Opposition Brief — Darvell McFarlin, Petitioner v. Andrew McFarlane, Warden

No. 25-5629

In the

Supreme Court of the United States

Darvell McFarlin,

v.

Petitioner,

Andrew McFarlane, Warden,

Respondent.

On Petition for Writ of Certiorari to the

Supreme Court of Georgia

BRIEF IN OPPOSITION

Christopher M. Carr

Attorney General

Beth Burton

Deputy Attorney General

Counsel of Record

Office of the Georgia

Attorney General

40 Capitol Square, SW

Atlanta, Georgia 30334

(404) 458-3570

bburton@law.ga.gov

Counsel for Respondent

QUESTIONS PRESENTED

1.

Whether the state court erred when it found Petitioner waived his

claims of improper identification evidence when he entered a voluntary and

knowing guilty plea.

2.

Whether the Georgia Supreme Court correctly deferred to the state

habeas court’s fact-bound analysis and application of Strickland v.

Washington, 466 U.S. 668 (1984), in denying Petitioner a certificate of

appealability on his ineffective-assistance claims.

i

TABLE OF CONTENTS

Questions Presented ............................................................................................ i

Table of Contents ................................................................................................ii

Introduction ......................................................................................................... 1

Statement ............................................................................................................ 2

A. Factual Background ................................................................................ 2

B. Procedural Background .......................................................................... 4

Reasons for Denying the Petition ....................................................................... 6

I.

The petition requests fact-bound error correction with no alleged

split of authority. .................................................................................... 6

II. The decision below is correct. ................................................................. 8

A. McFarlin’s valid guilty plea forecloses his claim regarding

the admissibility of the photographic lineup. ................................. 8

B. McFarlin’s ineffective-assistance claims are similarly

foreclosed by his guilty plea, but even if they were not, they

would fail on the merits. ................................................................ 10

1. Defense counsel’s strategic decision not to object to a

witness’s photo lineup identification was not

constitutionally suspect. .......................................................... 12

2. Defense counsel was not ineffective for declining to sever

McFarlin’s trial from his co-defendant’s. ................................ 14

Conclusion ......................................................................................................... 15

ii

TABLE OF AUTHORITIES

Page(s)

Cases

Blackledge v. Perry,

417 U.S. 21 (1973) .......................................................................................... 9

Boag v. MacDougall,

454 U.S. 364 (1982) ........................................................................................ 7

City & Cty. of San Francisco, Calif. v. Sheehan,

575 U.S. 600 (2015) ........................................................................................ 8

Class v. United States,

583 U.S. 174 (2018) ........................................................................................ 9

Hill v. Lockart,

474 U.S. 52 (1985) .............................................................................. 6, 11, 13

Izumi Seimitsu Kogyo Kabushiki Kaisha v. U.S. Philips Corp.,

510 U.S. 27 (1993) .......................................................................................... 7

Menna v. New York,

423 U.S. 61 (1975) .................................................................................... 9, 10

NLRB v. Hendricks Cty. Rural Elec. Membership Corp.,

454 U.S. 170 (1981) ........................................................................................ 7

Packwood v. Senate Select Comm. on Ethics,

510 U.S. 1319 (1994) ...................................................................................... 7

Strickland v. Washington,

466 U.S. 668 (1984) .................................................................... 1, 6, 7, 11, 12

Tollett v. Henderson,

411 U.S. 258 (1973) ........................................................................ 1, 9, 10, 11

United States v. Glinsey,

209 F.3d 386 (5th Cir. 2000) ........................................................................ 10

Wearry v. Cain,

577 U.S. 385 (2016) ........................................................................................ 7

iii

Wilson v. United States,

962 F.2d 996 (11th Cir. 1982) ...................................................................... 11

Zafiro v. United States,

506 U.S. 534 (1993) ...................................................................................... 14

RESPONDENT’S APPENDIX

State Habeasa Hearing Transcript..................................................................... 1

Guilty Plea Transcript ...................................................................................... 48

State Habeas Court Final Order ...................................................................... 95

State Habeas Petiton ...................................................................................... 101

iv

INTRODUCTION

Petitioner Darvell McFarlin appears to allege two constitutional errors

from his state criminal proceedings: first, that a photographic lineup was

unduly suggestive and inadmissible; and second, that his trial counsel

provided ineffective assistance. McFarlin’s claims are meritless, and he does

not come close to satisfying this Court’s certiorari standard. See S. Ct. R. 10.

