2020 Georgia Code
Title 9 - Civil Practice
Chapter 14 - Habeas Corpus
Article 2 - Procedure for Persons Under Sentence of State Court of Record
§ 9-14-42. Grounds for Writ; Waiver of Objection to Jury Composition

Universal Citation: GA Code § 9-14-42 (2020)
  1. Any person imprisoned by virtue of a sentence imposed by a state court of record who asserts that in the proceedings which resulted in his conviction there was a substantial denial of his rights under the Constitution of the United States or of this state may institute a proceeding under this article.
  2. The right to object to the composition of the grand or trial jury will be deemed waived under this Code section unless the person challenging the sentence shows in the petition and satisfies the court that cause exists for his being allowed to pursue the objection after the conviction and sentence have otherwise become final.
  3. Any action brought pursuant to this article shall be filed within one year in the case of a misdemeanor, except as otherwise provided in Code Section 40-13-33, or within four years in the case of a felony, other than one challenging a conviction for which a death sentence has been imposed or challenging a sentence of death, from:
    1. The judgment of conviction becoming final by the conclusion of direct review or the expiration of the time for seeking such review; provided, however, that any person whose conviction has become final as of July 1, 2004, regardless of the date of conviction, shall have until July 1, 2005, in the case of a misdemeanor or until July 1, 2008, in the case of a felony to bring an action pursuant to this Code section;
    2. The date on which an impediment to filing a petition which was created by state action in violation of the Constitution or laws of the United States or of this state is removed, if the petitioner was prevented from filing such state action;
    3. The date on which the right asserted was initially recognized by the Supreme Court of the United States or the Supreme Court of Georgia, if that right was newly recognized by said courts and made retroactively applicable to cases on collateral review; or
    4. The date on which the facts supporting the claims presented could have been discovered through the exercise of due diligence.
  4. At the time of sentencing, the court shall inform the defendant of the periods of limitation set forth in subsection (c) of this Code section.

(Code 1933, § 50-127, enacted by Ga. L. 1967, p. 835, § 3; Ga. L. 1975, p. 1143, § 1; Ga. L. 1982, p. 786, §§ 1, 3; Ga. L. 1984, p. 22, § 9; Ga. L. 2004, p. 917, § 1.)

Code Commission notes.

- Pursuant to Code Section 28-9-5, in 2004, in paragraph (c)(1), "July 1, 2004" was substituted for "the effective date of this Code section", "until July 1, 2005," was substituted for "from the effective date of this Code section one year", and "until July 1, 2008," was substituted for "four years".

Editor's notes.

- Ga. L. 1982, p. 786, § 5, not codified by the General Assembly, declared that that Act is inapplicable to habeas corpus petitions filed prior to January 1, 1983.

Law reviews.

- For survey of 1986 Eleventh Circuit cases on constitutional criminal procedure, see 38 Mercer L. Rev. 1141 (1987). 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).



  • In General
  • Composition of Grand or Trial Juries
  • Effective Assistance of Counsel
In General

Construction with O.C.G.A. § 17-7-131. - Since the 1982 amendment of O.C.G.A. § 9-14-42, the question of whether the requirements of O.C.G.A. § 17-7-131 were violated is not cognizable in a habeas action and, accordingly, the habeas court erred in granting the writ based on the court's construction of those requirements. Parker v. Abernathy, 253 Ga. 673, 324 S.E.2d 191 (1985).

Scope of section.

- Not only can a substantial denial of a federal or state constitutional right be raised on habeas corpus, but a substantial denial of rights under the laws of this state can also be raised pursuant to O.C.G.A. § 9-14-42. McDuffie v. Jones, 248 Ga. 544, 283 S.E.2d 601 (1981), overruled on other grounds, West v. Waters, 272 Ga. 591, 533 S.E.2d 88 (2000) (decided prior to 1982 amendment).

Criminal trial procedure rules with respect to waiver.

- These statutes were not designed to alter the state's longstanding criminal trial procedure rules with respect to waiver; rather, the purpose was to allow 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).

Violation of court rules not cognizable.

- Habeas court erred in reversing the petitioner's guilty pleas on the grounds of judicial interference or coercion; claims of violation of Ga. Unif. Super. Ct. R. 33.5 were not cognizable. The trial court's exchange with the petitioner stating that the court "didn't want to play games" did not threaten the petitioner with a particular sentence and did not reveal the judge's preference about whether the petitioner pled guilty. Kennedy v. Hines, 305 Ga. 7, 823 S.E.2d 306 (2019).

Habeas corpus and appeal distinct.

- Habeas court erred in finding that the applicant waived the applicant's right to petition for a writ of habeas corpus in a colloquy that took place during an agreement to reduce the applicant's sentence from 25 to 15 years; although the applicant waived the applicant's right to appeal, the trial court had conflated the concepts of appeal and habeas corpus, and they were distinct rights. Rawles v. Holt, 304 Ga. 774, 822 S.E.2d 259 (2018).

Right of petitioner to bring federal claims in state habeas court.

- This section was designed to allow a state prisoner to bring in state habeas court any federal claim which the prisoner might also bring in federal court. Stewart v. Ricketts, 451 F. Supp. 911 (M.D. Ga. 1978).

This section seems to have expressly adopted federal standards of waiver. Peters v. Rutledge, 397 F.2d 731 (5th Cir. 1968).

Valid plea of guilty waives all known or unknown defenses. Clark v. Caldwell, 229 Ga. 612, 193 S.E.2d 816 (1972).

Plea agreement waiving death penalty.

