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Final Copy 291 Ga. 224

S12A0489. TOMPKINS v. HALL. MELTON, Justice. Following the grant of a petition for habeas corpus relief brought by Robert Nathaniel Hall, Billy Tompkins, Warden, appeals, contending that the trial court erred in its finding that cause and prejudice had been shown to raise the procedural bar on defaulted claims of ineffective assistance of counsel. For the reasons set forth below, we reverse. Hall, along with co-defendants Joseph Scurry, Kevin Taylor, Demetra Stallings, and Norval Patten, was tried and convicted on November 8, 2002 for possession of marijuana with intent to distribute and trafficking in cocaine. Hall, who was on bond at the time, was tried in absentia because, after he attended the first few days of his trial, he fled and became a "fugitive from justice." See Byrd v. Ricketts, 233 Ga. 779 (213 SE2d 610) (1975). At trial, Hall was represented by three attorneys, Bryant Callaway, Bruce Harvey, and Jack Boone. Following the trial, Callaway and Harvey filed a general motion for new trial on November 18, 2002. Thereafter, Hall replaced

trial counsel, and, on December 3, 2002, Hall's new attorney, Derek Wright, filed an amended motion for new trial adding a non-specific claim that Hall "had been prejudiced by ineffective assistance of counsel." On January 17, 2003, the State filed a motion to dismiss, and, on February 7, 2003, the motion for new trial was dismissed because Hall remained a fugitive from justice. On February 10, 2003, Hall filed a notice of appeal of the dismissal, again stating as one of the grounds for his appeal the non-specific allegation that Hall "has been prejudiced by ineffective assistance of counsel." On May 15, 2003, Hall filed a motion to recuse the trial judge who dismissed his motion for new trial, or, in the alternative, a motion for arrest in judgment. In this motion, Hall argued for the first time that "the State may have misrepresented the availability of witnesses at trial"; "the failure to conduct a motion to suppress was reversible error"; and "the failure to sever the trial was reversible error." Hall listed these only as general errors; however, he did not contend that they were a basis for ineffective assistance of counsel. The motion to recuse was denied, and Wright withdrew as Hall's counsel on March 2, 2004. Thereafter, Hall retained Linda Sheffield, who based on the prior notice of appeal, filed a brief on Hall's behalf in the Court of Appeals. In this brief, Hall apparently raised specific allegations of
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ineffective assistance of trial counsel for the first time. Ultimately, the Court of Appeals dismissed Hall's case because he was still a fugitive from justice at the time that the notice of appeal was filed. Hall v. State, 271 Ga. App. 302 (609 SE2d 653) (2004). On January 9, 2007, Hall filed a habeas corpus petition in which he contended that, in addition to errors committed by the trial court, he had received ineffective assistance of trial counsel because trial counsel failed to (1) prevent the admission of an unavailable co-defendant's statement in violation of Crawford v. Washington, 541 U. S. 36 (124 SC 1354, 158 LE2d 177) (2004) and (2) pursue pre-trial motions to sever Hall's trial and suppress evidence. In an initial order, the habeas court determined that Hall had procedurally defaulted on all of his claims because he chose to become a fugitive from justice rather than pursuing them properly. See OCGA

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