In the Supreme Court of Georgia



                                           Decided:    September 12, 2016


                      S16A0660. HOOKS v. WALLEY.


      HINES, Presiding Justice.

      Warden Brad Hooks appeals from the grant of Ray K. Walley’s

application for a writ of habeas corpus after the habeas court’s ruling that

Walley’s appellate counsel rendered ineffective assistance in failing to pursue

a claim of ineffective assistance by trial counsel. For the reasons that follow, we

reverse the grant of the writ of habeas corpus.

      According to the record placed before the habeas court, Walley was

indicted by a Forsyth County grand jury of one count of aggravated sexual

battery and one count of child molestation. His original counsel in the trial court

was Billy Spruell, but during what was scheduled to be a plea hearing on March

23, 2006, the trial court declared that it would allow Spruell to withdraw from

representing Walley after Spruell stated to the court that he did not believe that

it was in Walley’s best interest to plead guilty, and after Walley told the court
that Spruell had not conveyed to him any plea offer from the State that included

a recommendation that Walley be sentenced to serve five years in prison; at the

hearing, the State’s articulated plea offer included a recommendation that he

serve seven years in prison.1

       Walley was tried before a jury with new counsel, Charles Haldi, and

convicted on both counts set forth in the indictment; he subsequently received

a sentence totaling twenty years, of which 15 were to be served in prison, with

the remainder to be served on probation. After trial, Walley was represented by

Brian Steel, who raised various issues in an amended motion for new trial,

which motion was denied; one of those issues was that Spruell failed to convey

the plea offer to Walley, a claim he withdrew during the hearing on the amended

motion. In an appeal to the Court of Appeals, Steel raised issues regarding the

admission of evidence of a prior similar transaction, improper closing argument,


       1
           On December 28, 2005, the prosecutor sent a letter to Spruell memorializing the “five-year
offer,” under which the State’s recommendation was to be that Walley receive a sentence of fifteen
years, of which five were to be served in prison; Walley was to plead guilty to the charge of child
molestation, the charge of aggravated sexual battery was to be dismissed, and certain conditions on
Walley’s conduct would be imposed. At the time the five-year offer was made, the court had not yet
ruled on whether evidence of any similar transactions of Walley would be admitted, and it appears
that the offer was revoked after the trial court ruled that evidence of at least one similar transaction
would be admitted. During the March 23, 2006 hearing, Spruell told the court that he and Walley
discussed the five-year offer, although when the State told him of the offer, “I didn’t run immediately
to the jail and tell [Walley], but we did discuss it.”

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and ineffective assistance of counsel on Haldi’s part related to jury instructions

and closing argument. The Court of Appeals affirmed Walley’s convictions.

Walley v. State, 298 Ga. App. 483 (680 SE2d 550) (2009).

       In 2013, Walley petitioned for a writ of habeas corpus, alleging ineffective

assistance on Steel’s part in that Steel abandoned a claim that Walley had been

afforded ineffective assistance by Spruell, which claim was based on Walley’s

assertion that Spruell did not communicate to Walley any plea offer of the State

that, if accepted, would have resulted in Walley’s serving a five-year prison

term. At the habeas corpus hearing, Spruell testified that he had presented the

plea offer to Walley, but that he did not recall giving the State’s plea offer letter

to Walley; Spruell also testified that Walley did not want to admit to the

indictment’s allegations, desiring instead to enter an Alford 2 plea, but that when

he approached the State on that basis, the State revoked the five-year offer.3

       As this Court has previously said,

       [t]he United States Supreme Court in Strickland v. Washington, 466
       U.S. 668 (104 SC[t] 2052, 80 LE2d 674) (1984) established the


       2
           North Carolina v. Alford, 400 U.S. 25, 33-38 (91 SCt 160, 27 LE2d 162) (1970).
       3
        During the hearing on March 23, 2006, the prosecutor declared that the State would oppose
any Alford plea; the trial court also expressed that it was unlikely to accept an Alford plea.

                                                3
     standard for ineffective assistance of counsel, and though the
     opinion is phrased in terms of ineffective assistance of trial counsel,
     it can be used as a basis for establishing a standard for ineffective
     assistance of appellate counsel. The Strickland v. Washington
     standard consists of a two-prong analysis: first, counsel’s
     performance must have been deficient, and second, the deficiency
     must have prejudiced the defense. Battles v. Chapman, 269 Ga. 702
     (1) (506 SE2d 838) (1998) (Citations omitted.).

