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Herrington v. State

The habeas court's order transferring defendant's claims of ineffective assistance of trial counsel to the trial court was void ab initio as an unauthorized exercise of authority.

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This is an appeal from the denial of an “extraordinary motion for new trial.” The tortuous procedural journey by which the instant appeal comes to us bears recounting as background to an accurate resolution. A Richmond County jury found Clifford Maurice Herrington guilty of two counts of armed robbery. On February 26, 1998, the Superior Court of Richmond County properly sentenced Harrington as a recidivist. On March 29, 2000, the judgment and sentence entered on the verdict was affirmed by this Court.1 In so doing, we found that Herrington’s claim concerning an alleged improper communication between the bailiff and the jury was waived for failure to object.2 No allegation of ineffective assistance of counsel was raised in the trial court or in this Court, although Herrington was not represented on appeal by the same counsel who represented him at trial.

Herrington filed a Petition for Writ of Habeas Corpus in the Superior Court of Telfair County.3 In it, he alleged ineffective assistance of counsel at trial because his trial attorney failed to object to the purportedly improper communication between bailiff and jury; he also alleged ineffective assistance of appellate counsel for failure to raise in the trial court the above claim of ineffective assistance against his trial attorney. At the habeas evidentiary hearing, appellate counsel apparently testified that he considered raising a claim of ineffective assistance of trial counsel, but he was “reluctant” to make that type of accusation against a fellow attorney.

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