James Larry Johnson, Petitioner-appellant, v. E. B. Caldwell, Warden, Georgia State Prison, Respondent-appellee, 458 F.2d 505 (5th Cir. 1972)

The sole issue on this appeal is the alleged ineffective assistance of Johnson's counsel. After conviction in a Georgia state court, but before notice of appeal had been filed with the Georgia Supreme Court, Johnson escaped from state custody. In a letter to the trial judge, Johnson's counsel stated his intention not to file a notice of appeal and asked to be relieved as counsel on the ground that the Georgia law dictated that when a convicted person escapes from custody his appeal would be dismissed as moot. The counsel's motion was granted.

The Georgia Supreme Court, on appeal from a habeas corpus denial, held that counsel was not ineffective when he failed to file the notice of appeal because of Johnson's escape. Johnson v. Smith, 227 Ga. 611, 182 S.E.2d 101 (1971). This holding accords with prior Georgia decisions which have uniformly dismissed appeals in such cases as moot. See Gentry v. State, 91 Ga. 669, 17 S.E. 956 (1893); Huffaher v. State, 122 Ga.App. 773, 178 S.E.2d 718 (1970). As a matter of law, the refusal of counsel to pursue this legal dead end did not render his representation ineffective.

Affirmed.