KELLY v. STATE (2026)

Appellant Khalil Kelly was convicted of malice murder and other crimes in relation to the shooting death of Deirdre Smith.¹ In his sole enumeration of error on appeal, Kelly argues that the 10-year appellate delay in his case violated his right to due process, warranting a new trial. For the reasons that follow, we affirm.

1. Kelly – along with his co-defendant, Blackwell – was indicted in December 2013. He was tried in January 2015, and sentenced in February 2015. Through trial counsel, Kelly filed a timely motion for new trial that same month. Kelly's first post-conviction counsel, Raina Nadler, filed an entry of appearance in March 2015, but she made no other filings in the case.

In December 2015, Kelly was appointed new counsel, Amanda Speights, who filed her entry of appearance in January 2016. In June 2017 and September 2017, Speights prepared two rule nisi orders, which were entered by the trial court, setting Kelly's motion for new trial hearing for September 2017 and October 2017, respectively. In September 2017, Speights also prepared a production order, which was entered by the trial court, instructing that Kelly be produced at a hearing in October 2017. Nothing in the record indicates that a hearing was held or that any substantive proceedings took place until 2025.

In January 2022, Speights filed a notice of leave of absence for the upcoming year, but she made no additional filings in the case. In January 2025, a notice of substitution of counsel was filed, substituting James Luttrell for Speights, but the record reflects no other filings from him. Later that month, Hunter Rodgers was appointed as Kelly's new counsel, and he has handled Kelly's case since January 2025.

The trial court held a status hearing in April 2025, and it then entered a scheduling order for Kelly's motion for new trial. Rodgers filed amended motions for new trial in June and July 2025. In his second amended motion for new trial, Kelly asked the court for a new trial because

the inexcusable delay in post-conviction proceedings violated his due process right to appeal. See Chat-man v. Mancill, 280 Ga. 253, 626 S.E.2d 102 (2006). Further, that Mr. Kelly's motion for new trial has remained pending since his conviction while his co-defendant's case was litigated and affirmed in 2018, see Blackwell v. State, 302 Ga. 820, 809 S.E.2d 727 (2018), deprived Mr. Kelly of the equal protection of the laws. See Griffin v. Illinois, 351 U.S. 12, 18, 76 S.Ct. 585, 100 L.Ed. 891 (1956).

Kelly's motion for new trial hearing was held on July 11, 2025. At that hearing, trial counsel testified that, after Kelly's conviction in 2015, he contacted the circuit defender's office and advised them about the pending motion for new trial that he filed on Kelly's behalf. He also testified that he followed up on Kelly's case sometime before the COVID-19 pandemic, found out that Kelly's motion for new trial had never been ruled on, and alerted the circuit defender's office that the motion was still pending. Trial counsel explained that Rodgers was the first post-conviction lawyer to contact him about Kelly's case. Trial counsel also stated that, at the time of the hearing, he no longer had Kelly's trial file because the ten years that had passed since the case was tried exceeded his retention policy.

In closing statements at the motion for new trial hearing, the State addressed the post-conviction delay in Kelly's case. Specifically, the State posited that the court should analyze the delay under the four Barker ² factors – “the length of delay; the reason for the delay; the defendant's assertion of his right to a speedy appeal; and the resulting prejudice to the defendant” – and then provided its position on each factor. With respect to the prejudice factor, the State argued that “in determining whether an appellate delay violates due process prejudice, unlike in a speedy trial context, [prejudice is] not presumed. It must be shown.” The State submitted that Kelly had not “alleged any prejudice nor ․ shown any prejudice, due to this delay” and asked the court to find that “the post-conviction delay does not warrant granting [Kelly] a [new] trial.”

In response, Rodgers agreed that the State's legal analysis was correct but that he was “making a good faith[ ]argument to try and attack some of the required prejudice aspect of this.” He also noted that Kelly's co-defendant, Blackwell – who was “tried at the same time [and] convicted at the same time” as Kelly – “had his case litigated, appealed and affirmed in 2018[.]”See Blackwell v. State, 302 Ga. 820, 809 S.E.2d 727 (2018).

The trial court orally denied Kelly's motion for new trial at the hearing and then entered a written order to that effect. In its order, the trial court first noted that “ ‘[s]peedy appeal’ claims are analyzed using the same four factors outlined in Barker,” and then considered those factors. The trial judge ultimately determined that Kelly had “neither alleged nor demonstrated prejudice resulting from the delay in his post-conviction proceedings.” The court found this to be “the most significant factor ․ because there is nothing before the [c]ourt beyond speculation to show how an earlier hearing would have changed the result.” Accordingly, the court concluded that Kelly's “claim that his [d]ue [p]rocess rights have been violated by the delay in his post-conviction proceedings ‘must be rejected on the basis that no prejudice has been shown’ ” and declined to grant Kelly a new trial.

