s final judgment.”
In an order dated August 29, 2002, the trial court acknowledged that Mitchell’s appointed counsel failed to file such an appeal.
But see Magwood v. Smith, 791 F2d 1438, 1450 (11th Cir. 1986) (“[A] federal district court. . . has no appellate jurisdiction over a state criminal case and hence has no authority to ‘remand’ a case to the state courts. The federal habeas corpus statute provides a mechanism for collateral, not appellate review.”).