O.C.G.A.
Code text and O.C.G.A. statutory annotations on this page reflect the 2019 Official Code of Georgia Annotated (Public.Resource.Org Release 73, 2019-08-21; public domain per Georgia v. Public.Resource.Org, 2020). The Syfert case-law annotations in Notes of Decisions, below, are current.
Notwithstanding the other provisions of this chapter, this article provides the exclusive procedure for seeking a writ of habeas corpus for persons whose liberty is being restrained by virtue of a sentence imposed against them by a state court of record.
History
(Code 1933, § 50-127, enacted by Ga. L. 1967, p. 835, § 3.)
Annotations
JUDICIAL DECISIONS Appellate jurisdiction. - Habeas corpus is the exclusive post-appeal procedure available to a criminal defendant who asserts the denial of a constitutional right. Therefore, the defendant’s claim that the defendant’s appellate counsel was ineffective in the defendant’s initial appeal could not be heard by the appellate court as the court lacked original jurisdiction to consider whether appellate counsel was ineffective in the prior appeal. Mallon v. State, 266 Ga. App. 394, 597 S.E.2d 497 (2004). Petition for writ of habeas corpus must be filed in the superior court of the county in which the petitioner is detained, and because at the time a defendant filed the amended extraordinary motion for a new trial alleging ineffective assistance of counsel the defendant was incarcerated in a different county from that in which the defendant was tried and filed the motion, that motion could not be treated as a petition for a writ of habeas corpus and the trial court was without authority to consider those contentions. Johnson v. State, 272 Ga. App. 294, 612 S.E.2d 29 (2005).
Exclusive means for seeking review of life sentences, after review by the sentence review panel and after direct appeal, is through a petition for a writ of habeas corpus under the procedures set forth in O.C.G.A. § 9-14-40 et seq. Saleem v. Forrester, 262 Ga. 693, 424 S.E.2d 623, cert. denied, 507 U.S. 1054, 113 S. Ct. 1952, 123 L. Ed. 2d 656 (1993). Article liberally applied. - Petition for writ of habeas corpus should not be dismissed for failure to comply with the technical requirements of O.C.G.A. Art. 2, Ch. 14, T. 9; only when the habeas court is able to determine from the face of the petition that it is without merit is it appropriate to dismiss the petition without a hearing. Mitchell v. Forrester, 247 Ga. 622, 278 S.E.2d 368 (1981). Parolees as applicants. - Mention of applicants as ‘‘persons whose liberty is being restrained by virtue of a sentence’’ clearly seems to include parolees. Fox v. Dutton, 406 F.2d 123 (5th Cir. 1968), cert. denied, 395 U.S. 916, 89 S. Ct. 1764, 23 L. Ed. 2d 229 (1969). Cited in Patterson v. Earp, 257 Ga. 729, 363 S.E.2d 248 (1988); Derrer v. Anthony, 265 Ga. 892, 463 S.E.2d 690 (1995).
RESEARCH REFERENCES ALR. - Statutory remedy as exclusive of remedy by habeas corpus otherwise available, 73 ALR 567.
Notes of Decisions
Cited in
48
cases (
27 in the last 5 years), 1983–2025 · leading case:
Cook v. State, 870 S.E.2d 758 (Ga. 2022).
Cook v. State, 870 S.E.2d 758 (Ga. 2022).
· cites it 8× “” OCGA § 9-14-41. OCGA § 9-14-42 (a) further specifies that any such person “who asserts that in the proceedings which resulted in his conviction there was a substantial denial of his rights under the Constitution of the United States or of this state may institute a proceeding…”
Capote v. Ray, 577 S.E.2d 755 (Ga. 2002).
· cites it 20× “" [30] In interpreting this provision, we have clearly held that one's liberty may be restrained by a prior, expired conviction used to enhance a current sentence, and that in such a situation, habeas corpus relief may be sought pursuant to OCGA § 9-14-41. [31] We see no need to…”
Ledford v. Warden, Georgia Diagnostic & Classification Prison, 818 F.3d 600 (11th Cir. 2016).
“Ledford alleged, among other things, that his trial attorneys were ineffective because they (1) failed to conduct an adequate pretrial investigation into Ledford’s personal background, including his history of substance abuse, mental illness, and mental impairment, and potential…”
O'donnell v. Durham, 573 S.E.2d 23 (Ga. 2002).
· cites it 4× “OCGA § 9-14-41. Thus, in all matters dealing with the appeal of a habeas case, including the grant of bail, it is those "exclusive" provisions which control and "must be enforced uniformly by the judiciary.”
Mitchum v. State, 306 Ga. 878 (Ga. 2019).
· cites it 2× “See also OCGA § 9-14-42 (a) (“Any person imprisoned by virtue of a sentence imposed by a state court of record who asserts that in the proceedings which resulted in his conviction there was a substantial denial of his rights under the Constitution of the United States or of this…”
Lillard v. Head, 476 S.E.2d 736 (Ga. 1996).
· cites it 10× “OCGA § 9-14-41. It is clear that, in order for him to obtain habeas corpus relief under this "exclusive procedure," Lillard cannot merely allege and prove that his physical restraint is illegal.”
Derrer v. Anthony, 463 S.E.2d 690 (Ga. 1995).
· cites it 4× “OCGA § 9-14-41. OCGA § 9-14-42 (a) limits those who may institute habeas proceedings under Article II to anyone: who asserts that in the proceedings which resulted in his conviction there was a substantial denial of his rights under the Constitution of the United States or of…”
Giles v. Ford, 368 S.E.2d 318 (Ga. 1988).
· cites it 4× “Giles maintains that this statute does not apply to habeas petitions, because OCGA § 9-14-41 et seq “. . . provides the exclusive procedure for seeking a writ of habeas corpus for persons whose liberty is being restrained by virtue of a sentence imposed against them by a state…”
State v. Smith, 573 S.E.2d 64 (Ga. 2002).
· cites it 2× “OCGA § 9-14-41; Saleem v. Forrester, 262 Ga.”
Saleem v. Forrester, 424 S.E.2d 623 (Ga. 1993).
· cites it 4× “Moreover, “for persons whose liberty is being restrained by vir tue of a sentence imposed against them by a state court of record,’ OCGA § 9-14-41, the exclusive means for seeking review of that sen tence, after review by the sentence review panel and after direct ap peal, is…”
Mallon v. State, 597 S.E.2d 497 (Ga. Ct. App. 2004).
· cites it 2× “at 51, because appellate counsel did not enumerate as error that Mallon failed to knowingly, intelligently, and voluntarily waive his rights to a jury trial. Mallon admits that this court is the wrong venue for this argument.”
Johnson v. State, 612 S.E.2d 29 (Ga. Ct. App. 2005).
· cites it 2× “Johnson also contends that he received ineffective assistance of counsel at trial and during his first appeal to this Court. However, [h]abeas corpus is the exclusive post-appeal procedure available to a criminal defendant who asserts the denial of a constitutional right [such…”
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