After Milliken’s convictions for kidnaping, reckless conduct, and DUI were affirmed by the Court of Appeals Milliken v. State , 230 Ga. App. 810 498 SE2d 127 1998 and this Court denied his petition for a writ of certiorari, he filed a petition for a writ of habeas corpus asserting, among other things, that the trial court violated OCGA § 17-8-571 and that trial and appellate counsel were ineffective in failing to raise the error. Rejecting his other grounds for relief, the habeas corpus court found that the trial court violated OCGA § 17-8-57 and that the failure of appellate counsel to raise the issue on appeal constituted ineffectiveness. The habeas corpus court then held that the proper remedy for being denied an effective appeal was another appeal. Milliken filed an appeal in the Court of Appeals and also sought to appeal the habeas court’s order to this Court. We granted the application for a certificate of probable cause to address the propriety of the remedy. Meanwhile, the Court of Appeals considered the appeal ordered by the habeas corpus court and dismissed it, holding that there can be no second appeal; that the habeas corpus court had no authority to grant an out-of-time appeal in another county; that since Milliken did not file a motion for new trial after the grant of the out-of-time appeal, the issue of ineffectiveness of counsel was barred on appeal; and that the appeal actually calls for a review of the habeas corpus court’s judgment, which is done exclusively in the Supreme Court. Milliken v. State , 259 Ga. App. 144 575 SE2d 910 2003.2 We agree with Milliken and the Court of Appeals that the habeas corpus court erred in ordering a new appeal which would only require the same analysis the habeas corpus court has already conducted. In considering the prejudice prong of the test for ineffectiveness enunciated in Strickland v. Washington , 466 U.S. 668 104 SC 2052, 80 LE2d 674 1984, the habeas corpus court found the trial court’s questioning and remarks to violate OCGA § 17-8-57 and that the error could not be deemed harmless. Notwithstanding that analysis, the habeas corpus court relied on dicta in Morgan v. Zant , 743 F2d 775 11th Cir.1984 overruled on other grounds, Peek v. Kemp , 784 F2d 1479 11 th Cir. 1986, and held that the only remedy was a new appeal.
However, “a criminal defendant whose conviction has been reviewed by an appellate court on direct appeal . . . is not entitled to a second direct appeal from his judgment of conviction.” Richards v. State , 275 Ga. 190, 191 563 SE2d 856 2002 quoted by the Court of Appeals in Milliken v. State , supra, 259 Ga. App. at 145. Both the legal principle quoted above from Richards and considerations of judicial economy dictate that the habeas corpus court is the appropriate judicial entity to consider both the ineffective assistance of counsel claim and the underlying and connected trial error, and to determine whether the habeas corpus petitioner is entitled to a new trial. “When the issue is one that could not have been raised in the prior, perfected direct appeal, i.e., ineffective assistance of appellate counsel, a petition for Writ of Habeas Corpus is the proper vehicle to utilize for the development of a record and subsequent review of the substantive claim. Cit.” Boney v. State , 236 Ga. App. 179, 180 510 SE2d 892 1999. In the present case, the habeas corpus court not only reviewed the claim of ineffective assistance of appellate counsel, but also resolved in Milliken’s favor the underlying substantive claim of error. In ordering a second appeal, the habeas corpus court would require another judicial entity to undertake exactly the same analysis which had just been accomplished. Not only would such a procedure be wasteful of judicial resources, it would have the potential, realized in this case, of presenting an appellate court with a task not properly within its jurisdiction. Since the habeas corpus court had already decided that the trial court violated OCGA § 17-8-57, an appeal to the Court of Appeals raising that issue would implicitly require that court to review the decision of a habeas corpus court, a task which is assigned to this Court, as the Court of Appeals correctly noted in rejecting the out-of-time appeal in this case. Milliken v. State , supra, 259 Ga. App. at 146.
