Emmons, Warden v. Bryant

majority opinion

In the Supreme Court of Georgia

Decided: October 5, 2021

S21A0532. EMMONS, Warden v. BRYANT.

LAGRUA, Justice.

This appeal arises from the grant of a petition for habeas

corpus filed by Steven Bryant in connection with his 2015 conviction

for aggravated sexual battery. In granting Bryant’s petition, the

habeas court ruled that Bryant’s appellate counsel had rendered

ineffective assistance by failing to properly assert several instances

of trial counsel ineffectiveness, failing to properly present certain

claims of trial court error, and failing to pursue relief for the

violation of Bryant’s right to conflict-free counsel under Garland v.

State, 283 Ga. 201 (657 SE2d 842) (2008). The Warden contends

that the habeas court erred, both in its substantive rulings and by

granting relief on grounds not asserted by Bryant. We agree with

the Warden that the habeas court erred in its rulings. Accordingly, we reverse.

1. The facts and procedural history relevant to our

consideration of this appeal are as follows.

(a) Indictment and Trial.

In April 2015, Bryant was indicted on one count of aggravated

sexual battery. The indictment charged that, in February 2015,

Bryant intentionally penetrated the victim’s vagina with his fingers

without her consent. Also charged in the indictment was Kimberly

Bridges, Bryant’s girlfriend at the time, who later pled guilty to a

lesser charge and testified at trial for the State.

The victim, Shirley Hudgins, died before trial. Without

Hudgins’ testimony, the State’s case rested largely on the testimony

of Bridges. Bridges testified that on the night of the incident, she

and Bryant, who were staying at Hudgins’ home at the time, had

gotten high; that Bryant suggested waking Hudgins to participate

in a sexual tryst but Bridges rejected the idea; and that, later, she

saw Bryant commit the battery on Hudgins. Bridges also testified

that Bryant texted Hudgins afterwards to apologize.

The State also presented the testimony of three other

witnesses who were in contact with Hudgins in the aftermath of the

incident. Tina Gentry, a sexual assault nurse who examined

Hudgins less than 24 hours after the incident, testified that in the

course of her examination she observed a small abrasion in Hudgins’

vaginal area, which was consistent with Hudgins’ description of how

she had been penetrated. Gentry also testified that Hudgins

described receiving text messages from Bryant after the incident,

asking Hudgins to “just let this go and forget about it.” The other

two witnesses — Hudgins’ boyfriend, Jimmy Ray Hunter, and her

close friend, Krista Barker — testified that Hudgins told them on

the morning after the incident that she had awakened to find Bryant

breathing heavily in her ear and with his fingers in her vagina; both

testified that she was extremely distraught.

Bryant testified in his own defense, denying having touched

Hudgins and claiming that he had only been attempting to ask her

where he could find a light for his cigarette. Bryant presented no

other evidence. The jury found Bryant guilty, and he was thereafter

sentenced as a recidivist to life in prison without the possibility of

parole.1

(b) Post-Trial Proceedings and Appeal.

Through his appointed trial counsel, James Wyatt, Bryant filed

a motion for new trial. While the motion for new trial was pending,

Bryant filed a pro se motion to remove Wyatt, alleging he had

rendered ineffective assistance. Seven days later, Bryant filed a pro

se “amendment” to his pro se motion, indicating his desire to

continue with Wyatt’s representation. The motion for new trial was

ultimately denied,2 and, through Wyatt, Bryant appealed.

While the appeal was pending, Bryant filed various pro se

motions in the trial court requesting the substitution of counsel,

again alleging ineffective assistance and a conflict of interest. In

light of these filings, Wyatt filed a motion on Bryant’s behalf in the

Court of Appeals, seeking a remand of the appeal. Wyatt also filed

1Bryant’s prior felony convictions included those for obstruction of a law enforcement officer, first-degree forgery, and second-degree burglary.

2 From the record before us, which appears to include only selected

portions of the trial court record, it does not appear that the trial court ever ruled on either the motion to remove Wyatt or the amendment.

Bryant’s appellate brief, asserting trial court error in various

respects. Subsequently, the motion to remand was granted, and the

case was remanded to the trial court with direction to appoint new

appellate counsel and to conduct “appropriate proceedings

concerning the issue of ineffective assistance.”

On remand, new appellate counsel, Juwayn Haddad, was

appointed. Haddad filed a second motion for new trial on Bryant’s

behalf, asserting both trial court error and ineffective assistance

claims. At the hearing on the motion, after the court reviewed the

history of the case, Haddad notified the court that he had not been

aware until then that any prior post-trial proceedings had taken

place. Presuming that any claims of trial court error had already

been addressed, Haddad then proceeded only on the ineffectiveness

claims, questioning Wyatt about his trial strategy in two respects.

