concurring in part and dissenting in part.
In Case No. S97A1354, I concur in Division 3 of the majority opinion and in the remand for the habeas court’s application of the correct legal standard of cause and prejudice to Todd’s claim under Brooks v. State, 259 Ga. 562 (385 SE2d 81) (1989). As to Divisions 1 and 2, I agree with the majority that the habeas corpus court also applied the incorrect legal standard in its consideration of the issue of bailiff or juror misconduct, but I cannot agree that it is necessary to remand on that issue. In my opinion, the judgment of the habeas court simply should be reversed as to that issue. In Case No. S97X1396, I concur fully in Divisions 4 and 8, wherein the majority finds no merit in certain of Todd’s enumerations of error. As to Divisions 6 and 7, I concur in part and dissent in part. I dissent to the entirety of Divisions 5 and 9.
Case No. S97A1354
Todd contended that he was entitled to habeas relief because, during the deliberations on sentencing, the jury improperly questioned the bailiff concerning the meaning of a life sentence and the possibility of parole. This alleged improper questioning was not raised in Todd’s direct appeal and was, therefore, procedurally defaulted “absent a showing of cause for noncompliance . . . and of actual prejudice. . . .” OCGA § 9-14-48 (d). See also Black v. Hardin, 255 Ga. 239, 240 (4) (336 SE2d 754) (1985). The habeas court found that Todd made a sufficient showing under OCGA § 9-14-48 (d) and, *836thus, that he proved a meritorious ground for reversing the death sentence.
In finding that Todd had met his burden of showing the “actual prejudice” component, the habeas court relied upon Battle v. State, 234 Ga. 637 (217 SE2d 255) (1975). Battle. does hold that, when improper communications occur between a bailiff and jurors, a presumption of prejudice arises which the State must rebut. As the majority correctly holds, however, Battle applies on direct appeal, not in habeas corpus proceedings. “The writ of habeas corpus is not to be used as a means of obtaining a second appeal. [Cit.]” Brown v. Ricketts, 233 Ga. 809, 811 (1) (213 SE2d 672) (1975). Todd’s habeas corpus action is governed by OCGA § 9-14-40 et seq. OCGA § 9-14-48 (d) places the burden on Todd to show both “cause” and “actual prejudice.” Black v. Hardin, supra. To demonstrate “actual prejudice,” the petitioner must show,
not merely that the errors at his trial created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.
(Emphasis in original.) United States v. Frady, 456 U. S. 152, 170 (IV) (102 SC 1584, 71 LE2d 816) (1982). It follows that the majority correctly holds that the habeas court erred in concluding that Todd met his burden of proving “actual prejudice” by relying upon the “presumed prejudice” rationale of Battle. See Francis v. Henderson, 425 U. S. 536, 542, fn. 6 (96 SC 1708, 48 LE2d 149) (1976).
In Valenzuela v. Newsome, 253 Ga. 793 (325 SE2d 370) (1985), we remanded where, as here, the habeas court applied the incorrect standard in addressing a procedurally barred claim. However, here, unlike in Valenzuela, a review of the record shows that the sole evidentiary support for the alleged bailiff or juror misconduct consists of affidavits given by four jurors. “The affidavits of jurors may be taken to sustain but not to impeach their verdict.” OCGA § 17-9-41. This rule applies in death penalty cases. Spencer v. State, 260 Ga. 640, 643 (3) (398 SE2d 179) (1990); Hall v. State, 259 Ga. 412, 414 (3) (383 SE2d 128) (1989). “The rule is deeply rooted in Georgia law and promotes important public policy considerations.” Oliver v. State, 265 Ga. 653, 654 (3) (461 SE2d 222) (1995). See also Spencer v. State, supra at 643 (3). Thus, in addition to applying the incorrect standard to Todd’s claim, the habeas court also considered evidence which is inadmissible under OCGA § 17-9-41.
