2020 Georgia Code
Title 9 - Civil Practice
Chapter 14 - Habeas Corpus
Article 2 - Procedure for Persons Under Sentence of State Court of Record
§ 9-14-40. Legislative Intent

Universal Citation: GA Code § 9-14-40 (2020)
  1. The General Assembly finds that:
    1. Expansion of the scope of habeas corpus in federal court by decisions of the United States Supreme Court together with other decisions of the court substantially curtailing the doctrine of waiver of constitutional rights by an accused and limiting the requirement of exhaustion of state remedies to those currently available have resulted in an increasingly large number of convictions of the courts of this state being collaterally attacked by federal habeas corpus based upon issues and contentions not previously presented to or passed upon by courts of this state;
    2. The increased reliance upon federal courts tends to weaken state courts as instruments for the vindication of constitutional rights with a resultant deterioration of the federal system and federal-state relations; and
    3. To alleviate such problems, it is necessary that the scope of state habeas corpus be expanded and the state doctrine of waiver of rights be modified.
  2. The General Assembly further finds that expansion of state habeas corpus to include many sharply contested issues of a factual nature requires that only the superior courts have jurisdiction of such cases.

(Ga. L. 1967, p. 835, § 1.)

Law reviews.

- For note, "Seen But Not Heard: An Argument for Granting Evidentiary Hearings to Weigh the Credibility of Recanted Testimony," see 46 Ga. L. Rev. 213 (2011).


This article clearly expresses a new and liberal policy on the part of the state as to entertaining habeas corpus petitions by state prisoners. Hill v. Dutton, 277 F. Supp. 324 (N.D. Ga. 1967).

Restrictions on right of access to court must be drawn so as to avoid unjustifiably obstructing access to the courts and be clearly warranted by the particular circumstances of each case. Howard v. Sharpe, 266 Ga. 771, 470 S.E.2d 678 (1996).

After defendant's conviction has been affirmed on appeal, habeas corpus petition is one of three available remedies.

- Petitioner's motion to vacate the conviction was not an appropriate remedy in a criminal case after the petitioner's murder conviction had been affirmed on direct appeal. The court overruled Division 2 of Chester v. State, 284 Ga. 162 (2008), which had allowed such motions under O.C.G.A. § 17-9-4, and held that in order to challenge a conviction after the petition had been affirmed on direct appeal, the petitioner was required to file an extraordinary motion for new trial, O.C.G.A. § 5-5-41, a motion in arrest of judgment, O.C.G.A. § 17-9-61, or a petition for habeas corpus under O.C.G.A. § 9-14-40. Harper v. State, 286 Ga. 216, 686 S.E.2d 786 (2009).

Prisoner given wide latitude in filing petition.

- Under the expanded view in O.C.G.A. Ch. 14, T. 9, the assumption is that a prisoner should have wide latitude in filing a petition for habeas corpus. Giles v. Ford, 258 Ga. 245, 368 S.E.2d 318 (1988).

Court may not prohibit filing of complaint.

- O.C.G.A. § 9-15-2(d), which permits a trial court to deny the filing of a pro se in forma pauperis complaint after determining that on its face the pleading completely lacks justiciable law or fact, was not meant to apply to habeas corpus proceedings; therefore, a court may address a petition for habeas corpus only after it has been filed. Giles v. Ford, 258 Ga. 245, 368 S.E.2d 318 (1988).

Intent to make state remedy coextensive with federal remedy.

- This article was not designed to alter longstanding criminal trial procedure rules of this state with respect to waiver, but rather to allow the courts of this state to hear and adjudicate collateral attacks of criminal convictions in as broad a fashion as the federal courts, and to make the state remedy coextensive with the federal remedy. Stewart v. Ricketts, 451 F. Supp. 911 (M.D. Ga. 1978).

This article was intended to enable state habeas corpus courts to hear all claims which a federal court would hear. Stewart v. Ricketts, 451 F. Supp. 911 (M.D. Ga. 1978).

This article expanded the scope of state habeas corpus, modified the state doctrine of waiver of rights, and gave the superior court exclusive jurisdiction to try such cases because of "many sharply contested issues of a factual nature." McCorquodale v. Stynchcombe, 239 Ga. 138, 236 S.E.2d 486, cert. denied, 434 U.S. 975, 98 S. Ct. 534, 54 L. Ed. 2d 467 (1977).

Habeas made more readily available.

- It was the intent of the legislature in enacting this article to make the remedy of habeas corpus more readily available to prisoners resorting to the courts of this state and to facilitate a determination in each case of the ultimate issue of the legality or illegality of the imprisonment. Johnson v. Caldwell, 229 Ga. 548, 192 S.E.2d 900 (1972).

Unencumbered hearing assured.

- By its plain terms, this article assures a hearing unencumbered by the strict conditions arising from some case law in this state. Peters v. Rutledge, 397 F.2d 731 (5th Cir. 1968).

The law is an effective remedy for securing state court review of federal challenges to state convictions, and more than that, it is a legislative recognition by this state of the state's responsibilities to vindicate federally guaranteed, federally protected rights in the administration of justice. Peters v. Rutledge, 397 F.2d 731 (5th Cir. 1968).

Adjudication of guilt or innocence not authorized.

- This article has enlarged the scope of matters that will be considered on habeas corpus, but it does not authorize another adjudication of the question of guilt or innocence of the accused. Bush v. Chappell, 225 Ga. 659, 171 S.E.2d 128 (1969).

Following the statutory structure set out in law serves a triple public interest: (1) the system, if followed and faithfully applied, puts responsibility on the state; (2) it affords to the one contesting the conviction an effective remedy; and (3) it represents a mutual, even though not jointly expressed, state legislative judgment and a federal judicial comity conclusion that the rapid, explosive expansion of federal habeas cases in state convictions represents a substantial threat to the administration of justice. Peters v. Rutledge, 397 F.2d 731 (5th Cir. 1968).

Two sets of full-blown post-conviction trials not necessary.

- While it is important that federal constitutional claims may be asserted after conviction and that finally there be access to the federal court for its own independent judgment, these rights do not call for two sets of full-blown post-conviction trials; this law serves that end. Peters v. Rutledge, 397 F.2d 731 (5th Cir. 1968).

Constitutional claims required to be brought by habeas corpus.

- Defendant's post-appeal challenge to a criminal conviction brought 15 years after the defendant's conviction based on alleged improper communications with the jury that occurred during the trial but that were not brought to the defendant's attention until years later could not be pursued through an extraordinary motion for new trial because such claims involved a deprivation of the defendant's constitutional rights and were required to be pursued exclusively through a petition for a writ of habeas corpus. Mitchum v. State, 306 Ga. 878, 834 S.E.2d 65 (2019).

Denial of right to proceed under article to parolee as subversion of purpose.

- Statute's statement of legislative intent and purpose includes the intent to accord persons convicted in this state an adequate state remedy, and this purpose would be subverted if a state parolee were denied the right to proceed hereunder. 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 In re Stoner, 252 Ga. 397, 314 S.E.2d 214 (1984); Powell v. Brown, 281 Ga. 609, 641 S.E.2d 519 (2007); Nazario v. State, 293 Ga. 480, 746 S.E.2d 109 (2013).


13 Am. Jur. Pleading and Practice Forms, Habeas Corpus, § 1.

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