Lead Opinion
On February 22, 1988, Fullwood entered a guilty plea in the
Although Fullwood was informed as to the proper appellate procedure, he failed to comply with OCGA § 9-14-52 (b), because, within 30 days of the habeas court’s order, he did not file a written application seeking this Court’s issuance of a certificate of probable cause to appeal therefrom. Instead, within that time period, he filed only a notice of direct appeal to the Court of Appeals. On April 10,1998, the Court of Appeals correctly transferred the case to this Court, on the ground it is within our exclusive jurisdiction over habeas corpus cases. Because of Fullwood’s failure to comply with OCGA § 9-14-52 (b), however, the record did not contain a timely filed application for a certificate of probable cause. It was only on April 15, 1998, almost 30 days late, that Fullwood finally applied to this Court for a certificate of probable cause to appeal the habeas court’s order.
This Court is not at liberty “to ignore jurisdictional and procedural statutes and rules, and to change its role from disinterested decision-maker to appellate advocate reviewing a trial record for error.” Rowland v. State,
In Patterson v. Earp,
Habeas corpus is the “great writ,” but a petition seeking its issuance does not constitute a continuation of the petitioner’s original appeal of his criminal conviction nor does it initiate a second appeal therefrom. In the Matter of Stoner,
Compliance with the jurisdictional time limits are strictly enforced even in criminal cases. Rowland v. State, supra. Since compliance with jurisdictional time limits is as imperative in habeas cases as in the context of an appeal from the underlying criminal conviction itself, we have declined to accord habeas cases special treatment with respect to time requirements in appellate procedural statutes. Patterson v. Earp, supra. Indeed, this Court has held that, if the notice of apрeal required by OCGA § 9-14-52 (b) is untimely, then the merits of the appeal cannot be reached. Donnelly v. Stynchcombe,
The Constitutions of Georgia and the United States guarantee that the privilege of applying for the writ of habeas corpus shall not be suspended except in the specified extraordinary circumstances. However, this guarantee obviously has no applicability here, since the constitutional enforcement of applicable appellate procedures against an unsuccessful petitioner doеs not constitute a “suspension” of the writ. It is for that reason that, in the federal system, the Supreme Court of the United States has specifically held that compliance with the statutes and rules providing applicable time limits for seeking appellate review of a final habeas order is “mandatory and jurisdictional,” in the absence of which no appeal can be considered on the merits. Browder v. Director, Dept. of Corrections of III.,
The distinction between the “legislativе and judicial function is that the former sets up rights or inhibitions, usually general in character; while the latter interprets, applies, and enforces existing law as related to subsequent acts of persons amenable thereto.” South View Cemetery Assn. v. Hailey,
Under subsection (a) of OCGA § 9-14-52, “no appeal shall be allowed” by an unsuccessful habeas applicant unless this Court has issued a certificate of probable cause, and subsection (b) of that statute clearly states that the unsuccessful habeas petitioner “must file a written” applicаtion for that certificate within the specified 30-day period. Even after being informed of his right to appeal the denial of habeas relief, Fullwood did not perfect an appeal in a timely manner. See Henderson v. State,
Appeal dismissed.
Dissenting Opinion
dissenting.
Just recently, we decided that a person sentenced to death is not entitled to an appointed lawyer in pursuit of habeas corpus relief. Gibson v. Turpin,
We are presented in this case specifically with the question of whether pro se petitioners for the writ of habeas corpus will be required to comply strictly with the appellate procedures set forth in OCGA § 9-14-52, which provides that an unsuccessful petitioner seeking to appeal must, within 30 days of the judgment, file both a notice of appeal and an application to this Court for a certificate of probable cause to appeal. In a broader sense, though, we are deciding whether the writ of habeas corpus is to continue to reside in a place of honor in Georgia law. In considering this issue, we must be cognizant of Georgia’s place in the history of habeas corpus as the first jurisdiction to include a specific right to the Great Writ in its constitution. Wilkes, A New Role for an Ancient Writ: Postconviction Habeas Corpus Relief in Georgia (Part I), 8 Ga. L. Rev. 313, 314. We must also be mindful of the shrinking role of the federal judiciary in the protection of individual rights, and the concomitant need for the state judiciaries to pick up that burden.
