2009, Bridgette Hines was convicted of armed robbery and
other crimes in connection with the robbery of a convenience
store, and she was sentenced to imprisonment for 20 years.
Her convictions were affirmed on appeal. See Hines v.
State, 320 Ga.App. 854 (740 S.E.2d 786) (2013). Then, in
2017, Hines filed a petition for a writ of habeas corpus,
alleging that she was denied the effective assistance of
counsel on appeal. The habeas court agreed with Hines and set
aside her convictions. The Warden appeals, and we reverse.
evidence presented at her trial shows that Hines, Geoffrey
Jupiter, and Ricky Timmons were involved in the robbery.
Hines and Jupiter were tried together, and Timmons testified
against them. Timmons had agreed to testify for the
prosecution as a part of a plea deal that allowed Timmons to
plead guilty to simple robbery and avoid prosecution for the
greater offense of armed robbery.
trial, Timmons testified that, late on the evening of January
1, 2009, Hines, her son (who was then 12 years of age), and
Jupiter picked him up from his house. Hines then drove the
group to Lucky's convenience store near Jonesboro. Hines
and her son went into the store while the others waited in
the car. Hines and her son then returned to her car, and
Hines drove the group to a nearby residential area. There,
Hines stopped and asked her son to remove the car's
license plate. At some point, Hines gave Timmons a gun. Hines
then drove the group back to Lucky's and parked on the
far side of the lot, away from the store. Timmons and Jupiter
went inside the store, both wearing masks and carrying guns.
Timmons told the clerk to "freeze" while Jupiter
grabbed cash from behind the counter. Both men then ran out,
they got back into the car, and Hines drove them away from
the scene. Shortly afterwards, they were stopped by law
enforcement officers, at which point Timmons and Jupiter
jumped out of the car and ran away. Timmons was caught almost
immediately, but Jupiter escaped and was apprehended later.
Shortly after his arrest, Timmons gave a written statement to
investigators that was largely consistent with his trial
corroborate Timmons's version of events, the State relied
primarily on the testimony of two law enforcement officers,
each of whom happened to be in the area at the time of the
robbery. Each officer testified, based on his observations,
that two men ran across Lucky's parking lot and jumped
into a car parked at the edge of the lot, that the car then
took off at a "high rate of speed" with its lights
off, and that there was no tag on the vehicle. The officers
followed and stopped the car, at which point two men jumped
out and ran. One of the officers gave chase and arrested
Timmons, while the other detained Hines (who was driving the
car) and her son. A 9 millimeter pistol was found under the
driver's seat, near where Hines's son was seated. The
officers also found a BB gun outside the vehicle, near the
front passenger door. Cigars and cash were "all
over" the front passenger seat. Hines's son had
hundreds of dollars in cash stuffed into the sleeve of his
the prosecution rested, Hines testified in her own defense.
She explained that, earlier on the day in question, her son
saw that the license plate on her car "was hanging by
one screw," and so he removed it and placed it next to
the back window. She said that she drove to Lucky's with
Jupiter and Timmons because the store had a slot machine that
she wanted to play for money, and Jupiter had told her that
he knew "the people" at Lucky's who would let
her play for money. Hines further testified that, when they
arrived at Lucky's, she and her son went inside the
store, but the clerk refused to let her play. As Hines got
back in the car and began to drive away, Timmons said he
wanted to get some cigarillos, and so she turned around in a
nearby parking lot and drove back to Lucky's. Jupiter and
Timmons got out of the car and went inside the store. Hines
testified that they were inside just long enough to make a
purchase when she saw them running from the store. She did
not see them wearing anything unusual or carrying any
weapons. She pulled out of the parking lot and into the
street, and only then remembered to turn on her headlights.
Hines denied knowing about the robbery before her car was
stopped by the officers. Hines's testimony, however, was
inconsistent with a statement she previously had given to
investigators. In that statement, she indicated that Jupiter
offered to pay her for "a ride," that the license
plate was removed after the initial visit to Lucky's, and
that she saw "the gun" before Jupiter and Timmons
went inside the store.
she was convicted and sentenced, Hines obtained new counsel
to represent her in post-conviction proceedings. Hines's
motion for new trial was denied, and her attorney sought
review in the Court of Appeals, raising 16 claims of error,
including several claims of ineffective assistance of trial
counsel. The Court of Appeals affirmed, rejecting all these
claims of error. See Hines, 320 Ga.App. 854.
