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Defendant appealed the habeas court's denial of his motion to transfer his habeas action. Defendant sought transfer of his habeas petition to the superior court of the county to which he had been transferred after properly filing his petition in his original county of detention. The court held that there was no error in the denial of the motion to transfer and affirmed the judgment where Wilkes v. Terry held that a habeas court had the discretion, but generally was not required, to transfer a habeas petition in the event the petitioner's county of detention changes.Receive FREE Daily Opinion Summaries by Email
In the Supreme Court of Georgia
Decided: January 9, 2012
S11A1409. DUNCAN v. FRAZIER, Warden.
HUNSTEIN, Chief Justice.
We granted Keith Duncan a certificate of probable cause to appeal the
habeas court’s denial of his motion to transfer his habeas action. In the motion,
Duncan sought transfer of his habeas petition to the superior court of the county
to which Duncan had been transferred after properly filing his petition in his
original county of detention. This case is directly controlled by our recent
opinion in Wilkes v. Terry, __ Ga. __, __ SE2d __, 2011 WL 5313862 (No.
S11A1410, decided Nov. 7, 2011), which holds that a habeas court has the
discretion, but generally is not required, to transfer a habeas petition in the event
the petitioner’s county of detention changes. Following Wilkes, we find no error
in the denial of the motion to transfer, and therefore we affirm.
Keith Duncan was convicted in 1994 of malice murder and was sentenced
to life in prison. This Court affirmed Duncan’s conviction and sentence on
appeal. Duncan v. State, 271 Ga. 704 (524 SE2d 209) (1999). In June 2007,
Duncan, proceeding pro se, filed a habeas petition in Hancock County, where he
was then incarcerated, asserting ineffective assistance of appellate counsel.
Following a hearing, the case was continued, at Duncan’s request, until Duncan
notified the court six months later that he was ready to proceed. Thereafter,
Duncan moved to transfer his habeas case to Macon County Superior Court,
asserting that he had been transferred to Macon State Prison and thus that venue
was no longer proper in Hancock County. The habeas court denied his transfer
motion, finding that jurisdiction had attached at the time the habeas petition was
filed and that transferring the case after the court had already heard evidence
would cause unnecessary delay. A second hearing was held, after which the
habeas court denied Duncan’s habeas petition. Upon application, this Court
granted Duncan’s appeal to determine whether the habeas court had properly
denied the motion to transfer.
The decision on a motion to transfer a case to another proper venue is a
matter within the sound discretion of the trial court, and absent an abuse of that
discretion, the trial court’s decision must be affirmed. Wilkes v. Terry, supra,
__ Ga. at __ (slip. op. at 2). As we have recently held, this general rule holds
true in the specific circumstance where a petitioner seeks transfer of a properlyfiled habeas petition based on his subsequent relocation to a different county of
detention. Id. Thus, while a habeas court is authorized to transfer a properly-
filed habeas petition to the superior court of the county to which a petitioner has
since been transferred, Preer v. Johnson, 279 Ga. 90 (2) (610 SE2d 46) (2005)
(affirming transfer of habeas petition), it likewise has the authority to deny such
a motion unless doing so under the particular circumstances would constitute an
abuse of discretion. Wilkes v. Terry, supra at __ (slip. op. at 5) (suggesting abuse
of discretion might arise where evidence showed that failure to transfer would
reward forum-shopping or otherwise “frustrate habeas relief”). In other words,
the fact that a petitioner’s county of detention has changed does not necessarily
require the transfer of his petition from the forum in which it was originally filed
properly, and so long as the habeas court’s decision does not have the effect of
rewarding forum-shopping or otherwise frustrating habeas relief, such decision
– be it to grant or to deny transfer – should be affirmed. Id.
Accordingly, given Duncan’s failure to offer any evidence that the court’s
refusal to transfer his petition had the effect of frustrating Duncan’s opportunity
to obtain habeas relief, we find no error in the habeas court’s denial of the motion
Judgment affirmed. All the Justices concur.
Respondent’s motion to expand the record is denied as moot.