Chatman v. Mancill, No. S05A1862.

Decision Date30 January 2006
Docket NumberNo. S05A1862.
Citation280 Ga. 253,626 S.E.2d 102
PartiesCHATMAN v. MANCILL.
CourtGeorgia Supreme Court

Thurbert E. Baker, Atty. Gen., Paula Khristian Smith, Asst. Atty. Gen., for Appellant.

Stephen Duane Pereira, Thompson & Sweeny, P.C., Lawrenceville, for Appellee.

HUNSTEIN, Presiding Justice.

Durwyn Mancill was granted habeas corpus relief after the habeas court found that Mancill's due process rights were violated by the delay between his 1993 convictions and the 2001 affirmance of those convictions by this Court. Based on our review of the record and the habeas court's findings of fact and conclusions of law, we hold that the habeas court erred in its ruling and accordingly reverse.

Mancill was indicted in November 1992 on charges that he murdered Yolanda Lewis and Ace Johnson III. Counsel from the Fulton County Public Defenders Office (FCPDO) were appointed to represent him. After a trial lasting two and one-half weeks he was convicted of both murders and the trial court on April 19, 1993 imposed two life sentences. Rather than filing a notice of appeal, he chose instead to seek a new trial and trial counsel timely filed a motion for new trial pursuant to OCGA § 5-5-40(a). It took the court reporter 17 months to complete and file the eight-volume transcript of Mancill's trial. Mancill's motion for new trial, as amended by Mancill's new appellate counsel, FCPDO attorney William T. Hankins III, was heard in February 1996. However, the trial judge recused herself a month later, apparently because of a conflict created by trial counsel's decision to run as a candidate for the judge's seat. Within two months of her recusal, Hankins filed a second amendment to the motion for new trial. See OCGA § 5-5-40(b) (motion for new trial may be amended any time on or before the ruling thereon). The record reflects that over the course of the next four and one-half years, Mancill's appellate counsel (first Hankins and then FCPDO attorney Shannon Neal Weathers) filed three more amendments to the motion for new trial, each amendment raising new claims, such as newly discovered evidence and error by the trial court in holding approximately 100 unrecorded, untranscribed bench conferences.

A second hearing on the motion as amended was held in September 2000. Appellate counsel Weathers presented no evidence at the hearing to support the claim that Mancill was prejudiced by the unrecorded bench conferences. See Sinns v. State, 248 Ga. 385(2), 283 S.E.2d 479 (1981) (court's failure to order recordation of bench conferences is not error absent some prejudice to defendant). Instead, after consulting with Steven Phillips, a senior staff attorney at FCPDO, counsel filed a motion to correct and complete the transcript. The motion was granted and an order subsequently extended the time for the parties to confer after Weathers was replaced by FCPDO attorney J. Jeffrey Lacy. On October 18, 2000, eleven days after granting the extension, the trial court signed an order denying the motion for new trial and holding that the motion to correct the transcript had been "abandoned."

Counsel filed a timely notice of appeal on October 20, 2000, seven and one-half years after the date of Mancill's conviction. The case was docketed in this Court on January 24, 2001, at which point FCPDO attorney Phillips replaced Lacy and presented the appeal. Phillips also filed a motion in this Court to have the case remanded to the trial court so that he could withdraw and counsel not affiliated with the FCPDO be appointed to pursue claims against Mancill's trial and post-trial attorneys. This Court denied the motion and affirmed Mancill's conviction in Mancill v. State, 274 Ga. 465, 554 S.E.2d 477, rendered November 5, 2001, within the two-term time frame mandated by our State Constitution. Art. VI, Sec. IX, Par. II, Ga. Const. of 1983.

Mancill filed a petition for writ of habeas corpus in October 2002. The matter came on for a hearing in May 2003, at which time Mancill presented the testimony only of his trial counsel and his last FCPDO appellate counsel, Phillips. The habeas court granted Mancill relief but on appeal this Court remanded the case for the habeas court to determine, inter alia, whether cause and prejudice existed under OCGA § 9-14-48(d) to excuse Mancill's failure to enumerate the delay issue as an error in his direct appeal. Chatman v. Mancill, 278 Ga. 488, 604 S.E.2d 154 (2004). On remand, the habeas court found both cause and prejudice existed to excuse the procedural default1 and again granted Mancill relief, prompting this second appeal by Warden Chatman.

