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Sessions v. State

The defendant was collaterally estopped from re-litigating the merits of his ineffective assistance of counsel claim in a motion for out-of-time appeal.

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Appellant Calvin Sessions appeals from the trial court’s denial of his motion for out-of-time appeal. For reasons set forth below, we affirm.

The record shows that on December 10, 1997, a jury found appellant guilty of several counts each of murder, felony murder, aggravated assault, and possession of a firearm, as well as a count of armed robbery and a count of obstruction of an officer. The State had sought the death penalty, but the jury could not agree on a death penalty verdict. On December 12, 1997, the trial court sentenced appellant to life without parole, two life sentences with parole, and a term of years for his other felonies. Appellant did not file a motion for new trial or a notice of appeal. On June 23, 1998, appellant filed a pro se pleading entitled “Application for Out of Time Motion for New Trial.” The trial court treated the pleading as an extraordinary motion for a new trial and denied it without hearing on February 10, 1999. Meanwhile, on November 10, 1998, appellant, through counsel, filed a petition for habeas corpus relief in which he alleged he was denied his right to appeal in violation of the Fifth, Sixth, and Fourteenth Amendments allegedly due to his court-appointed trial attorneys’ failure to file an appeal. The habeas court held a hearing on October 21, 1999, at which appellant and two of his trial attorneys1 testified. Citing Henderson v. State, 265 Ga. 317, 318 454 SE2d 458 1995, the habeas court made the following conclusion in its July 31, 2000, order denying habeas relief:

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