GA Code § 9-14-48 (2021)
2021 Georgia Code|Title 9 - Civil Practice|Chapter 14 - Habeas Corpus|Article 2 - Procedure for Persons Under Sentence of State Court of Record|§ 9-14-48. Hearing; Evidence; Depositions; Affidavits; Determination of Compliance With Procedural Rules; Disposition

  The court may receive proof by depositions, oral testimony, sworn affidavits, or other evidence. No other forms of discovery shall be allowed except upon leave of court and a showing of exceptional circumstances.   The taking of depositions or depositions upon written questions by either party shall be governed by Code Sections 9-11-26 through 9-11-32 and 9-11-37; provided, however, that the time allowed in Code Section 9-11-31 for service of cross-questions upon all other parties shall be ten days from the date the notice and written questions are served.   If sworn affidavits are intended by either party to be introduced into evidence, the party intending to introduce such an affidavit shall cause it to be served upon the opposing party at least ten days in advance of the date set for a hearing in the case. The affidavit so served shall include the address and telephone number of the affiant, home or business, if known, to provide the opposing party a reasonable opportunity to contact the affiant; failure to include this information in any affidavit shall render the affidavit inadmissible. The affidavit shall also be accompanied by a notice of the party's intention to introduce it into evidence. The superior court judge considering the petition for writ of habeas corpus may resolve disputed issues of fact upon the basis of sworn affidavits standing by themselves.   The court shall review the trial record and transcript of proceedings and consider whether the petitioner made timely motion or objection or otherwise complied with Georgia procedural rules at trial and on appeal and whether, in the event the petitioner had new counsel subsequent to trial, the petitioner raised any claim of ineffective assistance of trial counsel on appeal; and absent a showing of cause for noncompliance with such requirement, and of actual prejudice, habeas corpus relief shall not be granted. In all cases habeas corpus relief shall be granted to avoid a miscarriage of justice. If the court finds in favor of the petitioner, it shall enter an appropriate order with respect to the judgment or sentence challenged in the proceeding and such supplementary orders as to rearraignment, retrial, custody, or discharge as may be necessary and proper.   A petition, other than one challenging a conviction for which a death sentence has been imposed or challenging a sentence of death, may be dismissed if there is a particularized showing that the respondent has been prejudiced in its ability to respond to the petition by delay in its filing unless the petitioner shows by a preponderance of the evidence that it is based on grounds of which he or she could not have had knowledge by the exercise of reasonable diligence before the circumstances prejudicial to the respondent occurred. This subsection shall apply only to convictions had before July 1, 2004.    (Code 1933, § 50-127, enacted by Ga. L. 1967, p. 835, § 3; Ga. L. 1975, p. 1143, § 2; Ga. L. 1982, p. 786, §§ 2, 4; Ga. L. 1995, p. 381, § 6; Ga. L. 2004, p. 917, § 3.)   Editor's notes.   - Ga. L. 1982, p. 786, § 5, not codified by the General Assembly, declared that that Act is inapplicable to habeas corpus petitions filed prior to January 1, 1983.   Ga. L. 1995, p. 381, § 1, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'Death Penalty Habeas Corpus Reform Act of 1995.'"   Ga. L. 1995, p. 381, § 2, not codified by the General Assembly, provides for legislative intent and purpose for this Act.   Law reviews.   - For annual survey of death penalty law, see 58 Mercer L. Rev. 111 (2006).   JUDICIAL DECISIONS    Affidavits or depositions may be used at habeas hearing as primary evidence even though witnesses' presence may not be required. Phillips v. Hopper, 237 Ga. 68, 227 S.E.2d 1 (1976).    