This Court granted Spencer Shorter’s application for a certificate of probable cause to appeal the habeas court’s “Amendment to Final Order” affirming the denial of Shorter’s petition for writ of habeas corpus following this Court’s remand in Shorter v. Waters , 275 Ga. 581571 SE2d 373 2002. The concern is whether the habeas court correctly held that, under the circumstances of this case, the failure of appellate counsel to raise the issue of ineffectiveness of trial counsel regarding the charge on reckless conduct as a lesser included offense was not ” ‘an unreasonable one which only an incompetent attorney would adopt.’ Cits.” Id. at 584. We conclude that the habeas court erred when it rejected Shorter’s claim of ineffective assistance of appellate counsel. The history of this case is necessary to understanding the present appeal. Spencer Shorter was the driver of a car containing three other men which became involved in a police chase. Shots were fired at the pursuing police officers, and the evidence indicated that passenger, Melvin Shaw, was the shooter. Shorter and Shaw were indicted and tried together on charges of aggravated assault on a police officer; both were convicted. Shorter’s conviction was based on the fact that he aided and abetted Shaw. Shaw’s conviction was reversed by the Court of Appeals upon a finding that the trial court erroneously refused Shaw’s requested jury instruction on reckless conduct. Id. at 582; Shaw v. State , 238 Ga. App. 757, 759 1 519 SE2d 486 1999.
Shorter’s trial counsel did not request a charge on reckless conduct or join in Shaw’s objections regarding the refusal to give Shaw’s requested charge, although the error in failing to give it was equally applicable to Shorter. After conviction, Shorter chose to file a motion for new trial and appellate counsel, Victor Cuvo, was appointed to represent him. Cuvo did not raise any claim about the ineffectiveness of trial counsel. The motion for new trial was denied, and Shorter was appointed new appellate counsel, Gerard Kleinrock. Kleinrock sought in the Court of Appeals a remand of the case to the trial court for a hearing on whether Cuvo had been ineffective for not raising trial counsel’s ineffectiveness in the motion for new trial. The Court of Appeals handled the request for remand by considering the merits of the claim of ineffectiveness and rejecting it. See Shorter v. State , 239 Ga. App. 625 1 521 SE2d 684 1999. But the only claim regarding trial counsel’s ineffectiveness that Kleinrock raised in the Court of Appeals was the failure to file a motion to suppress evidence seized from Shorter’s car; he did not raise trial counsel’s failure to request or join Shaw’s request for a jury charge on reckless conduct. Kleinrock knew about the significance of the reckless conduct charge because he read the appellate brief filed on behalf of Shaw before he filed Shorter’s brief. Consequently, even though he had the opportunity to do so, Kleinrock elected not to raise the reckless conduct charge issue in the Court of Appeals. Shorter v. Waters at 582-583.