This case presents no split of authority; it represents an entirely fact-bound

application of binding precedent. This Court should deny the petition.

On the merits, the state habeas court acted consistently with this

Court’s longstanding precedents to hold that McFarlin’s undisputedly

knowing and voluntary guilty plea foreclosed any later habeas challenge to

the allegedly defective lineup (and testimony arising therefrom). Tollett v.

Henderson, 411 U.S. 258, 266 (1973). The same rule bars McFarlin’s

ineffective-assistance claims to the extent they focus on freestanding

constitutional violations rather than the validity of his decision to plead

guilty. See id. at 267 (holding that a defendant who pleads guilty upon the

advice of his counsel “may only attack the voluntary and intelligent character

of the guilty plea by showing that the advice he received from counsel was

[constitutionally ineffective]”). But even reading McFarlin’s ineffectiveassistance claims as relating to the voluntariness of his plea, the state court

also properly applied Strickland v. Washington, 466 U.S. 668 (1984), in

concluding that McFarlin’s trial counsel did not provide constitutionally

ineffective assistance when he made several strategic decisions—i.e.,

declining to challenge the allegedly improper identification, and declining to

move to sever McFarlin’s trial from his co-defendant’s.

1

In addition to simply asserting error on the part of the state court,

McFarlin offers a cursory argument that this Court should clarify the law

surrounding photographic lineups and ineffective-assistance claims

predicated on failure to object to such lineups (and evidence that stems from

them). But McFarlin identifies no ambiguity in need of this Court’s

clarification, and in any event, McFarlin’s meritless state habeas petition

represents a terrible vehicle for any such intervention.

In sum, the state court did not err, and the Georgia Supreme Court’s

summary denial of a certificate of appealability is not worthy of this Court’s

review. This Court should deny the petition.

STATEMENT

A.

Factual Background

In October 2016, Darvell McFarlin was with Stevon Judkins when

McFarlin asked another man, Jamal Adams, for a cigarette. RA 96. 1 When

Adams took too long to give it to him, McFarlin became agitated and the two

men exchanged heated words. Id. McFarlin left and came back around

twenty minutes later with an assault rifle. Id. McFarlin struck Adams in

the head with the rifle, after which the two men struggled for possession of

the gun. Id. The gun discharged, and Adams was shot in the leg, severing

his femoral artery. Id. McFarlin then fired a second shot but missed. Id. As

Adams began to bleed out, McFarlin fled the scene, dropping the rifle.

McFarlin’s friend Stevon Judkins picked up the rifle and the two men left in

a car belonging to Judkins. RA 96.

1 “RA” refers to Respondent’s Appendix.

2

Niki Martin, who knew codefendant Judkins, identified him to law

enforcement as one of the suspects. Id. (citing RA 77). At the plea

proceedings, the prosecutor explained that the evidence at trial would have

shown that three other witnesses (Tamirria Cade, Timarrius Ray, and Isaiah

Saunders) had identified McFarlin in photographic lineups unchallenged by

McFarlin. RA 77. Additionally, “several other witnesses gave other accounts

which were consistent with the[se] witnesses….” RA 77–78, 96.

McFarlin was indicted on charges of malice murder, two counts of felony

murder, two counts of aggravated assault, possession of a firearm during the

commission of a felony, and possession of a firearm by a first offender

probationer. RA 29. Corey Bowles, an experienced defense lawyer,

represented McFarlin, while co-defendant Judkins was represented by

separate counsel. RA 47, 49.

