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.

Trial judge to whom petition for habeas corpus is presented may take judicial notice of record in the case and of what has taken place in the judge's presence, and when it plainly appears therefrom that there is no legal ground for the writ, the judge may decline to grant the writ. Woodruff v. Balkcom, 205 Ga. 445, 53 S.E.2d 680, cert. denied, 338 U.S. 829, 70 S. Ct. 79, 94 L. Ed. 504 (1949).

Dismissal without hearing authorized when petition without merit.

- Petitioner in a habeas corpus proceeding is generally entitled to a hearing on the questions raised by the petition; however, when the petition and exhibits attached thereto disclose without contradiction that the petition is without merit, it is not error to dismiss the writ without a hearing. Marshall v. Hutson, 245 Ga. 849, 268 S.E.2d 338 (1980).

Reservation of allegations for use in second writ as abuse of habeas.

- Applicant for the writ of habeas corpus may not, without excuse, withhold allegations from the applicant's petition, and thereafter use them on a second attempt, if the first should fail, since to reserve such allegations for use in a later writ is to make an abusive use of habeas corpus. Woodruff v. Balkcom, 205 Ga. 445, 53 S.E.2d 680, cert. denied, 338 U.S. 829, 70 S. Ct. 79, 94 L. Ed. 504 (1949).

Detention of the applicant was not shown to be unlawful by the fact that the applicant had been arrested under a previous warrant and discharged therefrom on habeas corpus since it appeared that such previous warrant was issued for an offense different from that stated in either the misdemeanor or the felony warrant under which the applicant was last arrested. Paulk v. Sexton, 203 Ga. 82, 45 S.E.2d 768 (1947).

Petition should have been granted.

- Since a trial court did not inform an inmate that by entering guilty pleas to multiple burglary counts, the inmate was waiving important rights under U.S. Const,. Amend. VI to the inmate's privilege against compulsory self-incrimination, the inmate's right to trial by jury, and the inmate's right to confront the inmate's accusers, the inmate's pleas were not constitutionally valid and, accordingly, the inmate's habeas petition pursuant to O.C.G.A. § 9-14-5 should have been granted; since there was no affirmative showing that an inmate's pleas were made knowingly, intelligently, and voluntarily, the pleas were not valid as there was only evidence that a form which the inmate had executed at the time indicated that the inmate had the right to plead not guilty and to be tried by a jury. Foskey v. Battle, 277 Ga. 480, 591 S.E.2d 802 (2004).

Habeas court's finding that a petitioner's guilty pleas were validly entered was reversed as the waiver forms signed by the petitioner and reviewed with the petitioner by the petitioner's attorneys addressed only the right to be tried by a jury; the waiver forms did not advise the petitioner that the petitioner was waiving the petitioner's right against self- incrimination and the petitioner's confrontation right. Beckworth v. State, 281 Ga. 41, 635 S.E.2d 769 (2006).

Habeas corpus relief should be granted to the defendant for the following reasons: first, it was undisputed that the trial court did not fully inform the defendant of the defendant's Boykin rights during the plea hearing; second, there was no evidence of record that the trial court entered into any colloquy with the defendant to ensure that the defendant read and fully understood the plea agreement which the defendant signed; third, there was no evidence that the defendant's trial counsel discussed the defendant's Boykin rights with the defendant or that it was counsel's standard practice to do so; and, finally, there was no evidence that the trial counsel actually went over the plea agreement with the defendant or any of the information that the plea agreement contained. State v. Hemdani, 282 Ga. 511, 651 S.E.2d 734 (2007).

Cited in Harwell v. Gay, 186 Ga. 80, 196 S.E. 758 (1938).

Meaning of section.

- This section provides that when a petition is presented, and it appears to the judge that the restraint is illegal, the judge shall grant the writ and require the person restraining the liberty of another to bring such person before the judge, at a time and place specified in the writ for examination into the cause of detention. 1945-47 Op. Att'y Gen. p. 353.

Writ returnable to any county in circuit.

- Superior court judge may make a writ of habeas corpus returnable to any county in the circuit, but the proceedings should be recorded in the county where the detention occurred. 1945-47 Op. Att'y Gen. p. 353.

Am. Jur. 2d.

- 39 Am. Jur. 2d, Habeas Corpus and Postconviction Remedies, § 12.

13 Am. Jur. Pleading and Practice Forms, Habeas Corpus, § 129.

C.J.S.

- 39 C.J.S., Habeas Corpus, §§ 52, 53.

ALR.

- Habeas corpus to test constitutionality of ordinance under which petitioner is held, 32 A.L.R. 1054.

Power to grant writ of habeas corpus pending appeal from conviction, 52 A.L.R. 876.

Illegal or erroneous sentence as ground for habeas corpus, 76 A.L.R. 468.

Determination in extradition proceedings, or on habeas corpus in such proceedings, whether a crime is charged, 81 A.L.R. 552; 40 A.L.R.2d 1151.

Liability of judge, court, administrative officer, of other custodian of person for whose release the writ is sought, in connection with habeas corpus proceedings, 84 A.L.R. 807.

Former jeopardy as ground for habeas corpus, 8 A.L.R.2d 285.

Habeas corpus on ground of deprivation of right to appeal, 19 A.L.R.2d 789.