Hall v. State

818 S.E.2d 527, 304 Ga. 281
CourtSupreme Court of Georgia
DecidedAugust 20, 2018
DocketS18A0827
StatusPublished
Cited by4 cases

This text of 818 S.E.2d 527 (Hall v. State) is published on Counsel Stack Legal Research, covering Supreme Court of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hall v. State, 818 S.E.2d 527, 304 Ga. 281 (Ga. 2018).

Opinion

MELTON, Presiding Justice.

**281The procedural posture of this appeal is somewhat unique. However, as explained more fully below, the appeal essentially amounts to an effort by Michelle Hall, who was represented by counsel in her **282first appeal, to pursue a second direct appeal, which is not authorized by Georgia law and which we are without jurisdiction to consider on the merits. See Milliken v. Stewart, 276 Ga. 712, 713, 583 S.E.2d 30 (2003) ("[A] criminal defendant whose conviction has been reviewed by an appellate court on direct appeal ... is not entitled to a second direct appeal from his judgment of conviction.") (citation and punctuation omitted); Richards v. State, 275 Ga. 190, 191, 563 S.E.2d 856 (2002) (" 'It is the duty of this court to raise the question of its jurisdiction in all cases in which there may be any doubt as to the existence of such jurisdiction.' [Cit.] [And] ... there is no right to directly appeal [for a second time] by a criminal defendant whose conviction has been affirmed on direct appeal."). Accordingly, we must dismiss this appeal.

By way of background, Hall was convicted of malice murder and family violence aggravated assault in Coweta County Superior Court in 2009, and her convictions were affirmed by this Court in her first direct appeal, where she was represented by counsel. See *529Hall v. State, 287 Ga. 755, 699 S.E.2d 321 (2010). On September 14, 2011, Hall filed a petition for habeas corpus relief in the Habersham County Superior Court, and the superior court granted habeas relief to Hall on March 22, 2012. However, the warden appealed the superior court's ruling, and this Court reversed the superior court's grant of habeas relief. See Seabolt v. Hall, 292 Ga. 311, 737 S.E.2d 314 (2013). Then, on May 1, 2013, Hall filed a habeas petition in the United States District Court for the Northern District of Georgia, and that petition was denied. But the Eleventh Circuit reversed the district court's ruling in a split decision-finding fault with this Court's holding in Seabolt on the issue of ineffective assistance of Hall's appellate counsel-and remanded the case to the district court with direction to "order the State to grant Ms. Hall a new direct appeal." Hall v. Warden, 686 Fed. Appx. 671, 685 (IV) (11th Cir. 2017). On remand, the district court entered an order adopting the mandate of the Eleventh Circuit, granting the writ of habeas corpus, and "order[ing] that the State grant [Hall] a new appeal." This district court ruling provides the purported basis for the current appeal that Hall wishes to pursue in this Court.

As an initial matter, we must note that, while this Court is in no position to dictate the parameters of relief granted by the Eleventh Circuit, the relief granted by the Eleventh Circuit in this case is not available. In Georgia, the normal remedy for ineffective assistance of appellate counsel in a situation where the defendant has not suffered a complete denial of counsel in his or her first direct appeal is a new **283trial, not just a new appeal. As this Court explained in Trauth v. State, 295 Ga. 874, 876 (1), 763 S.E.2d 854 (2014),

where ... a pro se defendant has been improperly denied counsel for his first appeal, he is entitled to relief in the form of having counsel appointed "to determine if there is any justifiable ground for an appeal from the original convictions, and if such determination is in the affirmative, ... file[ ] and prosecute[ ] [a new direct appeal] with [the] benefit of counsel." [ Roberts v. Caldwell, 230 Ga. 223, 224, 196 S.E.2d 444 (1973) ]. ... [However,] [i]t is important to note that cases ... in which a defendant is improperly deprived of any attorney at all for his first appeal are distinguishable from those cases where a defendant has an attorney who prosecutes the defendant's first appeal but renders ineffective assistance for that appeal. In cases where a defendant has an ineffective appellate attorney who prosecutes the defendant's first direct appeal, the defendant is not entitled to a new appeal as a remedy for that counsel's ineffectiveness. See, e.g., Milliken [, supra] (habeas court erred in ordering second direct appeal as remedy for appellate counsel's ineffectiveness in failing to raise meritorious issue in first appeal). See also Richards [, supra] (Where the defendant was represented by counsel in his first direct appeal in 1993 [ Richards v. State, 263 Ga. 65, 428 S.E.2d 84 (1993) ], and his conviction was affirmed in that appeal, the defendant could not obtain an out-of-time appeal nine years later, as he was "not entitled to a second direct appeal from his judgment of conviction"). Instead, the proper remedy to ameliorate an appellate counsel's ineffectiveness for failing to raise a meritorious issue on appeal is "to order a new trial." Milliken, supra, 276 Ga. at 714,

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Bluebook (online)
818 S.E.2d 527, 304 Ga. 281, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hall-v-state-ga-2018.