Remedy provided by state law.

- The remedy by application for the writ of habeas corpus to the state courts is provided by state law. Porch v. Cagle, 199 F.2d 865 (5th Cir. 1952).

Motion to file out-of-time appeal.

- Construing the defendant's request for an out-of-time appeal from a 1995 resentencing on various convictions as one seeking habeas corpus relief, and in light of the language in O.C.G.A. § 9-14-43, the trial court's order denying the defendant relief on jurisdictional grounds was reversed, and the matter was remanded for the trial court to consider the defendant's motion as one for a writ of habeas corpus. Anderson v. State, 284 Ga. App. 776, 645 S.E.2d 362 (2007).

Given that the defendant had no right to file a direct appeal from a guilty plea that was evident from the record, a motion for an out-of-time appeal, which alleged ineffective assistance of counsel, was properly denied, and counsel could not be deemed ineffective for failing to inform the defendant of the right to appeal; thus, the defendant's only remedy was by habeas corpus. Barlow v. State, 282 Ga. 232, 647 S.E.2d 46 (2007).

Prerequisite for relief from allegedly void sentence.

- The trial court properly dismissed the defendant's motion to correct an allegedly void felony sentence, as the sentence was authorized by the law in existence at the time of the defendant's statutory rape convictions, and the defendant failed to seek withdrawal of the guilty pleas which led to the withdrawal as a prerequisite to challenge the sentence imposed; thus, any further relief had to be sought through a petition for habeas corpus. McClendon v. State, 287 Ga. App. 515, 651 S.E.2d 820 (2007), cert. denied, 2008 Ga. LEXIS 174 (Ga. 2008).

Pre-trial speedy trial demand could not be made via habeas petition.

- Because the issue of whether a defendant's prosecution was barred pursuant to O.C.G.A. § 17-7-170 was a statutory defense which could be raised in the pending criminal action, and the claim was not relevant to the validity of any pre-trial detention, the habeas court properly dismissed the defendant's pre-trial habeas petition without an evidentiary hearing. Mungin v. St. Lawrence, 281 Ga. 671, 641 S.E.2d 541 (2007).

Failure to disclose Brady information.

- Defendant did not have to show that defendant would have been acquitted if defendant had been able to obtain the Brady information; defendant simply had to show, and did show, that the state's evidentiary suppression undermined confidence in the outcome of the trial. Schofield v. Palmer, 279 Ga. 848, 621 S.E.2d 726 (2005).

Failure to disclose Brady information about confidential informant.

- Convicted capital murder defendant's habeas corpus petition was granted, conviction was reversed, and a new trial was ordered because defendant prevailed on a Brady claim that the state failed to disclose that it had paid a confidential informant money for information that led to the defendant's conviction; the payment of money was exculpatory since it indicated that the informant could be impeached with a motive to lie. Schofield v. Palmer, 279 Ga. 848, 621 S.E.2d 726 (2005).

The procedural limitations of O.C.G.A. § 40-13-33(a) and (b) neither suspend the writ of habeas corpus, nor cause a court to dismiss an action for habeas without consideration of the equities presented. Rather, the statute provides that in a narrowly defined class of cases - those in which a petitioner who is not in custody seeks habeas relief from a misdemeanor traffic conviction - the petition for habeas corpus must be filed within 180 days of conviction. As such, it imposes a permissible procedural restriction on a limited group of cases. Earp v. Boylan, 260 Ga. 112, 390 S.E.2d 577 (1990).

Habeas court's order denying an inmate's verified petition, which asserted that trial counsel rendered ineffective assistance, was reversed, as the allegations contained in the petition served as sufficient evidence to support the inmate's claim that counsel failed to file a notice of appeal after being instructed by the inmate to do so. Rolland v. Martin, 281 Ga. 190, 637 S.E.2d 23 (2006).

Habeas complaint properly dismissed.

