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Final Copy 286 Ga. 767 S09A1862. HALL v. LEWIS.

Carley, Presiding Justice. In 1998, Christopher K. Lewis was convicted of malice murder, felony murder, aggravated battery, burglary, and possession of a knife during the commission of a felony, and he was sentenced to death for the murder. After reversing and remanding for a new hearing on Lewis' motion for new trial, Lewis v. State, 275 Ga. 194 (565 SE2d 437) (2002), this Court unanimously affirmed Lewis' convictions and death sentence in 2004. Lewis v. State, 277 Ga. 534 (592 SE2d 405) (2004). In that same year, Lewis filed a pro se petition for writ of habeas corpus. After obtaining the assistance of pro bono counsel, Lewis amended his petition in 2007, and an evidentiary hearing was held on March 3 and 4, 2008. In its final order of June 10, 2009, the habeas court found that trial counsel were ineffective at both phases of trial, that appellate counsel was ineffective in failing to raise on direct appeal trial counsel's ineffectiveness, and that Lewis is mentally retarded and, therefore, is ineligible for the death penalty. Accordingly, the habeas court granted habeas relief with respect to

Lewis' malice murder conviction and death sentence. The Warden appeals only the habeas court's grant of relief as to Lewis' malice murder conviction. For the reasons set forth below, we reverse in part and remand in part. I. Factual Background The evidence adduced at trial showed the following. Lewis and the victim, Cheryl Lewis, were married in 1992 but began living apart in 1995. There were several incidents of domestic violence over the following year. On the evening of December 19, 1996, Ms. Lewis went to a Christmas party with a co-worker, Robbie Epps. Ms. Lewis' roommate left for work shortly before 10:30 p.m., leaving Ms. Lewis' two children, Kellee and Sean Dunn, alone in the apartment. Shortly afterward, Lewis began banging on Ms. Lewis'

apartment door, cursing and demanding to be let in. Ms. Lewis had instructed 13-year-old Kellee and 10-year-old Sean not to let Lewis in, and the children did not go to the door. They remained in an upstairs bedroom, where they were watching television with the lights turned out. Eventually, the banging ceased, and the children fell asleep. At about 1:45 a.m., Kellee was awakened by her mother's screams. Seeing the light on in the bedroom across the hall, Kellee went there and
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attempted to push open the door. She was able to get her head far enough into the room to see her mother on the floor and Lewis kneeling over her with a knife in his hand. Lewis ordered Kellee out of the room and forced the door shut behind her. After failing to locate the cellular telephone in either of the two other bedrooms, Kellee ran downstairs and next door to call the police. Sean, who also heard his mother screaming, pretended to be asleep and saw Lewis enter his bedroom, look through the blinds, and then run out of the room. When the responding police officer arrived, he found Epps standing in the parking lot. Epps appeared frightened and intoxicated and said that there was a man in the apartment. Ms. Lewis, who had suffered 42 injuries that included 17 to 20 stab or cut wounds to the neck, had bled to death from her severed carotid artery and jugular vein. An eight-inch serrated knife found underneath her body was consistent with the murder weapon. Kellee identified Lewis as her mother's attacker. After determining Lewis' address by tracing the telephone number from which Lewis had paged the victim earlier that evening, police went to Lewis' apartment complex and arrested him in the parking lot. A 12-inch butcher knife was found hidden in

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Lewis' right sleeve, and DNA taken from bloodstains on his shoe and sweat pants matched the DNA profile of Cheryl Lewis. II. Alleged Ineffective Assistance of Counsel The habeas court vacated Lewis' malice murder conviction based upon its conclusion that Lewis' appellate counsel was constitutionally deficient in failing to raise on direct appeal trial counsel's ineffectiveness in failing to conduct a reasonable investigation before deciding on a "fanciful and wholly unsupported theory of actual innocence." The habeas court further found that, had trial counsel "instead presented a voluntary manslaughter defense as the evidence supported, there is a reasonable likelihood that the jury would have opted for a voluntary manslaughter verdict." A. Standard of review. At trial Lewis was represented by David Walker, who acted as lead counsel, and Leon Hicks, who served as co-counsel. After Lewis' trial, the trial court discharged Walker and Hicks and appointed new counsel to represent Lewis in post-conviction proceedings. Thus, Lewis' claim of ineffective assistance of trial counsel could have been raised in his motion for new trial and on direct appeal and, accordingly, it is barred as procedurally

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defaulted, at least as an independent claim. See Head v. Ferrell, 274 Ga. 399, 401 (III) (554 SE2d 155) (2001); OCGA

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