First, Haddad asked why Wyatt did not object to the testimony from

Bridges and Gentry about Bryant’s apologetic text messages to

Hudgins, given that the original text messages were never admitted

in evidence. Wyatt responded that he “probably didn’t think to

object” to them and there was no strategic reason he did not. Second,

Haddad asked about why Wyatt did not cross-examine Bridges

regarding her plea deal. Wyatt testified that he did not do so

because “I was of the opinion she received quite a harsh sentence for

her part in this case . . . . I think she had some probation revoked

and — got some time for it, and her involvement was fairly minor,

was my opinion.” Following the hearing, the second motion for new

trial was denied.

Bryant’s appeal was transmitted back to the Court of Appeals,3

and Haddad filed a second appellate brief, raising enumerations

both as to trial court error and Wyatt’s ineffectiveness. Rejecting

these contentions, the Court of Appeals affirmed in an unpublished

opinion. See Bryant v. State, Case No. A18A0342 (decided June 12,

2018). After concluding that the trial court had not abused its

discretion in admitting Hudgins’ hearsay statements through

3 Though Bryant filed a second notice of appeal following the denial of the second motion for new trial, the Court of Appeals dismissed that appeal as duplicative given the re-docketing of the initial appeal after the trial court’s ruling on remand.

Barker and Gentry, the Court of Appeals rejected Bryant’s two

claims of trial counsel ineffectiveness. First, as to Wyatt’s failure to

assert a “best evidence” objection4 to the testimony about the

apologetic text messages, the Court of Appeals held that Bryant had

demonstrated no prejudice. See id., slip op. at 11-13 (2) (a).

Specifically, the Court of Appeals held that Bryant had not

demonstrated that the testimony regarding the text messages would

not have been admissible under OCGA § 24-10-1004 (providing that

original writings are not required if they are lost, destroyed, or

otherwise unattainable). As to Bridges’ plea deal, the Court of

Appeals noted that Bryant had presented no evidence of the terms

of the plea agreement, including the sentence Bridges received and

whether the agreement required her to testify against Bryant. See

Bryant, slip op. at 13-14 (2) (b). In addition, the Court of Appeals

concluded that Wyatt’s tactical decision not to probe Bridges on this

topic — because he believed she had received a harsh sentence given

4 See OCGA § 24-10-1002 (“To prove the contents of a writing . . . the original writing shall be required.”).

her level of involvement — was not patently unreasonable. See id.

at 14 (2) (b).

Bryant filed a pro se petition for habeas corpus, which he later

amended, asserting a litany of alleged trial and appellate errors and

other claims, including due process violations, prosecutorial

misconduct, and ineffective assistance of trial and appellate counsel.

At the subsequent habeas hearing, both Haddad and Wyatt testified

about their involvement in Bryant’s case.

Upon questioning by the Warden’s counsel, Haddad testified

that he has practiced criminal defense since 1993 and, at the time

he was appointed to represent Bryant, had handled more than 150

jury trials and 80 appeals. Haddad testified that he believed he was

sufficiently prepared for the motion for new trial hearing and would

have sought a continuance had he believed it was necessary. In

pursuing Bryant’s appeal, Haddad testified that he conferred with

Bryant and reviewed Wyatt’s initial appellate brief, Wyatt’s trial

file, and the trial transcript. As to which arguments to assert,

Haddad testified that he decided to raise the two ineffectiveness

claims he believed were the strongest, stated that his practice on

appeal was to raise only what he believed were the most viable

issues, and explained his reasoning for not raising certain claims of

trial error. Specifically, he explained that he had not challenged the

trial court’s refusal to give a jury instruction on the lesser included

offense of sexual battery because he believed Bryant’s denial of any

contact with Hudgins precluded his entitlement to such an

instruction; that he had not challenged Bryant’s life-without-parole

sentence because he believed the recidivist statute compelled that

result; and that he had not raised insufficiency of the evidence

because he did not believe it was a viable argument. He also

testified that he believed he was procedurally barred from raising

trial errors that had not already been raised in the initial appellate

brief filed by Wyatt.

Bryant, who appeared at the hearing pro se, questioned

Haddad only about what documents he had received from Wyatt and

why he had not raised insufficiency of the evidence. Haddad

reiterated that, in light of Bridges’ and Gentry’s testimony, he

“didn’t think sufficiency was a valid argument to raise,” noting also

that, because this argument was not raised in the initial appellate

brief, he believed he was barred from raising it.

Bryant questioned Wyatt at much greater length. Bryant

asked whether Wyatt had obtained audio recordings of statements

made to an investigating officer by Hudgins and her nephew, Jason

Kilgore, who had been in the room at the time of the incident; Wyatt

responded that he had not and did not know whether such

recordings existed. With regard to Bridges’ plea deal, Wyatt

testified that he knew as of the time of Bryant’s trial that the plea

agreement provided for a probated sentence and required Bridges to

testify at Bryant’s trial. When asked why he had not cross-examined

Bridges regarding the plea deal, Wyatt replied that, because

Bridges’ involvement in the incident was minimal, he “decided not

to beat her up on that point.”

