---
title: Ga. Const. Art. I, Sec. I, Para. XV. Habeas corpus.
collection: code
id: ga-const:art-i-sec-i-para-xv
cite_as: Ga. Const. Art. I, Sec. I, Para. XV
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---

# Ga. Const. Art. I, Sec. I, Para. XV. Habeas corpus.

A constitution provision shown as in force is in force as printed in the volume. A court decision can make a printed provision unenforceable without changing the volume, and the volume does not record that.

The writ of habeas corpus shall not be suspended unless, in case of rebellion or invasion, the public safety may require it.

## Cross References

Habeas corpus, U.S. Const., art. I, sec. IX, cl. 2 and T. 9, C. 14. Effect of technical defects in habeas proceedings, § 17-7-34. Proceedings in fugitive cases, § 17-13-30. Payment of fees from prisoner’s inmate account upon filing of habeas corpus petition, § 42-12-7.1.

## Law Reviews

For article, ‘‘Interstate Extradition and State Sovereignty,’’ see 1 Mercer L. Rev. 147 (1950). For article, ‘‘Personal Rights, Property Rights and Due Process: A Comparison of Constitutional Protection in the Georgia Supreme Court and the United States Supreme Court,’’ see 9 Mercer L. Rev. 253 (1958). For article discussing Georgia’s habeas corpus statutes in light of federal courts’ requirements of exhaustion of state remedies prior to entertaining a habeas petition, see 9 Ga. St. B.J. 29 (1972). For article discussing history of post-conviction habeas corpus relief in Georgia, see 12 Ga. L. Rev. 249 (1978). For article, ‘‘The Cautionary Tale of Alexander McLeod: Superior Orders and the American Writ of Habeas Corpus,’’ see 41 Emory L.J. 515 (1992).

## 1976 Constitution.

Art. I, Sec. I, Para. XII.

## Remedy Provided by State Law.

The remedy by application for the writ of habeas corpus to the state courts is provided by state law. Porch v. Cagle, 199 F.2d 865 (5th Cir. 1952).

## Motion to File Out-of-time Appeal.

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).

Given that the defendant had no right to file a direct appeal from a guilty plea that was evident from the record, a motion for an out-of-time appeal, which alleged ineffective assistance of counsel, was properly denied, and counsel could not be deemed ineffective for failing to inform the defendant of the right to appeal; thus, the defendant’s only remedy was by habeas corpus. Barlow v. State, 282 Ga. 232, 647 S.E.2d 46 (2007).

## Prerequisite for Relief From Allegedly Void Sentence.

The trial court properly dismissed the defendant’s motion to correct an allegedly void felony sentence, as the sentence was authorized by the law in existence at the time of the defendant’s statutory rape convictions, and the defendant failed to seek withdrawal of the guilty pleas which led to the withdrawal as a prerequisite to challenge the sentence imposed; thus, any further relief had to be sought through a petition for habeas corpus. McClendon v. State, 287 Ga. App. 515, 651 S.E.2d 820 (2007), cert. denied, 2008 Ga. LEXIS 174 (Ga. 2008).

Pre-trial speedy trial demand could

## Not Be Made Via Habeas Petition.

Because the issue of whether a defendant’s prosecution was barred pursuant to O.C.G.A. § 17-7-170 was a statutory defense which could be raised in the pending criminal action, and the claim was not relevant to the validity of any pre-trial detention, the habeas court properly dismissed the defendant’s pre-trial habeas petition without an evidentiary hearing. Mungin v. St. Lawrence, 281 Ga. 671, 641 S.E.2d 541 (2007).

## Failure to Disclose Brady Information.

Defendant did not have to show that defendant would have been acquitted if defendant had been able to obtain the Brady information; defendant simply had to show, and did show, that the state’s evidentiary suppression undermined confidence in the outcome of the trial. Schofield v. Palmer, 279 Ga. 848, 621 S.E.2d 726 (2005).

## Failure to Disclose Brady Information About Confidential Informant.

Convicted capital murder defendant’s habeas corpus petition was granted, conviction was reversed, and a new trial was ordered because defendant prevailed on a Brady claim that the state failed to disclose that it had paid a confidential informant money for information that led to the defendant’s conviction; the payment of money was exculpatory since it indicated that the informant could be impeached with a motive to lie. Schofield v. Palmer, 279 Ga. 848, 621 S.E.2d 726 (2005).

The procedural limitations of O.C.G.A. § 40-13-33(a) and (b) neither suspend the writ of habeas corpus, nor cause a court to dismiss an action for habeas without consideration of the equities presented. Rather, the statute provides that in a narrowly defined class of cases—those in which a petitioner who is not in custody seeks habeas relief from a misdemeanor traffic conviction—the petition for habeas corpus must be filed within 180 days of conviction. As such, it imposes a permissible procedural restriction on a limited group of cases. Earp v. Boylan, 260 Ga. 112, 390 S.E.2d 577 (1990).

Habeas court’s order denying an inmate’s verified petition, which asserted that trial counsel rendered ineffective assistance, was reversed, as the allegations contained in the petition served as sufficient evidence to support the inmate’s claim that counsel failed to file a notice of appeal after being instructed by the inmate to do so. Rolland v. Martin, 281 Ga. 190, 637 S.E.2d 23 (2006).