When a habeas court found an inmate's claim of ineffective assistance of counsel was not procedurally barred, under O.C.G.A. § 9-14-48(d), for failing to raise the claim on direct appeal because the allegedly ineffective counsel could not, due to illness, attend a hearing held on remand during the inmate's direct appeal and, thus, could not be cross-examined, this was error because, even if the claim was different enough from barred claims to fall within a defaulted-claim analysis, it overlooked the readily available legal remedy of a court order to obtain counsel's sworn testimony for use at the remand hearing, under former O.C.G.A. § 24-10-130 (see now O.C.G.A. § 24-13-130), so counsel's absence from the hearing did not establish cause for failure to raise the ineffective assistance claim. Schofield v. Meders, 280 Ga. 865, 632 S.E.2d 369 (2006), cert. denied, 549 U.S. 1126, 127 S. Ct. 958, 166 L. Ed. 2d 729 (2007).    Affidavits may be considered in prisoner habeas corpus cases. Harper v. Harper, 241 Ga. 19, 243 S.E.2d 74 (1978).   Habeas relief properly granted.    - Habeas court properly granted relief to petitioner because there was record evidence supporting the habeas court's determination that at the time petitioner entered the guilty pleas, petitioner's mental condition prevented petitioner's understanding of the consequences of the pleas. Smith v. Magnuson, 297 Ga. 210, 773 S.E.2d 205 (2015).   Weighing of evidence.    - Habeas court is authorized to give greater credence to the transcript of evidence at the petitioner's trial than to the petitioner's testimony at a subsequent habeas hearing in resolving disputed issues of fact. Wilson v. Hopper, 234 Ga. 859, 218 S.E.2d 573 (1975).   Alleged incompetency of legal counsel.    - Court considering petitioner's contentions of coercion in pleading guilty, along with incompetence of appointed counsel, supported solely by the petitioner's own testimony, could in the court's discretion give credit to testimony of an attorney, taken upon written interrogatories, and to the transcript of the guilty plea hearing, a copy of which was duly certified and introduced into evidence, and find in accordance with that evidence rather than in accordance with the testimony of the petitioner. Crawford v. Caldwell, 229 Ga. 809, 194 S.E.2d 470 (1972).   Burden of proof on petitioner.    - Burden is on the petitioner in a habeas corpus proceeding to show that the sentence is invalid. Perry v. Holland, 228 Ga. 660, 187 S.E.2d 286 (1972).    Burden is on the petitioner in a habeas proceeding to prove that an alleged violation of the petitioner's constitutional rights did, in fact, occur. Wilson v. Hopper, 234 Ga. 859, 218 S.E.2d 573 (1975).    When a petitioner was procedurally barred from raising a claim of jury-bailiff misconduct, the petitioner had the burden to establish actual prejudice and the habeas court erred in placing the burden on the state to show that any error was harmless and in applying the presumption of prejudice. Turpin v. Todd, 268 Ga. 820, 493 S.E.2d 900 (1997).   Petitioner out-of-state.    - Prisoner, incarcerated in Florida, was entitled to have a hearing set on the prisoner's habeas petition, filed in Georgia, since the prisoner was not required to be present at the hearing and could submit evidentiary proof through depositions, oral testimony, sworn affidavits, or other evidence. Rickett v. State, 276 Ga. 609, 581 S.E.2d 32 (2003).   No presumption of prejudice benefit.    - Absent compelling circumstances, a convicted defendant seeking to overcome a procedural bar is not entitled to the benefit of a presumption of prejudice that would otherwise prevail. Turpin v. Todd, 268 Ga. 820, 493 S.E.2d 900 (1997).    Error involving alleged unconstitutionally burden-shifting instruction did not amount to a "miscarriage of justice" since the jury was well instructed on the state's burden of proving guilt beyond a reasonable doubt. Gavin v. Vasquez, 261 Ga. 568, 407 S.E.2d 756 (1991).   Presumptions in favor of judgment.    - Habeas corpus is a collateral attack on a judgment, sentence, or order, and on habeas proceedings the same presumptions are indulged in favor of the validity of the judgment as are indulged in other collateral assaults on a judgment. Porter v. Johnson, 242 Ga. 188, 249 S.E.2d 608 (1978).   