HALL, WARDEN v. JACKSON (And Vice Versa)

In the Supreme Court of Georgia
Decided: February 1, 2021
S20A1574. HALL, WARDEN v. JACKSON.
S20X1575. JACKSON v. HALL, WARDEN.
NAHMIAS, Presiding Justice.
In 2007, Matthew Jackson was convicted of 28 counts of armed
robbery and other crimes. During his trial, motion for new trial
proceeding, and direct appeal, in which the Court of Appeals
affirmed his convictions, Jackson was represented by lawyers from
the Paulding County Public Defender’s Office. In 2016, represented
by a lawyer in private practice, Jackson filed a petition for habeas
corpus claiming that his trial counsel provided ineffective assistance
in three ways and that his appellate counsel provided ineffective
assistance because that lawyer had a conflict of interest that
prevented him from raising ineffective assistance of trial counsel
claims in Jackson’s amended motion for new trial. The habeas court
denied relief as to Jackson’s ineffective assistance of trial counsel
claims, but granted relief and set aside Jackson’s convictions on the
ground that his appellate counsel had an actual conflict of interest.
Warden Phillip Hall appeals the portion of the habeas court’s
judgment granting relief on the conflict of interest claim. In a cross-
appeal, Jackson contends that the habeas court erred by denying
relief as to his ineffective assistance of trial counsel claims.
As we explain below in the Warden’s appeal, Jackson’s
appellate counsel had an actual conflict of interest that significantly
and adversely affected his performance, so we affirm the grant of
habeas relief. However, we vacate the part of the habeas court’s
judgment setting aside Jackson’s convictions, because the proper
remedy under these circumstances is to grant Jackson a new
opportunity to pursue a motion for new trial and direct appeal with
conflict-free counsel, not a new trial. In Jackson’s cross-appeal, we
vacate the portion of the habeas court’s judgment denying relief as
to the ineffective assistance of trial counsel claims, because such
claims should be evaluated and raised in a new motion for new trial
2
by conflict-free counsel and decided in the first instance by the trial
court.
1. In February 2007, while represented by Charles Norman of
the Paulding County Public Defender’s Office, Jackson was tried on
dozens of charges in connection with robberies by men wearing face
coverings at a Paulding County dry cleaners and restaurant. The
jury found him guilty of 28 counts of armed robbery, two counts of
possession of a firearm during the commission of a crime, and one
count of theft by receiving stolen property. The trial court sentenced
Jackson to serve four life sentences in prison for four of the armed
robbery counts and consecutive or concurrent terms of 20 years for
each of the remaining armed robbery counts and five years for each
of the firearm counts, along with 10 years on probation for the theft
count.
(a) In April 2008, after the trial court granted Jackson’s
motion for an out-of-time appeal, he filed a motion for new trial
through new counsel from the Paulding County Public Defender’s
Office. Five years later, in September 2013, he amended the motion
3
through another lawyer from that office, Andrew Fleischman. 1
Fleischman raised four claims of trial court error, all of which
were related to the court’s denial in part of Jackson’s pretrial motion
to suppress evidence that investigators had collected from his
mother’s house, where Jackson was living. 2 Fleischman claimed in
two enumerations of error that all of the evidence taken from the
house should have been suppressed because during the trial – after
the trial court had partially denied the motion to suppress – Atlanta
Police Department Officer Cojo Joyner testified that after
investigators arrested Jackson at the house and conducted a
“protective sweep” of the residence, Officer Joyner found a handgun
linked to the restaurant robbery in a basement bedroom during a
“secondary sweep.” Officer Joyner had not testified at the pretrial
hearing on the motion to suppress, where there was no mention of a
1 For simplicity’s sake, we will refer to Fleischman as Jackson’s
“appellate” counsel, but it should be understood that Fleischman also
represented Jackson in the motion for new trial proceeding.
