Following a jury trial on May 30, 2003, Robert Lavon Hagins was convicted of voluntary manslaughter and sentenced to 20 years in prison. On appeal, Hagins challenged the sufficiency of the evidence and also enumerated as error the trial court’s denial of a motion to dismiss the jury panel due to alleged errors by the clerk in excusing possible jurors. The Court of Appeals affirmed in an opinion which was not officially reported, holding that the evidence was sufficient and also holding that since the transcript of the hearing on the motion to dismiss the jury panel was not provided, it must be assumed that the trial court correctly exercised its discretion in denying the motion. Hagins v. State , 302 Ga. App. XXV 2010. Hagins filed a motion for reconsideration, and, at his request, the Court of Appeals issued an order on February 26, 2010, directing the trial court clerk to supplement the appellate record with the hearing transcript within five days. However, the trial court clerk did not comply with the order, and the Court of Appeals denied the motion for reconsideration on April 7, 2010, finding that Hagins, as the appellant, had the burden of providing a complete record on appeal. On October 8, 2010, Hagins filed a pro se petition for writ of habeas corpus, in which he enumerated five grounds for relief. The first ground was that appellate counsel had rendered ineffective assistance by failing to ensure that all of the transcripts were included in the appellate record. After an evidentiary hearing, the habeas court issued a final order granting relief on the claim of ineffective assistance of appellate counsel and denying relief on the other grounds, concluding that they were defaulted as they were not raised on direct appeal. The Warden appeals from the habeas court’s grant of relief.
Under Strickland v. Washington , 466 U. S. 668 104 SC 2052, 80 LE2d 674 1984, to prevail on a claim of ineffective assistance of appellate counsel, the petitioner bears the burden of showing both that counsel’s performance was deficient and that the deficiency prejudiced the appeal. Battles v. Chapman , 269 Ga. 702 1 1998. The deficiency prong ” ‘requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the petitioner by the Sixth Amendment.’ ” Anderson v. State , 285 Ga. 496, 498 3 678 SE2d 84 2009. Moreover, the petitioner ” ‘must overcome the strong presumption that counsel’s conduct falls within the broad range of reasonable professional conduct.’ Cit.” Morgan v. State , 275 Ga. 222, 227 10 564 SE2d 192 2002. The prejudice prong requires the petitioner to show that there is ” ‘a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ Cit.” Hardeman v. State , 281 Ga. 220, 221 635 SE2d 698 2006. Finally, a habeas court’s determination on a claim of ineffective assistance of counsel is to be affirmed unless the reviewing court concludes the habeas court’s factual findings are clearly erroneous or are legally insufficient to show ineffective assistance of counsel. Cit. Head v. Thomason , 276 Ga. 434, 436 1 578 SE2d 426 2003.