Among the evidence admitted at the hearing was Bridges’ plea

hearing transcript, which reflects that Bridges pled guilty to

aggravated assault and was sentenced to a two-year probated term,

consecutive to a three-year sentence she was serving at the time of

her plea on a probation revocation.5 The sentence was expressly

conditioned on Bridges’ testimony at Bryant’s trial. The habeas

record also includes the transcript from Bryant’s preliminary

hearing, at which the investigating officer, Ginger Ramey, testified

that her interview with Hudgins had been recorded. Also included

in the habeas record are the discovery materials that were provided

to Wyatt by the State. No recordings of an interview with Hudgins

or Kilgore are contained in the record before this Court.

Following the hearing, the habeas court issued a lengthy order,

ruling that Haddad rendered ineffective assistance in a variety of

ways in his handling of Bryant’s appeal.6 First, the court held that

Haddad had failed to properly investigate Bryant’s case. As a result,

5 The habeas court found that as a result of the guilty plea, Bridges was “immediately released from jail.” There is no evidence to support this finding.

6 None of Bryant’s claims was raised specifically as a claim of ineffective

assistance of appellate counsel, although he argued generally that “both [of his] attorneys” were ineffective. Additionally, the habeas court granted relief on several issues that Bryant did not raise. Nevertheless, even if all of these claims had been properly raised, we identify no merit to them.

the court found, Haddad failed to identify and develop six particular

claims of trial counsel ineffectiveness, including Wyatt’s failure to

conduct an adequate pretrial investigation, adequately crossexamine Bridges, develop evidence regarding Bridges’ plea deal,

object to Gentry’s testimony, object to the text-message testimony,

and adequately challenge the admission of Hudgins’ hearsay

statements. As to some of these subjects, the habeas court also ruled

that Haddad had failed to properly present claims of trial error.

Finally, the court ruled that Haddad rendered ineffective assistance

by failing to assert a claim under Garland v. State that Bryant was

denied his right to conflict-free counsel after he began alleging

ineffectiveness of trial counsel during the pendency of the appeal.

See Garland, 283 Ga. at 205 (indigent defendants are

constitutionally entitled to the appointment of conflict-free counsel

on appeal). Concluding that the cumulative effect of these various

deficiencies by appellate counsel was prejudicial, the habeas court

concluded that Bryant was entitled to a new trial. This appeal

followed.

2. On review of the disposition of a habeas petition, this Court

adopts the habeas court’s findings of fact unless they are clearly

erroneous, but applies the law to those facts de novo. See Gramiak

v. Beasley, 304 Ga. 512, 513 (820 SE2d 50) (2018). Thus, where

habeas relief is premised on ineffective assistance, we conduct a de

novo review of “whether counsel’s performance was deficient and

whether any purported deficiency was prejudicial.” Johnson v.

Williams, 308 Ga. 791, 794 (2) (843 SE2d 550) (2020). See also

Strickland v. Washington, 466 U. S. 668, 687 (III) (104 SCt 2052, 80

LE2d 674) (1984) (ineffective assistance of counsel is established by

a showing that counsel’s performance was deficient and the deficient

performance prejudiced the defendant).

To establish ineffective assistance of appellate counsel, “the

petitioner bears the burden of showing that appellate counsel was

deficient in failing to raise an issue on appeal and that the deficiency

prejudiced the defense.” Humphrey v. Lewis, 291 Ga. 202, 210 (IV)

(728 SE2d 603) (2012) (citation and punctuation omitted), overruled

on other grounds by State v. Lane, 308 Ga. 10 (838 SE2d 808) (2020).

See also Strickland, 466 U. S. at 687 (III). Deficient performance is

shown by demonstrating that counsel discharged his responsibilities

in an “objectively unreasonable way considering all the

circumstances and in the light of prevailing professional norms.”

Thomas v. State, 303 Ga. 700, 702 (2) (814 SE2d 692) (2018) (citation

and punctuation omitted). In assessing counsel’s performance, we

apply a strong presumption that counsel “rendered adequate

assistance and made all significant decisions in the exercise of

reasonable professional judgment.” Head v. Ferrell, 274 Ga. 399,

404 (V) (554 SE2d 155) (2001) (citation and punctuation omitted).

“Appellate counsel does not render deficient performance by

selecting stronger claims for presentation on direct appeal while

setting aside weaker ones.” Id.