In November of 2017, “while an empaneled jury waited in the back, both

defendants,” who were being tried together, “elected to accept plea offers and

entered negotiated pleas.” RA 95, citing RA 59. During the plea proceedings,

the prosecutor read out the indicted charges. RA 61–63. McFarlin was

informed that the murder charge was being reduced to voluntary

manslaughter, and upon questions by McFarlin about the felony murder

counts, it was clarified that those were vacated. RA 62–63, 66–67. McFarlin

was further informed that he would receive five years to run consecutively for

the possession of a firearm during the commission of a felony and five years

to run concurrently for the possession of a firearm by a first offender

probationer. RA 63, 66. McFarlin agreed that the charges and sentences

were what had been negotiated. RA 63.

3

The trial court explained McFarlin’s rights, which McFarlin twice

acknowledged. RA 63–64, 66–69, 78–80. McFarlin confirmed that he had

enough time to confer with counsel and was allowed to speak to counsel

throughout the plea hearing. RA64, 71, 80. McFarlin informed the trial

court that his attorney, Bowles, had advised him of the sentencing ranges he

was facing in the indictment, the negotiations concerning the charges, and

the sentence ranges for the charges to which he was pleading guilty. RA 65.

McFarlin acknowledged the rights he was waiving by pleading, that he

understood that by pleading he was waiving all defenses, and that his plea

was free and voluntary. RA 66–71, 78-80. McFarlin entered a guilty plea,

received the negotiated sentences, and apologized to the victim’s family. RA

91–92.

B.

Procedural Background

McFarlin filed a state habeas corpus petition in 2021. In his petition,

RA 105, he alleged that a photographic lineup used during the investigation

of the shooting of Adams was impermissibly suggestive and that the

identification of McFarlin as the shooter and any resulting testimony would

have been inadmissible at trial. Id. He also alleged that trial counsel was

ineffective for not pursuing a motion to suppress the identification, not

severing his trial from his co-defendant’s, and counseling him to plead guilty.

Id.

Bowles testified in the habeas proceedings. At the time of his

representation of McFarlin, Bowles had been a practicing attorney focused on

criminal law for 17 years, and had handled “hundreds” of guilty pleas both as

a prosecutor and a criminal defense lawyer. RA 6–7. In preparing

McFarlin’s case, Bowles reviewed all the discovery from the State, which

4

included the police reports, and spoke with prosecutors and McFarlin. RA 8.

Bowles recalled that McFarlin wished to call certain witnesses if the case

went to trial, but Bowles did not believe they were eyewitnesses to the

shooting. RA 9. Bowles and McFarlin discussed potential defenses including

accident and self-defense. RA 9–10.

Bowles testified he considered challenging the photographic lineup

identification, but he “thought that the State was prepared to counteract

that,” RA 10, and that such a motion would not succeed, RA 16. Bowles

testified that co-defendant Judkins, who was represented by separate

counsel, and other witnesses would have identified McFarlin at trial. RA 16.

Bowles also explained that he did not pursue what he thought would be an

unsuccessful motion because he did not want to risk revocation of the State’s

plea offer. RA 10. Bowles testified that he and McFarlin discussed the plea,

including the rights McFarlin would be waiving if he pleaded guilty, and that

the decision to plead was McFarlin’s. RA 12.

The state habeas court denied relief, holding that McFarlin’s valid

guilty plea waived his claims regarding the allegedly improper photographic

lineup. RA 96–97 (citing Shuler v. State, 306 Ga. App. 820 (2010)). 2 The

court also rejected McFarlin’s claim that plea counsel was ineffective, finding

that Bowles made a strategic decision based on the evidence not to file a

motion to suppress that he believed would fail, that McFarlin would be

independently identified as the shooter, and that Bowles was reluctant to

2 McFarlin also mentions in his Questions Presented that counsel was

ineffective in not keeping him informed about his bond. The habeas court

did not address such a claim, but it, too, would have been clearly waived by

the valid guilty plea.

5

endanger the favorable negotiated plea. RA 99. The court applied Hill v.

Lockart, 474 U.S. 52 (1985), and Strickland to conclude that the “evidence

provides that the performance of Bowles is an example of conscious,

deliberate strategy, [and therefore] McFarlin has failed to meet his burden in

proving that Bowles provided ineffective assistance.” RA 99.