- Habeas corpus was the proper procedure for the defendant to challenge a plea agreement whereby the defendant promised not to seek any form of relief from life imprisonment in exchange for the state's waiver of the death penalty. Allen v. Thomas, 265 Ga. 518, 458 S.E.2d 107 (1995).

Failure to show voluntary waiver.

- Defendant's habeas petition was properly granted as the state failed to meet the state's burden to show that the defendant voluntarily, knowingly, and intelligently entered a guilty plea because there was no transcript of the plea hearing and plea counsel had no independent recollection of the case but testified that neither counsel nor the trial court would have advised the defendant of the rights the defendant was waiving and that the defendant was not provided with the plea form before entry of the plea; further, laches was inapplicable and the habeas petition was timely under O.C.G.A. § 9-14-42(c)(1). State v. Futch, 279 Ga. 300, 612 S.E.2d 796 (2005).

Ultimate question in any habeas corpus case is whether the petitioner's rights were violated in the trial and sentence. Atkins v. Martin, 229 Ga. 815, 194 S.E.2d 463 (1972).

Writ of habeas corpus looks only to lawfulness of present confinement. Steed v. Ault, 229 Ga. 649, 193 S.E.2d 851 (1972).

Since the petitioner did not challenge the validity of the petitioner's sentence or the petitioner's incarceration but challenged only the failure of the board of pardons and paroles to release the petitioner on parole, the petitioner's remedy lay, not in habeas corpus, but in a suit against the board. Lewis v. Griffin, 258 Ga. 887, 376 S.E.2d 364 (1989).

Civil renewal provisions apply in habeas corpus proceedings.

- O.C.G.A. § 9-14-42(c) was not a statute of repose and not an absolute bar to the refiling of a habeas corpus petition and, therefore, was not in conflict with the provisions of O.C.G.A. §§ 9-2-60(b) and (c) and9-11-41(e), which allowed for the renewal of civil actions after dismissal. Therefore, the habeas court's dismissal of a petition as untimely was reversed. Phagan v. State, 287 Ga. 856, 700 S.E.2d 589 (2010).

Lawfulness of possible future imprisonment cannot be determined.

- Only question which this court can entertain in a habeas corpus proceeding is the validity or legality of the present confinement and the sentence under which the petitioner is restrained; lawfulness of a possible future imprisonment under another sentence cannot be therein determined. Lewis v. Smith, 227 Ga. 220, 179 S.E.2d 745 (1971).

Function of writ of habeas corpus is not to determine guilt or innocence of person accused of crime, and is not a substitute for review to correct errors of law. Perdue v. Smith, 228 Ga. 770, 187 S.E.2d 862 (1972); Coleman v. Caldwell, 229 Ga. 656, 193 S.E.2d 846 (1972).

Time for filing.

- Pro se petition for habeas corpus was untimely because the petition was received by the habeas court one day after the statutory deadline of O.C.G.A. § 9-14-42(c)(1). The habeas court erred in applying the mailbox rule, under which the filing of a pro se petitioner's notice of appeal was deemed filed when delivered to prison officials, because the mailbox rule applied only to an attempted appeal of a pro se habeas petitioner operating under O.C.G.A. § 9-14-52, not to the filing of the initial petition. Roberts v. Cooper, 286 Ga. 657, 691 S.E.2d 875 (2010).

Habeas court correctly dismissed a petition based on the new rule of law announced in Garza v. State, 284 Ga. 696 (2008) (regarding asportation in kidnapping cases) for failure to file within the time allowed by O.C.G.A. § 9-14-42(c)(3); the time ran from the Garza decision, not the date Garza was made retroactively applicable to cases on collateral review. Abrams v. Laughlin, 304 Ga. 34, 816 S.E.2d 26 (2018).

Habeas petitioner's convictions became final when the petitioner's time for seeking a petition for certiorari in the Supreme Court of Georgia expired without the petitioner's filing one, not when the petitioner failed to file a notice of intent to apply for certiorari; however, the petitioner's petition was still untimely under O.C.G.A. § 9-14-42(c)(1). There was no remedy for the trial court's failure to comply with the notice required by § 9-14-42(d), and the court declined to adopt the doctrine of equitable tolling. Stubbs v. Hall, 308 Ga. 354, 840 S.E.2d 407 (2020).

Full hearing required.

- Grant of a writ was vacated after the habeas court terminated the proceeding in the middle of the petitioner's examination of trial counsel, thereby depriving the warden of the right to cross-examine that witness and any other called by the petitioner, and effectively prevented the warden from presenting evidence supportive of the presumption of the conviction's validity. Gaither v. Gibby, 267 Ga. 96, 475 S.E.2d 603 (1996).

Writ of habeas corpus is not a substitute for review to correct mere errors of law, and may not be used for another adjudication of the question of guilt or innocence of the accused. Johnson v. Smith, 227 Ga. 611, 182 S.E.2d 101 (1971).

Guilt or innocence not determined by writ.

- It is not the function of a writ of habeas corpus to determine the guilt or innocence of one accused of a crime. Bennefield v. Brown, 228 Ga. 705, 187 S.E.2d 865 (1972).

Writ not to review issues already decided on appeal.

- It is not the function of habeas corpus courts to review issues already decided by an appellate court, nor is it the function of the Supreme Court to review, on denial of the writ of habeas corpus, issues previously decided on appeal. Brown v. Ricketts, 233 Ga. 809, 213 S.E.2d 672 (1975).

Since the issue that there was insufficient corroboration of accomplice testimony was actually litigated, i.e., raised and decided, in the appellant's direct appeal, the issue cannot be reasserted in habeas corpus proceedings. Gunter v. Hickman, 256 Ga. 315, 348 S.E.2d 644 (1986).