Ordinarily, to show prejudice, a defendant must demonstrate

“a reasonable probability[,] sufficient to undermine confidence in the

outcome[,] that, but for counsel’s alleged unprofessional errors, the

result of the proceeding would have been different.” Miller v. State,

285 Ga. 285, 286 (676 SE2d 173) (2009) (citation and punctuation

omitted). As related to the performance of appellate counsel, a

determination of prejudice requires the finding of a reasonable

probability that, absent the effect of appellate counsel’s deficiencies,

the result of the appeal would have been different. See Gramiak,

304 Ga. at 513 (I). Thus, where ineffectiveness of appellate counsel

is premised on the failure to assert ineffectiveness of trial counsel,

demonstrating that the outcome of the appeal would have been

different necessarily requires establishing trial counsel’s

ineffectiveness. See id. (“[I]f [the defendant] cannot show his trial

counsel provided ineffective assistance of counsel, then [he] also

cannot show ineffective assistance of appellate counsel, because an

attorney is not deficient for failing to raise a meritless issue on

appeal.”).

We begin by noting that the habeas court granted relief to

Bryant on numerous grounds, and the Warden argues on appeal

that relief on all those grounds was improper. Bryant’s habeas

petition substantively addresses only two of the habeas court’s eight

ineffectiveness rulings, namely, those regarding the Garland claim

and Wyatt’s approach to Bridges’ plea deal.7 We will address the

merits of all of the habeas court’s bases for relief, beginning with the

two issues argued by both parties.

(a) With regard to the first issue, the habeas court concluded

that Haddad was ineffective by failing to assert a claim under

Garland that Bryant was denied his right to conflict-free counsel on

appeal after he began alleging ineffectiveness of trial counsel.

Specifically, the court held that Bryant’s rights under Garland were

violated to the extent Wyatt continued representing him on the first

motion for new trial and in the pre-remand appeal, and that Haddad

should have raised this claim on appeal. We disagree that Bryant’s

rights under Garland were violated, and we therefore disagree with

the conclusion that Haddad was ineffective in failing to assert this

issue on appeal.

In Garland, this Court held that a convicted defendant is

“constitutionally entitled to the appointment of conflict-free counsel

7In his brief, Bryant maintains that all of the habeas court’s findings were proper but notes that, because of “space constraints,” his focus is on these “two major aspects” of the habeas court’s decision.

to represent him on appeal.” Garland, 283 Ga. at 205. As we later

explained,

[a] criminal defendant in Georgia is constitutionally

entitled to the effective assistance of counsel during his

trial, motion for new trial proceeding, and direct appeal.

One component of the right to the effective assistance of

counsel is the right to representation that is free of actual

conflicts of interest.

Hall v. Jackson, 310 Ga. 714, 720 (2) (a) (854 SE2d 539) (2021)

(citations and punctuation omitted). Accord Williams v. Moody, 287

Ga. 665, 667 (2) (697 SE2d 199) (2010). Where a defendant desires

to assert claims of ineffective assistance against his trial counsel,

the right to conflict-free counsel is implicated because “trial counsel

[cannot] reasonably be expected to assert or argue his own

ineffectiveness on appeal.” Garland, 283 Ga. at 203.

For an appellant to carry his burden on a claim that he was

denied conflict-free counsel, he must show that

an actual conflict of interest significantly and adversely

affected [counsel’s] representation of [him]. [He] 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 [counsel]

had not labored under a conflict of interest. Instead,

prejudice is presumed if [the appellant] demonstrates

that the conflict of interest existed and that it

significantly affected [counsel’s] performance.

Jackson, 310 Ga. at 720 (2) (a) (citations and punctuation omitted).

In making this determination,

[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], and ineffective

assistance of counsel claims involving actual conflicts of

interest, which require only a showing of a significant

effect on the representation.

Id. (citation and punctuation omitted; emphasis in original). Thus,

there can be no Sixth Amendment violation where there is no actual

conflict of interest. See id. (actual conflict of interest existed where

appellate counsel admitted he failed to raise viable ineffectiveness

claims against trial counsel, who was his direct supervisor); see also

Edwards v. Lewis, 283 Ga. 345, 350-351 (2) (658 SE2d 116) (2008)

(actual conflict existed where trial and appellate counsel were both

instructed by superiors not to raise what they believed was a valid

challenge to the jury array due to alleged agreement between public

defender’s office and superior court judges).

Here, the habeas court appears to have determined that an

actual conflict of interest arose once Bryant began asserting his trial

counsel ineffectiveness claims pro se and seeking the appointment

of new counsel. Further, it determined that this conflict infected not

just the proceedings during the time that Wyatt remained in his role

as appellate counsel, but rather the entirety of the appeal

proceedings, even after Haddad was appointed. We disagree with

these determinations.

As an initial matter, Bryant’s pro se filings asserting that

Wyatt rendered ineffective assistance, submitted while Bryant was

still represented by Wyatt, were “‘unauthorized and without effect.’”