As for McFarlin’s claim that counsel was ineffective for not moving to

sever McFarlin’s trial from his co-defendant, the habeas court held that

McFarlin “failed to question Bowles about this issue,” and that “with no

further evidence” offered in support of that allegation, it was “insufficient to

support a claim of ineffective assistance of counsel.” RA 99.

The Supreme Court of Georgia summarily denied McFarlin’s application

for a certificate of probable cause to appeal. Pet. App.

REASONS FOR DENYING THE PETITION

I.

The petition requests fact-bound error correction with no

alleged split of authority.

McFarlin’s petition asks this Court to second-guess a state trial court’s

assessment of the fact-intensive record of his criminal and habeas

proceedings and correct an alleged misapplication of Strickland and related

precedents. And while McFarlin gestures at a need to “clarify” the law, see

Pet. at 2, he identifies no ambiguity in need of clarification—much less a split

of authority on any relevant issue. As such, McFarlin’s petition requests

precisely the type of intervention this Court “rarely grant[s].” S. Ct. R. 10.

This Court should hew to its ordinary practice and deny the petition.

First, McFarlin’s petition is fact-intensive: It asks this Court to review

the record of McFarlin’s criminal investigation and proceeding, as well as the

record in his state habeas proceeding, to identify potential violations of

6

McFarlin’s Sixth Amendment right to counsel. McFarlin discusses details of

the underlying offense, the actions and statements of at least a dozen

witnesses, the procedures used to conduct a photographic lineup, and

communications between McFarlin and trial counsel. See Pet. Statement of

the Case #1–3. Despite this deluge of facts, McFarlin does not even identify

which facts are relevant—a sure sign that his petition seeks across-the-board

relitigation of his state habeas case. But that intensely “factbound” request

“does not meet the standards that guide the exercise of [this Court’s]

certiorari jurisdiction,” and McFarlin does not argue to the contrary. Izumi

Seimitsu Kogyo Kabushiki Kaisha v. U.S. Philips Corp., 510 U.S. 27, 34

(1993) (per curiam); see also NLRB v. Hendricks Cty. Rural Elec. Membership

Corp., 454 U.S. 170, 176 n.8 (1981); Packwood v. Senate Select Comm. on

Ethics, 510 U.S. 1319, 1320–21 (1994) (Rehnquist, C.J., in chambers)

(“Because resolution of applicant’s claim would entail a factbound

determination of the nature and scope of respondent’s investigation, I do not

think his claim raises an issue on which four Members of the Court would

grant certiorari.”); Wearry v. Cain, 577 U.S. 385, 401 (2016) (Alito, J.,

dissenting) (“[W]e generally deny certiorari on factbound questions that do

not implicate any disputed legal issue.”).

Second, McFarlin’s petition appears to assert that the state habeas

court simply misapplied Strickland and this Court’s other ineffectiveassistance precedents—in other words, that the state court “misappli[ed] … a

properly stated rule of law.” S. Ct. R. 10. But this Court “is not, and never

has been, primarily concerned with the correction of errors in lower court

opinions.” Boag v. MacDougall, 454 U.S. 364, 386 (1982) (Rehnquist, J.,

dissenting); see also S. Shapiro, et al., Supreme Court Practice § 5.12(c)(3)

7

(11th ed. 2019) (collecting cases and explaining that “error correction … is

outside the mainstream of the Court’s functions and … not among the

‘compelling reasons’ … that govern the grant of certiorari”).

Finally, McFarlin does not allege any split of authority on a relevant

legal issue. While he gestures at a need to “clarify” the law, see Pet. at 2, he

does not identify the source of any confusion, and none is apparent from his

petition. State courts are perfectly capable of adjudicating run-of-the-mill

due process and ineffective-assistance claims, and McFarlin does not even

assert—much less show—that the non-precedential decision below would

have come out differently in another jurisdiction. Because this Court’s

“certiorari jurisdiction exists to clarify the law,” it should deny this petition.