Application of miscarriage of justice analysis limited.    - Supreme Court has never authorized a habeas court to apply the miscarriage of justice analysis in order to substitute its judgment for that of a court of competent jurisdiction which reviewed identical evidence. Walker v. Penn, 271 Ga. 609, 523 S.E.2d 325 (1999).    When the defendant did not seek a jury determination of the defendant's alleged mental retardation, as defined by O.C.G.A. § 17-7-131(a)(3), at the defendant's criminal trial for murder, that issue was procedurally defaulted pursuant to O.C.G.A. § 9-14-48(d); however, the court reviewed the issue under the miscarriage of justice standard and determined that Ring v. Arizona, 536 U.S. 584 (2002) did not have a retroactive effect in the defendant's collateral review proceeding instituted after the appeals from the original trial were completed. Head v. Hill, 277 Ga. 255, 587 S.E.2d 613 (2003).    Extraordinary exception to the general rule that presumptions of harm that apply on direct appeal do not apply on habeas corpus to procedurally defaulted claims should apply only when dictated by constitutional law or when clearly necessary to avoid a miscarriage of justice under O.C.G.A. § 9-14-48(d). Perkins v. Hall, 288 Ga. 810, 708 S.E.2d 335 (2011), overruled on other grounds by State v. Lane, 308 Ga. 10, 838 S.E.2d 808 (2020).   Failure to raise constitutional issue on appeal.    - When the petitioner failed to raise an allegation of constitutional violations on direct appeal from the resentencing trial and did not raise the allegation until the subsequent state habeas corpus proceeding, the district court correctly determined the issue to be subject to procedural default pursuant to subsection (d) of O.C.G.A. § 9-14-48. Alderman v. Zant, 22 F.3d 1541 (11th Cir.), cert. denied, 513 U.S. 1061, 115 S. Ct. 673, 130 L. Ed. 2d 606 (1994).    Defendant's substantive right-to-be-present claim was procedurally defaulted, and the defendant made no assertion of cause and prejudice as might overcome default under O.C.G.A. § 9-14-48(d). Griffin v. Terry, 291 Ga. 326, 729 S.E.2d 334, cert. denied, 568 U.S. 1051, 133 S. Ct. 765, 184 L. Ed. 2d 506 (2012).   No right to free transcript of original trial for habeas purposes.    - While an indigent is entitled to a copy of the indigent's trial transcript for a direct appeal of the indigent's conviction, such is not the case in collateral post-conviction proceedings. Orr v. Couch, 244 Ga. 374, 260 S.E.2d 82 (1979).    Right to a trial transcript is tied to the right of appeal, and once an appeal has been dismissed, the defendant no longer has a right to a trial transcript at state expense. Yates v. Brown, 235 Ga. 391, 219 S.E.2d 729 (1975).    Free transcript of habeas corpus trial shall be furnished to indigent defendants for appeal in the event the indigent defendants request a transcript. Harper v. State, 229 Ga. 843, 195 S.E.2d 26 (1972).   Reversal and remand of habeas case when no evidentiary hearing held.    - When the defendants were given no evidentiary hearing on application for habeas corpus, a judgment denying relief will be reversed and the case remanded for trial, which trial shall be transcribed by a reporter. Harper v. State, 229 Ga. 843, 195 S.E.2d 26 (1972).   Remand for additional findings and conclusions.    - Inmate's claim that the state presented false testimony required additional findings of fact and conclusions, necessitating remand. McMichen v. Hall, Ga. , 684 S.E.2d 641 (2009).   Remand of a habeas proceeding to another superior court was improper.    - Trial court was not authorized to remand a habeas proceeding to another superior court, or to order the filing of an extraordinary motion for new trial in another superior court; a final order transferring the defendant's ineffective assistance of counsel claims to another county was void ab initio as an unauthorized exercise of authority. Martin v. Astudillo, 280 Ga. 295, 627 S.E.2d 34 (2006).   