Baskin and his co-defendant, Ervin Head, were jointly indicted, tried, and convicted of armed robbery, hijacking a motor vehicle, and aggravated assault. Head’s convictions were affirmed in Head v. State , 256 Ga. App. 624 569 SE2d 548 2002. Baskin’s convictions were affirmed in Baskin v. State , 267 Ga. App. 711 600 SE2d 599 2004. Baskin subsequently sought a writ of habeas corpus, asserting ineffective assistance of appellate counsel. After a hearing, the habeas court granted the writ, and Warden Dennis Brown appeals. For the reasons that follow, we affirm. Baskin’s claim of ineffective assistance of appellate counsel is rooted in an incident at trial. The victim of the crimes was Johane Eugene Blalock. At the time of trial, Blalock was facing a criminal charge of possession of cocaine with intent to distribute, and Head and Baskin wished to cross-examine him regarding that charge.1 The incident at trial is set forth in the Court of Appeals’ opinion in Head’s appeal: Head next contends that the trial court committed harmful constitutional error by refusing to permit him to cross-examine the victim concerning his pending charges of cocaine possession with intent to distribute, attempting to elude, carrying a concealed weapon, and felony obstruction of an officer.2 Head correctly asserts that the Confrontation Clause of the Sixth Amendment guarantees a defendant the right to cross-examine an adverse witness concerning criminal charges that are pending against the witness. Cits. A “defendant is entitled to attack the credibility of the witness by showing that the pending charges reveal a possible bias, prejudice, or ulterior motive on the part of the witness to give untruthful or shaded testimony in an effort to please the State.” Cit. At issue in the case sub judice is whether Head waived this right. On the morning of trial, the state presented a motion in limine, seeking to exclude any evidence concerning the victim’s alleged criminal activity. Initially, the court stated that unless the defense could produce a certified copy of a conviction involving moral turpitude, questions regarding whether the victim had been arrested or indicted would not be proper impeachment. Cit. Head’s counsel then stated that he believed that the victim was under indictment. He argued that he should be permitted to explore whether the pending indictment “affects his motive and perhaps bias in how he testifies, that is, to curry or gain . . . favorable treatment from the prosecution’s office.” Baskin’s counsel offered to provide case law in support of the defense’s position “by lunchtime.” The court indicated that it would “be glad to take a look at it. Between now and then, don’t go into a discussion of whether or not Mr. Blalock may be under indictment.” Counsel for Head then stated: “Your Honor, one case does come to mind; the facts are very different, but the rule of the court was upheld. I believe it’s . . . Alaska versus Davis or Davis versus Alaska .” The court reiterated that “if you can find the case that you are talking about, I’ll be glad to take a look at it.” No case, including Davis v. Alaska, 415 U.S. 308 94 SC 1105, 39 LE2d 347 1974 was ever produced for the court’s consideration, after lunch or otherwise, even though the victim was not cross-examined until the following day.3 Head , supra at 629-630 4. In his appeal, Baskin asserted that trial counsel was ineffective in several respects. Baskin , supra at 712-714 1. But, he did not raise the issue that had been highlighted in the Court of Appeals’ opinion in Head . It is the failure to do so that the habeas court found to be ineffective assistance of appellate counsel.
The proper standard for evaluating the effectiveness of appellate counsel is set forth in Shorter v. Waters , 275 Ga. 581 571 SE2d 373 2002. See also Battles v. Chapman , 269 Ga. 702 506 SE2d 838 1998. Applying that standard, the ineffectiveness of trial counsel would be procedurally defaulted for purposes of habeas corpus relief unless the petitioner can meet his burden of showing that appellate counsel’s decision to forego that issue was an unreasonable tactical move which no competent attorney in the same situation would have made. See Shorter v. Waters , supra at 585; Battles v. Chapman , supra at 705 1 a. “The reviewing court may not use hindsight to second-guess appellate counsel’s strategy and tactical choices. Cit.” Battles v. Chapman , supra at 704 1 a. To overcome the presumption that his appellate counsel was effective, the petitioner must prove that the failure to raise the issue of his trial lawyer’s effectiveness was a decision which “only an incompetent attorney would have adopted.” Shorter v. Waters , 275 Ga. at 585. See also Battles v. Chapman , supra at 705 1 a. Cit. Walker v. Williams , 282 Ga. 409, 409 651 SE2d 59 2007. Baskin meets this burden.
