Henry v. Hopper, 30140
| Decision Date | 16 September 1975 |
| Docket Number | No. 30140,30140 |
| Citation | 219 S.E.2d 119,235 Ga. 196 |
| Parties | Milton Leroy HENRY v. Joe S. HOPPER, Warden. |
| Court | Georgia Supreme Court |
James C. Bonner, Jr., Jackson, for appellant.
This is an appeal in a habeas corpus case from the Superior Court of Tattnall County. It is a one-issue case, but the issue reaches the core of an important aspect of the criminal justice system. The question posed is whether appellant, through no fault of his own, was denied the effective assistance of counsel following his trial, which resulted in his failure to file a timely appeal from his convictions for murder and armed robbery.
Appellant is a prisoner at the Georgia State Prison in Reidsville by virtue of a life imprisonment sentence for the the crime of murder and a sentence of six years imprisonment for the criminal offense of armed robbery imposed in Fulton Superior Court. Through counsel from the Prisoner Legal Counseling Project of the University of Georgia School of Law, appellant filed a petition in forma pauperis seeking habeas corpus relief. Specifically, appellant seeks an out of time appeal and appointment of counsel to pursue it for him as he failed to file a timely notice of appeal because he contends he was denied effective assistance of counsel when his retained trial lawyer did not file an appeal in appellant's behalf. The trial court conducted an evidentiary hearing on the habeas petition and subsequently denied the relief sought by appellant.
The habeas corpus trial court entered a comprehensive order incorporating therein a full statement of the facts found by the trial court and the conclusions of law reached by the court in the case. The pertinent provisions of this order, with some addendum, are as follows:
'The facts indicate that . . ., an attorney, was retained by petitioner's brother, Mr. Nathaniel Henry of Atlanta, Georgia, to represent petitioner.
'This court finds that the petitioner at all times understood that (the lawyer) would not be able to represent him on appeal and that petitioner informed (the lawyer) that his family and friends were attempting to obtain the services of another lawyer for the purpose of filing an appeal on the petitioner's behalf.
'It appears that (the lawyer) filed a timely motion for a new trial in order to keep petitioner's appellate chances alive until the trial court could rule on the motion for a new trial or such time as the petitioner could obtain the services of another attorney, whichever came first.
'Conclusions of Law
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Simmons v. Beyer
...wrote to petitioner, enclosing notice to appeal and motion to appeal in forma pauperis and explaining time limits); Henry v. Hopper, 235 Ga. 196, 219 S.E.2d 119 (1975) (finding no ineffective assistance by counsel who testified that he had informed petitioner of appellate rights and counsel......
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Morrow v. State
...Birt v. Hopper, 245 Ga. 221 n. 1, 265 S.E.2d 276 (1980); Bell v. Hopper, 237 Ga. 810, 810-11, 229 S.E.2d 658 (1976); Henry v. Hopper, 235 Ga. 196, 198, 219 S.E.2d 119 (1975); Thornton v. State, 216 Ga.App. 202, 203, 453 S.E.2d 802 (1995); Cannon v. State, 175 Ga.App. 741, 742, 334 S.E.2d 34......
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Smith v. State, S96A0015
...appeal and the failure to appeal was due to appellant's inaction, appellant is not entitled to an out-of-time appeal. Henry v. Hopper, 235 Ga. 196, 219 S.E.2d 119 (1975). If, however, the failure to appeal was due to counsel's inaction in either failing to inform appellant of his appellate ......
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Shirley v. State
...is unauthorized if the loss of the right to appeal was attributable to defendant sleeping on or waiving his rights. Henry v. Hopper, 235 Ga. 196, 219 S.E.2d 119 (1975). Accord Westberry v. State, 257 Ga. 617, 361 S.E.2d 826 (1987); State v. Denson, 236 Ga. 239, 223 S.E.2d 640 (1976); Wilson......