*1 сontention that 2. The record does not support appellants’ used the trial court. by standard was improper appellate footnote the trial court’s Contrary appellants’ argument, 3. in $50,000 her Deposit testator Newton a Certificate leaving about summary its grant was not a factual finding upon will trial 1, supra. was based. See Division judgment “bonds, Item V in the will that court’s statement wаs consistent with accounts, and similar .. . which are savings property bank accounts death to another shall be the my person their terms payable upon sole of that property person.” All the Justices concur.
Judgment affirmed. 2010. 18, Decided October Hallman, Ronald W. for appellants. Kirkland, Hall, Brown, Stewart,
Hall & M. Rountree & Joseph Rountree, Sant, H. Jesse A. Van George appelleеs.
S10A1093. v. THE STATE. FLINT HINES, Justice. granted
We defendant Lorenzo for a certifi- application cate of probable cause to an order appeal of habeas in
writ order to consider the of the habeas corpus propriety court’s conclusion under OCGA 9-14-48 (e),1 State had it was proven prejudiced respond petitioner’s for writ of habeas due to it. corpus petitioner’s delаy follow, For reasons that we affirm.
Flint was indicted for one count and one felony misdemeanor count of violation of Act, Controlled and on Substances 29,1988, June to the He pled guilty charges. was sentenced to five years years with four to be served in prison year and one to be served on probation for the felony count twelve months to serve on the misdemeanor In 1993, сount. Flint was convicted of federal drug (e) provides: OCGA 9-14-48 challenging A other than one a conviction for which a death sentence imposed challenging death, may
has been a sentence of be if there dismissed particularized showing respondent has been in its petition by delay petitioner in its unless the shows preponderance of the evidence that it is based on of which he or she could knowledge by not have exercise of reasonable before the circum- prejudicial respondent apply only stances occurred. This subsection shall 1, July convictions had before 2004. drug trafficking used offenses, and the 1988 state convictions were enhancement of his sentence. years
Nearly twenty convictions, Flint after his state Superior сorpus pro Court for writ of habeas filed a se January superior County, 17, 2008, Fulton and on denying based, relief an order entered sought appeal procedural Court, from this default. *2 granted probable to a certificate of cause 2008, March this Court by appeal, direction that the order remanded the case with hearing, transcribed, to be habeas court hold a which was subject petition procedurally the barred and consider whether § 9-14-48 dismissal under OCGA Following 16, June remand, the habeas court2 held on telephonically. 2009, at Flint testified The court then entered (e), § petition the under OCGA 9-14-48 based order delayed twenty years petition, findings that Flint had respond, prejudiced in and that Flint that the State was by preponderance petition that had not shown оf the evidence by upon grounds knowledge, of which he had no actual was based the knowledge, reasonable should have had exercise of prior prejudicial to the occurrence of circumstances to the State. analysis propriety
Thus, the of the of the habeas court’s action § necessarily (e), provisions focuses on the of OCGA 9-14-48 discretionary аuthorizes the of dismissal of a for writ corpus non-capital in a case under certain circum- habeas Specifically, government stances. the must show that the petitioner’s preju- habeas diced its the has respond. dismissal under this provision petitioner proves by is unavailable if the habeas preponderance of the evidence that he or she did not know for thе and could not have known diligence, prior them the exercise of reasonable government. events Wiley Miles, v. 282 Ga. inquiry question two-fold,
The is and the threshold is prejudice attempting existence of to the State in assessing prejudice, urges petition. habeas As issue of guided interpretations that this Court should be of former Rule 9 (a)3 Governing of the Rules Section 2254 Cases in the United States judge presided proceeding. A different over this habeas provides: This rule petition may appears respondent A if it that the state of which the he dismissed wording to OCGA 9-14-48 Courts because of its similar District (e); argues, burden should be thus, State’s statutory heavy seeking application of the dismissal, permitting provision limited, that the State dismissal should be showing particularized have the burden of should passage prejudice, not and that the of time alone should be sufficient prejudice. to constitute (a) provided Rule 9
