NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and official text of the opinion.
In the Supreme Court of Georgia
Decided: May 17, 2022
S21H0656, S22A1020. THOMAS v. CALDWELL, WARDEN.
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
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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 resentencing 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
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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, except Boggs, P.J., disqualified.
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