*1 incorrectly suggested charge confidential that a Parties, DOWA the relationship Parties. 6647 and the DOWA between Post existed object giving of the did However, charge, DOWA Parties the appeal. they See Fletcher v. of it on cannot now and (609 any event, Ellenhurg, In SE2d Ga. Ziegler, of Post the Brasiel were officers Howell, because Pope Prоpst, charge. supported giving the App. 211, 215 Finally, the trial court erred Parties that the DOWA denying the record contains directed verdict because motion for their pаrt. misrepresentations fact, In the their on misrepresentations no evidence the of numerous contains evidence record closing signature including document on a Parties, Brasiel’s DOWA authority, pursuant Ziegler falsely stating had the and Howell that Property convey Post 6647’s to DOWAon Manual, the VFW jury’s verdict, the If evidence to there was See Rabun must be affirmed. for directed verdict denial of a motion County Estates, 855, 858 LLC, 280 Ga. Creek v. Mountain easily satisfied this That standard was Judgment concur. All affirmed. 15, 2009. Bridges, T. for
Richard Irvin, M. & Mark
Irvin HALL. S09A0973. WILLIAMS Presiding Justice. CARLEY, battеry, aggravated pled guilty two counts Karl Hall degree. forgery burglary He was in the first and two counts of years years and 15 to serve 15 confinement sentenced claiming cоrpus petition, Hall filed a habeas tion. indictment voluntary, knowing faulty, that signed after he and costs was altered the amount of restitution that disposition, was ineffective аnd that his trial counsel final leading failing him to believe evidence and to move to hearing evidentiary probated. An would be his entire sentence later, the habeаs court entered held, two months and more than granting Hall was an order because “counsel’s of counsel denied effective assistance *2 lacking deprived [and] investigation seriously [the] . . . case was expressly process.” [Hall] The habeas court true adversarial of a appeals. ground. The Warden to rule on other declined (habeas) petition . . . set forth the “A . . . shall rights respects petitioner’s were violated.” in which the grounds § “All for relief claimed a 9-14-44. OCGA (habeas) original petitioner in be raised ... or . . . shall § petition.” 9-14-51. amended OCGA Young,
Murrell v. 285 Ga. investigation purportedly as a was not raised deficient trial counsel’s ground or at the habeas for relief еither peti- Although in his assistance of counsel Hall claimed ineffective investigation based on an tion, that claim was not grounds only inadequate, dealt with the aforеmentioned and that counsel should have been filed that a motion to sentence. misled Hall as to the investigation hearing, reference to
At the habeas response question by briefly testified, in to a came when counsel reviewed all the State’s that he received and State’s discovery, pursuant reciprocal he discussed the case with about the and that district question Hall, however, did not further on several occasions. Hall investigation Thus, it was deficient. or counsel about contrary record was made as to the dissent’s claim that “a prepare] [to not do what trial counsel did and did to case,” thorough apparent the Warden nor Hall made is that neither it pretrial course, the Of record about the regarding argument or was made reason no such record investigation adequacy forth as a is because it was set petition. for relief authority “Although a habeas court to doubt the we do not given sponte, be we believe the must ... matters sua consider meaningful way.” King оpportunity them a an to address 135) (1995). Because the Hawkins, 265 Ga.
adequacy the in the case for the not raised of counsel’s appeared and instead or at the order, the Warden is correct in the habeas court’s final first time asserting opportunity to address the matter he was denied the meaningful way. Compare 609, 610, Penn, fn. Walkеr (1999) (warden did not that he was opportunity respond habeas court’s sua denied an by petitioner). issue Since “the of matter not raised consideration §§ required properly OCGA 9-14-44 raised as under accordingly by granting 9-14-51, . . . the habeas court erred relief on Young, supra this issue.” Murrell v. at 183-184 We therefore improper grant reverse the of habеas relief and remand the case to the habeas court for consideration of Hall’s unresolved claims.
Judgment reversed and case remanded with direction. All the except concur, Hunstein, J., Benham, J., C. who dissent. *3 dissenting. BENHAM, Justice, I
respectfully disagree majority’s conclusion that the pro appellee habeas court’s did not raise in his habeas assistance of counsel was erroneous because the se that he was denied effective
specifically pre-trial because of counsеl’s lack of Appellee petition pro provided by filed his habeas se on a form the Administrative Office of the Courts. his second enumerated appellee alleged error, ineffective assistance of counsel and stated as follows: suppressed my
Counsel never Also, he pleaded guilty made me think if I I would receive [.] long tion Bar was contacted about said matter. Not after sentencing public date, he was disbarred from the defend- ers[’] [sic]. office due to his insufficience support In complained appellee his brief in of his for habeas relief, also investigate trial counsel did not the role of an alleged accomplicе beginning to the crime. At the of the habeas hearing, appellee asserted another of his opining lawyer ineffective evidence that claim, assistance that “the withheld [appellee] gave testimony psychiatrist. [a] ...” regard Trial counsel testified at the habeas to the performed appellee’s work trial counsel the State elicited the following testimony: that trial counsel did not victim; interview the copy spoke that he looked at a of the State’s file and to the distriсt attorney; appellee jail; a few times to at the that trial “any good appellee; counsel could not think of real defense” for appellee options, he advised negotiated plea, that his available other than a go
were to to trial on the chance the State would appealed, make a technical mistake that could be or enter a blind plea judge; and that trial counsel “went back and forth several asking attorney grant appellee probation. times” cross-examination, he the district On
appellee specifically asked trial counsel whether gathered independently certain information of what he was told by responded or obtained from the district and trial counsel negative. present any argument The State did not and did not hearing transcript prоvide On this to the habeas court. constructively appellee had record, the habeas court determined denied counsel. been of ineffective assis- dеtermination on a claim reviewing court be affirmed unless the
tance of counsel is to
erroneous or
factual
are
the habeas court’s
concludes
lеgally
of counsel.”
to show ineffective assistance
are
insufficient
A habeas
Thomason,
factual evidence in the record to findings.” Gee, Tillman v. 284 (2008). Upton Johnson, See also undisputed facts Ga. support appel- legal ineffective and that counsel was conclusion thereby, pretermitting prejudiced there was a construc whether lee Humphrey, Heyward tive denial of counsel. Accordingly, I affirm the would supra. Thomason, habeas court. joins in this Justice Hunstein
I to state that Chief am authorized dissent. Attorney General, Baker, K. Senior Paula E.
Thurbert Amy Attorney Morelli, General, Assistant E. Hawkins Assistant Attorney General, for Adams, Gerwig-Moore, Melton, Brian P. William Sell & L.
Sarah III, Bonner A.