City & Cty. of San Francisco, Calif. v. Sheehan, 575 U.S. 600, 610 (2015).

II.

The decision below is correct.

A.

McFarlin’s valid guilty plea forecloses his claim regarding

the admissibility of the photographic lineup.

McFarlin asserts in his Question Presented that a witness identified

him as the shooter of Adams based on an improper photographic lineup

consisting of only one photograph. He reasons that the identification and

evidence resulting from that lineup would have been inadmissible against

him at trial. Pet. at 2. Setting aside that McFarlin has never actually

produced any evidence to support this assertion, 3 his knowing and

3 The state habeas court offered McFarlin the opportunity to submit the

pictures of the photographic lineups into evidence, and he failed to provide

them. RA 22–26.

8

voluntary guilty plea foreclosed any collateral attack of his sentence on that

ground.

The law is well-settled that a knowing and voluntary guilty plea

generally waives challenges to all non-jurisdictional constitutional defects

that occurred before the plea. Tollett v. Henderson, 411 U.S. 258, 266

(1973). As the Court explained in Tollett, “a guilty plea represents a break

in the chain of events which has preceded it in the criminal process,” after

which a defendant “may not thereafter raise independent claims relating to

the deprivation of constitutional rights that occurred prior” to the plea.” Put

differently, “a counseled plea of guilty is an admission of factual guilt so

reliable that, where voluntary and intelligent, it quite validly removes the

issue of factual guilt from the case.” Menna v. New York, 423 U.S. 61, 62–63

n.2 (1975). And because factual guilt is, in most cases, a “sufficient basis for

the State’s imposition of punishment,” a guilty plea “simply renders

irrelevant those constitutional violations … which do not stand in the way of

conviction, if factual guilt is validly established.” Id. The upshot of the

Tollett rule is that once a defendant like McFarlin has unconditionally

pleaded guilty, he may attack the resulting conviction only on the ground

that the plea itself was not knowing and voluntary. 4

4 This Court has identified some limited exceptions to the Tollett rule where

the claim at issue “implicates ‘the very power of the State’ to prosecute the

defendant[.]” Class v. United States, 583 U.S. 174, 179 (2018) (quoting

Blackledge v. Perry, 417 U.S. 21, 30 (1973)), including vindictive

prosecution, Blackledge, supra, at 30, double jeopardy, Menna, 423 U.S. at

63, and the constitutional invalidity of the statute on which the conviction is

based, Class, 583 U.S. at 176. None of these exceptions is implicated here.

9

Here, rather than focusing on the voluntariness of his plea, McFarlin

appears to assert multiple freestanding claims that the photo identification

and related testimony were inadmissible at trial. See Pet, Questions

Presented (posing lead question as: “Whether the identification and its

testimony require reversal in a case w[h]ere the identification and its

testimony are inadmissible at trial” or were “the fruit of the poisonous

tree”). But these sorts of claims run headlong into Tollett: Any supposed

irregularities in McFarlin’s photo lineup were “simply … irrelevant” to the

validity of his conviction, which was based entirely on his voluntary and

intelligent admission of guilt. Menna, 423 U.S. at 62–63 n.2; see RA 59–100

(plea colloquy, including express waiver of all defenses). The law is clear

that McFarlin’s undisputedly valid guilty plea precludes him from later

challenging the “constitutional significance” of the lineup procedure on

collateral review. See Tollett, 411 U.S. at 267. The state habeas court

correctly declined to consider McFarlin’s substantive claims about the photo

lineup in light of his guilty plea.

B.

McFarlin’s ineffective-assistance claims are similarly

foreclosed by his guilty plea, but even if they were not, they

would fail on the merits.

