Baldwin County Superior Court Judge Hulane George ruled last month that McNeil did not receive effective counsel in his 2006 trial. McNeil was convicted and sentenced to life in prison.
The appeal will send the murder case back to the Georgia Supreme Court.
State Attorney General Sam Olens said McNeil’s defense was adequate.
“After a careful review of the habeas court’s order and the entire trial transcript, this office has determined that an appeal of Mr. McNeil’s case is both warranted and appropriate,” Olens’ office wrote in a Wednesday news release.
The notice of appeal was filed yesterday in Baldwin County Superior Court.
“I sent (Olens) a memo asking him to appeal, and I volunteered to lend some of my appellate staff if needed,” Head said. “I do appreciate that.”
Now that the appeal has been filed, it will be up to the Georgia Supreme Court to determine whether McNeil received an adequate defense and a fair trial in 2006.
Defense attorneys argued in the petition for habeas that McNeil’s former attorney Tony Axam represented him poorly and that the jury’s verdict could have been different if the attorney acted adequately, the state office’s release states.
“It’s not uncommon for a habeas to be granted,” Head said. “The issue is whether certain constitutional rights were not protected. The judge here said (McNeil had) ineffective counsel and he’s entitled to another trial.”
George did not dismiss the case but set aside the conviction, Head said, adding that if the Supreme Court upholds the ruling, the case would come back Cobb for a new trial.
“If they reverse, then his conviction stands and his only appeals would be in federal system,” Head said.
Atlanta attorney Mark Yuracheck filed the petition on behalf of McNeil in January.
“We are obviously disappointed that the Attorney General has decided to appeal this case,” he said Wednesday in an email. “That said, we have a great deal of faith that the Supreme Court will agree with Judge George and affirm her decision.”
Yurachek previously said he filed the habeas corpus petition in Baldwin County because McNeil was being held there at the time. His client was moved to Macon State Prison in Oglethorpe on Aug. 27.
McNeil, 46, was convicted of felony murder and aggravated assault in November 2006 after shooting Brian Epp to death in 2005.
Cobb Superior Court Judge Dorothy Robinson sentenced him to life in prison, with eligibility for parole after 14 years. He has served 5½ years of his sentence.
The Georgia Supreme Court upheld the conviction, 6-1, in November 2008, with then-Chief Justice Leah Sears as the lone dissenter.
The case stems from a confrontation between Epp and McNeil in the driveway of McNeil’s Kennesaw home on Earlvine Way on Dec. 6, 2005. Epp got into an argument over unfinished work he was doing for McNeil. McNeil shot Epp once in the head with a 9mm handgun, an action he claimed was taken in self-defense when Epp charged at him with a knife.
Cobb police, who arrived at the home shortly after the shooting, pronounced Epp dead at the scene. Both police and the county medical examiner said Epp was not armed when he was shot. A utility knife the homebuilder carried remained clipped to his pocket.
According to witnesses’ testimony, Epp and McNeil got into a confrontation after a history of disagreements during the completion of the home.
The trial began with jury selection Oct. 30, 2006, and he was sentenced about 10 days later.