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Redmon v. Johnson

Supreme Court of Georgia

January 16, 2018


          PER CURIAM.

         Pursuant to OCGA § 9-14-52, we hereby summarily deny petitioner's application for a certificate of probable cause to appeal the habeas court's final order denying his petition for habeas corpus challenging his criminal convictions. The Court similarly denies summarily the applications of another 20 habeas petitioners today, as we have denied thousands of such applications in the past (while granting a few each year, including two today).

         We normally issue these summary denials of habeas applications by unpublished order. However, 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 the federal courts that sometimes see the same cases - particularly death penalty cases - later in federal habeas corpus proceedings brought under 28 USC § 2254. See Wilson v. Warden, 834 F.3d 1227 (11th Cir. 2016) (en banc), cert. granted sub nom. Wilson v. Sellers, 137 S.Ct. 1203 (U.S. Feb. 27, 2017) (No. 16-6855). While we offer no view on the question of federal habeas law presented in Wilson, the answer to that question appears to depend in part on presumptions about this Court's summary denials of habeas applications, and those presumptions should be founded on reality rather than supposition, inference, or misinformation. We therefore take this opportunity to explain.

         1. Our Habeas Application Review Process.

         This Court gives every habeas application careful and independent consideration. A habeas corpus petitioner seeking to appeal a final superior court order denying his petition must file not only a timely application in this Court for a certificate of probable cause to appeal, but also a timely notice of appeal in the habeas court. See OCGA § 9-14-52 (b); Fulwood v. Silvey, 271 Ga. 248, 250 (517 S.E.2d 511) (1999). The latter requirement leads to the record being forwarded to this Court so that it may be considered along with the application.[1]

          In every habeas case, an attorney from our Central Staff, under the general supervision of the Justice to whom the case is assigned, reviews the application and drafts a memorandum for the Court. Where there is an obvious procedural defect that will result in the application being dismissed for lack of appellate jurisdiction, such as an untimely application or notice of appeal, the memorandum may be just a paragraph. But in most cases, the memoranda 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. In habeas applications in death penalty cases, which are drafted by Central Staff attorneys who specialize in death penalty matters, the memoranda regularly exceed 50 single-spaced pages.

         Unless recused, every Justice reviews and votes on every habeas application. Until recently, every habeas case was discussed at a banc conference of the Court. Now, 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. The discussions sometimes lead to further consideration and additional memoranda on cases, which are then brought back for discussion at subsequent conferences. At the end of this process, the Court decides whether to grant the habeas application and thus initiate the full appeal process, which includes briefing, the opportunity for oral argument, and the drafting, consideration, approval, and issuance of a published, precedential opinion.

         2. The Import of Our Summary Denial of a Habeas Application.

         Under this Court's Rule 36, if a majority of the Justices determine that the application shows that the habeas case has "arguable merit, " the application will be granted. It is important to understand what "arguable merit" means in this context: it means that the petitioner has a fair probability of ultimately prevailing in his case by obtaining habeas relief. Our decision to deny a habeas application is therefore squarely a decision on the merits of the case.[2]

          Our determination of whether a full appeal should be granted is focused primarily on the correctness of the habeas court's final judgment denying relief, not on the quality of the habeas court's order explaining that judgment. If it is clear that the habeas court's judgment would be affirmed after the full appellate process, then - except in the rare circumstances discussed below - this Court will deny the petitioner's application to initiate that extensive process and will devote our limited decisional resources to other matters. We do not consider only the substantive merits of the case. If a procedural defect under Georgia statutory or decisional law would prevent the habeas court from properly granting relief to the petitioner, or would prevent this Court from properly granting relief on appeal, then the application lacks arguable merit. See generally Tolbert v. Toole, 296 Ga. 357, 361 n.8 (767 S.E.2d 24) (2014).

         In the course of our independent review of the applications and records in habeas cases, the Court occasionally identifies factual and legal errors in habeas court orders - as we have in this case. In death penalty cases, which typically involve extensive factual records and present a multitude of complicated legal issues addressed in lengthy habeas court orders, identifying at least a few such errors is a routine occurrence. If the Court decides that such errors, separately or collectively, would arguably result in the order in question being reversed or vacated if an appeal were granted, the disposition is straightforward: the Court grants the application.[3] On many occasions, however, including in this case, the factual discrepancies identified are immaterial, and the legal mistakes the habeas court appears to have made - or even obviously made - would not amount to reversible error. Indeed, in many such cases, the errors would not even need to be addressed in an opinion affirming the habeas court's order.[4]

         There are many examples of inconsequential errors, but among the most common are the following:

• The habeas court rejects a claim both on a procedural ground and, alternatively, on the substantive merits. This Court determines that one of those rulings appears factually or legally erroneous, but the other is correct, so an appeal would result in the habeas court's judgment being affirmed on the correct ground.
• In addressing an ineffective assistance of counsel claim under Strickland v. Washington, 466 U.S. 668 (104 S.Ct. 2052, 80 L.Ed.2d 674) (1984), the habeas court rules that counsel did not perform deficiently as alleged. That ruling appears to be erroneous, but this Court determines based on our review of the record that no prejudice resulted from the deficient performance, so an appeal would result in affirming the ...

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