There are constitutional limitations to the application of OCGA § 17-9-41, as where members of the jury intentionally gather extrajudicial and prejudicial evidence and communicate such information to *837the other jurors. Watkins v. State, 237 Ga. 678, 685 (229 SE2d 465) (1976). Compare Oliver v. State, supra at 654 (3); Spencer v. State, supra at 643-644 (3). However, the prohibition against a jury’s consideration of parole in reaching its verdict is based on Georgia statutory and case law, and not on federal or state constitutional law. OCGA § 17-8-76 (a); McGruder v. State, 213 Ga. 259, 266-267 (7) (98 SE2d 564) (1957); Dobbs v. Zant, 963 F2d 1403, 1411 (VI) (11th Cir. 1991), rev’d and remanded on other grounds, 506 U. S. 357 (113 SC 835, 122 LE2d 103) (1993); Tucker v. Zant, 724 F2d 882, 892 (II) (11th Cir. 1984), vacated on other grounds, 474 U. S. 1001 (106 SC 517, 88 LE2d 452) (1985). Indeed, the defendant has no federal constitutional right “to prevent the jury, during the sentencing phase of a capital trial, from considering the possibility of parole if sentenced to life imprisonment.” Ingram v. Zant, 26 F3d 1047, 1052 (11th Cir. 1994); Dobbs v. Zant, supra; Tucker v. Zant, supra. Thus, those portions of the jurors’ affidavits which show the jury’s discussion or consideration of parole cannot be used to impeach the verdict in this case. Hall v. State, supra at 414-415 (3). Likewise, any portions of the jurors’ affidavits which tend “to show that the deputy sheriff or the bailiff had improper communications with the jury could not be considered by the judge. . . .” Tolbirt v. State, 124 Ga. 767, 770 (1) (53 SE 327) (1906). See also King v. State, 92 Ga. App. 616, 619-620 (89 SE2d 585) (1955). Compare Battle v. State, supra (bailiff’s testimony). Moreover, the jurors’ affidavits raise, at the most, an inference that the bailiff answered a question about parole. “To allow such inference would be to allow the jurors to do by indirection that which they could not do directly, namely, impeach their verdict.” Morakes v. State, 201 Ga. 425, 434 (4) (40 SE2d 120) (1946).
The majority holds that OCGA § 17-9-41 is inapplicable because “fair trial concerns are implicated” by the jurors’ affidavits. However, the majority concedes that the affidavits would be inadmissible to show that “the jurors had discussed among themselves the issue of the defendant’s eligibility for parole. . . .” Thus, the majority apparently concludes that a constitutional violation occurs and OCGA § 17-9-41 is rendered inapplicable, simply because the bailiff is alleged to have had some part in discussions which Todd had no constitutional right to prevent. There are important public policy considerations which underlie OCGA § 17-9-41, including the necessity of keeping inviolate the sanctity of juror deliberations, the desirability of promoting the finality of jury verdicts and the protection of jurors from post-trial harassment. Watkins v. State, supra at 684. The majority cites no authority which supports a wholesale abandonment of these public policy considerations where, as here, the jurors’ affidavits do not show a violation of the defendant’s constitutional rights. Parker v. Gladden, 385 U. S. 363 (87 SC 468, 17 LE2d 420) (1966), which was *838cited in Watkins, supra at 684, did not involve the question of the admissibility of juror’s affidavits and, in any event, the statement attributed to the bailiff in Parker related to a prejudicial extrajudicial expression of opinion as to the guilt of the defendant rather than an alleged statement of the legal effect of a life sentence. Lockridge v. State, 260 Ga. 528 (397 SE2d 695) (1990) is distinguishable for that same reason. In Morris v. State, 257 Ga. 781, 784 (4) (364 SE2d 571) (1988), the State conceded the existence of communications between the bailiff and jurors, and the applicability of OCGA § 17-9-41 was not considered. Lamons v. State, 255 Ga. 511 (340 SE2d 183) (1986) and Battle v. State, supra, are totally inapplicable, since they do not involve a juror’s post-verdict attempt to impeach the verdict. The holding in Watkins, supra, is based upon misconduct of the jurors themselves, who violated the defendant’s Sixth Amendment rights by intentionally gathering prejudicial extrajudicial evidence as to his guilt. Under the majority’s holding, OCGA § 17-9-41 is meaningless so long as a juror’s post-verdict affidavit implies any oral communication on the part of a bailiff.
Even if consideration of the jurors’ affidavits was not otherwise precluded by OCGA § 17-9-41, those affidavits still would not authorize the grant of habeas relief unless they demonstrated a “substantial denial” of Todd’s constitutional rights. OCGA § 9-14-42 (a). As previously noted, however, the preclusion upon a sentencing jury’s consideration of the issue of parole eligibility is based upon Georgia statutory and case law, and does not arise from any right of the accused under the state or federal constitution. Thus, even if the jurors’ affidavits were not otherwise inadmissible, they still would be irrelevant and insufficient to authorize the grant of habeas relief. See Green v. Dunn, 257 Ga. 66 (355 SE2d 61) (1987); Parker v. Abernathy, 253 Ga. 673 (324 SE2d 191) (1985).