2 Although the trial court denied the motion to suppress as to most of the
evidence that was found in the house, the court granted the motion as to two
drug-related items, concluding that officers did not have probable cause to
seize those items.
4
“secondary” sweep.
Fleischman argued that the secondary sweep was unlawful
because Officer Joyner found the gun after investigators had
completed their search for potentially dangerous individuals during
the protective sweep; that based on the unlawful discovery of the
gun, investigators obtained a search warrant and collected the
handgun and several other items of evidence linked to the robberies;
and that about a week later, investigators collected additional
evidence after they obtained a second search warrant that was
largely based on the discovery of the gun and the other evidence
gathered during the first search. Fleischman asserted that all of the
evidence found during the execution of the two search warrants
should have been suppressed, as the warrants were based on
Joyner’s discovery of the gun during the “impermissible secondary
sweep.” 3 At the hearing on the motion for new trial, the trial court
3 In the other two claims raised in the amended motion for new trial,
Fleischman argued that the trial court erred in its partial denial of the pretrial
motion to suppress because the evidence did not show that the handgun that
Officer Joyner found was in plain view and because the protective sweep of the
5
orally denied the motion.
Fleischman then filed a motion for reconsideration, and the
court held a hearing on that motion, during which Fleischman
submitted Officer Joyner’s personnel file to try to show based on the
officer’s disciplinary history that his trial testimony that he found
the handgun in plain view was not credible. The court reserved
ruling on whether that evidence was admissible. In February 2014,
the trial court entered an order denying the motion for new trial and
the motion for reconsideration, and about a month later, the court
issued an amended order denying the motions, which expressly said
that Officer Joyner’s personnel file was irrelevant and was not
considered by the court in reaching its decision.
(b) Still represented by Fleischman, Jackson appealed, again
raising the claims that the trial court erred by denying in part the
motion to suppress because Officer Joyner found the handgun
house was not authorized, as investigators did not have a reasonable
articulable suspicion that dangerous individuals were inside the house. These
claims had been raised by trial counsel in the motion to suppress and ruled on
by the trial court in its order denying the motion.
6
during an unlawful secondary sweep and, consequently, that all of
the evidence found during the execution of the two search warrants
should have been suppressed. In addition, Fleischman claimed that
the trial court erred by ruling that the protective sweep was incident
to a valid arrest because the arrest warrant for Jackson did not
include the information required by OCGA § 17-4-41 for an arrest
on a theft offense and was therefore “void.” Fleischman also claimed
that the State committed a due process violation under Brady v.
Maryland, 373 U.S. 83 (83 SCt 1194, 10 LE2d 215) (1963), by failing
to call Officer Joyner to testify at the pretrial motion to suppress
hearing and by failing to disclose the officer’s disciplinary history
before the trial. 4
The Court of Appeals affirmed in an unpublished opinion. See
Jackson v. State, Case No. A14A1853, slip op. at 1 (Mar. 25, 2015)
(unpublished). The court held that Jackson had waived appellate
review of all of these claims. As to the claim that the handgun was
Fleischman also contended again that the protective sweep of the house
4
was not authorized.
7
found by Officer Joyner during an unlawful secondary sweep, the
court noted that “the only evidence [presented at the suppression
hearing] showed that the gun at issue had been found during a
single protective sweep,” and that Officer Joyner testified for the
first time at trial and stated that he had found the gun during this
“secondary sweep after the officers had already cleared the house of
people.” Id. at 14-15. The Court of Appeals pretermitted deciding
whether the secondary sweep was unlawful, because when Officer
Joyner testified about the issue at trial, Jackson’s trial counsel
Norman did not renew his motion to suppress to assert that new
ground or ask the trial court to reconsider its earlier ruling denying
the motion in relevant part, so the trial court did not abuse its
discretion “in declining to reconsider its earlier ruling in light of
Joyner’s testimony.” Id. at 15. Accordingly, the Court of Appeals also
rejected Jackson’s claim that the evidence obtained from the
subsequent execution of the search warrants should be suppressed.