Habeas corpus is an available remedy to attack a void judgment. Parris v. State, 232 Ga. 687, 208 S.E.2d 493 (1974).

Habeas corpus is never a substitute for appeal or other remedial review procedure.

- If one has been convicted of a crime, habeas corpus cannot be used as a substitute for appeal or other remedial procedure for correction of errors and irregularities; it is an appropriate remedy only when judgment or sentence under which the applicant is being restrained is not merely erroneous but is absolutely void. Brown v. Holland, 228 Ga. 628, 187 S.E.2d 246 (1972), overruled on other grounds, Hall v. Hopper, 234 Ga. 625, 216 S.E.2d 839 (1975).

Writ of habeas corpus is never a substitute for a review to correct mere errors of law; it is an available remedy to attack a void judgment. Bush v. Chappell, 225 Ga. 659, 171 S.E.2d 128 (1969).

Habeas corpus is never a substitute for review to correct errors of law, nor can it be used as a second appeal for such purpose; it is an appropriate remedy only when the judgment is absolutely void. Thrash v. Caldwell, 229 Ga. 585, 193 S.E.2d 605 (1972).

Habeas corpus is not a substitute for appeal for the correction of errors or irregularities. Green v. Caldwell, 229 Ga. 650, 193 S.E.2d 847 (1972).

Writ of habeas corpus is never a substitute for appellate review to correct mere errors of law; the writ's function is to attack a void judgment. Atkins v. Martin, 229 Ga. 815, 194 S.E.2d 463 (1972).

Habeas corpus may not be used as means of obtaining a second appeal. Brown v. Ricketts, 233 Ga. 809, 213 S.E.2d 672 (1975).

Constitutional claims required to be brought by habeas corpus rather than extraordinary motion for new trial.

- Defendant's post-appeal challenge to a criminal conviction brought 15 years after his 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 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).

Discharge under habeas cannot be granted unless judgment is void.

- Discharge under a writ of habeas corpus, after conviction, cannot be granted unless the judgment is absolutely void as when the convicting court was without jurisdiction or when the defendant in the defendant's trial was denied due process of law. Shoemake v. Whitlock, 226 Ga. 771, 177 S.E.2d 677 (1970).

Only questions rendering judgment void may be raised.

- Since writ of habeas corpus cannot be used merely as a substitute for a writ of error or other remedial procedure to correct errors of law of which the defendant had the opportunity to avail oneself, no question as to guilt or innocence or as to any irregularity can be so raised, unless it was such as to render the judgment wholly void. Shoemake v. Whitlock, 226 Ga. 771, 177 S.E.2d 677 (1970).

Contentions of alleged irregularities and errors on original trial cannot be raised in a habeas corpus proceeding. Perdue v. Smith, 228 Ga. 770, 187 S.E.2d 862 (1972).

Only substantive defects cognizable on habeas.

- Substantive defects, such as failure of the indictment to allege conduct which constitutes a crime, are cognizable on habeas corpus because they would render the entire proceedings void ab initio; if, on the other hand, the defect is merely one of form, the defect is waived if not raised prior to trial. Hopper v. Hampton, 244 Ga. 361, 260 S.E.2d 73 (1979).

Issue of improper revocation of probation cognizable.

- Claim that a probation was improperly revoked due to lack of substantial compliance with O.C.G.A. § 42-8-34.1 regarding the conditions imposed on the probation was a cognizable issue for purposes of a habeas corpus proceeding under O.C.G.A. § 9-14-42(a) as confinement under a sentence that was longer than that permitted by state law invoked a constitutional right. Harvey v. Meadows, 280 Ga. 166, 626 S.E.2d 92 (2006).

Full and fair opportunity to litigate determinative.

- Habeas corpus review test on Fourth Amendment claims is whether the defendant had a "full and fair" opportunity to litigate, not whether the claim was, in fact, litigated. Jacobs v. Hopper, 238 Ga. 461, 233 S.E.2d 169 (1977).

Appeal or objection prerequisite to writ.

- Failure to make timely objection to any alleged error or deficiency or to pursue the error on appeal ordinarily will preclude review by a writ of habeas corpus. Black v. Hardin, 255 Ga. 239, 336 S.E.2d 754 (1985).

Habeas corpus is available to re- view constitutional deprivations only. Valenzuela v. Newsome, 253 Ga. 793, 325 S.E.2d 370 (1985).

State habeas petitioner's entitlement to relief is limited to the denial of state or federal constitutional rights. Battle v. State, 235 Ga. App. 101, 508 S.E.2d 467 (1998).

Habeas applicant's claim that the sentencing court in the applicant's statutory rape trial improperly failed to consider the Youthful Offender Act, O.C.G.A. § 42-7-1 et seq., when the court sentenced the applicant was not of constitutional dimensions and so was not cognizable in a habeas action. O.C.G.A. § 9-14-42(a) required that there be a substantial denial of the applicant's constitutional rights, and O.C.G.A. § 42-7-9(a) provided that nothing in the Act affected the power of any court to proceed under other laws. Conley v. Pate, 305 Ga. 333, 825 S.E.2d 135 (2019).

Consideration of alleged constitutional errors.

- Otherwise valid procedural bar will not preclude a habeas corpus court from considering alleged constitutional errors or deficiencies if there is a showing of adequate cause for the failure to object or to pursue it on appeal and a showing of actual prejudice to the accused. Black v. Hardin, 255 Ga. 239, 336 S.E.2d 754 (1985).