First, it should be noted that while permitting corpus petition in delay in for dismissal of a habeas standard prejudiced by the State has circumstances which filing, one-year extant; no there is now a statute of it is (d) (1), provided part limitation as in 28 USC 2244 Penalty Act, 104-132, Antiterrorism and Effective Dеath Pub. L. No. plainly outlined, an 110 Stat. 1214. As this Court has assessment the claims made must involve examination of seeking capability petitioner in habeas relief and the respond given passage lodging State to of time such claims. (3). Wiley supra Miles, at 577 corpus alleged eight grounds writ judgment relief: are void conviction *3 they only alleged signature bear what is to be Flint’s and signature space designated signature is in the for the of the (2)
attorney defendant; rather than that of the Flint was denied compelled during meeting counsel and to incriminate himself a with attorney, resulting in the assistant district to his trial (3) ultimately causing guilty plea; him defense and to enter his attorney plea, namely in Hester, counsel involved conflict of interest Flint’s had a resulting prior attorney-client from, alia, inter a relationship, preliminary hearing pro- affected Flint’s and (4) posed strategies, guilty plea; plea trial in and resulted Flint’s voluntarily intelligently because, was not not advised of the made he was
Boykin5 rights prior during either to or the by attorney entering and he coerced the was Hester into before judge guilty visiting plead right him now, a because Hester told “to assigned judge you guilty or return back before the will find and impose visiting a much harsher sentence than that the who will of (5) judge”; attorney affirmatively Flint the Hester misadvised to habeas prejudicial 4 have had an officer has been Rule See corpus petitions. unless the Boykin v. [9] (a) knowledge by the state occurred. Alabama, interpreted petitioner Walters the exercise of reasonable shows that in U. a codifiсation its Scott, S. 238 it is based on 21 F3d SC respond the equitable (C.A.5, grounds the LE2d before the circumstances Tex. petition by delay doctrine of which he could not 1994). laches as in its applied (6) consequences sentence; sentence entered on of his and the (for reason) charge illegal unspecified felony drug at the appeal imposed; Flint’s counsel failed to his cоnviction time it was despite request so; Flint’s to do and Flint suffered and sentence because counsel did not raise the ineffective assistance counsel including investigate grounds failure to and seven, one alleged present defense, trial and Hester was ineffective Flint’s advising and Flint to enter a so soon after Flint’s arrest exploring possible without defenses. every ground directly each and raised involves or
Thus, potentially implicates plea court, actions Flint’s defense attorney attorney Hester, and the assistant district involved presented case. The State affidavit evidence that defense counsel Hester had to the habeas court uncontroverted
died, in fact less petition, and than a month after Flint filed his that the assistant attorney рrovide specifics pleas in the district about Flint’s case and general practices involved could not make
was able to
statements about
procedures
cases,
and
in criminal
which could not
complaints.
judge
address,
resolve,
much less
Flint’s
Both the
pleas
octogenarians
the court
longer
involved
were
and no
provide any
Any
available or able tо
relevant information.
existing
regarding
pleas
“pen writing,”
process
*4
could not have known of them
the exercise of reasonable
diligence,
adversely
Indeed,
it must be resolved
to Flint.
the record
timely
belies
assertions of lack of
actual or constructive knowl-
edge by
gravamen
complaints
Flint. The
of Flint’s
on habeas is that
regarding
pleas
misled,
fashion,
he was
in some fоrm or
and their
“declara-
punitive consequences.
signed
But, the record contains
expressly
penalty
perjury”
tions”
“under the
Flint and his
regarding
knowledge, prior
mother
their
to and at the time of the
pleas,
allegedly giving
claims,
of circumstances
rise to his habeas
his received punish-
Flint’s immediate dissatisfaction with
including
Indeed,
maintains,
the record
supports
ment.