McFarlin also appears to assert that his counsel was constitutionally

ineffective in a number of ways, including failing to object to the evidence

from the alleged photographic lineup and not moving to sever McFarlin’s and

his co-defendant Judkin’s trials. But many of these claims fail at the outset

for the same reason as the challenge to the lineup: they were waived by

McFarlin’s valid guilty plea. Apart from the narrow, inapplicable exceptions

discussed above (see n.4, supra), the Tollett rule applies to all constitutional

10

challenges, even ineffective-assistance claims, that are not limited to the

question of whether the plea was knowing and voluntary. See, e.g., United

States v. Glinsey, 209 F.3d 386, 392 (5th Cir. 2000) (explaining that a

voluntary guilty plea “waives all nonjurisdictional defects in the proceedings

against the defendant … includ[ing] claims of ineffective assistance of counsel

except insofar as the ineffectiveness is alleged to have rendered the guilty

plea involuntary”); Wilson v. United States, 962 F.2d 996, 997 (11th Cir.

1982) (rejecting habeas petitioner’s ineffective-assistance claim because it

was “not about his decision to plead guilty”). While difficult to decipher, at

least some of McFarlin’s ineffective-assistance claims appear to be primarily

framed as freestanding constitutional violations. Those claims would be

barred by Tollett in light of McFarlin’s unconditional guilty plea.

But even assuming that some of McFarlin’s ineffectiveness claims relate

to the voluntariness of his plea, see, e.g., Pet. Questions Presented (asserting

that “Petitioner’s rights are being violated due to counsel for Petitioner[’s]

advice to plead guilty under such circumstances”), those claims plainly fail on

the merits.

Strickland places the burden squarely on McFarlin to show both that

“counsel’s performance was deficient” and “that the deficient performance

prejudiced the defense.” 466 U.S. at 687. To establish deficiency, McFarlin

must show that his “counsel’s representation fell below an objective standard

of reasonableness.” Id. at 688. And under Hill v. Lockhart, 474 U.S. 52

(1985), which governs ineffectiveness claims related to guilty pleas, McFarlin

must establish prejudice by demonstrating a “reasonable probability that, but

for counsel’s errors, he would not have pleaded guilty and would have

insisted on going to trial.” Id. at 59. McFarlin cannot come close to

11

establishing either element with respect to either of his identifiable

ineffectiveness claims.

1.

Defense counsel’s strategic decision not to object to a

witness’s photo lineup identification was not

constitutionally suspect.

McFarlin claims that trial counsel was ineffective for failing to challenge

the identification evidence from the alleged photographic lineup. Pet. at 2.

The habeas court rejected this claim, crediting defense counsel’s testimony

that he instead made a strategic decision not to challenge the identification

as he believed the motion would fail and would hinder plea negotiations. RA

99. Nothing in the record even remotely calls the court’s factfinding or legal

conclusion into question.

Strickland itself provides that “strategic choices made after thorough

investigation of law and facts relevant to plausible options are “virtually

unchallengeable.” Id. at 690. Here, defense counsel made just that sort of

strategic decision with respect to the photo lineup. Counsel testified that he

opted not to file a motion to suppress because the State would have a

compelling response to the motion and because he thought suppressing the

evidence would not ultimately help McFarlin because he knew that Judkins

had agreed to testify against McFarlin as part of the former’s plea deal with

the State. RA 99. Because these decisions were part of a “conscious,

deliberate strategy,” id., they cannot be deficient under Strickland.

McFarlin offers very little in the way of counterargument. He focuses

solely on his complaints about photo lineup procedures he claims (without

support) investigators used with Kierra Link, a witness who identified him.

Pet. Statement of the Case #1. According to McFarlin, Link was not an

12

eyewitness, allegedly met with a detective, and gave the detective

information that she had heard about the incident, including that Judkins

and McFarlin were involved. Id. McFarlin alleges that the detective showed

Link one photograph for her to identify McFarlin. Id. McFarlin does not

even state, much less establish, that Link did not personally know him, thus

making any alleged one-person identification of McFarlin a non-starter.