Claim of ignorance of plea consequences inconsistent with invocation to attorney-client privilege.    - When there was no claim of misconduct or incompetent representation, habeas corpus petitioner could not claim that the petitioner was not informed of the sentence consequences of a guilty plea and then invoke the attorney-client privilege to prevent the attorney from testifying. Bailey v. Baker, 232 Ga. 84, 205 S.E.2d 278 (1974).   Proper cause for failure to raise issue on appeal found.    - Petitioner established cause for the petitioner's failure on appeal to raise a claim of jury-bailiff misconduct at the sentencing phase of the petitioner's trial because the bailiff concealed the facts and there was no evidence that would have alerted trial or appellate counsel to the misconduct. Turpin v. Todd, 268 Ga. 820, 493 S.E.2d 900 (1997).   Remand to custody held only authorized disposition in light of other sentences.    - Since it was unquestioned that detention of the petitioner under sentences from other counties was legal, the trial judge had no authority to make any other disposition of the matter except to remand the petitioner to the custody of the respondent. Steed v. Ault, 229 Ga. 649, 193 S.E.2d 851 (1972).    Denial of a motion for trial severance does not rise to the level of a claimed "miscarriage of justice." Gunter v. Hickman, 256 Ga. 315, 348 S.E.2d 644 (1986).   Ineffectiveness claim raised at earliest practical moment.    - After counsel notified the defendant that counsel did not believe there were grounds for appeal and sought to dismiss the appeal, and the defendant notified the court that the defendant disagreed with the dismissal and attached copies of the defendant's correspondence with counsel indicating, inter alia, that the defendant particularly objected to the second counsel's failure to raise the ineffectiveness issue, these facts establish that the defendant took steps in perhaps the only manner available to a lay person to see that the issue of ineffectiveness was raised at the earliest practicable moment. Norman v. State, 208 Ga. App. 830, 432 S.E.2d 216 (1993).   Ineffective assistance argument can overcome subsection (d) default.    - Constitutional ineffective assistance of counsel can constitute a sufficient cause to overcome a procedural default under subsection (d) of O.C.G.A. § 9-14-48. Turpin v. Todd, 268 Ga. 820, 493 S.E.2d 900 (1997).    Since the trial court did not make a specific finding as to the cause for appellate counsel's failure to raise trial counsel's ineffectiveness, the matter had to be remanded for the defendant to show, pursuant to O.C.G.A. § 9-14-48(d), that appellate counsel's decision to forego that issue was an unreasonable tactical move that no competent attorney in the same situation would have made. State v. Smith, 276 Ga. 14, 573 S.E.2d 64 (2002), overruled on other grounds, Wilkes v. Terry, 290 Ga. 54, 717 S.E.2d 644 (2011).   Availability of evidence on direct appeal.    - When a habeas court found an inmate's ineffective assistance claim was not procedurally barred, under O.C.G.A. § 9-14-48(d), for failing to raise the claim on direct appeal because "the factual or legal basis for the claim was not reasonably available to counsel," this was clearly erroneous as to testimony from a detective about other shootings on the night of the murder the inmate was convicted of and a feud allegedly motivating the shooters because the detective actually testified in a remand hearing during the direct appeal of the inmate's conviction, and a number of other witnesses were questioned about the other shooting incidents so the testimony was not unavailable. Schofield v. Meders, 280 Ga. 865, 632 S.E.2d 369 (2006), cert. denied, 549 U.S. 1126, 127 S. Ct. 958, 166 L. Ed. 2d 729 (2007).    Failure to make a timely objection to an alleged error or deficiency will not preclude review by a habeas corpus court when there is a showing of adequate cause for failure to object and a showing of actual prejudice to the accused. Even absent such a showing of cause and prejudice, the relief of the writ will remain available to avoid a miscarriage of justice. Valenzuela v. Newsome, 253 Ga. 793, 325 S.E.2d 370 (1985); Newsome v. Black, 258 Ga. 787, 374 S.E.2d 733 (1989); Baxter v. Kemp, 260 Ga. 184, 391 S.E.2d 754 (1990), cert. denied, 498 U.S. 1041, 111 S. Ct. 714, 112 L. Ed. 2d 703 (1991).   