- The trial court properly dismissed an inmate's petition for a writ of habeas corpus for failing to state a claim upon which relief could be granted, based on a finding that such was prematurely filed in that no governor's warrant had been issued or served from the seeking state at the time the petition was filed and, the inmate had only been arrested for Georgia offenses; moreover, to the extent that the inmate might have been seeking to challenge an arrest without a warrant pursuant to O.C.G.A. § 17-13-34, insufficient facts were pled which supported such a claim. Powell v. Brown, 281 Ga. 609, 641 S.E.2d 519 (2007).

Appointment of counsel for habeas corpus petitioner not required.

- Since habeas corpus is not a criminal proceeding, neither U.S. Const., amend. 6 nor the Georgia Constitution requires the appointment of counsel for a habeas corpus petitioner. Spencer v. Hopper, 243 Ga. 532, 255 S.E.2d 1, cert. denied, 444 U.S. 885, 100 S. Ct. 178, 62 L. Ed. 2d 116 (1979).

Defendant has no right to receive or spend state funds for appointment of experts or investigators in habeas corpus proceedings, even in death penalty cases. Spencer v. Hopper, 243 Ga. 532, 255 S.E.2d 1, cert. denied, 444 U.S. 885, 100 S. Ct. 178, 62 L. Ed. 2d 116 (1979).

Standard of evidence on mental retardation.

- Trial court erred in ordering a jury trial on the limited issue of defendant's mental retardation in defendant's habeas corpus petition, pursuant to Ga. Const. 1983, Art. I, Sec. I, Para. XV, based on the preponderance of the evidence standard after defendant was convicted of murder and sentenced to death, as the appropriate standard if the issue were raised at trial would have been beyond a reasonable doubt; further, the habeas petition was based on a miscarriage of justice standard, as the issue was found to have been waived at trial. Head v. Hill, 277 Ga. 255, 587 S.E.2d 613 (2003).

Ineffective assistance of counsel claim.

- Defendant's ineffective assistance of counsel claim was waived as defendant's original post-conviction counsel moved for a new trial, but did not raise an ineffective assistance of trial counsel claim; defendant's claim that defendant's original post-conviction counsel was deficient in failing to raise an ineffective assistance claim below had to be addressed in a habeas corpus proceeding. Mullins v. State, 267 Ga. App. 393, 599 S.E.2d 340 (2004).

In a warden's appeal, the grant of habeas corpus relief to an inmate based on ineffective assistance of counsel was upheld as the kidnapping charges in the two counties charged against the inmate were for the same offense and being advised by defense counsel to plead guilty in one county to avoid prosecution in the other was erroneous since double jeopardy would have barred any additional prosecution. Upton v. Johnson, 282 Ga. 600, 652 S.E.2d 516 (2007).

Habeas court did not err in granting the appellee's petition for writ of habeas corpus because there was no error in the habeas court's finding of an actual conflict of interest that adversely affected plea counsel's performance since the fact that the codefendant alone was paying counsel's fees created a strong incentive for counsel to prioritize the codefendant's interests in the matter over the appellee's interest, and counsel not only failed to pursue an alternative defense theory on behalf of the appellee, counsel failed even to recognize the possibility that one could exist; even though the appellee and the codefendant pursued a unified defense in that their accounts of the incident were consistent, the record reflected that the appellee was the less culpable of the two in the crime, as it appeared that the appellee's participation was limited to the role of a passive witness who happened to be driving when the codefendant initiated the brief, apparently unpremeditated interaction with the victim. State v. Mamedov, 288 Ga. 858, 708 S.E.2d 279 (2011).

Habeas court correctly concluded that ineffective assistance of trial counsel could not be used to excuse the procedural default of the petitioner's claim that the petitioner was mentally incompetent during trial because the information that trial counsel then had available to them, including the information that trial counsel unreasonably failed to obtain, would not have led constitutionally effective counsel to pursue a claim of incompetence to stand trial and would not be reasonably probable to have resulted in a finding that the petitioner was incompetent had such a plea been pursued; the petitioner failed to prove that trial counsel rendered ineffective assistance regarding the petitioner's competence to stand trial because trial counsel withdrew the petitioner's plea of incompetence only after satisfying themselves that counsel was able to communicate effectively with the petitioner, and the trial court had an extensive opportunity to observe the petitioner in pre-trial and trial proceedings and to interact directly with the petitioner, and the court did not see sufficient indications of incompetence to pursue further evaluation. Perkins v. Hall, 288 Ga. 810, 708 S.E.2d 335 (2011).