When state court both applies procedural bar and addresses claims on merits, federal habeas review is precluded only if the state court's adjudication on the merits is made in the alternative and does not constitute the principal basis for the state court's denial of relief on a collateral challenge of the conviction. Hardin v. Black, 845 F.2d 953 (11th Cir. 1988).

Trial under unconstitutional statute.

- One indicted and tried under an unconstitutional statute may, even after final conviction, obtain discharge from custody on a writ of habeas corpus. Hammock v. Zant, 243 Ga. 299, 253 S.E.2d 727 (1979).

When a challenge to the constitutionality of the statute under which a defendant was indicted and convicted has not been ruled upon at trial, the defendant does not waive the defendant's right to raise the issue on habeas corpus. Barnes v. State, 244 Ga. 302, 260 S.E.2d 40 (1979).

Individual may challenge constitutionality of the statute under which the individual was convicted for the first time on habeas corpus, and may challenge constitutionality of such statute for the first time on appeal. Simmons v. State, 246 Ga. 390, 271 S.E.2d 468 (1980), cert. denied, 449 U.S. 1125, 101 S. Ct. 942, 67 L. Ed. 2d 111 (1981).

No waiver of constitutional challenge not ruled on.

- When a constitutional challenge has not already been ruled on at trial or on appeal and is thus not barred by res judicata, the defendant has not waived the defendant's right to raise the issue on habeas corpus. Hammock v. Zant, 243 Ga. 259, 253 S.E.2d 727 (1979).

Litigant's procedural defaults in state proceedings do not prevent vindication of the litigant's federal rights unless the state's insistence on compliance with the state's procedural rule serves a legitimate state interest. Morgan v. Kiff, 230 Ga. 277, 196 S.E.2d 445 (1973), overruled on other grounds, Jacobs v. Hopper, 238 Ga. 461, 233 S.E.2d 169 (1977).

Prisoner may raise, by habeas petition, constitutional right to be tried and sentenced in person. Anthony v. Hopper, 235 Ga. 336, 219 S.E.2d 413 (1975), overruled on other grounds, 293 Ga. 656 (2013).

Petitioner aggrieved by an unconstitutional search and seizure is entitled to habeas relief on that basis alone. Wilson v. Hopper, 234 Ga. 859, 218 S.E.2d 573 (1975).

Civil complaint not appropriate to challenge conviction.

- Refusal of a prisoner's complaint against district attorneys and assistant district attorneys for violation of the prisoner's constitutional rights and false imprisonment was proper since a petition for a writ of habeas corpus was the appropriate procedure for challenging the conduct of the defendants. Battle v. Sparks, 211 Ga. App. 106, 438 S.E.2d 185 (1993).

Illegal search is no ground for relief absent introduction of evidence seized therein.

- Illegal search is not a ground for relief in habeas corpus in the absence of a showing that evidence obtained thereby was introduced against the petitioner at trial. Bennefield v. Brown, 228 Ga. 705, 187 S.E.2d 865 (1972).

Failure to advise accused of rights or charges not ground for habeas.

- Failure to advise an accused of the accused's rights, which failure does not produce a confession or other incriminating evidence which is used against the accused on trial, and failure to give the accused a hearing prior to trial so as to be advised of the charges against the accused, presents no ground for a writ of habeas corpus. Atkins v. Martin, 229 Ga. 815, 194 S.E.2d 463 (1972).

No ground for relief based on absence of corroboration of the testimony of an accomplice.

- Corroboration of the testimony of an accomplice is a statutory requirement, not a constitutional right. Violation of a state law no longer constitutes a basis for habeas corpus relief. Thus, there is no constitutional nor habeas corpus ground for relief when the contention is the absence of corroboration of the testimony of an accomplice. Gunter v. Hickman, 256 Ga. 315, 348 S.E.2d 644 (1986) (concurring opinions).

Conviction of crime not charged in the indictment.

- Although a habeas applicant was convicted of uncharged statutory rape based on an instruction that statutory rape was a lesser included offense of forcible rape, and it was later decided that statutory rape was never an offense included in forcible rape, the applicant failed to show a violation of due process because the elements of statutory rape were stated in the indictment as a whole, which also charged the applicant with child molestation and aggravated child molestation. Hill v. Williams, 296 Ga. 753, 770 S.E.2d 800 (2015).

Conflict of interest by trial counsel.

- Inmate's claim that trial counsel had a conflict of interest was a Sixth Amendment claim and thus was cognizable on habeas corpus. Gibson v. Head, 282 Ga. 156, 646 S.E.2d 257 (2007).

Waiver of right to counsel.

- Burden is on prosecution to affirmatively establish valid waiver of right to counsel and waiver may not be presumed from a silent record. Blaylock v. Hopper, 233 Ga. 504, 212 S.E.2d 339 (1975).

Anything less than a showing, from the record, or from allegation and evidence, that the accused was offered counsel but intelligently and understandingly rejected the offer, is not a waiver of the right of counsel. Blaylock v. Hopper, 233 Ga. 504, 212 S.E.2d 339 (1975).

In the absence of any showing that the indigent petitioner was aware of the petitioner's right to appointed counsel, it cannot be said that the petitioner intentionally abandoned or waived that right. Blaylock v. Hopper, 233 Ga. 504, 212 S.E.2d 339 (1975).

Waiver established.

- Habeas corpus petitioner's claim of ineffective assistance of trial counsel was waived since appellate counsel, who was not the petitioner's trial counsel, failed to assert it on direct appeal and the petitioner failed to demonstrate cause for the failure to raise the claim and prejudice arising therefrom. White v. Kelso, 261 Ga. 32, 401 S.E.2d 733 (1991).

