FINAL C OPY

294 Ga. 605 S14A003 6. WILKERSON v. HART.

MELTON, Justice. Following

the den ial of hi s applic ation for h abeas cor

pus relief, Lenzie Aaron Wilkerson appeals, contendi ng that the evidence present ed at his trial was insufficient, under Garzav. State , 284 Ga . 696 (670 SE 2d 73) (2008), to support his conviction s for kidn apping. In ad dition, Wil kerson con tends that th e trial court erred b y finding that his trial c ounsel did not render ineffective assis tance of counsel . For thereasons set fo rth below, we revers e the habeas court’s r uling

on the kidna

pping convi ctions but

affirm its findin g regard

ing ineff ective assistance of counsel. 1. The facts of this caseare ge nerall y set f orth in Wilkerson v. State , 280 Ga. A pp. 29 (633 SE 2d 367) (2006). There , the C ourt of Appe als set forth: [A]t approxim ately

11:00 p. m. on Sunday , Novem ber 26, 200 1, Dusti n James, S ean Greer , and S. S., an ad ult fema le, wer e visiting with their fri ends, Jason P arrish, Jas o n Rigby, and Jo el Pressley, who lived in an apartment com plex in St atesbor

o. Rigby testifie d that two men knocked at thedoor and a sked to buy mari juana and that fifteen min utes later, the same menreturne d, one of whom carried a

pistol, and cha

rged into the apartment. They were accompanied by thre e me n, who were wea ring masks , and one

of2

the maskedmen w as ca

rrying a shotgun. R

igby descri bed the first two men: one was short and s tocky a nd wore a

skull ca p and the other was tall and skin

ny and h ad a sha

ved hea d and a l ight compl exion. Pressley, Rigby, and Greer all test ified that the men cov ered their eyes with duc t tape, tied the ir hands behind their backs, piled them on top of

each other, and placed a coffee t able on top o f them. James testified that the

perpet rator c arryin g the pistol found him in the kitche n, order ed him

to the fl oor, and bound his hands and feet with duct ta

pe. Ri gby tes tified t

hat the perpet rators stole the money from his wal let, a

nd Pressl e y testified th at they stole hi s keys a

nd his cam corder. Parrish t estifi ed that he and his girlfriend, S. S. , were in his bed when a young, black, skinny male wa lked into th e room a nd threw the bed cover ov er thei r heads; that so me of the other men came into the room a

nd used duc t tapeto bind hi s hands and co ver his eyes be fore throw ing him t o the floo r; that o ne of the men put a gun to theback of his head a nd that th ey kic ked him

in his head; that one of the men dare d the one hold ing the p istol to shoot him and that he heard the so und of th e gun being co cked; an d that the menstole his cell ph one and $40 0 from him. Parrish also testified that while lying on the floor, h e hea rd the be d moving a nd S. S. crying. S. S. te stified

that one of the perpetrators fondled and licked herleft bre ast, pe

netrat ed her w ith his fin gers , then r e moved her shorts and under

wear a nd dragge d her tow ard theside of the bed by her ankl es before pene trating her wit h Parrish' s lava l amp. She recalled that one of the perpetrators repea tedly struck the lam

p to drive it into her, th en rolled her o nto her sto mach and taped her hands togethe r behind her back be fore leavin g the room. S.S. did not seeany of t

he perpe trators. Id. at 30. B ased on t

hese facts, Wi lkerson

was convict ed of onecount of burglary, four count s of a rmed r ob bery, one count of crim inal attempt, six3

counts of kidnapping, one c ount of aggravate d sexual batter y, and one count

of possessio n of a fire arm or knife during the c ommi ssion of c ertai n crim es. Th e facts later set fort h by the habea s court

in its ruling are consistent with the facts set forth by t

he Court of A

ppeals, and, “[i ]n revi ewing the gra nt or deni al of a petitio n for habe as corpu s, this C ourt acce pts the habea s court’s factua l findings and credibility determin ations unl ess they are clea rly e rroneous, but we indepe ndently apply t

he law to the facts.”

