Editor's notes.

- Article 2 of this chapter now provides the exclusive procedure for seeking a writ of habeas corpus for persons whose liberty is being restrained by virtue of sentence of a state court of record, expanding the scope of habeas in such cases. See O.C.G.A §§ 9-14-40 and9-14-41.

Return to writ of habeas corpus is to be heard and determined by judge granting the writ, not by a jury. Sumner v. Sumner, 117 Ga. 229, 43 S.E. 485 (1903).

State habeas courts will not adjudicate issues already decided by appellate court on direct appeal unless either the facts or the law has changed. Zant v. Campbell, 245 Ga. 368, 265 S.E.2d 22 (1980).

Guilt or innocence not at issue.

- Courts of the asylum state cannot, upon a writ of habeas corpus by a fugitive, inquire into the guilt or innocence of the accused. Barranger v. Baum, 103 Ga. 465, 30 S.E. 524, 68 Am. St. R. 113 (1898); Blackwell v. Jennings, 128 Ga. 264, 57 S.E. 484 (1907); Ellis v. Grimes, 198 Ga. 51, 30 S.E.2d 921 (1944).

On trial of a habeas corpus proceeding, only the legality of the detention is to be determined, and whether or not one is guilty of the charge upon which the right of custody is claimed is not in issue. Stephens v. Henderson, 120 Ga. 218, 47 S.E. 498 (1904); Hudson v. Jennings, 134 Ga. 373, 67 S.E. 1037 (1910); Cross v. Foote, 17 Ga. App. 802, 88 S.E. 594 (1916).

Matters to be determined when extradition challenged.

- Once Governor has granted extradition, court in a habeas corpus proceeding can do no more than decide whether extradition documents on their face are in order; whether the petitioner has been charged with a crime in the demanding state; whether the petitioner is the person named in request for extradition; and whether the petitioner is a fugitive. Stynchcombe v. Smith, 244 Ga. 548, 261 S.E.2d 342 (1979).

Substantial charging of crime at issue in habeas cases involving extradition.

- In cases involving extradition, it is a question of law open to judicial inquiry on habeas corpus as to whether the person demanded was substantially charged with a crime against the laws of the demanding state, but this rule applies to the sufficiency of the indictment or affidavit as a pleading, and not to extraneous evidence as to actual guilt. Ellis v. Grimes, 198 Ga. 51, 30 S.E.2d 921 (1944).

Burden is on applicant for habeas to make out the applicant's case. Jones v. Leverett, 230 Ga. 310, 196 S.E.2d 885 (1973).

Burden on petitioner.

- In habeas corpus proceeding, the burden was upon petitioner to establish by proof contention that the petitioner was denied the benefit of counsel. Plocar v. Foster, 211 Ga. 153, 84 S.E.2d 360 (1954), cert. denied, 349 U.S. 962, 75 S. Ct. 893, 99 L. Ed. 1284 (1955).

There is a presumption in favor of the conviction or judgment unreversed, and that the decision of the court convicting the prisoner was well founded, and the burden is upon the prisoner to overcome this presumption. Gay v. Balkcom, 219 Ga. 554, 134 S.E.2d 600 (1964).

Burden in challenging extradition to overcome presumption favoring executive warrant.

- When, on trial of a habeas corpus case, it appears that the respondent holds the petitioner in custody under an executive warrant based upon an extradition proceeding, and the warrant is regular on the warrant's face, the burden is cast upon the petitioner to show some valid and sufficient reason why the warrant should not be executed; the presumption is that the Governor has complied with the Constitution and the law, and this presumption continues until the contrary appears. King v. Mount, 196 Ga. 461, 26 S.E.2d 419 (1943); Broyles v. Mount, 197 Ga. 659, 30 S.E.2d 48 (1944); Ellis v. Grimes, 198 Ga. 51, 30 S.E.2d 921 (1944).

When, in the trial of a habeas corpus case, it appears that the prisoner is in custody under an executive warrant based upon an extradition proceeding, and the warrant is regular on the warrant's face, the burden is cast upon the prisoner to show some valid and sufficient reason why the warrant should not be executed since there is a presumption that the Governor complied with the Constitution and law and this presumption continues until the contrary appears. Shelton v. Grimes, 224 Ga. 451, 162 S.E.2d 426 (1968), cert. denied, 393 U.S. 1089, 89 S. Ct. 853, 21 L. Ed. 2d 782, rehearing denied, 394 U.S. 967, 89 S. Ct. 1301, 22 L. Ed. 2d 569 (1969).

Question of determining credibility of testimony in habeas corpus hearing is vested in judge. Jones v. Leverett, 230 Ga. 310, 196 S.E.2d 885 (1973).

Uncontradicted testimony need not be accepted.

- In a habeas corpus hearing, even the uncontradicted testimony of a witness does not have to be accepted. Jones v. Leverett, 230 Ga. 310, 196 S.E.2d 885 (1973).

Ex parte affidavits not admissible over objection.

- Allowance in evidence of ex parte affidavits over timely objection in cases such as habeas corpus proceedings when final judgments are rendered is not authorized. Camp v. Camp, 213 Ga. 65, 97 S.E.2d 125 (1957).

Cited in Robertson v. Heath, 132 Ga. 310, 64 S.E. 73 (1909); Harwell v. Gay, 186 Ga. 80, 196 S.E. 758 (1938); Beavers v. Williams, 199 Ga. 114, 33 S.E.2d 343 (1945); Kittel v. Comstock, 219 Ga. 161, 132 S.E.2d 77 (1963); Hill v. Griffin, 224 Ga. 378, 162 S.E.2d 397 (1968); Johnson v. Caldwell, 229 Ga. 548, 192 S.E.2d 900 (1972); Moore v. State, 141 Ga. App. 245, 233 S.E.2d 236 (1977); Pulliam v. Balkcom, 245 Ga. 99, 263 S.E.2d 123 (1980).

Am. Jur. 2d.

- 39 Am. Jur. 2d, Habeas Corpus and Postconviction Remedies, §§ 106, 124, 158.

C.J.S.

- 39A C.J.S., Habeas Corpus, § 319.