No waiver of rights established.

- Record failed to show that federal or state constitutional rights asserted to have been violated were waived. Stynchcombe v. Floyd, 252 Ga. 113, 311 S.E.2d 828 (1984).

Denial of a preliminary hearing is not a valid ground for writ of habeas corpus. Wilson v. Hopper, 234 Ga. 859, 218 S.E.2d 573 (1975).

Remedy for newly discovered evidence is by extraordinary motion for new trial, not by habeas corpus. Bush v. Chappell, 225 Ga. 659, 171 S.E.2d 128 (1969).

Insufficiency of evidence is not grounds for habeas corpus relief. Allen v. Hopper, 234 Ga. 642, 217 S.E.2d 156 (1975).


- Having failed to obtain a new trial in the trial court or the Court of Appeals on the ground of insufficiency of the evidence to prove venue, one convicted of a crime cannot relitigate this issue by habeas corpus. Bush v. Chappell, 225 Ga. 659, 171 S.E.2d 128 (1969).

Contentions of prisoner that the evidence was insufficient to support the verdict against the prisoner and that the trial court erred in admitting certain evidence over objection of the prisoner's attorney did not raise any question which would authorize the setting aside of the prisoner's conviction. Coleman v. Caldwell, 229 Ga. 656, 193 S.E.2d 846 (1972).

Contention that petitioner was not guilty of the offense with which the petitioner was charged seeks to raise issue as to whether the trial court was authorized from the evidence presented to find the petitioner guilty and presents no ground for a writ of habeas corpus. Atkins v. Martin, 229 Ga. 815, 194 S.E.2d 463 (1972).

Claims as to sufficiency of evidence may not be raised in a state habeas corpus proceeding. Littles v. Balkcom, 245 Ga. 285, 264 S.E.2d 219 (1980).

Law of this state requires claims as to the sufficiency of the evidence to be raised on direct appeal; such a claim may not be raised in a state habeas corpus proceeding. Stephens v. Balkcom, 245 Ga. 492, 265 S.E.2d 596 (1980).

Subornation of perjury as ground for writ.

- Subornation of perjury by the state in order to obtain a conviction is a denial of the defendant's right to due process, and constitutes grounds for the writ of habeas corpus. Phillips v. Hopper, 237 Ga. 68, 227 S.E.2d 1 (1976).

Failure to charge jury on defense.

- Trial court's failure to charge the jury on the state's burden to disprove the defendant's accident defense did not entitle the defendant to habeas corpus relief because the omission of the requested jury charge at the defendant's murder trial affected only a substantive claim and did not violate the defendant's constitutional right to due process. Bruce v. Smith, 274 Ga. 432, 553 S.E.2d 808 (2001).

Power of Supreme Court to review charges to jury.

- Although the general rule is that jury charges are not reviewable on habeas except for a charge which is so defective that it renders the trial fundamentally unfair, the Supreme Court always has the power to review charges, whether objected to or not. Stephens v. Hopper, 241 Ga. 596, 247 S.E.2d 92, cert. denied, 439 U.S. 991, 99 S. Ct. 593, 58 L. Ed. 2d 667 (1978).

Supreme court review of sentencing charge in capital case.

- In a death case, sentencing charge is so crucial to the outcome of the trial that the Supreme Court will exercise its power to review those charges when the issue is placed before it on habeas, whether or not objection was made in the trial court. Stephens v. Hopper, 241 Ga. 596, 247 S.E.2d 92, cert. denied, 439 U.S. 991, 99 S. Ct. 593, 58 L. Ed. 2d 667 (1978).

Refusal to consider or grant parole.

- Prisoner cannot be discharged from the penitentiary before the expiration of the prisoner's sentence merely because the Board of Pardons and Paroles refuses to hear the prisoner's application for parole or to grant the prisoner a parole. Davis v. Caldwell, 229 Ga. 605, 193 S.E.2d 617 (1972).

On habeas corpus, court has no authority to control or in any manner interfere with the functions of the executive department in issuing pardons or paroles; these are discretionary matters and habeas corpus does not lie to control exercise of that discretion. Davis v. Caldwell, 229 Ga. 605, 193 S.E.2d 617 (1972); Whippler v. Caldwell, 231 Ga. 41, 200 S.E.2d 144 (1973).

Defendant's claim arising from the parole board's determination that the defendant was no longer eligible for parole was not cognizable in habeas corpus proceedings. Johnson v. Griffin, 271 Ga. 663, 522 S.E.2d 657 (1999).

Denial of appeal resulting from prisoner's escape after conviction is not ground for grant of a writ of habeas corpus, dismissal of such an appeal being on the theory that the escaped prisoner should not be allowed to reap the benefit of a decision in the prisoner's favor when the state could not enforce a decision in the state's favor; if, however, information or proof reaches the appellate court of the surrender or recapture of the escaped appellant before the dismissal, the appeal should not be dismissed summarily. Yates v. Brown, 235 Ga. 391, 219 S.E.2d 729 (1975).

Conviction after temporary release to another sovereignty.

- Permanent waiver of custody and jurisdiction need not be inferred from temporary release to another sovereignty and such argument does not present a valid ground on which to grant habeas corpus relief from a valid conviction and sentence. Lenear v. Hopper, 234 Ga. 338, 216 S.E.2d 95 (1975).

Conditions of confinement.

- Application for writ of habeas corpus is not the proper procedure for attacking treatment, discipline, or conditions of confinement being imposed upon an inmate by the Department of Corrections (now Department of Offender Rehabilitation). Brown v. Caldwell, 231 Ga. 795, 204 S.E.2d 137 (1974).

