2020 Georgia Code
Title 9 - Civil Practice
Chapter 14 - Habeas Corpus
Article 2 - Procedure for Persons Under Sentence of State Court of Record
§ 9-14-43. Jurisdiction and Venue

A petition brought under this article must be filed in the superior court of the county in which the petitioner is being detained. The superior courts of such counties shall have exclusive jurisdiction of habeas corpus actions arising under this article. If the petitioner is not in custody or is being detained under the authority of the United States, any of the several states other than Georgia, or any foreign state, the petition must be filed in the superior court of the county in which the conviction and sentence which is being challenged was imposed.

(Code 1933, § 50-127, enacted by Ga. L. 1967, p. 835, § 3; Ga. L. 2004, p. 917, § 2.)

- For note, "Ineffective Assistance of Counsel Blues: Navigating the Muddy Waters of Georgia Law After 2010 State Supreme Court Decisions," see 45 Ga. L. Rev. 1199 (2011).

JUDICIAL DECISIONS

Jurisdiction vested exclusively in superior court of county of detention.

- Under this section, jurisdiction to hear petitions for habeas corpus is vested exclusively in the superior court of the county wherein the petitioner is being detained. Strauss v. Stynchcombe, 224 Ga. 859, 165 S.E.2d 302 (1968).

- While a motion to vacate and set aside sentence, made after the original term has passed, may, in appropriate circumstances, be treated as a habeas corpus petition, when the trial court is not a superior court, it has no jurisdiction to adopt such an approach. Thigpen v. State, 165 Ga. App. 837, 303 S.E.2d 81 (1983).

Petition for habeas corpus must be filed in county of petitioner's confinement. Jones v. Luzier, 345 F. Supp. 724 (N.D. Ga. 1972).

Venue in habeas corpus cases involving restraint of the personal liberty of a prisoner within the state lies in the county where the actual physical detention exists. Smith v. Garner, 236 Ga. 81, 222 S.E.2d 351 (1976).

Jurisdiction and venue lie in the superior court of the county in which the petitioner is actually and physically detained, even though the petitioner's custody has been transferred there under authority of the State Board of Corrections (now Board of Offender Rehabilitation). Smith v. Garner, 236 Ga. 81, 222 S.E.2d 351 (1976).

Proper method for challenging the validity of a guilty plea and resulting sentence is through habeas corpus proceedings; however, a petition for habeas corpus must be filed in a superior court of the county where a prisoner is detained. Goodrum v. State, 259 Ga. App. 704, 578 S.E.2d 484 (2003).

Habeas corpus is the exclusive post-appeal procedure available to a criminal defendant who asserts the denial of a constitutional right such as effective assistance of counsel, and a habeas corpus action must be filed in the superior court of the county in which the petitioner is detained, which is the only court that has jurisdiction over such a petition; because, at the time the defendant filed the amended extraordinary motion for new trial raising ineffective assistance of counsel contentions, the defendant was incarcerated in a different county from that in which the defendant was tried and brought the motions, that motion could not have been treated as a petition for a writ of habeas corpus and the trial court was without authority to consider those contentions. Johnson v. State, 272 Ga. App. 294, 612 S.E.2d 29 (2005).

- Order entered by a superior court in Fulton County granting a parolee's petition for a writ of habeas corpus was a nullity; the parolee was "not in custody" for purposes of O.C.G.A. § 9-14-43 and, therefore, only the superior court in Floyd County, the county where the parolee had been convicted, could consider the petition for a writ of habeas corpus. Nix v. Watts, 284 Ga. 100, 664 S.E.2d 194 (2008).

- Motion to appeal a conviction, in the nature of a petition for the writ of habeas corpus, should have been filed in the superior court of the county wherein the petitioner was being detained, not in the convicting court. Neal v. State, 232 Ga. 96, 205 S.E.2d 284 (1974).

Criminal defendant's motion in arrest of judgment filed three years late could not be construed as a petition for habeas corpus because the petition 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. Lacey v. State, 253 Ga. 711, 324 S.E.2d 471 (1985).

