2020 Georgia Code
Title 9 - Civil Practice
Chapter 14 - Habeas Corpus
Article 2 - Procedure for Persons Under Sentence of State Court of Record
§ 9-14-52. Appeal Procedure; Application to Supreme Court by Petitioner for Certificate of Probable Cause; Effect of Appeal by Respondent

1. Appeals in habeas corpus cases brought under this article shall be governed by Chapter 6 of Title 5 except that as to final orders of the court which are adverse to the petitioner no appeal shall be allowed unless the Supreme Court of this state issues a certificate of probable cause for the appeal.
2. If an unsuccessful petitioner desires to appeal, he must file a written application for a certificate of probable cause to appeal with the clerk of the Supreme Court within 30 days from the entry of the order denying him relief. The petitioner shall also file within the same period a notice of appeal with the clerk of the concerned superior court. The Supreme Court shall either grant or deny the application within a reasonable time after filing. In order for the Supreme Court to consider fully the request for a certificate, the clerk of the concerned superior court shall forward, as in any other case, the record and transcript, if designated, to the clerk of the Supreme Court when a notice of appeal is filed. The clerk of the concerned superior court need not prepare and retain and the court reporter need not file a copy of the original record and a copy of the original transcript of proceedings. The clerk of the Supreme Court shall return the original record and transcript to the clerk of the concerned superior court upon completion of the appeal if the certificate is granted. If the Supreme Court denies the application for a certificate of probable cause, the clerk of the Supreme Court shall return the original record and transcript and shall notify the clerk of the concerned superior court and the parties to the proceedings below of the determination that probable cause does not exist for appeal.
3. If the trial court finds in favor of the petitioner, no certificate of probable cause need be obtained by the respondent as a condition precedent to appeal. A notice of appeal filed by the respondent shall act as a supersedeas and shall stay the judgment of the superior court until there is a final adjudication by the Supreme Court; provided, however, that, while such case is on appeal, the petitioner may be released on bail as is provided in criminal cases except when the petitioner has been convicted of a crime which the Supreme Court has jurisdiction to consider on direct appeal. The right to bail and the amount of bond shall be within the discretion of the judge of the superior court in which the sentence successfully challenged under this article was originally imposed.

(Code 1933, § 50-127, enacted by Ga. L. 1967, p. 835, § 3; Ga. L. 1975, p. 1143, § 3.)

- Ga. L. 1979, p. 619, § 6, which Act amended § 5-6-34 and added § 5-6-35, provided that the 1979 Act would not affect this section.

Constitution gives General Assembly authority to enact laws placing conditions on appeals. Reed v. Hopper, 235 Ga. 298, 219 S.E.2d 409 (1975).

- Provision that this court may refuse to entertain a habeas corpus appeal for lack of probable cause is not unconstitutional. Reed v. Hopper, 235 Ga. 298, 219 S.E.2d 409 (1975).

Habeas corpus judgment adverse to the warden reverses sentence already imposed and presumed to be legal, and requires further proceedings by the state, while judgment adverse to the prisoner reaffirms such sentence; under these circumstances, giving the warden a right to appeal and giving the prisoner the right to appeal upon a showing of probable cause is not a denial of equal protection of the law. Reed v. Hopper, 235 Ga. 298, 219 S.E.2d 409 (1975).

- Legislative intent in passing the 1975 amendment to this section (Ga. L. 1975, p. 1143, § 3) was to require judicial certification of probable cause as a prerequisite to appeal in a habeas case decided adversely to the petitioner and to establish the procedure for obtaining such certification and for pursuing such appeal. Reed v. Hopper, 235 Ga. 298, 219 S.E.2d 409 (1975).

- On appeal by the state of an order granting an inmate habeas relief, the order was reversed because that inmate acknowledged, in a plea form, that by pleading guilty, the inmate was waiving a constitutional right to a jury trial; moreover, although Ga. Unif. Super. Ct. R. 33.9 applied in a guilty plea hearing, that rule did not apply to the inmate's case because it was not of a constitutional magnitude. State v. Cooper, 281 Ga. 63, 636 S.E.2d 493 (2006).

- While O.C.G.A. § 9-14-52(a) provides that appeals in habeas corpus cases shall be governed by the Appellate Practice Act (Act), O.C.G.A. § 5-6-30 et seq., that provision only means that appeals in habeas corpus cases, once begun, are to be handled in the same way as other civil appeals, and the Act does not provide for every single act involved in an appeal as there is no provision in the Act for computing time limits, and it is necessary to supplement the provisions of the Act by reference to O.C.G.A. § 9-11-6. Head v. Thomason, 276 Ga. 434, 578 S.E.2d 426, cert. denied, 540 U.S. 957, 124 S. Ct. 409, 157 L. Ed. 2d 294 (2003), overruled on other grounds by State v. Lane, 2020 Ga. LEXIS 98 (Ga. 2020).