(Citat ion omit ted.) Hender son v. Hames , 287 Ga. 534, 5 36 (2) (6 97 SE2d 7 98) (201 0). 2. As an initial matter, we find that Wilkerso n’s claim that the evid ence

was insuffic ient to pr

ove asporta

tion under Garzais cognizable in habea s. “[A]

new rule of su

bstantiv e crim

inal la w must be applied retroactivel

y to case s on collateral review and . . . an a ppella te dec ision holdi ng that a

crim inal sta

tute no longer reac hes ce rtain c on duct is a ruling o f substant ive law.” Luke v. Battle , 275 Ga. 370, 373 (2) (565 SE2d 816) (2002). Garzaultimately held that, with respec t to the asp ortation elem ent of Georgia's pr e-2009 ki dnapping statute, the m ovement nece ssary to establish asportation must be more than “merely incidental” to other crim inal ac tivity, and four j udicia lly cr eate d f actors must be considered before a court can c oncludethat more than “merely incidental” movem ent had occurre d. Id. a t 702 (1). Garzahas since been superseded by statute for o ffenses occurring afte r July 1, 2009.4

OCGA§ 16-5-40 (b) (2). However, because the rule create d in Garzaconstit

uted a s ubstanti ve cha

nge in the la

w with re spect t o the elements required to p rove the crime of kid napping at the time that the casewas de cided, the rule beca me re tro active ly applicable to cases such as the instant case. See, e.g., Hamm ond v. State , 289 Ga. 142, 143 (1) (710 SE 2d 124) (2011) (A substa ntive c hange in case law “includes d ecisions that r emove certain conduct from the reach of criminal sta

tutes” ) (cita

tion omi tted). Sellar s v. Eva

ns , 293 Ga. 346, 3 47, n. 1 (745 SE2d 643) (2013). There fore, t he substantive change to the interpreta tion of the asportation requirement set forth in Garzasatisfi es the c ause and prejudi ce analysis and is cog nizable in habeas corpus proc eedings

. [A] failure

to ma ke tim ely obj ection

to an allege d error or deficiency ordinari ly will preclu de revi ew by

writ of habea s corpus. However, an othe rwise va lid stat e proce dural ba

r will not preclu de a habea s corpus c ourt

fro m cons idering a

lleged errors or deficiencies if there

shall be a showin g of

adequa te ca use for fail

ure to object and a sho wing of actual p rejudice to the ac cused. Even absent such a s howing of c ause a ndprejudic e, the

relie f of the writ will remain available to av oid a miscarriage of ju stice. (Emphasis omitted.) Valenzuela v. Newso me , 253 Ga . 793, 796 ( 4) (325 SE2d 370) (1985). Georgia law requir es suffici ency of the e vidence claim s to be raised in the first i nstance on direct ap peal, so, in habea s, such a claim is procedurally

defaulted if

not raised on direct appeal (or proce durally barred if raised on appeal and decid ed against the peti tioner) un less the petitio ner5

establishes either “cause and p rejudice” or that r elief is nece ssary

to prevent a “miscarriage of jus tice.” Id. 3

. While the hab eas c ourt appro priate ly cons idered Wilkers on’s Garza claim, it er red by f

indi ng that th e fac ts of this c ase we re suffic ient to s atisfy Garza ’s asporta

tion requireme

nt. Unde r Garz a , the question whether aspo rtation

was more than “merely incidental” to another crim e is decid ed base d on the conside ration of

four fac tors: (1) the dur at ion of themovem ent; (2) whethe r the m ovement occurred during thecomm ission of a

separate offense; (3) whether s uch movem ent wa s an inhe rent pa rt of tha t separate off

ense; a nd (4) whether the movem e nt itself presented a signific ant danger to the victim indepen dent of

the dan ger pose d by

the separate offens e. (Citat ionomitte d.) Garza , supra, 284 Ga. at 7 02 (1). Generall y, the sat isfact ion of all four fac tors is no t required in order for th e evidence to supp ort a proper finding of asport ation under Garza . See Brown v. State , 2 88 Ga. 902 (3) (708 SE2d 294) (2011) (a sportati on found where three of four Garzafactor s met ). In the present case, however, th e r ecord does no t suppor t the conclusio n that enough of