But even assuming, despite the total absence of evidence supporting the

assertion, that Link was shown an improper lineup, that would not move the

needle on deficiency because the broader circumstances made it reasonable

for defense counsel to opt not to challenge the identification. As found by the

state habeas court, Nikki Martin, who knew McFarlin, identified him and codefendant Judkins at the scene immediately prior to the shooting, saying she

saw “one Levelle [McFarlin] with a long gun.” Pet., Statement of Case #1; RA

96. At that point, McFarlin was obviously a known suspect independent of

any photographic lineup. The state habeas court also found, and McFarlin

acknowledges, several other witnesses who did not see the shooting gave the

names of McFarlin and Judkins as suspects. See e.g., Pet. Statement of Case

#2 (Ray), id. at #3 (Saunders). Indeed, witnesses identified McFarlin in

multi-person lineups. Id. at #2 (Ray; “photo in the #5 position”); id. at #3,

Saunders; “a 6 man lineup”). And, significantly, as noted by plea counsel,

codefendant Judkins intended to testify against McFarlin at trial and identify

him as the shooter. RA 99. In light of this alternative evidence, defense

counsel made a valid strategic decision not to move to suppress evidence

related to Link’s alleged photo lineup. The state habeas court thus correctly

held that McFarlin had not met his burden of demonstrating deficient

performance in connection with the identification issue. RA 99.

13

Nor, for that matter, has McFarlin demonstrated that defense counsel’s

decision not to move to suppress the photo identification evidence prejudiced

him under Hill. McFarlin does not appear to make any argument on this

front, nor is it clear what argument he could make. As discussed above,

suppressing Link’s identification would have made no difference when

McFarlin’s own codefendant, along with several other witnesses, were

prepared to identify him as one of the perpetrators of the crime. McFarlin

simply has not shown that the suppression of Link’s identification would

have reasonably changed his decision to plead guilty. His identificationbased ineffectiveness claim thus necessarily fails.

2.

Defense counsel was not ineffective for declining to

sever McFarlin’s trial from his co-defendant’s.

McFarlin also alleges the state habeas court erred in failing to find trial

counsel ineffective for not moving to sever his trial from that of McFarlin’s codefendant. Pet. at 4. The habeas court correctly found that because

McFarlin presented no evidence on this claim, he failed to establish

deficiency or prejudice. RA 99.

McFarlin has not argued, much less established, that his and his codefendant’s defenses were antagonistic. They were represented by separate

counsel. And, regardless of whether the trials were severed, part of Judkins’

plea agreement was that he would testify against McFarlin at trial. “[I]t is

well settled that defendants are not entitled to severance merely because

they may have a better chance of acquittal in separate trials.” Zafiro v.

United States, 506 U.S. 534, 540 (1993). “A defendant normally would not be

entitled to exclude the testimony of a former co-defendant if the district court

did sever their trials, and we see no reason why relevant and competent

14

testimony would be prejudicial merely because the witness is also a codefendant.” Id.

To show deficiency under these circumstances, McFarlin “must

overcome the presumption that, under the circumstances, the challenged

action ‘might be considered sound trial strategy.’” Id. at 689 (quoting [cite]).

He has not even attempted to do so. As the state habeas court noted,

McFarlin “failed to question [defense counsel] about this issue,” leaving only

his bare allegation that failure to file a severance motion was constitutionally

ineffective. RA 99. Because McFarlin presented no evidence that counsel

was deficient, or that he would have made a different plea decision if counsel

had moved to sever his trial from his co-defendant, his ineffective-assistance

claim on this ground is meritless.

CONCLUSION

For the reasons set out above, this Court should deny the petition.

Respectfully submitted,

/s/ Beth Burton

Christopher M. Carr

Attorney General

Beth Burton

Deputy Attorney General

Counsel of Record

Office of the Georgia

Attorney General

40 Capitol Square, SW

Atlanta, Georgia 30334

(404) 458-3570

bburton@law.ga.gov

Counsel for Respondent

15

CERTIFICATE OF SERVICE

I hereby certify that on February 4, 2025, I served this brief on all

parties required to be served by mailing a copy of the brief to be delivered via

United States mail, addressed as follows:

Darvel McFarlin

GDC ID: 1000434699

Telfair State Prison

P.O. Box 49

Helena, Geogia 31037

/s/ Beth Burton

Counsel for Respondent