Arrington v. Collins, 290 Ga. 603, 603-604 (724 SE2d 372) (2012) (Punctuation

omitted.)

     And, as to a complaint that appellate counsel failed to raise certain issues,



     [i]t is the attorney’s decision as to what issues should be raised on
     appeal, and that decision, like other strategic decisions of the
     attorney, is presumptively correct absent a showing to the contrary
     by the defendant. The process of winnowing out weaker arguments
     on appeal and focusing on those more likely to prevail, far from
     being evidence of incompetence, is the hallmark of effective
     appellate advocacy. Accordingly, it has been recognized that in
     attempting to demonstrate that appellate counsel's failure to raise a
     state [court] claim constitutes deficient performance, it is not
     sufficient for the habeas petitioner to show merely that counsel
     omitted a nonfrivolous argument, for counsel does not have a duty
     to advance every nonfrivolous argument that could be made. Rather,
     in determining under the first Strickland prong whether an appellate
     counsel’s performance was deficient for failing to raise a claim, the
     question is not whether an appellate attorney’s decision not to raise
     the issue was correct or wise, but rather whether his decision was an
     unreasonable one which only an incompetent attorney would adopt.
     [Cits.]

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Id. at 604. When this Court reviews a habeas court’s decision on a question of

ineffective assistance of appellate counsel, we accept the habeas court’s factual

findings unless they are clearly erroneous, but we apply the law to those facts

de novo. State v. Garland, 298 Ga. 482, 484 (1) (781 SE2d 787) (2016).

      It is certainly true that trial counsel’s failure to convey a plea offer may

form the basis of a claim that counsel’s performance was deficient so as to

satisfy the first prong of the Strickland standard, see Missouri v. Frye, __ U.S.

___ (132 SCt 1399, 182 LE2d 379) (2012), and that the failure to raise on

appeal a valid claim of ineffective assistance of trial counsel based on the failure

to convey a plea offer may constitute ineffective assistance of appellate counsel.

See Harris v. Upton, 292 Ga. 491, 492-493 (1) (739 SE2d 300) (2013).

However, while part of Walley’s burden in the habeas court included showing

that trial counsel failed to convey the plea offer, and was ineffective in doing so,

those deficiencies alone do not demonstrate that appellate counsel was

ineffective in failing to pursue a claim based upon trial counsel’s performance.

Arrington, supra. And, on the question of Steel’s abandoning any claim of

ineffective assistance on Spruell’s part in failing to convey the plea offer, it was

Walley’s burden in the habeas court to overcome the presumption that Steel’s

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decision not to pursue such a ground was reasonable, and instead show that this

“decision was an unreasonable one which only an incompetent attorney would

adopt.” Id. And this Walley simply failed to do.

      In its order granting Walley’s petition, the habeas court details in three

pages its findings that Spruell rendered ineffective assistance of counsel in not

properly conveying the plea offer to Walley, then simply states: “The evidence

also shows ineffective assistance of appellate counsel Brian Steele [sic] for not

pursuing this issue on appeal.” While certain findings may be implicit in an

order, see Perkins v. Hall, 288 Ga. 810, 828 (IV) (708 SE2d 335) (2011), the

record must nonetheless support the habeas court making such findings. See

Clowers v. Spikes, 272 Ga. 463 (532 SE2d 8) (2000). And, the evidence

presented to the habeas court did not enable it to conclude that Steel rendered

ineffective assistance.

      In Walley’s amended motion for new trial, Steel set forth as one ground

for a new trial that Walley’s “original counsel failed to provide to Defendant a

negotiated plea offer.” However, Steel did not present this issue to the Court of

Appeals in Walley’s direct appeal. See Walley, supra. As to the originally-

claimed failure to communicate the plea offer, the trial court’s order on the

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amended motion for new trial specifically states that: “Defendant withdrew this

ground of his motion at oral argument. Therefore, it need not be addressed

further by this Court.” And, no further information regarding Steel’s decision

to withdraw this ground was ever provided to the habeas court, and in particular,

no transcript of the hearing on the amended motion for new trial was put into the

habeas court record. Although Steel was called to testify during the habeas

hearing, Walley’s habeas counsel asked Steel no questions about his decision

to abandon the claim that Spruell rendered ineffective assistance, or about

Steel’s failure to assert any such claim to the Court of Appeals, despite the fact

that this was the only ground raised in Walley’s original application for a writ

of habeas corpus. Rather, Steel was asked about other issues that he did not

raise before the Court of Appeals, regarding which he testified that he had

      no memory if I raised them at the trial court and then decided to
      abandon them at the Court of Appeals. I have no memory if there
      are issues I missed, if there were issues I saw and whatever reason,
      good strategy or bad strategy, I abandoned them. I just don’t [. . .]
      I just don’t know. But if they’re good issues, clearly, I wanted to
      win the appeal.

