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Georgia Supreme Court Instructs Federal Courts on Its Habeas Review Process

by Richard Resch

On January 16, 2018, the Supreme Court of Georgia issued an instructive per curiam opinion in which it announced the need for it to explain its habeas application review process.

According to the Court, the explanatory opinion was necessitated because “there appears to be significant misunderstanding of the process by which this Court renders these decisions and the import of our decisions, both among repeat litigants in state habeas proceedings and among federal courts that sometimes see the same cases … brought under 28 U.S.C. § 2254.” The Court noted that the answer to specific issues in some federal habeas cases depends in part on presumptions about the Court’s summary denials of habeas applications. The Court admonished that “those presumptions should be founded on reality rather than supposition, inference, or misinformation. We therefore take this opportunity to explain.”

A habeas petitioner seeking to appeal a final superior court order denying his petition must file a timely application in the Georgia Supreme Court for a certificate of probable cause and a timely notice of appeal in the habeas court. In every case, a central staff lawyer under the guidance of a justice reviews the application and drafts a memorandum for the Court. In cases in which there is an obvious procedural defect, it may contain a single paragraph. However, the memoranda in most cases are based “on a review of all pertinent portions of the record and present a detailed, multi-page discussion of the proceedings below, the habeas court’s order, the arguments presented in the application, and the factual and legal merits of each argument.” Death penalty cases are handled by central staff lawyers who specialize in death penalty matters.

Unless recused, the Court explained, “every Justice reviews and votes on every habeas application.” The Court added, “using a process modeled on the U.S. Supreme Court’s process for discussing petitions for certiorari, our Court discusses any habeas case that a single Justice lists for discussion, with the other cases placed on a unanimous consent list voted on collectively.” At the end of the discussion process, “the Court decides whether to grant the habeas application and thus initiate the full appeal process….”

The Georgia Supreme Court then discussed the import of its summary denial of a habeas application. If a majority of the Court concludes that the application has “arguable merit,” the application will be granted. In this context, arguable merit means that “the petitioner has a fair probability of ultimately prevailing in his case by obtaining habeas relief.” Thus, the decision to deny a habeas application is “squarely a decision on the merits of the case.” The Court clarified that if “a procedural defect under Georgia statutory or decisional law would prevent” the habeas or this Court from properly granting relief, then the application lacks arguable merit.

Next, the Court noted that it is not uncommon for habeas court orders to contain factual and legal errors. If they, separately or collectively, would arguably result in the order being reversed or vacated if appeal were granted, the Court grants the application. However, where the factual and legal errors are “immaterial,” they do not amount to reversible error, and they often do not even need to be addressed in an opinion. For instructive purposes, the Court cited five examples of the most common inconsequential errors.

Even in cases where the habeas court has made no apparent error or the application lacks arguable merit, the Supreme Court advised that it “still has discretion to grant an application … if the case presents an issue of great concern, gravity, or importance to the public; or if there is a need to establish precedent on an issue; or if the Court has noticed that a number of habeas judges have made a similar mistake, indicating the need for existing precedent to be reiterated or clarified even though the mistake was harmless in the case at hand.”

The Supreme Court advised that “it should not be presumed that when this Court summarily denies an application to appeal an order denying habeas corpus relief, we necessarily agree with everything said in that order.” The Court stressed that its “silence does not imply consent to every aspect of the habeas court’s reasoning….” It went on to explain that “our summary denials of habeas applications should be understood, like summary affirmances by the Supreme Court of the United States and federal circuit courts, as approving only the judgment of the court below, not necessarily all of its reasoning.”

The Georgia Supreme Court concluded its lesson by essentially telling federal courts to examine this opinion to understand what the Court means when it says summarily “that an application for a certificate of probable cause to appeal the denial of habeas corpus is ‘denied.’”

See: Redmon v. Johnson, 2018 Ga. LEXIS 1 (2018). 

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Redmon v. Johnson



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