## Habeas Complaint Properly Dismissed.

The trial court properly dismissed an inmate’s petition for a writ of habeas corpus for failing to state a claim upon which relief could be granted, based on a finding that such was prematurely filed in that no governor’s warrant had been issued or served from the seeking state at the time the petition was filed and, the inmate had only been arrested for Georgia offenses; moreover, to the extent that the inmate might have been seeking to challenge an arrest without a warrant pursuant to O.C.G.A. § 17-13-34, insufficient facts were pled which supported such a claim. Powell v. Brown, 281 Ga. 609, 641 S.E.2d 519 (2007).

Appointment of counsel for habeas

## Corpus Petitioner Not Required.

Since habeas corpus is not a criminal proceeding, neither U.S. Const., amend. 6 nor the Georgia Constitution requires the appointment of counsel for a habeas corpus petitioner. Spencer v. Hopper, 243 Ga. 532, 255 S.E.2d 1, cert. denied, 444 U.S. 885, 100 S. Ct. 178, 62 L. Ed. 2d 116 (1979).

Defendant has no right to receive or spend state funds for appointment of experts or investigators in habeas corpus proceedings, even in death penalty cases. Spencer v. Hopper, 243 Ga. 532, 255 S.E.2d 1, cert. denied, 444 U.S. 885, 100 S. Ct. 178, 62 L. Ed. 2d 116 (1979).

## Standard of Evidence on Mental Retardation.

Trial court erred in ordering a jury trial on the limited issue of defendant’s mental retardation in defendant’s habeas corpus petition, pursuant to Ga. Const. 1983, Art. I, Sec. I, Para. XV, based on the preponderance of the evidence standard after defendant was convicted of murder and sentenced to death, as the appropriate standard if the issue were raised at trial would have been beyond a reasonable doubt; further, the habeas petition was based on a miscarriage of justice standard, as the issue was found to have been waived at trial. Head v. Hill, 277 Ga. 255, 587 S.E.2d 613 (2003).

Ineffective assistance of counsel

## Claim.

Defendant’s ineffective assistance of counsel claim was waived as defendant’s original post-conviction counsel moved for a new trial, but did not raise an ineffective assistance of trial counsel claim; defendant’s claim that defendant’s original post-conviction counsel was deficient in failing to raise an ineffective assistance claim below had to be addressed in a habeas corpus proceeding. Mullins v. State, 267 Ga. App. 393, 599 S.E.2d 340 (2004).

In a warden’s appeal, the grant of habeas corpus relief to an inmate based on ineffective assistance of counsel was upheld as the kidnapping charges in the two counties charged against the inmate were for the same offense and being advised by defense counsel to plead guilty in one county to avoid prosecution in the other was erroneous since double jeopardy would have barred any additional prosecution. Upton v. Johnson, 282 Ga. 600, 652 S.E.2d 516 (2007).

Habeas court did not err in granting the appellee’s petition for writ of habeas corpus because there was no error in the habeas court’s finding of an actual conflict of interest that adversely affected plea counsel’s performance since the fact that the codefendant alone was paying counsel’s fees created a strong incentive for counsel to prioritize the codefendant’s interests in the matter over the appellee’s interest, and counsel not only failed to pursue an alternative defense theory on behalf of the appellee, counsel failed even to recognize the possibility that one could exist; even though the appellee and the codefendant pursued a unified defense in that their accounts of the incident were consistent, the record reflected that the appellee was the less culpable of the two in the crime, as it appeared that the appellee’s participation was limited to the role of a passive witness who happened to be driving when the codefendant initiated the brief, apparently unpremeditated interaction with the victim. State v. Mamedov, 288 Ga. 858, 708 S.E.2d 279 (2011).

Habeas court correctly concluded that ineffective assistance of trial counsel could not be used to excuse the procedural default of the petitioner’s claim that the petitioner was mentally incompetent during trial because the information that trial counsel then had available to them, including the information that trial counsel unreasonably failed to obtain, would not have led constitutionally effective counsel to pursue a claim of incompetence to stand trial and would not be reasonably probable to have resulted in a finding that the petitioner was incompetent had such a plea been pursued; the petitioner failed to prove that trial counsel rendered ineffective assistance regarding the petitioner’s competence to stand trial because trial counsel withdrew the petitioner’s plea of incompetence only after satisfying themselves that counsel was able to communicate effectively with the petitioner, and the trial court had an extensive opportunity to observe the petitioner in pre-trial and trial proceedings and to interact directly with the petitioner, and the court did not see sufficient indications of incompetence to pursue further evaluation. Perkins v. Hall, 288 Ga. 810, 708 S.E.2d 335 (2011).

Habeas court’s order denying the petitioner’s claim that the petitioner was entitled to a new sentencing trial was reversed and the petitioner’s death sentence was vacated because trial counsel performed deficiently by failing to sufficiently develop mitigating evidence from non-experts, and there was a reasonable probability that the jury would have reached a different outcome in the sentencing phase of the petitioner’s trial if the additional evidence habeas counsel obtained had been presented at trial; trial counsel failed to fully investigate whether the petitioner had suffered one or more brain injuries prior to the petitioner’s crimes, and unduly limiting their interviews of the petitioner’s family and friends to an unreasonably narrow range of persons, and there was additional evidence from non-experts concerning the petitioner’s traumatic childhood and the petitioner’s change in behavior and apparent mental distress following two head injuries. Perkins v. Hall, 288 Ga. 810, 708 S.E.2d 335 (2011).


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