August 31, 2017, Hines filed a habeas petition in Habersham
County, initially asserting four claims of ineffective
assistance of appellate counsel. She later withdrew all of
her claims except one-that her appellate lawyer rendered
ineffective assistance when he failed to raise the issue of
trial counsel's ineffectiveness as to the impeachment of
Timmons. About her sole remaining claim, Hines argued that
her trial counsel failed to cross-examine Timmons about the
fact that he faced a potential life sentence for armed
robbery with no parole eligibility for 30 years, but for his
deal in which the State agreed that he could plead guilty
only to simple robbery and testify against Hines (and
Jupiter). This failure to impeach Timmons, Hines
argued, was the basis for a claim of ineffective assistance
of trial counsel that her appellate counsel should have
raised on direct appeal. Because her appellate counsel raised
no such claim, she was denied the effective assistance of
counsel on appeal, she concluded. Following a hearing, the
habeas court concluded that Hines was entitled to relief on
this claim and issued the writ.
obtain habeas relief based on the denial of the effective
assistance of appellate counsel, a petitioner must establish
that her "appellate counsel was deficient in failing to
raise an issue on appeal and that, if counsel had raised that
issue, there is a reasonable probability that the outcome of
the appeal would have been different." Trim v.
Shepard, 300 Ga. 176, 177 (794 S.E.2d 114) (2016)
(citation and punctuation omitted). In analyzing an appellate
attorney's performance, "the question is not whether
[the] attorney's decision not to raise a particular issue
was correct or wise, but rather, whether his decision was an
unreasonable one which only an incompetent attorney would
adopt." Id. (Citation and punctuation omitted.)
A lawyer's failure to raise a claim on appeal might be
unreasonable if that claim had "clear and strong merit
under the law as it existed at the time of the appeal,"
Martin v. McLaughlin, 298 Ga. 44, 45 (779 S.E.2d
294) (2015), but if the claim had "doubtful merit . . .
it generally cannot be said that every competent lawyer would
have asserted it, and so, the failure to assert the claim
ordinarily would not amount to deficient performance,"
Trim, 300 Ga. at 178. See also Hooks v.
Walley, 299 Ga. 589, 591 (791 S.E.2d 88) (2016)
(appellate counsel "does not have a duty to advance
every nonfrivolous argument that could be made"
(citation and punctuation omitted)).
has failed to show ineffective assistance of appellate
counsel. As mentioned above, the underlying claim in this
case (the claim that Hines believes her appellate lawyer
should have raised) is that trial counsel rendered
ineffective assistance in failing to cross-examine Timmons
about the maximum time he would be facing if he had not made
a plea deal and instead was convicted of armed robbery. The
merit of this claim, however, is doubtful at best. Even if
Hines could have shown that her trial counsel acted
deficiently in failing to impeach Timmons on this particular
issue, she likely would not have been able to show
trial transcript shows that Timmons was cross-examined
extensively about his plea deal by Hines's and
Jupiter's attorneys. The jury learned from this
cross-examination that, by making a plea deal, Timmons was
avoiding a ten-year mandatory minimum sentence "with no
chance of parole." The jury also learned that, regardless
of the sentence Timmons now would receive as a result of his
guilty plea, he would be eligible for parole
immediately. So the jury knew that Timmons received a
significant benefit in exchange for pleading guilty and
testifying for the State. We cannot say that the marginal
value of additional impeachment based on Timmons's
potential maximum sentence (which the jury had no reason to
believe he would actually receive) would have made a
difference in the jury's assessment of his credibility,
especially since his testimony was corroborated by other
evidence, including the testimony of two police officers and
Hines's own incriminating statement. See McCoy v.
State, 303 Ga. 141, 143 (2) (810 S.E.2d 487) (2018)
(trial counsel's failure to impeach witness with
particular information did not result in prejudice where such
information had "only marginal impeachment value"
and the evidence of guilt was strong). See also Sims v.
State, 280 Ga. 606, 608 (3) (631 S.E.2d 656) (2006).
the foregoing, Hines's appellate lawyer reasonably could
believe that raising a claim of trial counsel's
ineffectiveness on the issue of Timmons's impeachment
would not have succeeded on appeal, and so Hines has not
shown that her appellate lawyer was deficient in failing to
raise this claim. See Hooks, 299 Ga. at 594 (habeas
petitioner failed to show that appellate counsel performed
deficiently in failing to raise a claim of trial
counsel's ineffectiveness, even if that underlying claim
was potentially meritorious). See also Arrington v.
Collins, 290 Ga. 603, 606 (1) (724 S.E.2d 372) (2012).
Accordingly, the habeas court erred when it granted the writ
of habeas corpus to Hines.
reversed. All ...