Kelly timely filed his notice of appeal in August 2025, and his case was docketed in this Court on February 17, 2026.

2. Kelly argues that the ten-year appellate delay in his case violated his right to due process. Specifically, Kelly contends that he was prejudiced by the post-conviction delay because, when he was able to finally pursue an appeal, his trial counsel no longer possessed his trial file, rendering him unable to “litigate what strategic decisions trial counsel made” or “meaningfully engage with trial counsel.” While we strongly disapprove of the delay in resolving Kelly's motion for new trial and have been shown no reasonable excuse for it, Kelly has failed to show that he has suffered actual prejudice from this delay, as required by Chatman v. Mancill, 280 Ga. 253, 626 S.E.2d 102 (2006), and its progeny. Accordingly, Kelly has not shown that his due process rights were violated, and we affirm the trial court's denial of his motion for new trial.

“In evaluating a trial court's decision to deny a speedy appeal claim, we must accept the factual findings of the trial court unless they are clearly erroneous, and we must accept the ultimate conclusion of the trial court unless it amounts to an abuse of discretion.” Hyden v. State, 308 Ga. 218, 224, 839 S.E.2d 506 (2020) (cleaned up).

As mentioned above, the Supreme Court of the United States has explained that, when determining whether a particular defendant has been deprived of his right to a speedy trial, courts should analyze the “[l]ength of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant.” Barker, 407 U.S. at 530, 92 S.Ct. 2182. And later in Chatman, this Court adopted the four Barker factors and modified them for analyzing due process claims in the context of a post-conviction delay. 280 Ga. at 256–57, 626 S.E.2d 102 (“[T]he analytical framework created by the Barker factors provides a familiar, thorough and practical means of assessing the fairness and prejudice issues that arise in cases involving the delayed resolution of direct appeals from judgments entered on criminal convictions[.]”). At issue here is the fourth Barker factor – prejudice to the defendant – and, with respect to that factor, we have held that

the prejudice necessary to establish a due process violation based on post-conviction direct appeal delay is prejudice to the ability of the defendant to assert his arguments on appeal and, should it be established that the appeal was prejudiced, whether the delay prejudiced the defendant's defenses in the event of retrial or resentencing.

Chatman, 280 Ga. at 260, 626 S.E.2d 102. In other words, “appellate delay is prejudicial when there is a reasonable probability that, but for the delay, the result of the appeal would have been different.” Id. at 260–61, 626 S.E.2d 102 (citation omitted). We have also explained that, “[i]n the context of appellate delay, prejudice, unlike in the speedy trial context, is not presumed but must be shown.” Terrell v. State, 313 Ga. 120, 123, 868 S.E.2d 764 (2022) (cleaned up). And “in a speedy appeal claim ․ the failure to show actual prejudice from the delay is fatal to the claim[.]” Harper v. State, 318 Ga. 185, 188, 897 S.E.2d 818 (2024) (cleaned up).

To demonstrate actual prejudice, an appellant must offer “specific evidence” to prove that “the delay has prejudiced his appeal or that the result of the appeal would have been different but for the delay.” Loadholt v. State, 286 Ga. 402, 406, 687 S.E.2d 824 (2010). And “generalized speculation about the delay's effect on witness memories and evidence is not the kind of ‘specific evidence’ required to show prejudice in the appellate-delay context.” Payne v. State, 289 Ga. 691, 695, 715 S.E.2d 104 (2011). See also Veal v. State, 301 Ga. 161, 168, 800 S.E.2d 325 (2017) (same).