the Garzafactor s weremet t o warra nt a finding of asport ation. In this ca se, the

movem ent of the

victim s, whic h was m ainly to subdue1 In fact, this act is actu ally more of a restrictio n of movement than

movem ent, it self. 6 them with duct tape, 1 occurred dur ing the commi ssion of the separate crimes being committed in this sit uation and d id not expo se any of the vi ctims to danger independent of the crim es alrea dy in prog ress. For example, th e duct taping of individu als was an incide ntal pa rt of thecomm

ission of bur

glary a nd armed robbery, under the current facts , and the

movem ent of S. S. was part of the manner in whic h aggrava ted sex ual ass ault wa s c ommitt ed against her. Furthermore, th e re was no showi ng th at the s ligh t movemen t of th e victi ms presented a signifi cant da nger outside of the da

nger from

the crimes already being committed. See Hender son v. State , 285 Ga . 240, 245 ( 5) (675 SE2d 2 8) (2009) (kid nappi ng st atute i s “in tended to add ress ‘ moveme nt serv ing to substanti ally i solatethe vic tim fro m prote ction or r escue ’”) (ci tation om itted). Under these circumstances, the evid ence was insufficien t to show as po rtation under Garza , and Wi lkerson’s convict ions for kidn apping m

ust be va cate d. 4. Wilkers on separ ately

con ten ds that he received i neffective assist ance of counsel because his trial counsel did not know he was e ntitled to present two hours of closing argu ment and did no t object when th e trial court limited him to2 Wilkerson ’s trial coun sel testified th at he was unaware that he was

actually entitl ed to two hours of closing argument beca use kidnapping with bodily in jury is a capita l offense . OCGA

17-8-73. 7 thirty minutes, whic h he thought was his limit. 2 Similar to oth er claims of ineffective ass istance, a habeas petitio ner seeking to overco me a procedural default m ust show professionally defici ent perform ance bytrial or direct appea l counse l and tha t the deficiencies had a re asonabl e probabi lity of c hanging the outco me of the [proceedin g]. See Strickla nd[ v. Wa shington , 466 U. S. 668, 687 (104 SCt. 2052, 80 LE 2d 674) (1984)]; Hall v. Lewis , 286 Ga. 767, 769 (692 SE2d 580) (20 10). Perkins v. Hall , 288 Ga. 810, 8 22 (III) ( C) (708 SE2 d 335) (2 011). In this case, even if Wilkerso n’s trial cou nsel was deficient, Wilk erson has failed to show harm. In presenting his closin g argu ment, trial counsel was whollyunaware of his a bility t o insist on a

two-hour c losing ar

gument and, therefore, “he presumably ta ilored his argument” for the time he thought he did have. See Hardeman v. State , 281 Ga . 220, 223 ( 635 SE2d 698) ( 2006). Although trial counsel tes tified that he needed the additional time to “flesh out” his arguments in more

deta il, th e habeas court found that trial counsel did, in fact, argue the princ iples of l aw he w ished to a rgue in hi s closing . “The decisi ve issue is whet

her, but for the erroneous de

nial of t he extr a hour [a

nd a half] , there8

is a reasonable prob ability that trial counsel co uld have conv inced the jury that his client was innocent of the crimes cha

rged. [Wil ke rson] failed to make that showing.” Id. The habeas c ourt, therefore, properly denied Wilkerson’s claim that he receive d ineffective assista nce of counsel. Judgme nt affir

med in part an d revers ed in pa

rt. All the Justi ces c oncur .

Decid ed Februa

ry 24, 201 4. Habeas corpus. Ware Su perior Cour t. Before Judge Blo unt, Senior Judge. Brian Steel , for appellant. Samuel S. Olens, Attorn eyGener al, Pa tricia B. Att away

Burton, Deputy Attorney General, Paula K. Smith, Seni or Assistan t Attorney General, Ry an A. Kolb, Assist ant Attorney Geneal , for appellee.