O.C.G.A. § 9-14-51 (2019)

Annotations

JUDICIAL DECISIONS Purpose of this section is to discontinue practice of filing multiple habeas corpus petitions under a single conviction. Hunter v. Brown, 236 Ga. 168, 223 S.E.2d 145 (1976). Pro se petitioners. - Georgia’s procedural default rule does not provide an exception to the rule’s requirements for pro se prisoners. McCoy v. Newsome, 953 F.2d 1252 (11th Cir.), cert. denied, 504 U.S. 944, 112 S. Ct. 2283, 119 L. Ed. 2d 208 (1992). One review on merits sufficient. - One review on the merits, whether on habeas corpus or on appeal of conviction, is sufficient when neither facts nor law has changed. Brown v. Ricketts, 233 Ga. 809, 213 S.E.2d 672 (1975). Alternative ruling on the merits. - As long as a state court explicitly invokes a state procedural bar rule as a separate basis for a decision, an alternative ruling

on the merits does not preclude the federal courts from applying the state procedural bar. Alderman v. Zant, 22 F.3d 1541 (11th Cir.), cert. denied, 513 U.S. 1061, 115 S. Ct. 673, 130 L. Ed. 2d 606 (1994). Failure to raise issue in first petition waives issue on second petition. - When the defendant did not raise any challenge to the defendant’s grand or traverse juries prior to trial or in the defendant’s first habeas petition, nor did the defendant ever raise any question as to the competency of the defendant’s trial counsel or the defendant’s first habeas corpus, the habeas court upon the second petition did not err in refusing to hear the merits of the claim that women were under-represented on grand and petit jury panels. Smith v. Zant, 250 Ga. 645, 301 S.E.2d 32, cert. denied, 464 U.S. 807, 104 S. Ct. 55, 78 L. Ed. 2d 74 (1983). When the petitioner committed a proce-

dural default when the petitioner failed to assert an ineffective assistance of counsel claim in the petitioner’s first habeas proceeding, preferring to stand on the petitioner’s claim of attorney-client privilege, absent a showing of cause and prejudice, the petitioner was subsequently barred from bringing the claim in a federal habeas corpus proceeding. Morris v. Kemp, 809 F.2d 1499 (11th Cir.), cert. denied, 482 U.S. 907, 107 S. Ct. 2486, 96 L. Ed. 2d 378 (1987). Under the precedents existing at the time of a petitioner’s first habeas petition, a claim that the petitioner could not be convicted of aggravated stalking based solely on a single violation of a protective order could have been raised based on the language of O.C.G.A. §§ 16-5-90(a)(1) and 16-5-91(a); therefore, the petitioner’s second petition was barred by O.C.G.A. § 9-14-51. State v. Cusack, 296 Ga. 534, 769 S.E.2d 370 (2015). Court to determine whether matter could ‘‘reasonably have been raised’’ before. - Petitioner who failed to allege a violation in the petitioner’s original state petition is not barred from raising the violation in state court until a state court judge considers the subsequent petition and decides the matter could ‘‘reasonably have been raised’’ before. Cherry v. Director, State Bd. of Cors., 613 F.2d 1262 (5th Cir. 1980), cert. denied, 454 U.S. 840, 102 S. Ct. 150, 70 L. Ed. 2d 124 (1981). When counsel’s failure to assert grounds contravened client’s wishes. - Individual did not waive rights to a habeas corpus proceeding when, contrary to the individual’s wishes and the individual’s counsel’s assurance, counsel failed to assert grounds for habeas corpus in the preceding hearing. Smith v. Garner, 236 Ga. 81, 222 S.E.2d 351 (1976), later appeal, State Bd. of Cors. v. Smith, 238 Ga. 565, 233 S.E.2d 797 (1977). Appeal on newly asserted ground held meritless. - When it appeared that the petitioner was fully apprised of the provisions of this section, and there was a total absence of any explanation on the petitioner’s part to afford the trial judge any basis for determining that the petitioner had not previously deliberately