Williams, 287 Ga. at 669 (2). See White v. State, 302 Ga. 315, 319

(2) (806 SE2d 489) (2017) (pro se filings made while litigant is

represented by counsel are legal nullities). These filings alone thus

could not create an actual conflict of interest. See Williams, 287 Ga.

at 668-669 (2) (reversing finding of an actual conflict based solely on

counsel’s failure to withdraw when defendant filed invalid pro se

motion to assert ineffectiveness claims).8 Instead, Bryant’s

assertions of ineffectiveness were, at most, indicative of a potential

conflict of interest.

“The potential for a conflict of interest . . . ripens into an actual

conflict only when the conflict significantly and adversely affects the

appellate lawyer’s representation of the defendant.” Jackson, 310

Ga. at 721 (2) (a) (emphasis in original). Here, after the potential

conflict arose9 and went unaddressed by the trial court, Wyatt

informed the Court of Appeals and sought a remand to address the

issue.10 See generally Garland, 283 Ga. at 203 (noting that counsel

raised his own alleged ineffectiveness and sought removal from

representation). At the same time, while awaiting a ruling on the

8 Though such motions are nullities and must be dismissed, see White, 302 Ga. at 319-320 (2), it bears noting that trial courts are not precluded from taking action sua sponte, once the specter of a conflict is raised, to determine whether counsel should be replaced.

9 While the potential conflict first arose when Bryant sought to replace

his counsel during the initial motion for new trial proceedings, this potential conflict ceased to exist when Bryant withdrew that request and affirmatively requested that Wyatt stay on as counsel.

10 We also note that Wyatt testified at the habeas hearing that,

throughout the post-trial proceedings, he asked the Georgia Public Defender Standards Council to replace him due to Bryant’s ineffectiveness allegations but was unsuccessful in those efforts.

motion to remand, Wyatt endeavored to preserve Bryant’s claims of

error by filing Bryant’s appellate brief. Thus, the record reflects that

after the potential conflict arose, Wyatt acted appropriately to

protect Bryant’s interests until the issue could be resolved. Then,

when Haddad was ultimately appointed to replace Wyatt, the

potential conflict was eliminated, as Haddad was then free to assert

claims of ineffectiveness on the part of Wyatt. In sum, any potential

conflict created when Bryant began submitting unauthorized filings

asserting ineffectiveness never ripened into an actual conflict that

could have significantly and adversely affected the representation,

because new appellate counsel was appointed and Bryant had the

opportunity to pursue trial counsel ineffectiveness claims both at the

motion for new trial stage and on direct appeal with the assistance

of conflict-free counsel.

Because Wyatt’s representation of Bryant did not give rise to

an actual conflict of interest, it follows that Haddad’s failure to

assert this issue on appeal did not amount to ineffective assistance.

The habeas court erred in concluding otherwise.

(b) With regard to Bridges’ plea deal, the Court of Appeals

rejected this trial counsel ineffectiveness claim due to the lack of

evidence about the plea agreement, and alternatively because it

determined that Wyatt’s decision not to cross-examine Bridges

about her plea agreement was the product of reasonable strategy.

See Bryant, slip op. at 14 (2) (b) (“[W]e cannot say that trial counsel’s

failure to cross-examine Bridges about her plea was patently

unreasonable.”) (punctuation omitted). However, the habeas court

ruled that Haddad performed deficiently by failing to obtain the plea

hearing transcript and final disposition, which would have enabled

Haddad to question Wyatt more pointedly about his failure to crossexamine Bridges about her plea deal. The habeas court held that by

failing to offer the transcript and final disposition into evidence at

the second motion for new trial hearing, Haddad relinquished the

opportunity to present evidence of the favorable terms of Bridges’

plea deal and her resulting motives in testifying as she did. The

habeas court thus determined that the lack of a transcript and final

disposition prevented the Court of Appeals from concluding that

there was prejudice in Wyatt’s failure to impeach Bridges, which

also made it impossible to establish Wyatt’s ineffectiveness.

Because Haddad’s potential ineffectiveness in this regard

depends on whether Wyatt was himself ineffective, we first examine

Wyatt’s performance on this issue. See Gramiak, 304 Ga. at 513 (I).

As noted above, the transcript from Bridges’ plea hearing reflects

that she pled guilty to aggravated assault and was sentenced to

serve two years on probation, consecutive to the three-year term of

imprisonment she was then serving on a prior offense as to which

her probation was revoked due to her arrest in this case. In addition,

Bridges’ plea was conditioned on her truthful testimony at Bryant’s

trial, for which Bridges received two years of probation instead of a

potential sentence of 25 years to life and registration as a sex

offender. See OCGA §§ 16-6-22.2 (c) (those convicted of aggravated

sexual battery “shall be punished by imprisonment for life or by a

split sentence that is a term of imprisonment for not less than 25

years and not exceeding life imprisonment, followed by probation for

life”); 42-1-12 (a) (10) (B.1) (xiv) (defining “dangerous sexual offense”

as including aggravated sexual battery), (e) (2) (requiring all

individuals convicted of a dangerous sexual offense to register as a

sex offender). Thus, Wyatt could have questioned Bridges about this

plea deal if he wanted to cast doubt on her motives in testifying

against Bryant.