It would be a bitter irony indeed if our [state] courts, in an effort to accommodate the Supreme Court’s retrenchment of federal habeas review, were artificially to elevate, procedural rulings over substantive adjudications in post-conviction review, at a time when the Court’s curtailment of [federal] habeas review forces state prisoners to rely increasingly on*256 state post-conviction proceedings as their last resort for vindicating their state and federal constitutional rights.
State v. Precióse, 129 NJ 451, 477 (
Upon a consideration of the history of the writ of habeas corpus, of the realities of habeas corpus litigation by prisoners, and of the possible constitutional implications of a requirement of strict compliance, I conclude that in the context of pro se petitioners for the writ of habeas corpus, the requirements of OCGA § 9-14-52 should not be considered jurisdictional in nature and that strict compliance with the statutory procedurеs should not be required so long as sufficient steps are taken by the petitioner to give notice of an intention to begin the appellate process.
The majority opinion in this case posits that the requirements of OCGA § 9-14-52 are jurisdictional and that strict compliance with them is an absolute requirement in order to permit this Court to entertain an appeal from a judgment adverse to the petitioner in a habeas corpus case. In support of that position, the majority opinion cites several cases, conspicuously absent from which are any which address the specific situation before us, a procedurally defective appeal by a pro se petitiоner for state habeas corpus.
It has long been the practice of this Court, a practice grounded in our duty to do substantial justice to all who come before our bar and in the realities of habeas corpus practice, to accord pro se habeas corpus petitioners considerable latitude with regard to the procedural niceties related to securing appellate review of adverse judgments. That practice is also grounded in respect for the spirit as well as the letter of our Constitution: “The writ of habeas corpus shall not be suspended unless, in case of rebellion or invasion, the public safety may require it.” Art. I, Sec. I, Par. XV, Ga. Const. 1983. See also U. S. Const., Art. I, Sec. 9.
While OCGA § 9-14-52 does not on its face amount to a suspension of the Great Writ, the majority’s rigid interpretation of that section, for all practical purposes, amounts to such a suspension, at least as regards unrepresented habeas corpus petitioners.
To require strict compliance with the procedures set out in OCGA § 9-14-52, as the majority opinion does, would in an unconscionable proportion of cases amount to a blanket denial of the Great Writ, in fact, to a suspension of the writ. Such a grudging attitude toward the Great Writ of Liberty is entirely inconsistent with Georgia’s historical reverence for the writ, evidenced by the fact that Georgia was one of only three states to vote against the portion of the habeas corpus clause in the first U. S. Constitution which would permit the suspension of the writ under specified circumstances. Wilkes, State Postconviction Remedies and Relief, p. 112 (Harrison, 1996). The majority opinion’s insistence on scrupulous observance of every procedural step аcts only to bar meaningful access to the courts, undermining this Court’s principled pronouncement in Howard v. Sharpe,
Prisoner access to the courts in order to challenge unlawful convictions and to seek redress for violations of constitu*258 tional rights cannot be unjustifiably denied or obstructed. [Cit.] In this State, meaningful access to the courts includes the right to contest the legality of a conviction or the constitutionality of prison conditions through habeas corpus proceedings, [cit.], and the right to meaningful communications with the courts. [Cits.] Those regulations and restrictions which bar adequate, effective and meaningful access to the courts are unconstitutional. [Cits.] . . . Because of the constitutional ramifications to any abridgement of an individual’s right to access [cit.], and given the expanded view of the right to file for habeas corpus relief set forth in OCGA § 9-14-40 and Giles v. Ford, [258 Ga. 245 (1) (368 SE2d 318 ) (1988)] . . . , restrictions on an inmate’s right of access to the courts must be drawn so as to avoid unjustifiably obstructing access to the courts and clearly warranted by the particular circumstances of each case.3
The majority opinion’s construction of OCGA § 9-14-52 (b) causes it to fall afoul of the constitutional proscription against unreasonably limiting access to the courts as well as the prohibition against suspension of the writ of habeas corpus. By contrast, this Court’s policy of accepting substantial compliance with the procedures of that statute rescued it from unconstitutionality.