See id. at 15-16.
Similarly, as to Jackson’s claim regarding OCGA § 17-4-41, the
8
Court of Appeals pretermitted deciding whether the arrest warrant
for Jackson was “void” for lack of specificity, concluding that he had
waived the claim because Norman did not raise it in the motion to
suppress and the trial court did not rule on it. See Jackson, slip op.
at 9-10 & n.3. The Court of Appeals also noted that Jackson made
no argument that he did not have a copy of the arrest warrant when
he filed the motion to suppress and that even if he did not have a
copy at that time, he did not assert that the warrant was void when
it was admitted into evidence during the trial. See id. at 10. Finally,
the Court of Appeals held that Jackson also waived his Brady claims
for appeal because he did not raise those claims in the trial court.
See Jackson, slip op. at 16-18. 5 This Court denied Jackson’s petition
for certiorari. See Jackson v. State, Case No. S15C1266 (Sept. 8,
2015).
(c) In April 2016, Jackson, represented by a lawyer in private
5 As to Jackson’s remaining, properly preserved claim, the Court of
Appeals held that the trial court correctly ruled that ample articulable facts
supported a reasonable suspicion that dangerous individuals potentially were
inside the house, so the protective sweep was authorized. See Jackson, slip op.
at 11-14.
9
practice, filed a petition for habeas corpus relief, claiming that his
trial counsel Norman provided ineffective assistance by failing to
renew the motion to suppress after Officer Joyner testified about the
secondary sweep, failing to challenge the arrest warrant’s validity
under OCGA § 17-4-41, and failing to allege that the State violated
Brady by not calling Officer Joyner to testify at the suppression
hearing and by not providing Joyner’s disciplinary history to the
defense. In addition, Jackson claimed that his appellate counsel
Fleischman provided ineffective assistance. Jackson argued that
because Fleischman worked for the Paulding County Public
Defender’s Office, where Norman was the Chief Assistant Public
Defender, Fleischman had a conflict of interest; that consequently,
Fleischman could not raise in the amended motion for new trial any
ineffective assistance of trial counsel claims; and that a presumption
of prejudice applied because the conflict significantly and adversely
affected Fleischman’s performance.
In May 2017, the habeas court held an evidentiary hearing, at
which Fleischman and Norman testified. Fleischman testified that
10
at the time he represented Jackson, he worked as an appellate
lawyer at the Paulding County Public Defender’s Office, where
Norman was his direct supervisor; he considered raising in the
amended motion for new trial the three ineffective assistance of trial
counsel claims raised in the habeas petition; he spoke to Norman
and suggested that they transfer the case to the conflict division of
the Georgia Public Defender Council, but Norman became angry
with him; and he did not raise those ineffective assistance claims
due to the conflict of interest, even though he believed that it would
have been better to raise those claims along with the claims of trial
court error that he raised in the amended motion for new trial and
on direct appeal. Similarly, Norman testified that Fleischman
consulted him about raising ineffective assistance of trial counsel
claims in the amended motion for new trial; that Norman was
offended and asked Fleischman to leave his office; and that the
claims probably should have been raised. Documents and
transcripts related to the pretrial motion to suppress, the trial, the
motion for new trial, and the appeal were also admitted into
11
evidence during the habeas proceedings.
On June 9, 2020, the habeas court issued an order denying
relief as to Jackson’s three claims of ineffective assistance of trial
counsel but granting relief on the ground that Fleischman provided
ineffective assistance of appellate counsel due to his conflict of
interest. Recognizing that lawyers from a public defender’s office are
treated as members of the same firm for purposes of raising
ineffective assistance claims, the court found that there was an
“‘actual conflict’ and consequently any necessary ‘prejudice’ is
presumed.” As a remedy, the habeas court set aside Jackson’s
convictions and vacated his sentences.