At the second motion for new trial hearing, Wyatt testified,

upon questioning by Haddad, about why he had not cross-examined

Bridges on the plea deal:

Q: Now, you never actually asked or crossed [Bridges]

about what she pled to. I mean, that was never clear. Is

there a reason why you didn’t—I mean, it ended up being

an aggravated assault, but—

A: Yeah. I think—I actually had the plea, transferred the

plea. I was of the opinion she received quite a harsh

sentence for her part in this case, and that’s the reason I

did not bring it into the evidence, the sentence that she

received.

Q: Okay. You said that—I couldn’t hear you. You said—

A: A harsh sentence, yes.

Q: A harsh sentence? Now—

A: For—for being there, and I think she had some

probation revoked and—and got some time for it, and her

involvement was fairly minor, was my opinion.

Wyatt reiterated his position at the habeas hearing, testifying that,

because the only allegations against Bridges were that “she saw [the

battery],” he “decided not to beat her up on that point.” Thus, it is

clear that Wyatt’s lack of cross-examination about Bridges’ plea deal

was not an oversight on his part but rather a strategic decision. The

question is whether that decision was reasonable or, instead, was

“so patently unreasonable that no competent attorney would have

chosen it.” Romer v. State, 293 Ga. 339, 344 (3) (745 SE2d 637)

(2013) (citation and punctuation omitted).

Under that stringent standard, we conclude that Wyatt’s

decision to forgo cross-examination about Bridges’ plea deal did not

constitute deficient performance. Based on what he viewed as the

wide disparity between Bridges’ alleged culpability and that of his

own client, Wyatt opted not to risk alienating the jury by attacking

Bridges’ motives for testifying based on her plea deal. Instead,

Wyatt attempted to impeach Bridges’ testimony in other ways, most

notably, by eliciting an acknowledgment that Bridges wrote Bryant

a letter after the alleged incident saying that “nothing happened.”

In addition, Wyatt attempted to create doubt about Bridges’ ability

to observe what happened by eliciting that she had used drugs on

the night in question and that the lights were off in the living room

at the time of the alleged incident. Wyatt also cast doubt on the

validity of Hudgins’ perception of what happened by eliciting that

Hudgins took several medications at night, including Xanax, a

muscle relaxant, and a sleep aid. Though Wyatt’s cross-examination

was ultimately not successful in convincing the jury to disbelieve

Bridges’ account, the fact that his strategy was unsuccessful does

not mean that it was deficient. See Crouch v. State, 305 Ga. 391,

400 (3) (825 SE2d 199) (2019) (“It is well settled that ‘hindsight has

no place in an assessment of the performance of trial counsel.’”).

In sum, we cannot say that Wyatt’s strategy in crossexamining Bridges, viewed in its totality, was so patently

unreasonable that no competent attorney would have pursued it.

Absent a showing of deficiency, there can be no showing of

ineffectiveness by Wyatt in this regard. See Romer, 293 Ga. at 344

(3) (insufficient showing on one prong of ineffectiveness claim

obviates need to examine the other). And absent Wyatt’s predicate

ineffectiveness, it is impossible to establish Haddad’s

ineffectiveness. See Gramiak, 304 Ga. at 513 (I). Accordingly, the

habeas court erred in concluding that Haddad rendered ineffective

assistance in this regard.

fall into three categories: (i) Haddad’s alleged general failure to

properly investigate and prepare for Bryant’s appeal; (ii) Haddad’s

alleged failure to raise certain claims of trial counsel ineffectiveness;

and (iii) Haddad’s alleged failure to adequately argue and support

certain claims he did raise on appeal. For the reasons discussed

below, none of these grounds was sufficiently supported by the

evidence.

(i) The habeas court ruled that Haddad generally failed to

adequately investigate and prepare for Bryant’s appeal. Citing

Haddad’s failure to seek a continuance once he became aware of the

true posture of the case at the second motion for new trial hearing,

the court noted that Haddad questioned Wyatt at that hearing only

on a limited range of issues and then released him, thereby closing

the record as to Wyatt’s ineffectiveness. As a result, the court held,

Haddad was unprepared to identify and pursue numerous instances

of Wyatt’s ineffectiveness and to effectively argue the claims he

raised on appeal.