Steel further testified:

      I do want Mr. Walley to win his habeas. I want him to win his
      appeal. So, if it’s an issue and I didn’t raise it, then I should have

                                        7
      raised it. And – and if I should have raised it, then clearly, I want
      the court to grant the habeas, I mean [. . .] that’s why we’re all here.

      On cross-examination during the habeas hearing, Steel testified that he

raised every claim that he “saw that might have a chance.” Although he was not

specifically asked about any issue regarding whether arraignment counsel

communicated the plea offer to Walley, Steel testified:

      You know, you put up Billy Spruell and Charles Haldi and Mr.
      Walley – and I think those are the witnesses, but – and then you
      have to – get some new information, so. And I don’t remember if
      Billy Spruell says one thing or if Mr. Walley says something else,
      and it just destroys the issue. So I wouldn’t raise the issue. I
      wouldn’t want to waste the – any court’s time where a case comes
      out that’s, again, bad, or the issue wasn’t, you know, strong when
      you look at how the case came out.

      And the record placed before the habeas court shows that the situation

faced by Steel was indeed one in which “Billy Spruell says one thing [and] Mr.

Walley says something else.” During the hearing of March 23, 2006, Spruell

informed the trial court that:

      At the time that five year recommendation was conveyed to me, the
      motion [to admit evidence of Walley’s similar transactions] that the
      State had was pending. Mr. Walley and I talked about it and
      discussed whether or not the court was going to let in the [similar
      transactions.] . . . and there was never any indication until after [the
      court ruled that a similar transaction could be introduced], then the
      State withdrew their five year recommendation. . . . I don’t think

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       [Walley] had an opportunity to plead to it under the five year
       option.

Spruell responded affirmatively when the trial court asked him during that

hearing if he advised Walley “to wait [to decide on the plea offer] until after the

[similar transactions issues] were decided.”4

       Spruell testified during the habeas hearing: “I do recall specifically

discussing the five-year plea with [Walley], but I don’t remember showing him

[the] letter [memorializing the offer].”5 He further testified that Walley was

“dissatisfied with the five-year plea offer,” that Walley “turned down the offer

of the five years,” but that Walley later “indicated to me that he would take the

five years, but he wanted to do an Alford plea,” and that when Spruell next

contacted the prosecutor, she informed him “that the five-year [plea offer] was

no longer available [and she] wanted seven years on a plea . . ..”


       4
         During this hearing, Spruell also informed the court that he believed that Walley wanted
to plead guilty to enable him to begin to get medical care for heart and leg conditions, but that
Spruell did not believe that pleading guilty would be in Walley’s best interest; he also informed the
court that Walley was “not willing to admit any responsibility for this act,” and that he had discussed
with Walley a guilty plea under Alford, supra. The State declared that it would object to an Alford
plea, and the court stated it was not inclined to accept an Alford plea.
       5
         During the habeas hearing, Haldi testified that he received Spruell’s case file, but did not
recall seeing in it a letter offering the five-year plea; Walley testified that he was not shown the
December 28, 2005 five-year plea offer letter, and the first he learned of the offer was at the March
23, 2006 hearing.

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      Although the evidence placed before the habeas court may have

authorized that court’s conclusion that Spruell rendered ineffective assistance

of counsel, we need not decide that question; simply put, there was no evidence

presented to the habeas court sufficient to overcome the presumption that Steel

made an appropriate strategic decision in withdrawing the claim that Spruell had

rendered ineffective assistance of counsel, and without Walley having met his

burden to produce such evidence, the habeas court was not authorized to grant

the writ. Harris, supra; Arrington, supra; Clowers, supra. Accordingly, the

judgment of the habeas court must be reversed.

      Judgment reversed. All the Justices concur.




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