The Warden filed a timely notice of appeal, arguing in his brief
here that the habeas court erred in granting Jackson relief on the
conflict of interest claim and that even if the grant of relief was
proper, the court’s remedy of setting aside Jackson’s convictions was
not appropriate. Jackson filed a timely cross-appeal, arguing that
the habeas court should have also granted him relief on his claims
that his trial counsel provided ineffective assistance.
12
Claims Raised by the Warden in Case No. S20A1574
2. (a) The Warden contends first that the habeas court erred by
granting Jackson relief on the ground that his appellate counsel
Fleischman provided ineffective assistance because he had a conflict
of interest that prevented him from raising in Jackson’s amended
motion for new trial the three ineffective assistance of trial counsel
claims that were raised in the habeas petition. When reviewing a
habeas court’s decision on a defendant’s attorney conflict of interest
claim, we accept the court’s factual findings unless they are clearly
erroneous, but we apply the law to those facts de novo. See Edwards
v. Lewis, 283 Ga. 345, 349-350 & n.17 (658 SE2d 116) (2008). See
also Tolbert v. State, 298 Ga. 147, 151 (780 SE2d 298) (2015).
Because we conclude below that Fleischman had an actual conflict
of interest that significantly and adversely affected his
representation of Jackson, the habeas court did not err in granting
relief on this ground.
A criminal defendant in Georgia is constitutionally entitled to
the effective assistance of counsel during his trial, motion for new
13
trial proceeding, and direct appeal. See Garland v. State, 283 Ga.
201, 202 (657 SE2d 842) (2008). See also Evitts v. Lucey, 469 U.S.
387, 395, 397 (105 SCt 830, 83 LE2d 821) (1985). “One component of
the right to the effective assistance of counsel is the right to
representation that is free of actual conflicts of interests.” Edwards,
283 Ga. at 348.
To carry his burden of proving that his appellate counsel
Fleischman provided ineffective assistance because Fleischman had
a conflict of interest, Jackson must show that “an actual conflict of
interest . . . significantly and adversely affected” Fleischman’s
representation of Jackson. Tolbert, 298 Ga. at 150. See also Mickens
v. Taylor, 535 U.S. 162, 173 (122 SCt 1237, 152 LE2d 291) (2002);
Cuyler v. Sullivan, 446 U.S. 335, 348 (100 SCt 1708, 64 LE2d 333)
(1980). Jackson need not show actual prejudice, that is, a reasonable
probability that the outcome of his motion for new trial or direct
appeal would have been more favorable to him if Fleischman had
not labored under a conflict of interest. See Edwards, 283 Ga. at 349.
Instead, prejudice is presumed if Jackson “demonstrate[s] that the
14
conflict of interest existed and that it ‘significantly affected
[Fleischman’s] performance.’” Id. (quoting Mickens, 535 U.S. at 173).
[T]he critical question is whether the conflict significantly
affected the representation, not whether it affected the
outcome of the underlying proceedings. That is precisely
the difference between ineffective assistance of counsel
claims generally, where prejudice must be shown [under
the two-part test set forth in Strickland v. Washington,
466 U.S. 668, 687 (104 SCt 2052, 80 LE2d 674) (1984)],
and ineffective assistance of counsel claims involving
actual conflicts of interest, which require only a showing
of a significant effect on the representation.
Id. at 351 (emphasis in original). See also Fogarty v. State, 270 Ga.
609, 611 (513 SE2d 493) (1999) (holding that in the context of an
ineffective assistance claim based on an alleged conflict of interest,
“the entire focus . . . is upon the adequacy of counsel’s performance,
rather than upon actual prejudice to the defense”).
We have held that the potential for a conflict of interest exists
when appellate counsel from the same public defender’s office as
trial counsel represents a defendant during his motion for new trial
proceeding or on direct appeal, because such appellate counsel
cannot properly assert a claim of ineffective assistance of counsel
against another member of his own office. See, e.g., Ryan v. Thomas,
15
261 Ga. 661, 661 (409 SE2d 507) (1991). See also Davis v. Turpin,
273 Ga. 244, 248 (539 SE2d 129) (2000) (“Counsel prosecuting an
ineffective assistance claim must be free to operate independently of
the attorney whose performance is in question.”). Cf. Chatman v.