Habeas court's order denying the petitioner's claim that the petitioner was entitled to a new sentencing trial was reversed and the petitioner's death sentence was vacated because trial counsel performed deficiently by failing to sufficiently develop mitigating evidence from non-experts, and there was a reasonable probability that the jury would have reached a different outcome in the sentencing phase of the petitioner's trial if the additional evidence habeas counsel obtained had been presented at trial; trial counsel failed to fully investigate whether the petitioner had suffered one or more brain injuries prior to the petitioner's crimes, and unduly limiting their interviews of the petitioner's family and friends to an unreasonably narrow range of persons, and there was additional evidence from non-experts concerning the petitioner's traumatic childhood and the petitioner's change in behavior and apparent mental distress following two head injuries. Perkins v. Hall, 288 Ga. 810, 708 S.E.2d 335 (2011).

Dismissal without hearing proper.

- Dismissal of an inmate's habeas petition without a hearing was proper as the petition failed to state any viable claim for pre-conviction habeas corpus relief since: (1) the inmate was not entitled to appointed counsel in the habeas corpus proceeding; (2) the habeas court was not required to make a determination of the inmate's mental state as it was an issue to be addressed in the context of the criminal prosecution; and (3) the inmate did not seek issuance of the writ on the ground that the inmate had tendered proper bail in connection with the inmate's then-pending prosecution on the criminal charge. Britt v. Conway, 281 Ga. 189, 637 S.E.2d 43 (2006).

Habeas court's transfer of ineffective assistance of counsel claim to trial court improper.

- Trial court's order denying defendant's extraordinary motion for new trial/habeas petition was a nullity and void under O.C.G.A. § 9-12-16, and the appellate court could not transfer defendant's case to the Georgia Supreme Court to consider the grant of a certificate of probable cause under O.C.G.A. § 9-14-52(b), even though the Georgia Supreme Court had exclusive jurisdiction over habeas cases, as the trial court was without subject matter jurisdiction to entertain defendant's habeas claim upon a transfer from a habeas court with instructions to determine whether trial counsel was ineffective; however, as defendant's habeas claims had not been addressed by a court of competent jurisdiction, the appellate court remanded the matter to the habeas court for resolution of defendant's habeas claims of ineffective assistance of counsel, with the final order subject to the appellate procedures outlined in O.C.G.A. § 9-14-52. Herrington v. State, 265 Ga. App. 454, 594 S.E.2d 682 (2004).

Opportunity to respond.

- State's submission of a proposed order, which included a final adjudication of a jury array issue, was erroneously granted by the habeas court without affording an inmate an opportunity to respond, as it was fundamentally unfair for the court to decide that the inmate was not entitled to habeas relief without allowing a meaningful opportunity to respond. Edwards v. Lewis, 280 Ga. 441, 629 S.E.2d 248 (2006).

Procedural bars not found.

- Defendant's habeas corpus petition based upon failure to obtain Brady information was not procedurally barred since defendant tried to obtain that information from the state but was not able to obtain it until discovery in conjunction with the habeas corpus hearings. Schofield v. Palmer, 279 Ga. 848, 621 S.E.2d 726 (2005).

An inmate's Brady claim within a petition for habeas corpus, based upon the state's failure to produce for the defense audiotapes containing exculpatory witness statements and the inmate's own statement to police during investigation of the crimes, was not procedurally defaulted because the inmate showed cause and prejudice to excuse the default. Walker v. Johnson, 282 Ga. 168, 646 S.E.2d 44 (2007).