When an inmate appealed a habeas court's original order granting the inmate a new appeal in the inmate's criminal case, and the state failed to file a cross-appeal from that original order, the state was not allowed to pursue an appeal of the habeas court's later order on remand granting the inmate a new trial; the merits of the issue were reached and resolved in the habeas court's earlier final order and the state's attempt to challenge those merits in the instant appeal was untimely. Stewart v. Milliken, 277 Ga. 659, 593 S.E.2d 344 (2004).

Because the inmate sent an application for a certificate of probable cause to the wrong court, the application arrived at the Supreme Court of Georgia after the 30-day deadline; as such, the inmate's federal habeas petition was not timely based on statutory tolling. Spottsville v. Terry, 476 F.3d 1241 (11th Cir. 2007).

When the Georgia Supreme Court denies a state habeas petitioner's application for a certificate of probable cause, the petitioner's proceedings remain "pending" for purposes of 28 U.S.C. § 2244 until the state court issues a remittitur for the denial. Dolphy v. Warden, Cent. State Prison, 823 F.3d 1342 (11th Cir. 2016).

- 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).

- Unsuccessful petitioner for habeas corpus must timely file both a notice of appeal and an application for a certificate of probable cause in order to invoke the jurisdiction of the Supreme Court. Fullwood v. Sivley, 271 Ga. 248, 517 S.E.2d 511 (1999).

- Defendant has the right to directly appeal the denial of a motion for bail pending an appeal and, to the extent that Bailey v. State, 259 Ga. 340 (380 S.E.2d 264) (1989), is contrary, the Supreme Court of Georgia overrules that case. Humphrey v. Wilson, 282 Ga. 520, 652 S.E.2d 501 (2007).

When a prisoner, who is proceeding pro se, appeals from a decision on the prisoner's habeas corpus petition, under O.C.G.A. § 9-14-52 (b), the prisoner's application for a certificate of probable cause to appeal and notice of appeal is deemed filed on the date the prisoner delivers them to the prison authorities for forwarding to the clerks of the supreme court and the superior court, respectively. Massaline v. Williams, 274 Ga. 552, 554 S.E.2d 720 (2001).

Pursuant to 28 U.S.C. § 2254(c), the district court properly concluded that a state prisoner's habeas petition alleging ineffective assistance of state appellate counsel was procedurally barred when the prisoner had not applied for a certificate of probable cause to appeal the denial of the prisoner's state habeas petition to the Georgia Supreme Court as allowed under O.C.G.A. § 9-14-52 and, as a result, the prisoner had not exhausted all available state remedies. Pope v. Rich, 358 F.3d 852 (11th Cir. 2004).

Motions to vacate judgments in criminal cases are not normally treated as petitions for habeas corpus subject to appeal to the Supreme Court. Martin v. State, 240 Ga. 488, 241 S.E.2d 246 (1978).

- Fact that petitioner has been paroled and is serving the balance of the petitioner's sentence on parole does not moot an appeal from a habeas corpus judgment remanding the petitioner to custody. 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).

- Certificate of probable cause not prerequisite for appeal in pretrial habeas corpus proceedings filed by the petitioner while in custody in lieu of bond pending trial on criminal charges. Reed v. Stynchcombe, 249 Ga. 344, 290 S.E.2d 469 (1982).

- When a habeas petitioner is denied relief and wishes to appeal, he or she generally must first seek authorization to appeal by filing an application for a certificate of probable cause to appeal. However, the Supreme Court of Georgia previously has permitted habeas petitioners to pursue cross-appeals under O.C.G.A. § 5-6-38(b) regarding the partial denial of their habeas petitions without first obtaining such a certificate of probable cause since the warden is already appealing in the case. Ford v. Tate, 307 Ga. 383, 835 S.E.2d 198 (2019).

- Petitioner's case was remanded to the habeas court for it to consider the motion to set aside in a manner that takes into account the affidavit of habeas counsel in the context of all the circumstances of the case because the habeas court did not make a finding as to whether habeas counsel received notice of the final habeas hearing based on a consideration of the affidavit of habeas counsel; thus, the habeas court's analysis was incomplete. Case v. State, 300 Ga. 208, 794 S.E.2d 93 (2016).

- Requirement for an application for a certificate of probable cause extends to habeas corpus petitions seeking relief from a driver's license revocation. Patterson v. Earp, 257 Ga. 729, 363 S.E.2d 248 (1988).