Mancill, 280 Ga. 253, 255 (626 SE2d 102) (2006) (explaining that no
such potential conflict of interest existed where appellate counsel
sought to pursue ineffective assistance claims against counsel who
left the public defender’s office before appellate counsel was
appointed to represent the defendant).
A potential conflict, however, “is insufficient to impugn a
criminal conviction.” Sullivan, 446 U.S. at 350. The potential for a
conflict of interest when a defendant’s trial counsel and appellate
counsel work in the same public defender’s office ripens into an
actual conflict only when the conflict significantly and adversely
affects the appellate lawyer’s representation of the defendant. See
Edwards, 283 Ga. at 349. See also Tolbert, 298 Ga. at 149
(explaining that an “‘actual conflict [is not] something separate and
apart from adverse effect,’” but rather, an “‘actual conflict of interest’
16
means ‘a conflict that affected counsel’s performance – as opposed to
a mere theoretical division of loyalties’” (quoting Mickens, 535 U.S.
at 171 & 172 n.5 (emphasis in original))); Lamb v. State, 267 Ga. 41,
42 (472 SE2d 683) (1996) (“[T]he conflict must be palpable and have
a substantial basis in fact. A theoretical or speculative conflict will
not impugn a conviction which is supported by competent
evidence.”).
At the hearing on his habeas petition, Jackson presented
unusually clear and direct evidence that Fleischman had an actual
conflict of interest. Fleischman testified that when he evaluated
Jackson’s case at the motion for new trial stage, he identified three
claims that Norman provided ineffective assistance during
Jackson’s trial; Fleischman then discussed with Norman, who not
only worked in the same public defender’s office but also was
Fleischman’s direct supervisor, transferring the case to the conflict
division of the Georgia Public Defender Council so that these claims
could be asserted in the amended motion for new trial, but Norman
angrily rebuffed him, despite Norman’s subsequent testimony that
17
the claims probably should have been raised. As a result,
Fleischman did not assert the ineffective assistance claims that he
believed should have been raised. He instead alleged in the amended
motion and on direct appeal related claims of trial court error that
were destined to fail, as they did, because Norman had not raised
those claims in the trial court and they therefore were waived for
appellate review.
The Warden does not dispute that Fleischman (and Norman)
believed that these ineffective assistance issues were potentially
meritorious claims that should have been raised. The Warden also
does not dispute that Fleischman could not pursue the claims
because he worked in the same office as (and as a subordinate to)
trial counsel Norman. The Warden instead relies primarily on Ryan
and similar cases that hold that a defendant like Jackson, who was
represented during his trial, motion for new trial proceeding, and
direct appeal by lawyers from the same public defender’s office, may
raise for the first time in a habeas petition claims that his trial
counsel provided ineffective assistance, because his appellate lawyer
18
could not properly assert such claims against another lawyer from
the same office. See Ryan, 261 Ga. at 661. See also Williams v.
Moody, 287 Ga. 665, 666-667 (697 SE2d 199) (2010); Chatman, 280
Ga. at 254-255. But those holdings were not about the merits of
conflict of interest claims. Instead, the holdings were on a procedural
issue: we decided that ineffective assistance of trial counsel claims
that could not be properly raised in a motion for new trial or on direct
appeal were not procedurally barred in habeas proceedings. See
Ryan, 261 Ga. at 661; Williams, 287 Ga. at 666-667; Chatman, 280
Ga. at 254-255. Thus, the Warden’s reliance on Ryan and its progeny
is misplaced.