withheld a newly asserted ground, the petitioner’s appeal was without merit. Reese v. Ault, 229 Ga. 694, 194 S.E.2d 79 (1972). Relitigation of ineffective assistance claim allowed. - When a petitioner calls the state court’s attention to ineffective assistance problems and the court examines the crucial aspect of counsel’s representation, the petitioner may relitigate the constitutional claim in federal court, though the petitioner failed to specify counsel’s closing argument as a ground supporting the petitioner’s ineffective assistance claim. Francis v. Spraggins, 720 F.2d 1190 (11th Cir. 1983), cert. denied, 470 U.S. 1059, 105 S. Ct. 1776, 84 L. Ed. 2d 835 (1985). Cause for failure to raise ineffective assistance issue. - There was ‘‘cause’’ for petitioner’s failure to raise the ineffective assistance issue in the petitioner’s first state habeas petition in the fact that the petitioner’s trial counsel, whose effectiveness is challenged in federal proceedings, also represented the petitioner in the first state habeas proceeding, and such counsel’s failings caused petitioner to suffer an ‘‘actual and substantial disadvantage,’’ thus constituting the ‘‘prejudice’’ that must be established before a procedurally defaulted claim may be heard by a federal habeas court. Stephens v. Kemp, 846 F.2d 642 (11th Cir.), cert. denied, 488 U.S. 872, 109 S. Ct. 189, 102 L. Ed. 2d 158 (1988). Conflict of interest of trial counsel. - On a second habeas petition when an inmate claimed that trial counsel had simultaneously served as a special assistant attorney general, it was error to assume that the inmate could have discovered the conflict before filing the inmate’s first habeas petition; the inmate was entitled to presume that trial counsel did not have an undisclosed conflict of interest as trial counsel had a duty to disclose the conflict under O.C.G.A. § 45-15-30 and had a clear ethical duty to do so. Gibson v. Head, 282 Ga. 156, 646 S.E.2d 257 (2007). Consideration claims denied although courts did not expressly apply this section. - When neither the Georgia Supreme Court nor the superior

court expressly addressed the application of O.C.G.A. § 9-14-51 to the ineffective assistance issues which a defendant had failed to raise in the defendant’s first state habeas petition, and the defendant did not challenge the finding that the defendant’s ineffective assistance of counsel claims were ruled on in the defendant’s original habeas petition, so the Supreme Court relied on the uncontested finding and barred consideration of the defendant’s ineffective assistance claims without reaching the express application of § 9-14-51, then the Georgia court’s subsequent application of that section was not inconsistent to bar consideration of the ineffective assistance claims raised in the defendant’s second state petition. Stevens v. Zant, 968 F.2d 1076 (11th Cir. 1992), cert. denied, 507 U.S. 929, 113 S. Ct. 1306, 122 L. Ed. 2d 695 (1993). Claim of erroneous psychiatric evaluation. - Capital defendant’s claim that the defendant was subject to an erroneous psychiatric evaluation was procedurally barred on habeas appeal because the defendant did not raise the claim in the defendant’s first or second state habeas corpus petitions. Burger v. Zant, 984 F.2d 1129 (11th Cir. 1993), cert. denied, 510 U.S. 847, 114 S. Ct. 141, 126 L. Ed. 2d 104 (1993). Claim of sequestration violation not sufficiently raised. - As to any claim by petitioner death row inmate that two witnesses violated the rule of sequestration or that the testimony of those two witnesses and a third was fabricated, those claims were procedurally barred under O.C.G.A. § 9-14-51 as the claims were not raised on direct appeal or in the petitioner’s state habeas corpus petition when the inmate alleged only that the third witness violated the rule of sequestration. Jefferson v. Terry, 490 F. Supp. 2d 1261 (N.D. Ga. 2007), aff ’d in part and rev’d in part, 570 F.3d 1283 (11th Cir. Ga. 2009). Basis for procedural default of federal habeas corpus. - Death row inmate was not entitled to federal habeas relief pursuant to 28 U.S.C. § 2254 on the inmate’s claims that racial animosity led trial counsel to conceal the state’s offer of a life sentence, thus providing ineffective assistance under U.S. Const., amend. 6,