Defendant's petition for habeas corpus was improperly denied on the basis of procedural default as the trial court improperly failed to appoint counsel to represent the defendant on appeal after a motion for new trial was denied as the trial court was aware of the defendant's desire to appeal and the defendant's indigency; the defendant was prejudiced as the defendant's notice of appeal filed pro se was untimely. Davis v. Frazier, 285 Ga. 16, 673 S.E.2d 215 (2009).

Motion to withdraw guilty plea could not be construed as habeas corpus petition as it was filed in the county in which the defendant was convicted, rather than against the warden in the county in which the defendant was incarcerated. Curry v. State, 274 Ga. App. 19, 616 S.E.2d 225 (2005).

Habeas relief properly granted.

- Because the record failed to contain some affirmative evidence that either the trial court or trial counsel entered into a colloquy with an inmate and explained the inmate's Boykin rights, but merely provided the state's speculation that trial counsel might have possibly discussed the inmate's Boykin rights based on counsel's act of signing the plea agreement, that record failed to show that the inmate's plea was knowingly, voluntarily, and intelligently made and supported the grant of habeas relief. State v. Hemdani, 282 Ga. 511, 651 S.E.2d 734 (2007).

Order granting habeas relief was improper.

- Order granting an inmate a new trial, finding that an inmate's appellate counsel was ineffective in pursuing the direct appeal, and that the issues the inmate raised, specifically related to an alleged impermissibly suggestive identification and to the jury verdict, were not procedurally barred or waived, was reversed, as the habeas court: (1) lost jurisdiction to amend its order once a notice of appeal was filed; and (2) applied the incorrect legal standards in finding the prejudice necessary to excuse procedural default, requiring remand for the court to determine whether any actual prejudice existed. Upton v. Jones, 280 Ga. 895, 635 S.E.2d 112 (2006).

Because the state's suppression of exculpatory statements in violation of Brady was more than sufficient to place the outcome of an inmate's trial in doubt, amounting to a denial of the inmate's Fourteenth Amendment due process rights, and the state's failure to produce the inmate's own statement provided the state with the opportunity to argue strenuously and virtually without contradiction that the inmate did not tell police about any alibi witness, but simply fabricated the defense prior to trial, the violation made the state's case much stronger than the full facts would have suggested, and based on such suppression, the trial did not produce a verdict worthy of confidence; hence, the inmate was properly granted habeas relief. Walker v. Johnson, 282 Ga. 168, 646 S.E.2d 44 (2007).

Denial of relief held proper.

- Trial court properly rejected a pre-trial detainee's petition for habeas relief on grounds that the detainee's constitutional right to confront witnesses was abridged when a detective investigating the charges was permitted to give hearsay testimony at the detainee's preliminary hearing, as the detainee's constitutional right to confrontation applied only to trials, and not to a preliminary hearing, and that hearing involved a more limited scope of determining whether probable cause existed to hold an accused for trial. Gresham v. Edwards, 281 Ga. 881, 644 S.E.2d 122 (2007).

While the first of two notice of appeals from an order denying a detainee habeas relief did not invoke the appellate court's jurisdiction, as the denial of a motion for reconsideration of a final judgment was not subject to direct appeal, a second timely notice did not afford the detainee any relief as the failure to hold a preliminary commitment hearing following indictment was not erroneous. Ferguson v. Freeman, 282 Ga. 180, 646 S.E.2d 65 (2007).

A pre-trial petition for a writ of habeas corpus filed by a jail inmate was properly denied as both the trial court and the habeas court correctly held that the inmate was entitled to have bail set on only the charge set forth in the arrest warrant, and not the other six charges handed down in the grand jury's subsequently issued indictment. Bryant v. Vowell, 282 Ga. 437, 651 S.E.2d 77 (2007).