Any alleged deficiencies in Haddad’s investigation or

preparedness could constitute ineffective assistance only if the

resulting failure to raise claims of trial counsel ineffectiveness or

trial error was prejudicial, i.e., only if those omitted claims would

have had a reasonable probability of success had they been raised

on appeal. See Gramiak, 304 Ga. at 513 (I). Thus, the success of

this general failure-to-investigate ground depends on the merits of

the remaining specific grounds on which relief was granted. We turn

to these grounds now.11

(ii) The habeas court ruled that Haddad should have raised

11 As already noted, even if we construed all of Bryant’s claims as ineffective assistance of appellate counsel claims, we identify no merit to any of the grounds on which habeas relief was granted. See footnote 6 above.

claims of trial counsel ineffectiveness based on Wyatt’s failure to (a)

obtain the recordings of Officer Ramey’s interviews with Hudgins

and Kilgore and physical evidence yielded by Hudgins’ sexual

assault examination; (b) cross-examine Bridges regarding various

facts that could have cast doubt on the accuracy of her testimony or

helped undercut the State’s case; and (c) object to Gentry’s testimony

about Hudgins’ “feelings and impressions.” We conclude that, in

making these rulings, the habeas court failed to give effect to the

strong presumption favoring counsel’s strategic decisions and relied

on speculation rather than evidence in the record in assessing

prejudice.

At the habeas hearing, Haddad testified that his practice on

appeal was to raise only the claims he believed were the strongest

and explained specifically why he did not challenge the failure to

instruct the jury on the lesser included offense of sexual battery, the

recidivist sentence, and the sufficiency of the evidence.

Significantly, Haddad was not questioned at the habeas hearing

about his failure to assert any particular claims of trial counsel

ineffectiveness. However, in testifying about his strategy, Haddad

stated specifically with regard to ineffectiveness that he decided to

“limit it to . . . two points” that he believed were “the strongest.”

These “points” focused on Wyatt’s failure to object to the

incriminating text-message testimony and Wyatt’s failure to crossexamine Bridges about her plea deal.

“[The] process of winnowing out weaker arguments on appeal

and focusing on those more likely to prevail . . . is the hallmark of

effective appellate advocacy.” Ferrell, 274 Ga. at 404 (V) (citation

and punctuation omitted). Thus, where appellate counsel makes a

deliberate choice to raise certain issues on appeal and not others,

the case for ineffectiveness is very difficult to make. See id.

Here, in light of Haddad’s testimony that he purposefully

elected to pursue the claims he believed were the strongest, Bryant

has failed to overcome the presumption of reasonableness attached

to Haddad’s strategy. In assessing the relative strength of the

ineffectiveness claims Haddad did raise versus that of the claims

identified by the habeas court, we conclude that Haddad’s choice of

claims was objectively reasonable. Thus, we cannot say that his

choice to focus on these issues, rather than the issues he deemed less

critical — even if the habeas court disagreed with counsel’s strategic

decision-making — constituted deficient performance. See Ferrell,

274 Ga. at 409 (V) (C) (2) (concluding that, in light of the weakness

of a particular claim, “appellate counsel did not render deficient

performance by focusing on other claims to the exclusion of th[at]

one”).

In addition, these claims fail for a lack of any showing of

prejudice. With regard to the recordings of Officer Ramey’s

interviews, to the extent such recordings even exist,12 Bryant failed

to make them part of the habeas record. Thus, whether any such

recordings may have aided Bryant’s defense is a matter of mere

speculation. See, e.g., Leanos v. State, 303 Ga. 666, 671 (2) (c) (ii)

(814 SE2d 332) (2018) (where defendant failed to offer evidence of

what an uncalled witness’s testimony would have been, there was

12 While the record reflects that the interview with Hudgins was recorded, there is no evidence that the same was true of the interview with Kilgore.

no basis for a ruling of ineffectiveness grounded on counsel’s failure

to call that witness); Heard v. State, 296 Ga. 681, 685 (3) (d) (769

SE2d 917) (2015) (same). Similarly, with regard to the evidence

from the sexual assault examination, such evidence was not

tendered at the habeas hearing, and no testimony was presented as

to why this evidence would have been helpful to Bryant. See

Hambrick v. Brannen, 289 Ga. 682, 685 (715 SE2d 89) (2011)

(“Speculation will not satisfy the prejudice prong of Strickland.”).13

As to the failure to impeach Bridges, Bryant did not make a proffer

of what Bridges’ testimony would have been on any of the subjects

of impeachment the habeas court identified, and thus there is no

substantiated basis for any determination of prejudice. See Leanos,

303 Ga. at 671 (2) (c) (ii); Heard, 296 Ga. at 685 (3) (d). Finally, as

to the failure to object to Gentry’s testimony about Hudgins’

13 Curiously, the habeas court also found that Wyatt’s failure to obtain the recordings and physical evidence was “a potential Brady violation.” See Brady v. Maryland, 373 U. S. 83 (83 SCt 1194, 10 LE2d 215) (1963). But even assuming there was a Brady violation — which is unlikely, given that the existence of the evidence in question was apparent, meaning that the evidence was not “suppressed” — such a violation would constitute misconduct on the part of the prosecution rather than reflect dereliction by trial counsel.