Claim to credit for time incarcerated.

- Claim seeking credit for time incarcerated on a previous conviction which had been set aside is not a proper one for habeas corpus relief. Whippler v. Caldwell, 231 Ga. 41, 200 S.E.2d 144 (1973).

Claim of confinement beyond the term of a lawful sentence was cognizable in a habeas corpus proceeding. Lillard v. Head, 267 Ga. 291, 476 S.E.2d 736 (1996).

Violation of federal statute.

- Violation of a federal statute in proceedings leading to a prisoner's conviction and detention is not grounds for relief on habeas corpus, though relief is available for violations of rights guaranteed by state and federal Constitutions and state statutes. Gooding v. Dudley, 232 Ga. 321, 206 S.E.2d 490 (1974).

Old idea that immediate release from physical custody is only remedy available under habeas corpus is dead. Parris v. State, 232 Ga. 687, 208 S.E.2d 493 (1974).

Mere fact that sentence has been completely served should not bar attack through habeas corpus, even though the petition is not initially filed until after the sentence is completed. Parris v. State, 232 Ga. 687, 208 S.E.2d 493 (1974).

If adverse consequences remain.

- Habeas corpus petitioner's cause does not become moot simply because prior to final adjudication the petitioner is unconditionally released from custody, if adverse collateral consequences of the conviction continue to plague the petitioner. Parris v. State, 232 Ga. 687, 208 S.E.2d 493 (1974).

Habeas corpus petition which alleges that the petitioner's conviction is void will not be dismissed as being moot, even though the petitioner's sentence has been completely served, when the petitioner is suffering collateral consequences in the nature of a due process violation. Nix v. State, 233 Ga. 73, 209 S.E.2d 597 (1974); Shakur v. State, 239 Ga. 548, 238 S.E.2d 85 (1977).

Enhancement of federal sentence by void state sentence.

- Petitioner is suffering collateral consequences in the nature of a due process violation if a void state conviction is used to enhance a federal sentence. Parris v. State, 232 Ga. 687, 208 S.E.2d 493 (1974).

Attacking one of multiple concurrent sentences.

- Prisoner may, in some circumstances, on habeas corpus attack one of multiple concurrent sentences on habeas; habeas court should consider whether the prisoner's confinement pursuant to the sentence being attacked is enhancing the prisoner's imprisonment under other concurrent sentences by, for example, delaying the prisoner's eligibility for parole, or whether the prisoner is for any other reason "restrained of his liberty" by the attacked sentence, within the meaning of this section, beyond the restraint flowing from other sentences. Jones v. Hopper, 233 Ga. 531, 212 S.E.2d 367 (1975).

New trial on issue of punishment held necessary when sentence was aggravated by unconstitutional convictions.

- When evidence adduced at habeas proceeding clearly showed that at least two of the prior convictions submitted in aggravation of punishment were wholly unconstitutional, a new trial on the issue of punishment must be given, even though no objection was made to the admission of prior invalid convictions at the criminal trial. Hopper v. Thompson, 232 Ga. 417, 207 S.E.2d 57 (1974).

Prosecutorial misconduct.

- Habeas court erred in granting relief to a rape defendant based on the court's erroneous finding that the prosecutor allowed the victim to testify despite knowing that the victim was lying because the prosecutor later testified that the prosecutor did not know that the victim testified falsely, but only held that opinion; also, this finding was barred by collateral estoppel based on evidence offered at a hearing on the defendant's motion for new trial. The violation of ethical rules did not constitute a due process deprivation. Washington v. Hopson, 299 Ga. 358, 788 S.E.2d 362 (2016).

Juror's crime scene visit.

- Habeas petitioner alleged facts showing grounds for relief which could not reasonably have been raised in the petitioner's original habeas petition and which could not have been discovered by diligence including a juror's misconduct in visiting the scene and the state's failure to disclose ballistic evidence, satisfying O.C.G.A. §§ 9-14-42(c)(4) and9-14-51. Watkins v. Ballinger, 308 Ga. 387, 840 S.E.2d 378 (2020).

Cited in King v. Adams, 410 F.2d 455 (5th Cir. 1969); Proctor v. Ault, 230 Ga. 669, 198 S.E.2d 671 (1973); Spencer v. Hopper, 243 Ga. 532, 255 S.E.2d 1 (1979); Birt v. Hopper, 245 Ga. 221, 265 S.E.2d 276 (1980); Alderman v. Austin, 498 F. Supp. 1134 (S.D. Ga. 1980); Littles v. DeFrancis, 517 F. Supp. 1137 (M.D. Ga. 1981); Goodwin v. Balkcom, 684 F.2d 794 (11th Cir. 1982); Mitchell v. Hopper, 538 F. Supp. 77 (S.D. Ga. 1982); Birt v. Montgomery, 725 F.2d 587 (11th Cir. 1984); Westbrook v. Zant, 743 F.2d 764 (11th Cir. 1984); Lancaster v. Newsome, 880 F.2d 362 (11th Cir. 1989); Derrer v. Anthony, 265 Ga. 892, 463 S.E.2d 690 (1995); Manville v. Hampton, 266 Ga. 857, 471 S.E.2d 872 (1996); Bruce v. Smith, 274 Ga. 432, 553 S.E.2d 808 (2001); Taylor v. Williams, 528 F.3d 847 (11th Cir. 2008); Owens v. Hill, 295 Ga. 302, 758 S.E.2d 794 (2014); Tolbert v. Toole, 296 Ga. 357, 767 S.E.2d 24 (2014); Shelton v. Lee, 299 Ga. 350, 788 S.E.2d 369 (2016), cert. denied, 137 S. Ct. 1066, 197 L. Ed. 2d 187 (U.S. 2017).