As much as we disapprove of the long delay in this case, there is simply no evidence that the trial court abused its discretion by rejecting Kelly's claim that his due process rights were violated by the appellate delay. Kelly provided no evidence in his motions for new trial or in the subsequent hearing to suggest that the outcome of his motion would have been different but for the delay, and there is nothing in the record supporting any suggestion that the outcome of Kelly's appeal was actually prejudiced by the delay. Though he established the loss of his trial file through his trial counsel's testimony, he provided no substantive argument – such as what might have been in the file – to indicate how an earlier motion for new trial hearing or an earlier appeal would have led to a different result. The record, therefore, supports the trial court's conclusion that Kelly “neither alleged nor demonstrated prejudice resulting from the delay in his post-conviction proceeding” and that “there [wa]s nothing before the [c]ourt beyond speculation to show how an earlier hearing would have changed the result.” See Hyden, 308 Ga. at 226, 839 S.E.2d 506 (speculation not sufficient to show prejudice); Lord v. State, 304 Ga. 532, 542, 820 S.E.2d 16 (2018) (concluding that appellant “wholly failed to make any showing that he was prejudiced by the delay” where he made “only a bare assertion that the delay resulted in loss of recollection, evidence, witnesses, testimony etc. and that the prejudicial effect is obvious” (cleaned up)); De La Cruz v. State, 303 Ga. 24, 31, 810 S.E.2d 84 (2018) (concluding that the delay in resolving appellant's motion for new trial did not violate his right to due process where the record supported the court's finding that appellant “failed to adduce any evidence to show actual prejudice to [a]ppellant's ability to assert his arguments on appeal” (cleaned up)); Hargrove v. State, 291 Ga. 879, 886–87, 734 S.E.2d 34 (2012) (deeming unpersuasive appellant's argument that “his counsels’ limited recollections as to why certain decisions were made at trial establishes prejudice” because “the transcript [wa]s not so inadequate or incomplete as to prevent a thorough judicial review of the proceedings on appeal”); Loadholt, 286 Ga. at 406, 687 S.E.2d 824 (where appellant's “only claim of prejudice [wa]s the bare assertion that by the passage of time counsel and witnesses’ memories as to the events of the crimes are less clear,” he “failed to offer the specific evidence required to show that the delay has prejudiced his appeal or that the result of the appeal would have been different but for the delay” (cleaned up)).

3. Kelly also contends that the Court should recognize that its “actual prejudice” standard – requiring appellants to show that “there is a reasonable probability that, but for the delay, the result of the appeal would have been different” – as laid out in Chatman, 280 Ga. at 260–61, 626 S.E.2d 102, is “impossible” and has rendered the Barker analysis “moribund.” As an initial matter, it is not clear whether Kelly is asking us to overrule Chatman and its progeny or simply complaining about the difficulty of meeting his burden under that standard. But even assuming that he is asking us to overrule this precedent, Kelly has not even begun to make the showing required to overcome stare decisis, which preserves our precedent in all but the rarest of cases. See Wasserman v. Franklin Cnty., 320 Ga. 624, 645–47, 911 S.E.2d 583 (2025) (explaining the “strong default rule” of stare decisis and describing the “rare” cases in which the Court might consider overruling a past decision). Thus, we decline his invitation here. See Profet v. State, 322 Ga. 731, 738 n.3, 922 S.E.2d 33 (2025) (declining to engage in a stare decisis analysis to determine whether this Court's precedent should be overruled where appellant failed to do so).

Judgment affirmed.

FOOTNOTES

1.   The crimes occurred on September 16, 2013. On December 12, 2013, a Cobb County grand jury indicted Kelly and his co-defendant, Samuel Blackwell, charging them both with malice murder (Count 1), felony murder (Count 2), aggravated assault (Counts 6, 10, and 11), cruelty to children in the first degree (Counts 12 and 13), and possession of a firearm during the commission of a felony (Count 14). Kelly was also separately charged with felony murder (Count 4), aggravated assault (Counts 8 and 9), and possession of a handgun by a minor (Count 15). Blackwell was separately charged with felony murder (Counts 3 and 5) and aggravated assault (Count 7).After a joint trial from January 26 to 30, 2015, a jury found Kelly and Blackwell guilty of all counts with which they were each charged. On February 4, 2015, the trial court sentenced Kelly to serve life in prison for Count 1, 20 years to serve in prison for Count 8 (consecutive to Count 1), 20 years to serve in prison for Count 10 (consecutive to Counts 1 and 8), 20 years to serve in prison for Count 11 (consecutive to Counts 1 and 10), two terms of 20 years to serve on probation for Counts 12 and 13 (each consecutive to Count 1), five years to serve in prison for Count 14 (consecutive to Counts 1 and 11), and 12 months to serve in prison for Count 15 (consecutive to Counts 1 and 14). Counts 2 and 4 were vacated by operation of law, and Counts 6 and 9 merged into Count 1 for sentencing purposes.Kelly filed a timely motion for new trial on February 11, 2015, which was twice amended through new counsel on June 5, 2025, and July 2, 2025. Following a hearing on July 11, 2025, the trial court denied the motion for new trial, as amended, on July 23, 2025. Kelly timely filed a notice of appeal on August 20, 2025. This case was docketed to the April 2026 term of this Court and submitted for a decision on the briefs.

2.   Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). See also Chatman v. Mancill, 280 Ga. 253, 626 S.E.2d 102 (2006) (determining that the Barker factors are the appropriate analytical framework for the appellate delay context).

Land, Justice.

All the Justices concur, except Warren, P.J., not participating.