“feelings and impressions,” Gentry’s testimony was not prejudicial

because it was cumulative of the testimony of Hunter and Barker.

See, e.g., Clarke v. State, 308 Ga. 630, 634-636 (2), (3) (842 SE2d

863) (2020) (no prejudice where testimony to which counsel did not

object was cumulative of other evidence).

(iii) With regard to the issues that Haddad did raise on appeal,

the habeas court found that Haddad rendered ineffective assistance

in two respects: first, by failing to question Wyatt on the existence

and whereabouts of the original text messages in which Bryant

allegedly apologized to Hudgins; and second, by failing to adequately

challenge the admission of Hudgins’ hearsay statements to

witnesses Barker, Hunter, and Gentry. Because there is again no

basis for any determination of prejudice resulting from Haddad’s

handling of these issues, these determinations of ineffectiveness

cannot stand.

As to the first of these issues, Haddad did assert an

ineffectiveness claim based on Wyatt’s failure to object to the

witnesses’ testimony about the text messages. The Court of Appeals

rejected this claim, concluding that, pretermitting whether Wyatt

performed deficiently by failing to object on best-evidence grounds,

there had been no showing of prejudice because there was no

indication that the State would not have been able to either produce

the messages or satisfactorily account for their absence. See Bryant,

slip op. at 11-12 (2) (a). The habeas court held that Haddad’s failure

to make a record to establish such prejudice constituted ineffective

assistance.

This holding, however, assumes without evidence that Haddad

would in fact have been able to make such a record. Bryant has

presented no evidence or other indication that the original text

messages could not have been presented at trial, or their absence

sufficiently accounted for, in the event of an objection to the

testimony about them. See OCGA §§ 24-10-1002, 24-10-1004.

Indeed, the habeas court recognized that it was “speculative [as] to

what the [evidence] would show.” In the absence of any showing

that the text-message evidence would not have been ultimately

admissible, there is nothing to support a holding of trial counsel

ineffectiveness or appellate counsel ineffectiveness on that basis.

See Gramiak, 304 Ga. at 513 (I); Wesley v. State, 286 Ga. 355, 356

(3) (689 SE2d 280) (2010) (ineffectiveness cannot be premised on the

failure to assert a meritless claim).

As to the second of these issues, the habeas court ruled that

Wyatt failed to adequately challenge the admission of Hudgins’

hearsay statements, in that, in his pretrial motion, Wyatt relied on

obsolete case law construing the former Evidence Code and, in the

initial appellate brief, Wyatt failed to adequately enumerate the

issues. Haddad, the court held, then failed to present sufficient

argument and citation of authority on these issues on appeal,

including by failing to challenge the admission of these statements

as Confrontation Clause violations.

Neither Bryant nor the habeas court, however, has identified

how any additional argument or authority offered by Haddad on

these issues would have affected the outcome of the appeal.

Applying the correct analysis under the current Evidence Code, the

Court of Appeals ruled that Hudgins’ statements to Barker, one of

Hudgins’ close friends, were admissible under the residual hearsay

exception. See OCGA § 24-8-807 (hearsay exception for statements

that are “offered as evidence of a material fact” and are more

probative than other reasonably attainable evidence, so long as they

have “circumstantial guarantees of trustworthiness”). Given

Hudgins’ unavailability to testify and the evidence of her close

relationship with Barker, we agree with this ruling. See Miller v.

State, 303 Ga. 1, 5-6 (2) (810 SE2d 123) (2018) (deceased victim’s

statement to close friend was sufficiently probative and trustworthy

to be admissible under the residual exception). Contrary to the

habeas court’s suggestion, the Confrontation Clause would have had

no relevance to Barker’s testimony, insofar as Hudgins’ statements

to her close friend were not “testimonial.” See Franklin v. State, 298

Ga. 636, 640 (2) (784 SE2d 359) (2016) (Confrontation Clause applies

only to out-of-court statements that are “testimonial” in nature,

meaning that their “primary purpose was to establish evidence that

could be used in a future prosecution” (citation and punctuation

omitted)). Because Barker’s testimony was admissible, Haddad was

not ineffective in failing to convince the Court of Appeals otherwise.

This same analysis holds for the testimony of Hunter, Hudgins’

boyfriend. And because Hudgins’ statements to Gentry about the

incident were cumulative of her statements to Barker and Hunter,

even assuming Haddad was deficient in presenting this issue on

appeal, there is no reasonable probability that the result of the

appeal would have been different had he successfully argued that

the statements to Gentry had been improperly admitted.

For the foregoing reasons, Bryant has failed to carry his burden

to establish ineffective assistance of appellate counsel, and the

habeas court therefore erred in granting habeas relief.

Judgment reversed. All the Justices concur.

Emmons, Warden v. Bryant

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