United States District Court, S.D. Georgia, Savannah Division
REPORT AND RECOMMENDATION
CHRISTOPHER L. RAY UNITED STATES MAGISTRATE JUDGE
an inmate at Macon State Prison, brings this 28 U.S.C. §
2254 case raising three grounds for relief all stemming from
alleged ineffective assistance of appellate counsel. After an
initial review, the Court ordered the respondent to respond.
Doc. 8. Respondent did, and requested that the Court deny
petitioner relief. Doc. 12-1. Petitioner did not respond. For
the following reasons, the petition should be
January 23, 2013, a Chatham County grand jury indicted
petitioner Kevin Brooks and co-defendant Brian Jones for
armed robbery, false imprisonment, burglary, aggravated
assault, kidnapping, possession of cocaine, and possession of
a firearm by a convicted felon. Doc. 13-6 at 18-21. According to
the Georgia Court of Appeals,
[T]he evidence shows that when the victim pulled into his
driveway after being out for the evening, Brooks and Jones,
who were armed, approached him from the side of the house.
The men said, “You know what this is.” The
victim, Brooks, and Jones entered the victim's house, and
the men demanded money, drugs, and jewelry. The men began
searching the victim's house and took his jewelry and
phone. Jones went into a bedroom where the victim's
12-year-old son was sleeping. The boy woke up, and Jones
threatened him with a pistol and took his phone. Jones kept
the boy in his bedroom through the night. The boy heard
another man demanding money, jewelry, and drugs from his
The next morning, in order to get the men to leave, the
victim told them that he could withdraw money for them from
his credit union account. Brooks and the victim drove in the
victim's car to downtown Savannah and Jones stayed with
the victim's son at the house. The victim drove through
the city, hoping to encounter a police officer, while Brooks
kept him at gunpoint. The victim saw a police officer and
began driving toward her to get her attention. The officer
pulled her weapon. The victim jumped out of the rolling car,
threw up his hands, and said, “They got a gun!”
The car crashed into a building and Brooks fled. The victim
told the officer that his son was being held captive at his
house. She called for assistance. Officers then saw Brooks
enter the back door of a restaurant. The SWAT team found
Brooks hiding behind a file cabinet in the restaurant's
office. When an officer patted down Brooks, he found in
Brooks's pocket a Crown Royal bag containing 10.5 grams
of cocaine and the victim's jewelry.
In the meantime, police arrived at the victim's house.
Jones hid in the attic. The boy exited the house, and the
police took him to the station, where he was reunited with
his father. Eventually Jones exited the house, got into the
victim's girlfriend's car, backed it out, and fled.
The street was a dead-end, and Jones crashed the car into
some trees. He exited the car and fled on foot. He was
eventually caught in the woods.
Brooks v. State, 772 S.E.2d 838, 842 (Ga.Ct.App.
case challenges the validity of Brooks' 2013 conviction
for armed robbery, false imprisonment, burglary, aggravated
assault, and possession of a controlled substance following a
jury trial. Doc. 13-6 at 178-80. Brooks filed a motion for a
new trial raising several claims including whether the
indictment against him should have been quashed, whether his
case suffered from a Bruton violation, and whether
the 404(b) evidence was properly admitted. Doc. 1-3.
The motion for a new trial was denied. Id. at 4.
Petitioner-along with his codefendant-filed a direct appeal
and the Court of Appeals affirmed his convictions.
Brooks, 772 S.E.2d 838. On December 4,
2015, petitioner filed a petition for a writ of habeas corpus
in Macon County challenging his conviction. Doc. 13-1. He
amended this petition three times, finally filing a
“Fourth Amendment” on October 12, 2016. See,
e.g., doc. 13-4. This amendment raised the following
1. Appellate counsel failed to show how trial counsel's
decision not to quash petitioner's defective indictments
in a timely manner prejudice the petitioner.
2. Appellate counsel was ineffective for failing to show
trial counsel's ineffectiveness for not filing a motion
to sever, or object to any Bruton violation
throughout the trial.
3. Appellate counsel was ineffective for failing to show
trial counsel's ineffectiveness for not providing proper
evidence to support Petitioner's similar transaction
claim, and also for appellate counsel's decision not to
raise a reversible error involving the courts allowing the
similar transaction under admission only, and where
Petitioner never had any prior felony convictions, and where
the state did not meet required prongs.
4. Appellate counsel was ineffective in failing to show how
the evidence the state presented at trial was insufficient to
find Brooks guilty beyond a reasonable doubt.
Id. at 1-2. An evidentiary hearing was conducted on
December 5, 2016 on the fourth amended petition. Doc. 13-5 at
5-83. On October 10, 2017, the state habeas court denied
relief. Doc. 13-11. On September 10, 2018, the Georgia
Supreme Court denied petitioner's application for a
certificate of probable cause to appeal. Doc. 13-13.
filed this federal petition on October 17, 2018. Doc. 1. He
raised three claims:
1. Appellate counsel was ineffective in failing to argue that
his trial counsel was ineffective for not quashing both
indictments which were returned by a convicted felon.
2. Appellate counsel was ineffective for failing to cite case
law or show prejudice when arguing the Bruton
3. Appellate counsel was ineffective for failing to show
ineffective assistance on trial counsel's decision not to
object to the introduction of the 404(b) evidence.
Court granted petitioner leave to proceed in forma pauperis
(IFP) and ordered respondent to show cause why relief should
not be granted. Doc. 8. Respondent answered. Doc. 12.
Respondent argues that the ...