In 1998, Christopher K. Lewis was convicted of malice murder, felony murder, aggravated battery, burglary, and possession of a knife during the commission of a felony, and he was sentenced to death for the murder. After reversing and remanding for a new hearing on Lewis’ motion for new trial, Lewis v. State , 275 Ga. 194 565 SE2d 437 2002, this Court unanimously affirmed Lewis’ convictions and death sentence in 2004. Lewis v. State , 277 Ga. 534 592 SE2d 405 2004. In that same year, Lewis filed a pro se petition for writ of habeas corpus. After obtaining the assistance of pro bono counsel, Lewis amended his petition in 2007, and an evidentiary hearing was held on March 3 and 4, 2008. In its final order of June 10, 2009, the habeas court found that trial counsel were ineffective at both phases of trial, that appellate counsel was ineffective in failing to raise on direct appeal trial counsel’s ineffectiveness, and that Lewis is mentally retarded and, therefore, is ineligible for the death penalty. Accordingly, the habeas court granted habeas relief with respect to Lewis’ malice murder conviction and death sentence. The Warden appeals only the habeas court’s grant of relief as to Lewis’ malice murder conviction. For the reasons set forth below, we reverse in part and remand in part. I. Factual Background
The evidence adduced at trial showed the following. Lewis and the victim, Cheryl Lewis, were married in 1992 but began living apart in 1995. There were several incidents of domestic violence over the following year. On the evening of December 19, 1996, Ms. Lewis went to a Christmas party with a co-worker, Robbie Epps. Ms. Lewis’ roommate left for work shortly before 10:30 p.m., leaving Ms. Lewis’ two children, Kellee and Sean Dunn, alone in the apartment. Shortly afterward, Lewis began banging on Ms. Lewis’ apartment door, cursing and demanding to be let in. Ms. Lewis had instructed 13-year-old Kellee and 10-year-old Sean not to let Lewis in, and the children did not go to the door. They remained in an upstairs bedroom, where they were watching television with the lights turned out. Eventually, the banging ceased, and the children fell asleep.
