The appellant, William Andrews, filed a habeas corpus petition, contending that he was entitled to an out-of-time appeal and that he had received ineffective assistance of trial counsel. After a hearing at which Andrews’s trial counsel testified regarding the foregoing issues, the habeas court granted Andrews an out-of-time appeal on the ground that his trial counsel was not notified of the trial court’s order denying his motion for new trial. The habeas court, however, did not address Andrews’s ineffectiveness claim. Without filing a second motion for new trial, Andrews filed a notice of appeal in the trial court in which he was convicted and appealed to the Court of Appeals. On appeal, he contended, among other things, that he had received ineffective assistance of trial counsel. The Court of Appeals held that the claim was procedurally barred because Andrews did not assert the claim in a second motion for new trial.1 We granted certiorari to consider whether a second motion for new trial was required in view of the fact the habeas court held a hearing on Andrews’s ineffectiveness claim. We conclude that a second motion for new trial was required, and thus affirm the Court of Appeals’s judgment. Andrews contends, among other things, that he fully litigated his ineffectiveness claim in the habeas court and that, for this reason, the Court of Appeals erred in ruling that he should have filed a motion for new trial in the trial court and again raised the issue of ineffective assistance of trial counsel.2 We disagree, concluding that, under the rationale of Ponder v. State 3 and Maxwell v. State ,4 we must resolve this issue adversely to Andrews.
In Ponder , Ponder sought an out-of-time appeal in a habeas corpus action. The habeas court determined that Ponder was entitled to an out-of-time appeal, and directed Ponder to pursue his post-conviction remedies within thirty days. Ponder was appointed counsel to represent him on appeal, and Ponder filed a notice of appeal. Ponder, however, did not file a motion for new trial, and on appeal, he contended that he had received ineffective assistance of trial counsel. We held that, to preserve the ineffectiveness claim for appeal, a habeas petitioner who is granted an out-of-time appeal must file a motion for new trial following the grant of the out-of-time appeal. We reasoned that this holding would have the benefit of placing habeas petitioners on equal footing with a defendant who is granted an out-of-time appeal from a trial court and of having the judge who tried the case resolve the issue of trial counsel’s effectiveness.5