Composition of Grand or Trial Juries

Editor's notes.

- Prior to amendment by Ga. L. 1975, p. 1143, § 1, O.C.G.A. § 9-14-42 made no special requirement as to showing cause for objecting to jury composition after conviction and sentence. Hence, decisions rendered prior to the 1975 amendment should be consulted with care.

Retroactive application of 1975 amendment to O.C.G.A. § 9-14-42, exempting from the blanket non-waiver rule (deleted by the 1982 amendment) challenges to the composition of grand or traverse juries, is not an independent and adequate state ground sufficient to preclude federal court consideration of the merits of a petitioner's claim. Spencer v. Kemp, 781 F.2d 1458 (11th Cir. 1986), cert. denied, 500 U.S. 960, 111 S. Ct. 2276, 114 L. Ed. 2d 727 (1991).

Retroactive application of Taylor.

- Since former Ga. Code. 1933, § 50-127 applied to the state inmate's 1974 trial, the state habeas court's finding that the inmate's jury composition claims were procedurally defaulted under the later enacted O.C.G.A. § 9-14-42 was not a dependent and adequate state ground precluding federal relief, but since the jury was empaneled before Taylor, which held that petit juries had to be drawn from a source fairly representative of the community, Taylor did not apply retroactively because Teague barred the claim. Prevatte v. French, 459 F. Supp. 2d 1305 (N.D. Ga. 2006), aff'd, 547 F.3d 1300 (11th Cir. Ga. 2008).

Showing of "cause" required to object to composition of grand or trial jury.

- Right to object to the composition of grand and trial juries in habeas corpus proceedings is deemed waived unless the petitioner demonstrates that "cause" exists for the petitioner's being allowed to pursue the objection after conviction and sentence have otherwise become final, and in order to satisfy this requirement, the petitioner must make a showing of "cause" for the petitioner's failure to challenge the jury composition in a timely fashion either at or before trial. Pulliam v. Balkcom, 245 Ga. 99, 263 S.E.2d 123, cert. denied, 447 U.S. 927, 100 S. Ct. 3023, 65 L. Ed. 2d 1121 (1980).

Since there was no timely challenge to the composition of the grand or traverse juries before or during trial and the federal habeas petitioner did not show cause for noncompliance or actual prejudice, the petitioner was not entitled to habeas relief. Dix v. Newsome, 584 F. Supp. 1052 (N.D. Ga. 1984).

Mandatory "cause" requirement as legitimate state interest.

- Showing of "cause" is mandatory under subsection (b) of this section, and represents a legitimate state interest in the finality of the litigation. Fountain v. York, 237 Ga. 784, 229 S.E.2d 629 (1976).

Showing of "cause" under subsection (b) involves two matters: (1) justification of the failure to raise jury composition questions in a timely fashion; and (2) a showing of actual prejudice. Fountain v. York, 237 Ga. 784, 229 S.E.2d 629 (1976).

Prejudice relevant to existence of "cause".

- In determining whether "cause" has been shown for allowing an untimely jury challenge, it is entirely appropriate to take prejudice or the absence thereof into account. Patterson v. Balkcom, 245 Ga. 563, 266 S.E.2d 179 (1980).

Actual composition of juries may be considered.

- In determining whether or not a defendant has been prejudiced by allegedly unconstitutional jury selection procedures, so as to allow the defendant to make an untimely jury challenge, it is entirely appropriate to inquire into the actual composition of the grand or trial juries in the defendant's case. Patterson v. Balkcom, 245 Ga. 563, 266 S.E.2d 179 (1980).

Prejudice presumed if jury pool challenged prior to trial.

- If challenged prior to trial, a movant is not required to demonstrate prejudice flowing from an unconstitutionally composed jury pool. The prejudice is presumed. Birt v. Montgomery, 709 F.2d 690 (11th Cir. 1983), cert. denied, 469 U.S. 874, 105 S. Ct. 232, 83 L. Ed. 2d 161 (1984).

Failure to challenge jury as trial tactic not "cause".

- Since trial counsel's failure to file timely jury challenges was the result of a tactical decision, the reliance by the defendant upon ineffectiveness of counsel to satisfy the "cause" requirement of O.C.G.A. § 9-14-42 must fail. Zant v. Gaddis, 247 Ga. 717, 279 S.E.2d 219, cert. denied, 454 U.S. 1037, 102 S. Ct. 579, 70 L. Ed. 2d 483 (1981).

Challenge to composition of grand jury, not filed prior to return of indictment, cannot be asserted as a ground for a writ of habeas corpus unless it is shown in the petition that cause exists for being allowed to pursue the objection to the grand jury's composition after the conviction and sentence have otherwise become final. Godfrey v. Francis, 251 Ga. 652, 308 S.E.2d 806 (1983), cert. denied, 466 U.S. 945, 104 S. Ct. 1930, 80 L. Ed. 2d 475 (1984).

Disadvantage must be shown to establish violation of jury pool composition warranting reversal.

- Assuming that a county traverse the jury pool was composed unconstitutionally, the defendant could benefit from such violation only if it worked to the defendant's actual and substantial disadvantage. Birt v. Montgomery, 709 F.2d 690 (11th Cir. 1983), cert. denied, 469 U.S. 874, 105 S. Ct. 232, 83 L. Ed. 2d 161 (1984).