I would hold that the correct and constitutional construction of OCGA § 9-14-52 is that substantial compliance with the procedures in that statute is sufficient to initiate an appeal from an adverse judgment against a habeas corpus petitioner. Thus construed, the statute does substantial justice and does not run afoul of the constitutional prohibition against the suspension of the writ of habeas corpus. Furthermore, such an interpretation would be in keeping with the General Assembly’s mandate in OCGA § 1-3-1 (c): “A substantial compliance with any statutory requirement . . . shall be deemed and held sufficient, and no proceeding shall be declared void for want of such complianсe, unless expressly so provided by law.” This Court has seen fit to accept substantial compliance with statutory requirements in other situations (Smith v. State,
In addition to placing even more hurdles in the way of those whose route to justice is already strewn with obstacles, the majority opinion has the undesirable and unjust result of procedurally barring a litigant whose right to relief, should he be permitted to seek it, is plain. Fullwood, in federal custody in Alabama, filed a habeas corpus petition in Crisp County challenging his 1988 conviction there, but the habeas corpus court issued an order denying filing under OCGA § 9-15-2, holding that habeas corpus petitions must be filed in the county where the petitioner is being detained. The law is clear that when a petitioner who is restrained by federal authorities in another state seeks to attack a Georgia conviction, the proper forum for filing a habeas corpus petition is the superior court in the county in which the petitioner was sentenced. Craig v. State,
Because justice has been thwarted and the body of the law has been wounded by the majority opinion’s unnecessarily strict interpretation of OCGA § 9-14-52,1 must dissent.
I am authorized to state that Presiding Justice Fletcher and Justice Sears join in this dissent.
Notes
Fullwood’s situation, a pro se petitioner who failed to comply strictly with the statutory requirements, evokes Presiding Justice Fletcher’s observation in his special concurrence in Davis v. Thomas,
1,327 of 1,462 petitioners seeking review in this Court in 1994-1998.
Although I dissented in Howard, my disagreement was with the result, not with the quoted caution against obstruction of the efforts of prisoners to seek justice.
Dissenting Opinion
dissenting.
I also must dissent. As Presiding Justice Fletcher has previously
The majority opinion fails to consider that most of the men and women who file habeas applications with this Court are ill-suited for the daunting task of proceeding pro se in one of the most complex arenas of the law. In fact, an inordinate number of these petitioners are functionally illiterate, and they will largely be unable to comply with the majority’s requirements. The majority’s position thus results in an injustice to a segment of our society that is not able to adequately represent itself, and it does so, in my viеw, without a single state interest to support its position. In fact, interpreting our laws to facilitate a resolution on the merits of as many applications for certificates of probable cause as possible, while a somewhat tedious and time consuming exercise by the members of this Court, benefits the state’s interest in efficiently handling habeas corpus cases,
Moreover, even assuming that habeas petitioners can manage to comply with the conditions imposed by the majority, forcing a petitioner to file both a notice of appeal in the trial court and an application for a certificate of probable cause to appeal in this Court within 30 days of the entry of an order denying him relief is cumbersome, difficult, and unnecessary. The purpose of requiring a notice of appeal to be filed in the habeas court is to enable the clerk of that court to prepare the habeas record. As recognized by the General Assembly, that record is necessary in order for this Court to be able to “consider fully the request for a certificate.”
I have long admired both our justice system’s moral abhorrence against unconstitutional incarceration, and our system of laws designed to right such wrongs. Because the majority opinion unfortunately undermines this system, I must respectfully dissent.
I am authorized to state that Presiding Justice Fletcher joins in this dissent.
Davis v. Thomas,
Davis,
See Davis,
Exxon Corp. v. Thomason,
OCGA § 9-14-52 (b).
OCGA § 9-14-40.
See A. P. Herbert, Uncommon Law, 1936.
Id.
Id. Moreover, because the majority fails to properly construe the requirements of § 9-14-52 (b), I encourage the General Assembly to modify § 9-14-52 (b) by only requiring the filing of an application for a certificate of probable cause within 30 days of the date the habeas record is docketed in this Court.