The Warden does cite some cases that address the merits of
conflict of interest claims, but those cases are distinguishable,
because in none of them did the defendant present evidence credited
by the habeas or trial court (and here, essentially undisputed)
showing that his lawyer’s actions were significantly and adversely
affected by an actual conflict of interest, as opposed to those actions
reflecting a strategic decision unaffected by a potential conflict. See
19
Green v. State, 299 Ga. 337, 341-344 (788 SE2d 380) (2016)
(affirming the trial court’s ruling that trial counsel’s representation
of the defendant and a State’s witness did not amount to an actual
conflict of interest because the defendant “failed to establish that
counsel’s decision not to impeach [the witness] ‘was the result of a
conflict of interest, as opposed to a reasonable strategic decision,’”
where trial counsel testified at the motion for new trial hearing
about the reasons for his decision (citation omitted)); Williams, 287
Ga. at 668 (holding that the habeas court erred by not analyzing
whether appellate counsel’s failure to raise ineffective assistance of
trial counsel claims was the result of his conflict of interest or a
strategic decision). 6
6 Other cases are in accord. See, e.g., White v. State, 298 Ga. 416, 418-
420 (782 SE2d 280) (2016) (affirming the trial court’s ruling that trial counsel’s
prior representation of a witness to the murder was not an actual conflict of
interest because the defendant failed to establish that counsel’s decision not to
call the witness to testify was the result of an actual conflict of interest rather
than a strategic decision, where counsel testified at the motion for new trial
hearing that the witness’s version of events would not have been helpful to the
defendant); Tolbert, 298 Ga. at 157 (affirming the trial court’s ruling that trial
counsel’s representation of co-defendants at a joint trial was not an actual
conflict of interest, where trial counsel did not testify at the motion for new
trial hearing and the record did not show that counsel’s choice of defense “was
20
Here, by contrast, the Warden does not argue, and the evidence
presented at the habeas hearing does not show, that Fleischman
made a strategic decision not to raise the ineffective assistance of
trial counsel claims. Rather, the evidence fully supports the habeas
court’s conclusion that Fleischman failed to raise the claims because
his conflict of interest prevented him from doing so.
Jackson has therefore met his burden of proving that
Fleischman’s inability to raise what Fleischman believed to be valid
ineffective assistance of trial counsel claims in the amended motion
for new trial significantly and adversely affected Fleischman’s
representation of Jackson. Accordingly, Jackson was not required to
the result of a conflict of interest, as opposed to a reasonable strategic decision,
an unreasonable strategic decision, or even inattention and neglect”); Barrett
v. State, 292 Ga. 160, 175 (733 SE2d 304) (2012) (affirming the trial court’s
ruling that the defendant did not establish that his trial counsel’s failure to
call a witness whom counsel represented in other criminal cases was the result
of an actual conflict of interest rather than a reasonable strategic decision,
because the witness’s testimony would not have been admissible at the
defendant’s trial); Henry v. State, 269 Ga. 851, 854 (507 SE2d 419) (1998)
(holding that the defendant’s assertions of an actual conflict were “mere
conjecture” where “[n]o evidence was introduced to rebut trial counsel’s
testimony [at the motion for new trial hearing] that their involvement in
[fundraising events for local prosecutors] ha[d] no effect on the zealous
representation of their clients”).
21
prove that if Fleischman had raised those claims, they would have
had a reasonable probability of success. See, e.g., Edwards, 283 Ga.
at 350-351; Fogarty, 270 Ga. at 611. 7 We therefore affirm the portion
of the habeas court’s judgment granting relief to Jackson on the
ground that appellate counsel Fleischman provided ineffective
assistance because Fleischman had an actual conflict of interest. See
Edwards, 283 Ga. at 346-347, 350-351 (concluding that the
defendant proved that his trial and appellate counsel, who worked
for the same public defender’s office, had an actual conflict of
interest because the evidence at the habeas hearing showed that
both lawyers believed that a challenge to the racial composition of
the jury array should have been raised at trial and on appeal, but
supervisors at the public defender’s office instructed them not to
pursue the issue).
