2021 Georgia Code
Title 9 - Civil Practice
Chapter 14 - Habeas Corpus
Article 1 - General Provisions
§ 9-14-1. Who May Seek Writ

1. Any person restrained of his liberty under any pretext whatsoever, except under sentence of a state court of record, may seek a writ of habeas corpus to inquire into the legality of the restraint.
2. Any person alleging that another person in whom for any cause he is interested is kept illegally from the custody of the applicant may seek a writ of habeas corpus to inquire into the legality of the restraint.
3. Any person restrained of his liberty as a result of a sentence imposed by any state court of record may seek a writ of habeas corpus to inquire into the legality of the restraint.

(Cobb's 1851 Digest, pp. 1131-1134; Code 1863, § 3909; Code 1868, § 3933; Code 1873, § 4009; Code 1882, § 4009; Penal Code 1895, § 1210; Penal Code 1910, § 1291; Code 1933, § 50-101; Ga. L. 1967, p. 835, § 2.)

- Procedure for seeking writ of habeas corpus by person whose liberty is being restrained by virtue of sentence imposed by state court of record, § 9-14-40 et seq.

- For survey article on domestic relations, see 34 Mercer L. Rev. 113 (1982). 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). For comment, "Has Habeas Corpus Been Suspended in Georgia? Representing Indigent Prisoners on Georgia's Death Row," see 17 Ga. St. U.L. Rev. 605 (2000).

JUDICIAL DECISIONS

Editor's notes.

- Article 2 of this chapter now provides the exclusive procedure for seeking a writ of habeas corpus for persons whose liberty is being restrained by virtue of sentence of a state court of record, expanding the scope of habeas in such cases. See O.C.G.A. §§ 9-14-40 and9-14-41.

Any person may petition for writ of habeas corpus in behalf of one imprisoned as interest arising from humanity alone comes within both the letter and spirit of this section. Broomhead v. Chisolm, 47 Ga. 390 (1872).

When any person in whom applicant, for any cause, is interested is kept illegally from the applicant's custody, the applicant may sue out a writ of habeas corpus to inquire into the legality of such restraint. Smith v. Scott, 216 Ga. 506, 117 S.E.2d 528 (1960).

- While writ of habeas corpus is a "writ of right," it does not issue as a matter of course, but only when the application therefor contains allegations which, if true, would authorize discharge of the person held in custody. Simmons v. Georgia Iron & Coal Co., 117 Ga. 305, 43 S.E. 780, 61 L.R.A. 739 (1903).

Large discretion is vested in trial judge in habeas corpus cases, and Supreme Court will not interfere unless there is an abuse of discretion. Walden v. Morris, 16 Ga. App. 408, 85 S.E. 452 (1915).

- Although not ground for post-conviction habeas corpus due to mootness, denial of commitment hearing would be ground for preindictment habeas corpus. McClure v. Hopper, 234 Ga. 45, 214 S.E.2d 503 (1975).

- Writ of habeas corpus cannot be employed to correct errors or irregularities in commitment hearing held by justice of the peace, committing the defendant to jail to await action of the grand jury, but the judgment committing defendant must be absolutely void. Harris v. Norris, 188 Ga. 610, 4 S.E.2d 840 (1939).

- Remedy of habeas corpus is a proper means with which to address the trial judge's exercise of discretion in setting or denying bail. Fields v. Tankersley, 487 F. Supp. 1389 (S.D. Ga. 1980).

Habeas corpus properly issued when individual was illegally imprisoned with or without any form of law. Cathing v. State, 62 Ga. 243 (1879); Southern Express Co. v. Lynch, 65 Ga. 240 (1880).

- Prisoner's petition for a writ of habeas corpus was properly filed when, through no fault of the prisoner's own, the prisoner had been released during the confinement portion of the prisoner's sentence and was subsequently imprisoned, without a hearing, during what should have been the probationary period of the sentence. Derrer v. Anthony, 265 Ga. 892, 463 S.E.2d 690 (1995).

- Habeas corpus petition challenging the petitioner's habitual violator conviction alleged adverse collateral consequences to sustain the petitioner's claim because the state introduced that conviction as non-statutory evidence in the petitioner's death penalty trial. Tharpe v. Head, 272 Ga. 596, 533 S.E.2d 368 (2000).

- Writ of habeas was properly issued when an individual was pardoned by the Governor and afterwards rearrested for the same offense. Dominick v. Bowdoin, 44 Ga. 357 (1871).

- When proceedings under which the petitioner is detained are still pending undisposed of, and the ordinary established procedure is still available to the petitioner, the orderly procedure by trial and appeal should not be interfered with by writ of habeas corpus as there is another adequate remedy. Jackson v. Lowry, 170 Ga. 755, 154 S.E. 228 (1930); Kearse v. Paulk, 264 Ga. 509, 448 S.E.2d 369 (1994).