Defendant's pleading, which sought an out-of-time appeal under circumstances when such an appeal was not permitted, could not be considered a petition for writ of habeas corpus since the defendant, while a prisoner in a state facility, filed the pleading against the state in the superior court of the county of conviction rather than against the warden of the institution in which the defendant was incarcerated and in the superior court of the county of the defendant's incarceration as required by O.C.G.A. § 9-14-43. Richards v. State, 275 Ga. 190, 563 S.E.2d 856 (2002).

- Person who is being restrained under sentence of a state court of record must file a petition in the county where the person is detained; this rule applies even if the sentence being attacked is not the one being served, that is, even if a future consecutive sentence is being attacked. Smith v. State, 234 Ga. 390, 216 S.E.2d 111 (1975).

- Superior court properly permitted the transfer of an inmate's habeas corpus petition from the county in which the petition was filed to the county to which the inmate was transferred after filing the petition as only the superior court of the county where a habeas petitioner is currently detained has jurisdiction to address the merits of the claim; however, such a holding is limited to instances when a petitioner's county of incarceration is changed for legitimate or routine reasons and not to frustrate habeas relief. Preer v. Johnson, 279 Ga. 90, 610 S.E.2d 46 (2005).

- When petitioner is restrained of the petitioner's liberty within the federal penal system in this state, venue of the petitioner's action against the state in the nature of habeas corpus is in the superior court of the county where the petitioner is incarcerated by federal authorities. Smith v. State, 234 Ga. 390, 216 S.E.2d 111 (1975).

When a petitioner is incarcerated by federal authorities within this state, the proper county in which to bring the petition for writ of habeas corpus is the county in which the petitioner is detained. Craig v. State, 234 Ga. 398, 216 S.E.2d 296 (1975).

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).

- When a petitioner who desires to attack an allegedly void conviction is restrained by federal authorities in another state, proper jurisdiction to entertain the petitioner's habeas petition is the one in which the petitioner was sentenced. Craig v. State, 234 Ga. 398, 216 S.E.2d 296 (1975).

- This section is controlling as to jurisdiction and venue for habeas corpus petitions arising out of delinquency proceedings in the juvenile court, even though such proceedings are civil in nature, in order to protect minors from a criminal record. Colton v. Martins, 230 Ga. 482, 197 S.E.2d 729 (1973).

- When a person whose driver's license has been revoked by the commissioner of public safety seeks reinstatement of the license, venue in a resulting habeas corpus proceeding resulting from denial of reinstatement is proper not only in the county in which the agency which is restraining the driver is located, but also in the place of conviction. Hardison v. Martin, 254 Ga. 719, 334 S.E.2d 161 (1985).

- Sentencing order on a criminal attempt count was vacated because the trial court was without authority to enter a February 2018 sentence since the Georgia Supreme Court had already determined that the appellant was not convicted of felony murder or criminal attempt, which was the law of the case, and prevented the trial court from revisiting the issue and the court inappropriately granted a new trial. Hollmon v. State, 305 Ga. 90, 823 S.E.2d 771 (2019).

Cited in Parks v. Ault, 229 Ga. 228, 190 S.E.2d 540 (1972); Chandler v. Ault, 234 Ga. 346, 216 S.E.2d 101 (1975); Grant v. State, 159 Ga. App. 2, 282 S.E.2d 668 (1981); James v. Hight, 251 Ga. 563, 307 S.E.2d 660 (1983); Stargell v. State, 204 Ga. App. 45, 418 S.E.2d 372 (1992); Worle v. State, 227 Ga. App. 575, 489 S.E.2d 374 (1997); State v. Smith, 276 Ga. 14, 573 S.E.2d 64 (2002).

RESEARCH REFERENCES

Am. Jur. 2d.

- 39 Am. Jur. 2d, Habeas Corpus and Postconviction Remedies, § 98.

- 39A C.J.S., Habeas Corpus, § 272.