- When the habeas court has assessed costs against an indigent prisoner/petitioner, and the prisoner/petitioner has shown that the prisoner/petitioner is unable to pay those costs by filing in forma pauperis, the clerk of the superior court must forward to the Supreme Court the record and transcript of the habeas proceeding on the filing of the notice of appeal. Brand v. Szabo, 263 Ga. 119, 428 S.E.2d 325 (1993).

- Trial court exceeded the court's authority by granting bail to the inmate who sought a writ of habeas corpus; as the challenged sentence was originally imposed in a trial court of a different county, under O.C.G.A. § 9-14-52(c), only that court had authority to grant or deny the inmate's bail. O'Donnell v. Durham, 275 Ga. 860, 573 S.E.2d 23 (2002).

- When defendant's extraordinary motion for new trial was construed as a petition for a writ of habeas corpus, the issue of appellate counsel's ineffectiveness was directly appealable by the state pursuant to O.C.G.A. § 9-14-52(c). State v. Smith, 276 Ga. 14, 573 S.E.2d 64 (2002), overruled on other grounds, Wilkes v. Terry, 290 Ga. 54, 717 S.E.2d 644 (2011).

- Trial court's order denying the 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 the 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 the defendant's habeas claim upon a transfer from a habeas court with instructions to determine whether trial counsel was ineffective; however, as the 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 the defendant's habeas claims of ineffective assistance of counsel with the final order subject to the appellate procedures outlined in § 9-14-52. Herrington v. State, 265 Ga. App. 454, 594 S.E.2d 682 (2004).

- Prisoner's ineffective-assist- ance-of-counsel claim under 28 U.S.C. § 2254 was improperly found procedurally barred because the claim was not firmly established under O.C.G.A. § 5-6-38 or O.C.G.A. § 9-14-52 and was not a regularly followed state practice for a prisoner to cross appeal claims upon which a state habeas court did not rule when the prisoner was successful on the prisoner's other state habeas claim. Mancill v. Hall, 545 F.3d 935 (11th Cir. 2008).

- Compliance with O.C.G.A. § 9-14-52(b) cannot be excused for failure to abide by a judicially imposed rule that the habeas petitioner be informed of that statute's requirements. Accordingly, the Supreme Court of Georgia hereby overrules Hicks v. Scott, 273 Ga. 358 (2001) and its progeny, including Thomas v. State, 284 Ga. 327 (2008) and Capote v. Ray, 276 Ga. 1 (2002). Crosson v. Conway, 291 Ga. 220, 728 S.E.2d 617 (2012).

Cited in Austin v. Carter, 248 Ga. 775, 285 S.E.2d 542 (1982); Smith v. Zant, 250 Ga. 645, 301 S.E.2d 32 (1983); Williams v. State, 251 Ga. 83, 303 S.E.2d 111 (1983); Baxter v. Kemp, 260 Ga. 184, 391 S.E.2d 754 (1990); Brasuell v. State, 243 Ga. App. 176, 531 S.E.2d 732 (2000); Ray v. Barber, 273 Ga. 856, 548 S.E.2d 283 (2001); Collins v. State, 277 Ga. 586, 591 S.E.2d 820 (2004); Martin v. Barrett, 279 Ga. 593, 619 S.E.2d 656 (2005); Murrell v. Ricks, 280 Ga. 427, 627 S.E.2d 546 (2006); Hall v. Wheeling, 282 Ga. 86, 646 S.E.2d 236 (2007); Johnson v. Williams, 304 Ga. 771, 22 S.E.2d 264 (2018).

Superior court clerk has qualified immunity only in carrying out the clerk's ministerial duties in filing and disbursing of record and transcript of habeas corpus case on appeal under subsection (b) of O.C.G.A. § 9-14-52. 1981 Op. Att'y Gen. No. U81-9.

Superior court may, by local rule, direct clerk to require and maintain additional copy of record and transcript of habeas corpus case on appeal under subsection (b) of O.C.G.A. § 9-14-52, and the cost of the additional transcript copy, in cases proceeding in forma pauperis, may be charged to the respondent. 1981 Op. Att'y Gen. No. U81-9.

RESEARCH REFERENCES

Am. Jur. 2d.

- 39 Am. Jur. 2d, Habeas Corpus and Postconviction Remedies, §§ 108, 118, 169 et seq.

- 39A C.J.S., Habeas Corpus, § 397 et seq.

- Right of state or public officer to appeal from an order in habeas corpus releasing one from custody, 10 A.L.R. 385; 30 A.L.R. 1322.

Supersedeas, stay, or bail, upon appeal in habeas corpus, 143 A.L.R. 1354.

Validity, construction, and application of State Prison Litigation Reform Acts, 85 A.L.R.6th 229.