There is no contention that, in the habeas proceeding, the court denied Todd the opportunity to produce admissible and relevant evidence which would demonstrate the occurrence of juror or bailiff misconduct which was so egregious as to violate his constitutional right of due process. Because Todd supported his allegation of bailiff or juror misconduct solely by the inadmissible and irrelevant jurors’ affidavits, the habeas court committed reversible error by relying upon that alleged misconduct as a basis for requiring the imposition of a life sentence or a new sentencing trial. See Jordan v. Fowler, 104 Ga. App. 824 (1) (123 SE2d 334) (1961). A remand on this issue would serve no useful purpose because Todd has offered no probative evidence of bailiff or juror misconduct to which the habeas court could apply the correct legal standard. Compare Valenzuela v. Newsome, supra. Therefore, I would reverse the habeas court as to this issue and I respectfully dissent to the majority’s remand.
*839 Case No. S97X1396
On his motion for new trial, Todd was not represented by his trial counsel, but by newly appointed appellate counsel. The habeas court ruled that the effectiveness of this appellate counsel had been addressed in the direct appeal and could not be relitigated. In Division 5 (a), the majority holds that this ruling of the habeas court is erroneous. However, in Todd v. State, 261 Ga. 766, 773 (13) (410 SE2d 725) (1991), we refused to remand the case
to the trial court for further hearing on the issue of the effectiveness of post-conviction counsel. The trial court gave the defendant an opportunity to voice his complaints about his post-conviction counsel and the trial court, after hearing from the defendant and hearing from his counsel about the latter’s qualifications, experience, and preparation in this case, found that counsel was competent and was representing the defendant well. [Cit.] The trial court’s investigation was sufficient. A criminal defendant is not entitled to the appointment of another attorney as a matter of right whenever he expresses his dissatisfaction with his present attorney. [Cit.]
Thus, it is clear that the issue of the effectiveness of the appellate counsel who was appointed to represent Todd on his motion for new trial was addressed and resolved on the merits. If an allegation of alleged ineffectiveness had any arguable merit, this Court would not have declined to remand, but would have ordered that that issue be addressed in the trial court by new counsel. See generally Kennebrew v. State, 267 Ga. 400, 401 (2) (480 SE2d 1) (1996). Instead, this Court considered the allegations of ineffectiveness raised by Todd in the trial court and concluded that no “further hearing” on that issue was necessary. Resolution of the issue of the effectiveness of appellate counsel in Todd may or may not comport with the subsequent procedure endorsed in Johnson v. State, 266 Ga. 775, 778 (9) (470 SE2d 637) (1996) (effectiveness of trial, not appellate, counsel). However, it is immaterial whether the procedure used in Todd to resolve the effectiveness issue remains viable, so long as that issue was, in fact, resolved therein. Because the effectiveness issue was raised and resolved in Todd’s direct appeal, the allegations of ineffectiveness cannot be relitigated in a subsequent habeas proceeding. See Roulain v. Martin, 266 Ga. 353 (1) (466 SE2d 837) (1996). Any allegation of the ineffectiveness of the appellate counsel appointed to represent Todd on motion for new trial which was not raised in Todd, but which was raised for the first time in this habeas proceeding, has been pro*840cedurally defaulted. Thus, the habeas court correctly held that the alleged ineffectiveness of appellate counsel appointed to represent Todd on his motion for new trial was not a viable ground for habeas relief.
On his direct appeal to this Court, Todd was represented by yet another appointed counsel. Several of Todd’s contentions relate to the alleged ineffectiveness of this appellate counsel. Among Todd’s assertions is that the ineffectiveness of his appellate counsel is relevant to the “cause” component of OCGA § 9-14-48 (d). According to Todd, the “cause” for the failure to raise certain issues on the direct appeal was the ineffectiveness of his appellate counsel. In Divisions 2 (a), 7 and 9, the majority concludes that ineffectiveness of appellate counsel can constitute “cause” under OCGA § 9-14-48 (d). I cannot agree with that conclusion. It is true that, for purposes of federal habeas, ineffectiveness of counsel can constitute “cause” for a procedural default. Murray v. Carrier, 477 U. S. 478, 488 (II) (106 SC 2639, 91 LE2d 397) (1986). However, a claim of ineffectiveness of counsel generally must “be presented to the state courts as an independent claim before it may be used to establish cause for a procedural default” in a federal habeas proceeding. (Emphasis supplied.) Murray v. Carrier, supra at 489 (II). In a state habeas proceeding pursuant to OCGA § 9-14-40 et seq., the reverse applies. Therein, the alleged ineffectiveness of counsel may be an independent claim for habeas relief, but cannot satisfy the “cause” component of OCGA § 9-14-48 (d).