Failure to raise question as to make-up of jury until after the verdict constitutes a waiver of any contention as to the legality of the jury's make-up. Atkins v. Martin, 229 Ga. 815, 194 S.E.2d 463 (1972).

Six appeals without objection to jury composition as waiver.

- Although there is no specific standard in this section which delineates at what point the defendant has waived a constitutional claim, it strains the mind to incredulity to think that after six appeals without an objection to the composition of the jury which indicted and convicted the defendant, the defendant has not waived the objection. Ferguson v. Caldwell, 233 Ga. 887, 213 S.E.2d 855 (1975).

Drawing of jurors in open court not due process violation.

- Petitioner in a habeas corpus hearing has not been deprived of due process or equal protection simply because jurors must be drawn in open court. Hill v. Stynchcombe, 225 Ga. 122, 166 S.E.2d 729 (1969).

Issue considered on appeal not subject to relitigation on habeas.

- When issue as to excusing two jurors for opposition to the death penalty was considered on direct appeal, the issue could not be relitigated on habeas. Smith v. Hopper, 240 Ga. 93, 239 S.E.2d 510 (1977).

Refusal to consider illegal composition of jury held error.

- Habeas corpus court was in error in refusing to hear evidence on the question of the illegal composition of the jury since that question had not previously been decided. Mitchell v. Smith, 229 Ga. 781, 194 S.E.2d 414 (1972).

Effective Assistance of Counsel

When ineffective assistance claim warrants overturning conviction.

- Defendant would be entitled to have conviction overturned on ground of ineffective assistance of counsel upon proof that defense counsel, who had not raised a question as to the grand jury's composition, was actively involved in the county's defense to a constitutional challenge of the grand jury composition in another case. Westbrook v. Zant, 704 F.2d 1487 (11th Cir. 1983), overruled on other grounds, Peek v. Kemp, 784 F.2d 1479 (11th Cir. 1986), cert. denied, 479 U.S. 939, 107 S. Ct. 421, 93 L. Ed. 2d 371 (1986).

Counsel representing both defendant and district attorney.

- Inmate who pled guilty to malice murder and aggravated assault and was serving a sentence of life plus years was entitled to habeas corpus relief because the counsel who represented the inmate at the guilty plea was simultaneously representing the district attorney, creating an actual conflict of interest and, given the enormity of the penalty the inmate faced, the conflict was impermissible. Howerton v. Danenberg, 279 Ga. 861, 621 S.E.2d 738 (2005).

Noncognizable, statutory claim regarding voir dire examination was not converted into a cognizable, constitutional claim merely by the allegation of ineffective assistance of counsel. Green v. Dunn, 257 Ga. 66, 355 S.E.2d 61 (1987).

Prejudice not found as to claim that counsel failed to obtain funds for forensic experts.

- Death row inmate's habeas corpus petition under O.C.G.A. § 9-14-42(a) alleging ineffective assistance of counsel in failure to secure funds for forensic experts failed because his theory of how his wife and her boyfriend was admitted to be possible by the state's experts, and the real issue was one of the inmate's credibility in light of non-forensic evidence that he had raped, harassed, and threatened to kill his wife in the past; therefore, his lack of funds for forensic experts did not prejudice his defense as required by O.C.G.A. § 9-14-48(d). His claim that the state presented false testimony, however, required additional findings of fact and conclusions, necessitating remand. McMichen v. Hall, Ga. , 684 S.E.2d 641 (2009).


Am. Jur. 2d.

- 39 Am. Jur. 2d, Habeas Corpus and Postconviction Remedies, §§ 99, 142, 143.


- 39A C.J.S., Habeas Corpus, § 283.


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

Habeas corpus in case of sentence which is excessive because imposing both fine and imprisonment, 49 A.L.R. 494.

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

Habeas corpus to test the sufficiency of indictment or information as regards the offense sought to be charged, 57 A.L.R. 85.

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

Bar of limitations as proper subject of investigation in extradition proceedings or in habeas corpus proceedings for release of one sought to be extradited, 77 A.L.R. 902.

Remedy of one convicted of crime while insane, 121 A.L.R. 267.

Disqualification of judge who presided at trial or of juror as ground of habeas corpus, 124 A.L.R. 1079.

Failure to examine witnesses to determine degree of guilt before pronouncing sentence upon plea of guilty as ground for habeas corpus, 134 A.L.R. 968.

Change of judicial decision as ground of habeas corpus for release of one held upon previous adjudication or conviction of contempt, 136 A.L.R. 1032.

Relief in habeas corpus for violation of accused's right to assistance of counsel, 146 A.L.R. 369.

Habeas corpus as remedy where one is convicted, upon plea of guilty or after trial, of offense other than one charged in indictment or information, 154 A.L.R. 1135.

Habeas corpus on ground of unlawful treatment of prisoner lawfully in custody, 155 A.L.R. 145.

Habeas corpus on ground of defective title to office of judge, prosecuting attorney, or other officer participating in petitioner's trial or confinement, 158 A.L.R. 529.

Invalidity of prior conviction or sentence as ground of habeas corpus where one is sentenced as second offender, 171 A.L.R. 541.

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.

Insanity of accused at time of commission of offense, not raised at trial, as ground for habeas corpus or coram nobis after conviction, 29 A.L.R.2d 703.

When is a person in custody of governmental authorities for purpose of exercise of state remedy of habeas corpus - modern cases, 26 A.L.R.4th 455.

Ineffective assistance of counsel: use or nonuse of interpreter at prosecution of foreign language speaking defendant, 79 A.L.R.4th 1102.

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