and leading to the imposition of the death penalty in violation of U.S. Const., amend. 8; both claims were procedurally barred from federal review since the state trial court found the Sixth Amendment claim res judicata pursuant to O.C.G.A. § 9-14-51 and relied upon Georgia procedural rules in denying the inmate relief on the Eighth Amendment claim; in any event, neither claim had merit. Osborne v. Terry, 466 F.3d 1298 (11th Cir. 2006), cert. denied, 552 U.S. 841, 128 S. Ct. 84, 169 L. Ed. 2d 64 (2007). In a federal habeas case in which an inmate exhausted seven of the eight claims of ineffective assistance of appellate counsel in a state habeas proceeding, but the inmate failed to exhaust the eighth claim, that claim was procedurally defaulted under O.C.G.A. § 9-14-51. Ogle v. Johnson, 488 F.3d 1364 (11th Cir. 2007). O.C.G.A. § 9-14-51 bars adjudication of issues that could have been raised in an original or amended habeas petition; petitioner had six months between the withdrawal of an extraordinary motion for new trial and a ruling on a third state habeas petition to assert an ineffective assistance of counsel claim but failed to do so; therefore, the petitioner failed to exhaust this claim. As the claim was unexhausted, the federal habeas court had to treat the claim as procedurally defaulted. Mize v. Hall, 532 F.3d 1184 (11th Cir. 2008), overruled on other grounds, 285 Ga. 24, 673 S.E.2d 227 (2009). Georgia’s procedural default rule, O.C.G.A. § 9-14-51, was inadequate to bar federal review of the inmate’s mental retardation claim because the statute had not been consistently and regularly followed. Conner v. Hall, 645 F.3d 1277 (11th Cir. 2011). Issue of right to counsel not raised as ground for habeas corpus relief. - While a respondent was entitled to counsel on a motion to withdraw a guilty plea to aggravated assault but proceeded pro se on an appeal of the denial of that motion, the issue of the right to counsel was never raised as a ground for habeas corpus relief as required by O.C.G.A. §§ 9-14-44 and 9-14-51 and, thus, the respondent was improperly granted a writ of habeas corpus. Murrell v. Young, 285 Ga. 182, 674 S.E.2d 890 (2009).

Cited in Brown v. Smith, 230 Ga. 661, 198 S.E.2d 672 (1973); Bloodworth v. Hopper, 539 F.2d 1382 (5th Cir. 1976); Jarrell v. Zant, 248 Ga. 492, 284 S.E.2d 17 (1981); Blake v. Zant, 513 F. Supp. 772 (S.D. Ga. 1981); Crane v. State, 249 Ga. 501, 292 S.E.2d 67 (1982); Dix v. Zant, 249 Ga. 810, 294 S.E.2d 527 (1982); Williams v. State, 251 Ga. 83, 303 S.E.2d 111 (1983); Brown v. Francis, 254 Ga. 83, 326 S.E.2d 735 (1985); Stevens v. Kemp, 254 Ga. 228, 327 S.E.2d 185 (1985); Moore v. Kemp, 254 Ga. 279, 328 S.E.2d 725 (1985); Tucker v. Kemp, 256 Ga. 571, 351 S.E.2d 196 (1987); Presnell v. Kemp, 835 F.2d 1567 (11th Cir. 1988); Jones v. Kemp, 706 F. Supp. 1534

(N.D. Ga. 1989); Smith v. Newsome, 876 F.2d 1461 (11th Cir. 1989); Lancaster v. Newsome, 880 F.2d 362 (11th Cir. 1989); Gaither v. Sims, 259 Ga. 807, 387 S.E.2d 889 (1990); High v. Turpin, 14 F. Supp. 2d 1358 (S.D. Ga. 1998); Collier v. Turpin, 177 F.3d 1184 (11th Cir. 1999); Putman v. Turpin, 53 F. Supp. 2d 1285 (M.D. Ga. 1999); Parker v. Turpin, 60 F. Supp. 2d 1332 (N.D. Ga. 1999); Mincey v. Head, 206 F.3d 1106 (11th Cir. 2000); Spivey v. Head, 207 F.3d 1263 (11th Cir. 2000); Ford v. Schofield, 488 F. Supp. 2d 1258 (N.D. Ga. 2007); Tolbert v. Toole, 296 Ga. 357, 767 S.E.2d 24 (2014).

RESEARCH REFERENCES ALR. - Denial of relief to prisoner on habeas corpus as bar to second application, 161 ALR 1331.