- If a person has been adjudged insane and committed to an institution, and thereafter seeks to be discharged upon the ground that the person's sanity has been restored, the person cannot invoke the writ of habeas corpus without showing that the person has exhausted such specific statutory remedies as are provided; however, the person might perhaps show some valid reason excusing failure to pursue a statutory remedy, even in a case where ordinarily the person should pursue the remedy. Richardson v. Hall, 199 Ga. 602, 34 S.E.2d 888 (1945).

When a person charged with a criminal offense filed a special plea of insanity under former Code 1933, § 27-1502 (see now O.C.G.A. § 17-7-130), and on such plea was found insane and committed, and after such commitment left the hospital without permission and was later taken into custody by a sheriff for return to such institution, the person could not maintain a habeas petition on the ground that the person had regained the person's sanity, without showing that the person had pursued or attempted to pursue the statutory method of obtaining release from the institution, or without alleging and proving some valid reason for failure to invoke such remedy. Richardson v. Hall, 199 Ga. 602, 34 S.E.2d 888 (1945).

- When petition for habeas corpus clearly shows on the petition's face that the detention is lawful, there is nothing to investigate and the writ should be quashed. Mathews v. Swatts, 16 Ga. App. 208, 84 S.E. 980 (1915); Smith v. Milton, 149 Ga. 28, 98 S.E. 607 (1919).

- Mere fact that the state sentence has been completely served should no longer be a bar to attacking the sentence through habeas corpus even though the petition is not initially filed until after the sentence is completed. Hardison v. Martin, 254 Ga. 719, 334 S.E.2d 161 (1985).

- Defendant who had been released on the defendant's own recognizance did not have sufficient restraint of liberty to warrant writ of habeas corpus to require district attorney to dismiss charges brought against the defendant. Farris v. Slaton, 262 Ga. 713, 425 S.E.2d 291 (1993).

- When a natural mother brought a habeas corpus action under subsection (b) of O.C.G.A. § 9-14-1, alleging that her infant daughter was being detained illegally from her custody by the respondent and contending that there had never been a transfer of custody to respondent, the mother properly brought the complaint as a habeas corpus petition. Johnson v. Smith, 251 Ga. 1, 302 S.E.2d 542 (1983).

- Revocation of one's driver's license may place a significant restraint on that person's liberty within the meaning of subsection (c) of O.C.G.A. § 9-14-1; therefore, one not in physical custody may petition for habeas corpus to challenge the revocation of one's driver's license on the ground that the underlying sentence upon which the revocation is based is void for a reason not appearing on the face of the record. The petitioner must be able to demonstrate that the revocation significantly restrains the petitioner's liberty, or that other adverse collateral consequences flow from the petitioner's sentence of conviction. Hardison v. Martin, 254 Ga. 719, 334 S.E.2d 161 (1985)(But see now O.C.G.A. § 19-9-23).

Action for a writ of habeas corpus is appropriate to contest a revocation of a driver's license, but the appellate procedure available under O.C.G.A. § 40-5-66 must be followed. Earp v. Lynch, 257 Ga. 633, 362 S.E.2d 55 (1987).

- Since the petitioner showed that the petitioner's appellate counsel provided ineffective assistance of counsel by not raising a chain of custody issue on appeal after the state was required to prove a chain of custody of a controlled substance at trial, the petitioner was entitled to have the petitioner's application for habeas corpus relief granted as any competent attorney would have raised that issue on appeal, the petitioner's appellate counsel was ineffective in failing to do so, and the petitioner was prejudiced because the error, if raised, would have led to a different outcome on appeal. Phillips v. Williams, 276 Ga. 691, 583 S.E.2d 4 (2003).

Cited in Ballenger v. McLain, 54 Ga. 159 (1875); Moore v. Wheeler, 109 Ga. 62, 35 S.E. 116 (1900); Jackson v. Baxter, 145 Ga. 223, 88 S.E. 819 (1916); Parris v. State, 232 Ga. 687, 208 S.E.2d 493 (1974); Jones v. Hopper, 233 Ga. 531, 212 S.E.2d 367 (1975); Vaughn v. State, 248 Ga. 325, 283 S.E.2d 263 (1981); Johnson v. Smith, 164 Ga. App. 611, 299 S.E.2d 387 (1982); Zant v. Cook, 259 Ga. 299, 379 S.E.2d 780 (1989); Powell v. Brown, 281 Ga. 609, 641 S.E.2d 519 (2007).

RESEARCH REFERENCES

Am. Jur. 2d.

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

- 39A C.J.S., Habeas Corpus, § 283.

- Right of one detained pursuant to quarantine to habeas corpus, 2 A.L.R. 1542.

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