(b) The Warden also contends that the habeas court erred by
setting aside Jackson’s convictions and granting him a new trial,
7As we will discuss below in Jackson’s cross-appeal, the habeas court
improperly ruled on his ineffective assistance of trial counsel claims.
22
rather than a new direct appeal. We agree that a new trial is not the
proper remedy in this case.
As we just held, the habeas court properly granted Jackson
relief on his claim that his appellate counsel Fleischman had an
actual conflict of interest. That conflict significantly and adversely
affected Fleischman’s representation of Jackson during the motion
for new trial proceeding and direct appeal, which Jackson was
entitled to pursue with the benefit of effective, conflict-free counsel.
Thus, the appropriate remedy is to grant Jackson a second out-of-
time appeal, which will allow him to start the post-conviction
process anew with the assistance of conflict-free counsel. Cf. Trauth
v. State, 295 Ga. 874, 876-877 (763 SE2d 854) (2014) (holding that
because the indigent defendant was improperly denied appointed
counsel for his direct appeal, he was entitled to habeas relief in the
form of a second, out-of-time direct appeal, which “would have the
effect of eliminating any proceedings relating to [his] first appeal”);
Roberts v. Caldwell, 230 Ga. 223, 223 (196 SE2d 444) (1973)
(concluding that the defendant, who was denied appointed counsel
23
for his direct appeal, was entitled to a second appeal with the benefit
of counsel). See also Lafler v. Cooper, 566 U.S. 156, 170 (132 SCt
1376, 182 LE2d 398) (2012) (noting that remedies for Sixth
Amendment violations “must ‘neutralize the taint’ of [the]
constitutional violation, while at the same time not grant a windfall
to the defendant or needlessly squander the considerable resources
the State properly invested in the criminal prosecution” (citation
omitted)); Ponder v. State, 260 Ga. 840, 841-842 (400 SE2d 922)
(1991) (holding that the grant of an out-of-time appeal as habeas
corpus relief allows appellate counsel to pursue a new motion for
new trial to raise claims of ineffective assistance of trial counsel).
Compare Milliken v. Stewart, 276 Ga. 712, 712-713 (583 SE2d 30)
(2003) (holding that a new trial, rather than a second direct appeal,
was an appropriate remedy where the defendant established that
his appellate counsel’s failure to raise a meritorious claim
constituted ineffective assistance under the Strickland test). 8
8Jackson’s habeas counsel is retained or pro bono, as there is no right to
appointed counsel in habeas proceedings. If that lawyer does not continue to
24
Accordingly, while we affirm the grant of habeas relief, we
vacate the part of the habeas court’s judgment setting aside
Jackson’s convictions, and we remand the case with the direction
that the habeas court enter an order requiring the grant of another
out-of-time appeal and setting aside the trial court’s order denying
Jackson’s motion for new trial and the Court of Appeals’s decision
affirming his convictions so that he may pursue post-conviction
remedies in the trial court with the assistance of conflict-free
counsel.
Claims Raised by Jackson in Case No. S20X1575
3. In his cross-appeal, Jackson contends that the habeas court
erred by denying relief as to his three claims that trial counsel
Norman provided ineffective assistance. Any such claims, however,
should be evaluated and raised in a new motion for new trial by
conflict-free counsel and addressed in the first instance by the trial
court. Cf. Trauth, 295 Ga. at 876; Ponder, 260 Ga. at 842. We
represent Jackson when this case returns to the trial court and Jackson is
deemed indigent, he would be entitled to have counsel appointed to represent
him.
25
therefore vacate the part of the habeas court’s order denying relief
as to the claims of ineffective assistance of trial counsel that Jackson
raised in his habeas petition (and we express no opinion on the
merits of those claims).
Judgment affirmed in part and vacated in part, and case
remanded with direction in Case No. S20A1574. Judgment vacated
in part in Case No. S20X1575. All the Justices concur, except
Ellington and McMillian, JJ., disqualified.
26