1. Warden Chatman contends the trial court erred by finding that cause existed to excuse Mancill's procedural default. To establish the "cause" element of the exception to procedural default, Mancill was required to demonstrate that "`some objective factor external to the defense impeded counsel's efforts' to raise the claim that has been procedurally defaulted." (Footnote omitted.) Turpin v. Todd, 268 Ga. 820, 825(2)(a), 493 S.E.2d 900 (1997). The habeas court reasoned that Phillips could not have asserted in this Court the issue of the delay in the post-trial handling of Mancill's appeal because of "the same policy reason" behind this Court's opinion in Ryan v. Thomas, 261 Ga. 661, 409 S.E.2d 507 (1991). In Ryan, we recognized that one member of a public defender's office could not reasonably be expected to assert or argue the ineffective assistance of a fellow member from the same office. Id. at 662, 409 S.E.2d 507. The habeas court reasoned that Phillips operated under a Ryan conflict that prevented him from raising the delay issue because the delay was caused by the ineffectiveness of his fellow FCPDO counsel.

It is well established that "[c]ounsel prosecuting an ineffective assistance claim must be free to operate independently of the attorney whose performance is in question. [Cits.]" Davis v. Turpin, 273 Ga. 244, 248(3), 539 S.E.2d 129 (2000). The habeas court, however, overlooked the crucial fact, established by Phillips' testimony, that all of Mancill's prior FCPDO appellate counsel had left the office by the time Phillips was appointed to represent Mancill.2 The rationale in Ryan was not applicable to Mancill's post-trial counsel who were no longer members of the FCPDO.3 "Since they were no longer practicing together, the conflict that arose in [Ryan], supra, was not present in this case." Glick v. Arkansas, 263 Ark. 679, 566 S.W.2d 728, 729 (1978). See also Illinois v. Walton, 78 Ill.2d 197, 35 Ill.Dec. 522, 399 N.E.2d 588 (1979) (the "natural inclination" of members of the same public defender's office to insulate the office against charges of incompetency not applicable where attorney had departed the office). See also Boyette v. State, 217 Ga.App. 593(1), 458 S.E.2d 397 (1995) (affirming denial of defendant's request for counsel from outside public defender's office because attorney who represented defendant at time of conviction was no longer employed by that public defender's office at time defendant challenged his conviction). But see Pennsylvania v. Delker, 306 Pa.Super. 361, 452 A.2d 766 (1982) (finding conflict continued to exist even where attorney whose performance was in issue had voluntarily retired from public defender's office six years prior to proceeding challenging his effectiveness). Accordingly, the habeas court erred by applying the legal rationale in Ryan, supra, to provide the cause to excuse Mancill's procedural default. 4

2. However, even assuming, arguendo, that cause was shown for Mancill's procedural default, we agree with Warden Chatman that the habeas court erred when it concluded that Mancill had also established prejudice. The habeas court was required to determine whether Mancill had shown actual prejudice resulting from the alleged error, Turpin v. Todd, supra, 268 Ga. at 828(2)(b), 493 S.E.2d 900, i.e., that the delay in the handling of Mancill's appeal worked to his actual and substantial disadvantage. "The prejudice sufficient to satisfy the cause and prejudice test is a prejudice of constitutional dimensions. [Cit.]" Waldrip v. Head, 279 Ga. 826, 832(II)(H), 620 S.E.2d 829 (2005).

The habeas court determined that Mancill had suffered a due process violation as a result of delay caused by the ineffective assistance of his appellate counsel and that Mancill was actually prejudiced as a result of the delay, specifically, by the lost opportunity to recreate the unrecorded bench conferences and by the general inadequacy of the appeal submitted to this Court by Phillips on Mancill's behalf. The evidence in this case, however, fails to support the habeas court's underlying premise, namely, that Mancill suffered a due process violation because of delay.

(a) Georgia, like every other state and the Federal government, provides some means of appellate review for defendants in criminal cases. See 5 LaFave, Israel and King, Criminal Procedure § 27.1(a), p. 863 (2d ed.1999). This Court has recognized that substantial delays experienced during the criminal appellate process implicate due process rights. See Chatman v. Mancill, supra, 278 Ga. at 488 n. 2, 604 S.E.2d 154; Walker v. State, 247 Ga. 484, 277 S.E.2d 242 (1981). Accord Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963) and Griffin v. Illinois, 351 U.S. 12, 18, 76 S.Ct. 585, 100 L.Ed. 891 (1956) (when a state provides a right to appeal, it must meet the requirements of due process and equal protection). While this Court has considered post-conviction due process claims based on delay in filing a transcript, see Glenn v. State, 279 Ga. 277(3), 612 S.E.2d 478 (2005), we have not previously addressed how to resolve claims asserting due process violations based on inordinate appellate delay.

Our review of case law reveals that courts basically have taken one of two approaches. The...

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