Justin Zale Jones was tried before a jury and was convicted of armed robbery and improper display of license plates. On direct appeal, two of his four enumerations were that a show-up identification of him by the victim was improperly admitted into evidence and that the jury’s verdict was not voluntarily reached. Deeming these two enumerations to be abandoned because of appellate counsel’s failure to support them with citations to the record or with legal argument, the Court of Appeals affirmed the convictions in an unpublished opinion. Jones v. State, 246 Ga. App. XXVII (2000). As for the remaining two issues, one was waived in the trial court, and the other, having been raised and argued by appellate counsel, was considered and resolved on the merits in the Court of Appeals.
Jones subsequently filed a petition for writ of habeas corpus. In its order, the habeas court initially considered the substance of the two issues previously abandoned in the Court of Appeals and found that Jones’ due process rights were violated. The habeas court then ruled that, although it was unnecessary to reach the issue, appellate counsel was ineffective in pursuing the direct appeal, and that the issues raised by Jones on habeas were not procedurally barred or waived. Accordingly, the habeas court granted relief and ordered “a *896 new trial on the impermissibly suggestive identification and jury verdict issues.” The Warden filed a timely notice of appeal from this order.
1. More than three and a half months after the notice of appeal was filed, the habeas court entered an amended order “to make clear that Habeas relief was also granted based on ineffective assistance of counsel.” The Warden contends that the habeas court lacked jurisdiction to amend its original order during the pendency of this appeal. Jones responds that the court merely corrected a clerical mistake pursuant to OCGA § 9-11-60 (g). However,
not even that option is available since the filing of the notice of appeal operates as a supersedeas and deprives the trial court of the power to affect the judgment appealed, so that subsequent proceedings purporting to supplement, amend, alter or modify the judgment, whether pursuant to statutory or inherent power, are without effect. [Cits.]
Brown v. Wilson Chevrolet-Olds,
2. The Warden complains that the habeas court, in its order, proceeded immediately to the merits of the two claims which had been abandoned in the Court of Appeals, without any threshold consideration as to whether they were barred by procedural default. However, the habeas court did address the issue of procedural bar in the latter portions of its order, and did not err simply because it failed to set forth its conclusions in a more logical sequence. Compare
Chatman v. Mancill,
Although the habeas court stated that it did not need to reach the issue of ineffective assistance, it also held that appellate counsel’s failure to present the two substantive issues effectively on appeal was sufficient cause for non-compliance with procedural rules on direct appeal. Thus, the habeas court relied on ineffective assistance, not as a separate claim, but as cause to overcome procedural default. See
Turpin v. Todd,
3. The Warden urges that Jones failed to establish the requisite prejudice to excuse the procedural default or to prevail on his claim of ineffective appellate counsel. The habeas court did not make a finding of prejudice in its discussion of procedural bar, but did in its analysis of ineffective assistance. “Aclaim of ineffective assistance of appellate counsel requires a showing both that counsel’s performance was deficient and that the deficiency prejudiced the outcome of the defendant’s appeal. [Cits.]”
Crawford v. Thompson,
The habeas court held that appellate counsel’s “total failure to comply with the rules of the Court of Appeals and his complete abandonment of [Jones’] direct appeal resulted in presumptive prejudice arising to [him].” However, there was not such a complete denial of counsel that a presumption of prejudice is appropriate. Here, Jones’ appellate counsel raised and argued one issue which was resolved on the merits, but failed to advance two other contentions to the extent necessary to satisfy the Court of Appeals. If an appeal is taken and the appellate lawyer thereafter abandons certain issues, the critical factor in determining whether to presume prejudice “is the difficulty ‘for a court to evaluate the likelihood of success on appeal when the potential issues on that appeal were never identified.’ [Cit.]”
Cellier v. State,
Because counsel’s deficient performance did not force the court “to employ (its) imagination( ) to determine what appealable issues were present,” this did not present “a situation in which [Jones] was ‘abandoned’by his attorney or the denial of counsel on appeal was ‘complete.’ ” [Cit.]
Cellier v. State,
supra at 264-265. Compare
Roe v. Flores-Ortega,
*898
The habeas court alternatively found actual prejudice resulting from appellate counsel’s deficient performance. It appears that the court relied exclusively on the mere fact that the Court of Appeals never considered the two abandoned issues on the merits. Again, however, the test for actual prejudice is “ ‘whether there is a reasonable probability that the
result
of the appeal would have been different. . . .’ [Cit.]” (Emphasis supplied in part, omitted in part.)
Crawford v. Thompson,
supra at 520. “[T]he fact that the Court of Appeals did not review the issue [s] shows only the potential for prejudice.”
Walker v. Houston,
Even assuming that the habeas court implicitly relied on its prior analysis of the merits of the two abandoned issues, that analysis does not indicate any finding of actual prejudice. With regard to the alleged irregularity injury conduct, the habeás court merely relied on the presumption of prejudice which applies in direct appeals. That reliance was misplaced. Even if prejudice is presumed “for certain errors when they are timely raised, ... a convicted defendant who is seeking to overcome a procedural bar does not have the benefit of that presumption of prejudice, and must instead meet the actual prejudice test . . . .” Turpin v. Todd, supra at 828 (2) (b) (involving the presumption of prejudice for improper jury communications). The habeas court never determined whether actual, rather than presumed, prejudice arose from the abandonment of the jury conduct issue.
As for the alleged misidentification, the habeas court erroneously remanded the case, not only for a new trial, but specifically for a pre-trial hearing to determine whether there was a substantial likelihood of misidentification.
Newsome v. Black,
Because the habeas court applied incorrect legal standards in finding the prejudice which is necessary to excuse a procedural *899 default, we remand the case to that court for it to determine actual prejudice in light of this opinion. Turpin v. Todd, supra at 830 (2) (b).
Judgment reversed and case remanded with direction.