Thomasville, GA asked in Criminal Law and Constitutional Law for Georgia

Q: Is a conviction under 1976 GA Const., Bill or rights Para IX allowing representation by counsel and defendant void?

A person suffers from decades old conviction in which said person was allowed to represent himself/herself and be represented by counsel under the GA Constitution , Bill of Rights Paragraph IX or both clause without waving his/her federal Sixth Amendment right to counsel. Defendant complained of ineffective assistance of pretrial counsel and requested new pretrial and trial counsel which was denied. The trial court gave defendant the ultimatum to represent himself with the assistance of counsel complained of which defendant accepted expressing that he had no choice but to do so. What is the remedy for said person to get back into court and set aside this judgment and or conviction where unwanted trial counsel exhausted appellate process and defendant exhausted first habeas corpus remedy(s) prior to proof of his claim after which The Anti Terrorism and Effective Death Penalty Act barred successive attacks on such a conviction while incarcerated but the person is no longer incarcerated?

1 Lawyer Answer
James L. Arrasmith
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  • Criminal Law Lawyer
  • Sacramento, CA

A: In this scenario, where a conviction stems from a situation involving the right to counsel under the Georgia Constitution and the Sixth Amendment, several factors need to be considered. The complexity arises from the claim of ineffective assistance of counsel and the subsequent exhaustion of appellate and habeas corpus remedies.

Given that the Anti Terrorism and Effective Death Penalty Act limits successive appeals, and the individual is no longer incarcerated, traditional appellate avenues may be limited. However, if new evidence or legal arguments have emerged since the initial appeals and habeas corpus petitions, these could potentially form the basis of a new legal challenge.

One option might be to explore the possibility of a post-conviction relief motion in the state court. This can be a viable route if there's substantial new evidence or a significant change in the law that could affect the conviction's validity.

Another approach could be to examine any potential federal constitutional claims that were not adequately addressed previously. These might open doors to federal court intervention, albeit under stringent standards and limitations.

In cases like this, it’s often beneficial to consult with an attorney experienced in post-conviction relief and appellate law. They can provide more personalized advice based on the specifics of the case, including the latest developments in relevant legal standards and practices.

It’s crucial to act promptly, as certain legal options might be time-sensitive. An experienced attorney can help navigate these timelines and ensure that any potential remedies are pursued effectively.

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