--- title: Thomas v. Caldwell, Warden collection: opinions id: S21H0656 cite_as: Thomas v. Caldwell, Warden, 313 Ga. 799 (2022) canonical_url: https://georgiacommons.org/opinions/S21H0656 md_url: https://georgiacommons.org/opinions/S21H0656.md text_url: https://georgiacommons.org/opinions/S21H0656/text source_url: https://www.courtlistener.com/opinion/10679884/thomas-v-caldwell-warden/ date: 2022-05-17 status: published corpus_version: opinions-2026-09-14 license: Public record of the Supreme Court of Georgia, via CourtListener and the court's own website; see about.md publisher: Georgia Commons, an independent project of Georgia Civic Data. Not the State of Georgia. Not legal advice. up: https://georgiacommons.org/opinions/2022.md previous: https://georgiacommons.org/opinions/S22A0322.md next: https://georgiacommons.org/opinions/S22A0271.md index: https://georgiacommons.org/opinions/index.md omitted: opinion extras omitted_chars: 1458 omitted_url: https://georgiacommons.org/opinions/S21H0656.md?full=1 docket: S21H0656, S22A1020 citation: 313 Ga. 799 court: Supreme Court of Georgia case_type: habeas authoring_justice: Warren disposition: Application granted, judgment reversed, and case remanded vote: All the Justices concur, except Boggs, P. J., disqualified word_count: 693 date_filed_source: courtlistener citations: - 873 S.E.2d 215 record_source: courtlistener legal_areas: - criminal law - habeas corpus upstream_id: "10679884" summaries_model: claude-sonnet-5 --- # Thomas v. Caldwell, Warden Supreme Court of Georgia, docket S21H0656, S22A1020, filed 2022-05-17, 313 Ga. 799. ## Opinion 313 Ga. 799 FINAL COPY S22A1020. THOMAS v. CALDWELL. WARREN, Justice. The application for a certificate of probable cause to appeal in this case presents the question of whether the habeas court properly dismissed Jerry Thomas’s petition for habeas corpus on the ground that it was successive under OCGA § 9-14-51. For the reasons that follow, we conclude that the habeas court erred in dismissing Thomas’s petition. Thomas was convicted in 2010 of one count of child molestation, and the Court of Appeals affirmed his conviction. See Thomas v. State, 324 Ga. App. 26 (748 SE2d 509) (2013). In 2017, Thomas timely filed an initial petition for habeas corpus challenging the conviction. The habeas court denied relief in May 2018. On July 1, 2019, this Court dismissed Thomas’s attempt to appeal from that denial because both his notice of appeal and application for a certificate of probable cause to appeal were untimely. See OCGA § 9-14-52 (b) (stating that “an unsuccessful [habeas] petitioner [who] desires to appeal . . . must file a written application for a certificate of probable cause to appeal” with this Court “within 30 days from the entry of the order denying him relief” and must “file within the same period a notice of appeal with the clerk of the concerned superior court”). Meanwhile, on March 8, 2019, during the pendency of Thomas’s application for a certificate of probable cause to appeal in this Court, he filed a motion to correct void sentence in the trial court. In May 2019, the trial court granted Thomas relief and entered a new sentence. In August 2020, Thomas filed a second habeas petition challenging, among other things, the sentence imposed in the 2019 re-sentencing on several grounds. On December 22, 2020, the habeas court dismissed Thomas’s second petition as successive, ruling that the claims raised in that petition “could reasonably have been raised” in his initial petition in 2017. See OCGA § 9-14-51 (stating that any ground for relief not raised by a petitioner in his initial habeas petition is waived unless the “grounds for relief asserted therein . . . could not reasonably have been raised” in the initial petition). Thomas now appeals the habeas court’s dismissal, arguing that it was improper because his 2017 habeas petition was filed and litigated before his 2019 re-sentencing and before he raised issues related to that re-sentencing in his 2020 habeas petition. After receiving Thomas’s timely application for a certificate of probable cause to appeal, this Court directed the Warden to file a response, and he did. In that response, the Warden acknowledged that “the factual basis for [Thomas’s] current claims[ ] ar[ose] from the re- sentencing in May 2019” and thus “did not exist when Thomas litigated his first habeas case” in 2017 and 2018. The Warden thus concedes that Thomas could not have raised claims in 2017 and 2018 concerning a re-sentencing that did not happen until 2019, and that the habeas court therefore erred in dismissing Thomas’s 2020 petition on the ground that it was successive under OCGA § 9-14- 51. See Watkins v. Ballinger, 308 Ga. 387, 393 (840 SE2d 378) (2020) (holding that the habeas court erred in dismissing a second habeas petition as successive where there was no evidence in the record that the petitioner’s claims regarding juror misconduct and concealment of evidence could reasonably have been discovered before and raised in his original habeas petition). Given the Warden’s concession, there is no need for additional briefing or argument to resolve the issue Thomas raises. Accordingly, we grant Thomas’s application for a certificate of probable cause to appeal, reverse the habeas court’s judgment, and remand the case to the habeas court for proceedings consistent with this opinion. Application for certificate of probable cause to appeal granted, judgment reversed, and case remanded with direction. All the Justices concur, except Boggs, P. J., disqualified. Decided May 17, 2022. Habeas corpus. Johnson Superior Court. Before Judge Green. Jerry M. Thomas, pro se. Christopher M. Carr, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General; Shepard Plunkett Hamilton & Boudreaux, Daniel W. Hamilton, for appellee. ## Summaries written by Georgia Commons The following was written by claude-sonnet-5 from the opinion above and is not part of the court's opinion. Quote the opinion, not the summary. The Supreme Court of Georgia ruled that a habeas court wrongly threw out a man's second habeas petition as repetitive, because the claims in it grew out of a 2019 re-sentencing that had not even happened when he filed his first petition. ### Plain-language summary Jerry Thomas was convicted of child molestation in 2010, and his conviction was upheld on appeal. In 2017 he filed a habeas corpus petition, a challenge to the legality of his imprisonment, but lost, and his attempt to appeal that loss was dismissed as too late. While that appeal was pending, Thomas separately asked the trial court to fix an illegal sentence, and in 2019 the trial court agreed and gave him a new sentence. In 2020, Thomas filed a second habeas petition challenging that new 2019 sentence. The habeas court dismissed it, saying he should have raised those issues back in his 2017 petition. Thomas appealed, and the state's own lawyer admitted that Thomas could not possibly have raised claims about a 2019 re-sentencing back in 2017. The Supreme Court of Georgia agreed, reversed the dismissal, and sent the case back for further proceedings. ### Holding, as summarized A habeas petition is not barred as successive under Georgia's habeas statute (OCGA § 9-14-51) when the claims it raises could not reasonably have been raised in an earlier petition because the facts underlying them, here a 2019 re-sentencing, did not yet exist at the time of that earlier petition. ### Disposition Application granted, judgment reversed, and case remanded. All the Justices concur, except Boggs, P. J., disqualified. ### Why it matters The ruling protects Georgia inmates from having later, valid claims thrown out simply because they arose from events, like a re-sentencing, that happened after an earlier habeas case ended. It reinforces limits on how strictly courts can apply Georgia's rule against repetitive habeas filings. > The summarized reasoning, checked quotes, suggested questions, and the CourtListener opinion records (1,458 characters) are at https://georgiacommons.org/opinions/S21H0656.md?full=1