a jury trial in October 2010, Jerome Burgess was convicted of
felony murder, three counts of aggravated assault, and
possession of a firearm during the commission of a crime, and
we affirmed his convictions. Burgess v. State, 292
Ga. 821 (742 S.E.2d 821) (2013). Burgess later filed a
petition for a writ of habeas corpus, alleging that appellate
counsel was ineffective for failing to argue on appeal that
(1) trial counsel was ineffective for failing to
cross-examine effectively a testifying co-defendant and (2)
the State committed a Brady violation for failing to
disclose impeachment evidence against that co-defendant. The
habeas court denied Burgess relief. We granted Burgess's
application for a certificate for probable cause, but we
affirm because the habeas court correctly rejected
crimes for which Burgess has been convicted stem from a
drive-by shooting of three teenagers, one of whom died.
Burgess, 292 Ga. at 822 (1). The State's
evidence showed that, in October 2008, Burgess drove fellow
members of the Murk Mob gang, including his co-defendant
Andre Weems, to a Clayton County neighborhood in search of
the leader of a rival gang with whom they had had an
altercation earlier that night. Id. at 821-822 (1).
When that effort proved unsuccessful, the group instead
decided to assault the three teenagers who happened to be in
the vicinity, so that Weems could "get his
stripes"; Weems opened fire as Burgess drove.
Id. at 822 (1).
and Weems were indicted together. Burgess pleaded not guilty,
and Weems pleaded guilty and testified for the State at
Burgess's October 2010 trial. Weems testified that
everyone in the vehicle knew about the plan to commit the
drive-by shooting and that he never pointed a gun at Burgess.
Weems admitted during his trial testimony that he had pleaded
guilty to the shooting, but the jury did not hear that he
pleaded guilty but intellectually disabled.
testified and presented a different version of events.
Burgess testified that he did not know Weems intended to
commit a drive-by shooting, he did not want to drive the
vehicle, and Weems coerced him by pointing the gun or nudging
him with it and directing him to drive. Burgess also called
Felix Irving to testify in his defense. Irving testified that
Weems had called him after the shooting to say that the
shooting was not planned, Burgess did not have anything to do
with it, and Weems was going to "straighten it out"
so Burgess would not get punished for something he did not
do. At the conclusion of Burgess's trial, the jury found
him guilty of felony murder and other crimes, and we affirmed
his convictions. Burgess, 292 Ga. 821.
filed a habeas petition claiming that his appellate counsel
was ineffective in his handling of issues regarding purported
witness impeachment evidence that the State allegedly did not
disclose and that trial counsel failed to uncover. The
evidence Burgess cites as impeachment evidence relates to the
testimony of two psychologists introduced at Weems's
competency trial that occurred about a month before
Burgess's criminal trial. The defense expert, Dr. James
Powell, testified that Weems had a composite IQ of 53, a
learning disability, a history of violent outbursts, and a
seizure disorder. Dr. Powell also testified that Weems had
given conflicting and incoherent accounts of the shooting and
his prior criminal convictions, but Dr. Powell could not
determine whether Weems was intentionally lying, confused, or
simply could not remember.
State's expert, Dr. Don Hughey, also testified at
Weems's competency trial that Weems scored low on an IQ
test, but he did not consider the result to be valid because
Weems had scored an 86 on a prior test and there was no
evidence that Weems had an intervening factor, such as a
serious head injury, to explain the drop in his IQ score. Dr.
Hughey also performed a malingering test on Weems after Weems
reported auditory hallucinations, and Dr. Hughey concluded
that there was a 99.9% chance that Weems was malingering.
argued that the experts' testimony provided information
that would have affected the jury's assessment of
Weems's credibility, including whether he acted alone or
whether Burgess participated in the shooting. Following a
hearing, the habeas court denied Burgess's habeas
petition, concluding that Burgess failed to show that
appellate counsel was deficient as to Weems's
cross-examination or that any deficiency prejudiced him. The
habeas court also denied relief on Burgess's claim that
appellate counsel was ineffective for failing to raise a
Brady claim on appeal, concluding that appellate
counsel, despite being aware of Weems's guilty plea, made
a considered choice to raise the issues that were most likely
to lead to a reversal of Burgess's convictions; the
habeas court also concluded that Burgess made no showing of
Burgess argues that the habeas court erred in denying his
claim that appellate counsel was ineffective regarding trial
counsel's failure to investigate Weems's competency
and guilty pleas and then cross-examine Weems with the
information introduced at Weems's competency trial. We
Burgess to prevail on an ineffective assistance of counsel
claim, he must satisfy the familiar standard of
Strickland v. Washington, 466 U.S. 668 (104 S.Ct.
2052, 80 L.Ed.2d 674) (1984). Under that standard, Burgess
must prove that his lawyer's performance was
constitutionally deficient and that he was prejudiced by the
deficient performance. Id. at 687. To show deficient
performance, Burgess must prove that his counsel acted or
failed to act in an objectively unreasonable way, considering
all the circumstances and in the light of prevailing
professional norms. See id. at 687-690.
"This is no easy showing, as the law recognizes a strong
presumption that counsel performed reasonably," and to
overcome this presumption, Burgess "must show that no
reasonable lawyer would have done what his lawyer did, or
would have failed to do what his lawyer did not."
Davis v. State, 299 Ga. 180, 183 (2) (787 S.E.2d
221) (2016) (citation and punctuation omitted).
the issue is the ineffective assistance of appellate counsel,
the showing of prejudice calls for a demonstration that a
reasonable probability exists that, but for appellate
counsel's deficient performance, the outcome of the
appeal would have been different." Gramiak v.
Beasley, 304 Ga. 512, 513 (I) (820 S.E.2d 50) (2018)
(citing Humphrey v. Lewis, 291 Ga. 202, 211 (IV)
(728 S.E.2d 603) (2012)). When a defendant claims that his
appellate counsel was ineffective for failing to raise a
claim on direct appeal that trial counsel was ineffective,
there are two layers of Strickland analysis.
Gramiak, 304 Ga. at 513 (I). To show that appellate
counsel was ineffective for failing to argue that trial
counsel was ineffective, a defendant must show that trial
counsel was deficient and the deficiency prejudiced the
Burgess's appellate counsel did raise the issue of trial
counsel's ineffectiveness in Burgess's motion for new
trial and questioned trial counsel about his
cross-examination of Weems during the motion for new trial
hearing. Trial counsel testified at the motion for new trial
hearing that prior to trying Burgess's case, he became
aware that there had been a trial on Weems's competency
and that Weems had pleaded guilty but intellectually
disabled. Trial counsel stated that he did not believe
Weems's guilty plea would have influenced the jury's
credibility determination in any way, and that he had more
effective points on which to cross-examine Weems, including
Weems's statements to a detective.
transcript from Burgess's trial reflects that trial
counsel indeed impeached Weems's credibility extensively.
In particular, through cross-examination, Weems admitted that
he first told the detective he did not know anything about
the shooting, then said Burgess and a young woman "set
everything up," claimed that Burgess was the shooter,
and finally admitted that he was the shooter. Trial counsel
also elicited testimony from Weems that he told the
detective, "if I'm going down, everybody's going
down," because he was mad that people had "ratted
[him] out." While cross-examining the detective, trial
counsel elicited testimony that the detective knew that Weems
was lying when he claimed to not be ...