Crosson v. Conway , 291 Ga. 220 ( 2012 )

Carley, Chief Justice.

After being indicted for certain theft crimes, Appellant Maureen Carole Crosson, who was a prisoner acting pro se, filed a pre-trial petition for writ of habeas corpus. On July 27, 2011, the habeas court entered a final order granting a motion to dismiss filed by the Sheriff and denying the habeas petition, but did not inform Appellant of the proper appellate procedure for obtaining review of that order. Although Appellant did not request any extension of time, she filed, on September 12, 2011, a notice of appeal in the habeas court and an application for discretionary review in this Court. We granted that application to determine the jurisdictional issue of whether the holding in Hicks v. Scott, 273 Ga. 358 (541 SE2d27) (2001), preventing an appeal by a pro se prisoner in a post-conviction habeas case from being dismissed for failure to comply with certain appellate procedural requirements unless he was correctly informed of those requirements, should be extended to pre-trial habeas cases and whether that holding in Hicks should be overruled.

1. An application for discretionary appeal pursuant to OCGA § 5-6-35 is required to obtain review of an order on a pre-trial habeas petition filed by a prisoner. Brown v. Crawford, 289 Ga. 722 (715 SE2d 132) (2011) (construing the Prison Litigation Reform Act). Afailureto meet the statutory deadline for filing a discretionary application, which is 30 days under OCGA § 5-6-35 (d) plus any proper extensions pursuant to OCGA § 5-6-39, is a jurisdictional defect. Gable v. State, 290 Ga. 81, 82 (2) (a) (720 SE2d 170) (2011) (untimely application for discretionary appeal from the denial of an extraordinary motion for new trial). The failure to comply with the discretionary appeal procedures of OCGA § 5-6-35 is likewise a jurisdictional defect compelling dismissal where, as here, the discretionary application is required by virtue of the Prison Litigation Reform Act. Harris v. State, 278 Ga. 805, 806 (1) (606 SE2d 248) (2005); Chambers v. Abellana, 237 Ga. App. 698 (515 SE2d 884) (1999); Brown v. Levine, 235 Ga. App. 63 (508 SE2d 449) (1998).

Furthermore, “[w]e do not ignore jurisdictional statutes in cases wherein the appellant has chosen, for whatever reason, to proceed pro se.” Fullwood v. Sivley, 271 Ga. 248, 253 (517 SE2d 511) (1999).

[C]ourts have “no authority to create equitable exceptions to jurisdictional requirements” imposedby statute. [Cit.] Instead, Georgia courts may excuse compliance with a statutory requirement for appeal only where necessary to avoid or remedy a constitutional violation concerning the appeal.

Gable v. State, supra at 85 (2) (b). “[A] criminal defendant has a constitutional right to the effective assistance of counsel for his first appeal of right____” Gable v. State, supra. However, there is no federal or state constitutional right to appeal from an adverse order in a habeas corpus proceeding in the absence of compliance with appellate jurisdictional requirements, nor is there any constitutional right to counsel in a habeas proceeding or on application to appeal a ruling therein. Fullwood v. Sivley, supra at 252; Gibson v. Turpin, 270 Ga. 855, 857 (1) (513 SE2d 186) (1999). See also Gable v. State, supra at 86 (2) (c).

Thus, compliance with OCGA § 5-6-35 cannot be excused for failure to inform Appellant of its requirements, and the holding in Hicks therefore cannot be applied in this pre-trial habeas case. Accordingly, the application for discretionary review filed by Appellant was subject to dismissal as untimely, and the current appeal, not being authorized, must be dismissed. Gable v. State, supra; Fullwood v. Sivley, supra at 255.

2. Moreover, a very similar analysis shows not only that Hicks is inapplicable here, but also that it must be overruled in its entirety.

OCGA § 9-14-52 (b) provides that an unsuccessful post-conviction habeas petitioner who desires to appeal must file, within 30 days of entry of the final order, both a notice of appeal with the clerk of the habeas court and an application for certificate of probable cause with the clerk of this Court. Whether the petitioner is acting pro se or not, “[t]his Court cannot denigrate the General Assembly’s determination by considering either a timely notice of appeal or a timely application as a mere procedural nicety.” (Emphasis omitted.) Fullwood v. Sivley, supra at 250. Compare Massaline v. Williams, 274 Ga. 552 (554 SE2d 720) (2001) (not excusing the 30-day time requirement in OCGA § 9-14-52 (b), but adopting a “mailbox rule” in applying that requirement). Instead, they “are both necessary to invoke this Court’s jurisdiction over an appeal from the denial of a petition for habeas corpus.” Fullwood v. Sivley, supra at 251. Furthermore, as noted above, no constitutional right of appeal or of counsel is implicated in this context, and we are wholly without any constitutional or other authority to waive compliance with this jurisdictional mandate. Fullwood v. Sivley, supra at 251-254. See also 39ACJS Habeas Corpus § 398 (recognizing general rule that right of appeal in habeas proceeding exists only as provided by statute and not by common law or constitutional authority).

Therefore, compliance with OCGA § 9-14-52 (b) cannot be excused for failure to abide by a judicially imposed rule that the habeas petitioner be informed of that statute’s requirements. Accordingly, we hereby overrule Hicks and its progeny, including Thomas v. State, 284 Ga. 327-328 (1) (667 SE2d 375) (2008) and Capote v. Ray, 276 Ga. 1, 2 (1) (577 SE2d 755) (2002). See Brown v. Crawford, supra at 724-725 (pre-trial habeas case overruling eight prior cases which had disregarded statutory requirements for appeal).

Appeal dismissed.

All the Justices concur, except Hunstein, R J., Benham and Thompson, JJ., who concur in part and dissent in part.