State
delay
assеrting
challenge
alternate conclusion that
to the state
had no
guilty pleas
drug charges
habeas was
collateral
until such time as
were to be used for
consequences
they
federal sentencing.
the enhancement of his
Flint’s extreme
his habeas
result-
Given
in the total
ing
government
respond,
and Flint’s failure to meet his burden of
valid
proving
legally
sooner,
excuse for not
thе habeas court did not
discretion in
Flint’s habeas
petition pursuant
abuse its
(4).
Miles,
v.
Wiley
§ 9-14-48
at 578
supra
OCGA
concur,
J.,
Hunstein,
Ml the Justices
C.
Judgment
except
affirmed.
J.,
who dissent.
Thompson,
Justice,
Chief
dissenting.
HUNSTEIN,
(89
v. Alabama was rendered in 1969.
Boykin SC 274) (1969). LE2d 1709, 23 The United States Court held in Supreme that that it case is error for state trial court to a defendant’s accept without an affirmative on the face of the showing reсord that intelligent and voluntary: “[presuming waiver from a silent record is Id. at 242. Because a impermissible.” record of the guilty plea hearing helps to ensure that the State can meet its burden of on the proof voluntariness and to enable courts to determine reviewing that of the accused have rights (265 v. State see Germany, protected, 245 Ga. SE2d (1980), this Court since 1982 has that expressly required the record of a guilty plea hearing must be for a adequate reviewing court determine whether the mandate of Boykin Alabama was followed. Davis, Goodman v. 11Ga. Reinforcing this mandate, the Uniform Superior Court Rules have required courts of superior 1,1985 this State since to make July and preserve a verbatim record of the proceedings at which a defendant enters guilty. USCR 33.10. to a pled guilty felony offense Fulton County Superior Boykin v. Alabama had been 29, 1988, Court on June meaning that Goodman and this Court’s for 19 years; law requirement record adequate of a guilty plea hearing been the law for six years; and that USCR 33.10 had for months day almost mandated the of a verbatim preservation record of guilty Yet it is plea proceedings. uncontroverted record of Flint’s felony guilty plea
44 inquired reporter County Superior who Court court
current Fulton the matter: into reporter a Ms. the Flint was who took
The court pen a machine and not Clark, was a writer Helen who longer reporter. available to transcribe She is no shorthand plea proceeding. employed by style reporting has Ms. Clark of court The years. commonly approximately 20 used for not been one of in South who is I contacted inquire remaining pen if that I know of writers the few requested. perhaps She informed it as she could transcribe feel comfortable such that she would not me style writing pen attempt such a was reporting. feel about She, therefore, would not comfortable accuracy producing typed transcript from someone notes. else’s any backup tape recording find
I also unable to was proceedings.6 According supplemental from the State that is contained to a brief judge presided record,7 the trial over Flint’s the hearing octogenarian. in senior citizens a retired He now lives octoge- housing The from declined health. ... and suffers years ago [sic] reporter retired almost 20 narian court some Georgia. Any court notes and no lives the state court be in the shorthand of the above-referenced would reporter purposes decipher- located for the who cannot be ing and authentication. appears reporter has not “available” for
It thus that the court why years.”8 explanation provided this “some almost 20 No particular was allowed to becоme unavailable before being transcript capable provided manner of a she had some deciphered persons than herself. other recording, “probably speculated it then even had she found such Fisher age. likely option” it unusable due to its because “more than not” would be not be viable Although in its the trial court at the reiterated some of this information evidence, present majority none of this information is comments and the cites testimony. in the form of sworn document or record may party that a in a criminal make admissions It is well established (1) (b) (415 motions, State, App. judicio pleadings, 202 Ga. and briefs. See Bannister (e) places the burden on the State to make a