To hold otherwise would in effect render the “cause” requirement a nullity. Lumpkin v. Ricketts, 551 F2d 680 (5th Cir. 1977), cert. den., 434 U. S. 957 (1977). In the absence of the “cause” requirement, the wise . . . counsel might always bypass a . . . challenge to preserve an issue for appeal on habeas corpus in the event of conviction. [Cit.]
Zant v. Gaddis, 247 Ga. 717, 719 (3) (279 SE2d 219) (1981). Thus, Todd’s contention that the alleged ineffectiveness of his appellate counsel is sufficient “cause” for the procedural default of the issues which were not raised in the direct appeal
must be rejected . . . for, if accepted, it would effectively eliminate any requirement of showing cause at all. If a petitioner could not demonstrate any legitimate cause, he would only have to raise the spectre of ineffective assistance of counsel to get his challenge heard. This we refuse to sanction.
Lumpkin v. Ricketts, supra at 683. Thus, the habeas court did not err in failing to consider the alleged ineffectiveness of Todd’s appellate *841counsel as “cause” for addressing the merits of any issue which was not raised in the direct appeal.
In my opinion, the alleged ineffectiveness of Todd’s appellate counsel is relevant only insofar as it is asserted as an independent claim for habeas relief. Zant v. Gaddis, supra at 719 (3). Obviously, this claim was not procedurally defaulted, since it could not be raised by Todd prior to this habeas proceeding. White v. Kelso, 261 Ga. 32 (401 SE2d 733) (1991). Accordingly, the alleged ineffectiveness of Todd’s appellate counsel must be considered on the merits. In Division 5 (b), the majority concludes that the habeas court did not consider the merits of whether appellate counsel was ineffective for failing to raise the Brooks issue on Todd’s direct appeal, and orders a remand for a reconsideration of that issue. It appears, however, that the habeas court did consider the alleged ineffectiveness of Todd’s appellate counsel and found that this claim had not been proven. Unlike the majority, I find nothing to indicate that, in so finding, the habeas court did not consider any and all allegations of ineffectiveness, including the failure of appellate counsel to raise the Brooks issue on direct appeal. Todd does not assert that the habeas court failed to consider the Brooks issue in addressing the alleged ineffectiveness of appellate counsel, but contends only that the habeas court erred in finding that appellate counsel was not ineffective for failing to raise that issue on appeal. However, the mere failure of appellate counsel to have raised that issue on appeal does not demand a finding of ineffectiveness. The constitutional guarantee of counsel does not mean errorless counsel or counsel judged ineffective by hindsight, but counsel who is reasonably likely to render and who does render reasonably effective assistance. McGill v. State, 263 Ga. 81, 82 (2) (428 SE2d 341) (1993). Having reviewed the record, I cannot say that the habeas court erred in finding that Todd failed to meet his burden of proving the ineffectiveness of his appellate counsel.
Division 7 of the majority opinion holds that the habeas court erred in finding that a number of Todd’s claims had been addressed and resolved in the direct appeal and that those claims must be remanded for further consideration by the habeas court. I agree with this resolution as to all but the following three claims: the claim of a Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69) (1986) violation in jury selection; the claim that Todd was improperly excluded from bench conferences; and, the claim that the Unified Appeal is unconstitutional. Although the habeas court erred in finding that these claims had been addressed and resolved in Todd, the habeas court also found that these three claims were procedurally defaulted and “fail to raise grounds upon which relief can be granted.” Thus, notwithstanding the erroneous finding that the claims had been resolved in Todd, the habeas court’s order contains *842an alternative finding that the claims authorized no relief under OCGA § 9-14-48 (d). There is nothing to show that, contrary to the habeas court’s finding, the three claims were not procedurally defaulted and do raise grounds which would require habeas relief. As previously discussed, the alleged ineffectiveness of counsel is not sufficient to show the “cause” necessary to excuse a procedural default. A judgment that is right for any reason must be affirmed, even in a capital case. See Zant v. Stephens, 250 Ga. 97, 98 (1) (297 SE2d 1) (1982). Accordingly, it is my opinion that the habeas court’s correct alternative finding that the three claims afford no relief under OCGA § 9-14-48 (d) controls, and I dissent to the majority’s holding that the erroneous finding that these claims were resolved in Todd mandates a remand for further proceedings.
Decided December 5, 1997 — Reconsideration denied December 19, 1997. J. Gray Conger, District Attorney, Chattahoochee Circuit, Thurbert E. Baker, Attorney General, Susan V. Boleyn, Senior Assistant Attorney General, Paige R. Whitaker, Assistant Attorney General, Sell & Melton, Robert D. McCullers, for appellant. Stephen C. Bayliss, for appellee.I am authorized to state that Justice Thompson and Justice Hines join in this opinion.