Georgia habeas court did not err by not examining a probable cause determination by a Washington magistrate because extradition documents were facially valid, a defendant had four felony charges pending in Washington, the defendant was the same person named in the extradition documents, and the defendant was a fugitive from Washington authorities; there was sufficient prima facie evidence to show that the defendant was a fugitive from justice. Smith v. State, 284 Ga. 356, 667 S.E.2d 95 (2008).

An appellant was not entitled to a writ of habeas corpus after serving four 12-month sentences of probation for four counts of public indecency under O.C.G.A. § 16-6-8 related to an incident in which the appellant began to masturbate while alongside a school bus as the appellant failed to show adverse collateral consequences as the appellant only made a bald claim that being sentenced on four counts of public indecency, as opposed to one, created more difficulty in finding employment; based on the plea agreement, the merger of the charges was expressly rejected by the appellant in order to effectuate the negotiated pleas to a misdemeanor. Turner v. State, 284 Ga. 494, 668 S.E.2d 692 (2008).

Habeas court did not err by relying on the waiver of rights form the petitioner signed because there was clear evidence beyond the mere execution of a waiver form that proved that the petitioner had been apprised of the Boykin rights; the guilty plea hearing transcript affirmatively reflected that the trial court entered into a colloquy with the petitioner to ensure that the petitioner read and fully understood the waiver of rights agreement, which the petitioner signed, and the signed "certificate of lawyer" at the conclusion of the waiver of rights form, together with the petitioner's own acknowledgment at the guilty plea hearing, served to prove that trial counsel actually went over the waiver of rights form with the petitioner and the information that the form contained. Brown v. State, 290 Ga. 50, 718 S.E.2d 1 (2011).

Grant of new appeal improper.

- Since the petitioner's conviction had already been reviewed on direct appeal, the habeas corpus court erred in ordering a new appeal, as the proper remedy would have been to order a new trial; consequently, remand was ordered for the entry of an order granting a new trial. White v. Smith, 281 Ga. 271, 637 S.E.2d 686 (2006).

Challenge to enhanced sentence based on allegedly defective indictment.

- Defendant could not challenge a sentence for family violence battery on appeal, claiming that the sentence was erroneously enhanced from a misdemeanor to a felony under O.C.G.A. § 16-5-23.1(f)(2) based on a previous conviction arising from a guilty plea to the same offense that was based on a defective indictment because since the defendant failed to challenge the indictment at the time the defendant pleaded guilty, the proper remedy was a motion in arrest of judgment under O.C.G.A. § 17-9-61(b) or habeas corpus. Grogan v. State, 297 Ga. App. 251, 676 S.E.2d 764 (2009).

Mental incompetence.

- O.C.G.A. § 17-10-60 et seq. is the exclusive procedure for raising a mentally incompetent challenge after sentencing, O.C.G.A. § 17-10-62, and creates a rebuttable presumption against re-litigation of a finding of competency instead of applying the stricter habeas procedural default standard, O.C.G.A. § 17-10-69; accordingly, this issue should not arise in habeas proceedings in Georgia. Perkins v. Hall, 288 Ga. 810, 708 S.E.2d 335 (2011).

Cited in Perry Dev. Corp. v. Colonial Contracting Co., 231 Ga. 666, 203 S.E.2d 475 (1974); Reed v. Hopper, 235 Ga. 298, 219 S.E.2d 409 (1975); Sutton v. Sanders, 283 Ga. 28, 656 S.E.2d 796 (2008); Taylor v. Williams, 528 F.3d 847 (11th Cir. 2008); Anglin v. State, 302 Ga. 333, 806 S.E.2d 573 (2017).

Execution might deprive defendant of constitutional right.

- To execute a defendant upon conviction and sentence of one court while the defendant has pending an appeal in the Supreme Court of Georgia from a writ of habeas corpus from another trial court might deprive the defendant of the constitutional right to the writ of habeas corpus. 1960-61 Op. Att'y Gen. p. 354.

Am. Jur. 2d.

- 39 Am. Jur. 2d, Habeas Corpus, § 1 et seq.

C.J.S.

- 39 C.J.S., Habeas Corpus, § 1 et seq.