Brewer v. Hall

Michael Brewer was convicted by a Richmond County jury in 1993 of burglary and child molestation, and received a twenty-year sentence. His convictions were affirmed on appeal.1 In 2001, Brewer filed a petition for a writ of habeas corpus, alleging that he had been denied the effective assistance of appellate counsel. The habeas court denied Brewer’s petition, but this Court granted Brewer’s application for a certificate of probable cause, and remanded to the habeas court for reconsideration of Brewer’s arguments under the standard enunciated in Shorter v. Waters .2 On remand, the habeas court again denied Brewer’s petition, and this Court again granted his application for a certificate of probable cause. We conclude that although Brewer’s appellate counsel acted deficiently, Brewer was not denied effective appellate representation because he suffered no prejudice as a result of his counsel’s deficient performance. Accordingly, we affirm the order of the habeas court denying Brewer’s petition for habeas relief. 1. In order to succeed on his claim of ineffective assistance of appellate counsel, Brewer must show that his appellate counsel acted deficiently, and that but for that deficient conduct, he would have been awarded a new trial.3 In this case, Brewer alleges that both his trial counsel as well as his appellate counsel were deficient, and that but for his appellate counsel’s deficient performance, he would have been granted a new trial on the basis of trial counsel’s deficient performance.

During Brewer’s trial for burglary and child molestation, two allegedly improper evidentiary admissions occurred. First, a photograph was admitted containing two extraneous signatures that arguably placed Brewer’s character in issue. Second, a police officer made an improper reference to Brewer’s assertion of his right to remain silent. On appeal, Brewer’s appellate counsel argued that these errors entitled Brewer to a new trial, but the appellate court declined to address those arguments because his trial counsel had failed to object to the evidentiary admissions.4 Thus, neither issue was preserved for appeal.