OCGA 9-14-48 why “preju- “particularized showing” it has been as to reasons [as of] diced in its result filing.” plain language statute, Under the of this burden petitioner only particular- the State has made this shifts after showing. majority’s respectfully I dissent to the affirmance of ized carried its burden under the habeas court’s conclusion State plea hearing, At the time of OCGA 9-14-48 crystal law obligation clear that the had a to make State constitutional *6 preserve proceedings record of the at verbatim guilty. Regardless questionable defendant enters reporter allowing wisdom of a court of record a court to make a guilty plea hearing “personal” record of a in such a manner verbatim clearly it, that no one else could transcribe a court of record fails guilty hearing preserve proceedings its mandate to a record of appellate review when it allows such notes to serve as concurrently maintaining the sole record of the without deciphering By utilizing a means of those notes. a court by any person could not be other whose shorthand notes read allowing that court to become unavailable before those preserved enabling shorthand notes were in a mannеr others them, transcribe the State failed to ensure that it would be able to proof meet burden of on the voluntariness of the and to reviewing rights enable determine courts to of the accused protected.9 have been supplemental
Moreover, as the State’s admission in its brief transcript establishes, this is not a case in has been lost transcript years,” time: over this hаs been lost for “some almost 20 reporter, when the court who transcribed such a “personal” decipher manner that no one can it, else retired and leaving any moved out of state without behind means for another to her transcribe notes. The evidence adduced the State establishes uncontrovertedly guilty plea hearing that no other record of Flint’s uncontrоvertedly pen exists; also establishes that even another reporter’s thereby eliminating notes, writer could not read this court any possibility reporter’s that someone closer in time to the might decipher retirement have been able to her notes. It thus appears, evidence, based on the uncontroverted that the State never guilty plea established that the rеcord of Flint’s was ever It available. only thing accomplished by filing seems that the Flint could have his whether, earlier, speculation It had Flint is mere filed his the State could have hearing proceedings through judge, recreated the the recollection of the trial the ADA and defense counsel. rather than later have been to reveal sooner earlier would guilty plea hearing transcript.10 unavailability of the the total the State could not this uncontroverted evidence Given delay I have clearly a matter of fact when it the habeas court erred as hold that adverse concluded that Flint’s provide transcript impact hearing. on the State’s joins Thompson that Justice this I am authorized to state dissent.
Decided October 2010. pro Flint, Jr., E. se.
Lorenzo Attorney, Howard, Jr., Hart, District Bеttieanne C. David Paul L. Attorneys, appellee. Getachew-Smith, K. Assistant District Gerwig-Moore, Leigh Schrope, S. amici curiae. Sarah L.
S10A1461. WILLIAMS v. REECE.
Melton, Justice. *7 acting pro appeals Williams, se, Justin Eric the denial of his pre-trial application corpus. for a writ of habeas For the reasons set below, forth affirm the denial. we May 17,
The record arrested on shows Williams was violating Act, RICO and he incarcerated. At remains hearing magistrate judge appearance and bond first before on May upon finding 18,2009, was denied bond based that he Williams flight represented underlying is a risk. has been Williams public acting pro defender, criminal matter but he is se proceedings. application these habeas Williams filed his for writ of (1) February arguments: 1, 2010, and he raised two (2) he had been denied a bond that “the statute of expired.” hearing, limitation for indictment has court After a the habeas rejected holding claims, Williams’ that: because he had applied requested any hearing subject, for bail or on that never could not first seek bail a habeas charges against statute of limitation had not run on the Williams (other prove participants proceedings the State failеd to than Flint) memory lacked all as it adduced evidence as to the assistant (no (deceased). attorney memory) district and defense counsel notes were in “very personal” used, no shorthand which could not deciphered, certify be and one from which no court paper back-up record; there nowas official record whatsoever and no tapе recording proceedings. presented Thus, the State passage affecting far scenario of more than the mere of time ability sharp petition; delay brought rather the into ravages focus the of time on the to reconstruct pleas guilt drug charges. circumstances of Flint’s the As accurately during habeas court matter, observed lapse time resulted in a situation in could make no regarding petition. substantive determinations the claims in Flint’s question proved by preponderance As to the of whether Flint prior prejudicing the evidence to the events the State’s re- sponse, he did not know for his habeas
Notes
consists of notes indecipherable made aby who “pen writer not a machine i.e., shorthand someone hand reporter,” wrote by means of a shorthand. According Fisher, to Melanie