Twenty year old delay in habeas petition was time-barred.    - Given defendant's 20-year delay in filing a habeas petition, which resulted in total prejudice to the government in the government's ability to respond, and the defendant's failure to meet defendant's burden of proving a legally valid excuse for not filing the petition sooner, the habeas court did not abuse the court's discretion in dismissing the petition under O.C.G.A. § 9-14-48(e). Flint v. State, 288 Ga. 39, 701 S.E.2d 174 (2010).   Time for filing petition not affected by subsection (e).    - O.C.G.A. § 9-14-48(e) does not purport to permit the filing of a petition for habeas corpus filed outside the limitations period and instead provides that a petition may be dismissed upon a respondent's particularized showing of prejudicial delay, meaning petitioners who would otherwise be eligible to file a petition under O.C.G.A. § 9-14-42(c)(1) could have their petitions dismissed. Stubbs v. Hall, 308 Ga. 354, 840 S.E.2d 407 (2020).    When state court both applies procedural bar and addresses claims on merits,  federal habeas review is precluded only if the state court's adjudication on the merits is made in the alternative and does not constitute the principal basis for the state court's denial of relief on collateral challenge of the conviction. Hardin v. Black, 845 F.2d 953 (11th Cir. 1988).   Procedural default.    - Habeas petitioner's mental retardation claim was not subject to procedural default. Turpin v. Hill, 269 Ga. 302, 498 S.E.2d 52, cert. denied, 525 U.S. 969, 119 S. Ct. 418, 142 L. Ed. 2d 340 (1998).    When a trial court granted an inmate's habeas corpus petition based on a seven-year delay between the inmate's conviction and the filing of the direct appeal without finding whether the inmate's procedural default, due to not raising the issue in the direct appeal of the inmate's conviction, was overcome by adequate cause for failing to pursue the issue on appeal and actual prejudice to the inmate, or that there had been a substantial denial of the inmate's constitutional rights and it was necessary to hear the inmate's petition to avoid a miscarriage of justice, the trial court's judgment had to be vacated and the matter had to be remanded to determine if the inmate's procedural default had been overcome. Chatman v. Mancill, 278 Ga. 488, 604 S.E.2d 154 (2004).    Inmate was not given leave to amend a habeas corpus petition so as to assert new claims alleging that the indictment was fatally flawed and that the verdict of conviction violated double jeopardy; even if the new claims would have been timely, the amendment would have been futile because a state habeas court denied the claims on the ground that the claims were procedurally defaulted under O.C.G.A. § 9-14-48(d), which constituted an independent and adequate state ground sufficient to preclude federal review. Evans v. Thompson, F. Supp. 2d (N.D. Ga. Mar. 15, 2006).    Because the habeas court applied the incorrect legal standards in finding the prejudice which was necessary to excuse a procedural default, remand was ordered for that court to determine actual prejudice. Upton v. Jones, 280 Ga. 895, 635 S.E.2d 112 (2006).    When a habeas court found an inmate's ineffective assistance claim was not procedurally barred, under O.C.G.A. § 9-14-48(d), for failing to raise the claim on direct appeal because the inmate "did not have access" to testimony from a prosecutor until the habeas hearing, this was clearly erroneous as the prosecutor was present at a remand hearing during the inmate's direct appeal and was thus available to be called as a witness within the trial court's discretion. Schofield v. Meders, 280 Ga. 865, 632 S.E.2d 369 (2006), cert. denied, 549 U.S. 1126, 127 S. Ct. 958, 166 L. Ed. 2d 729 (2007).    Petitioner's habeas petition was denied because the petitioner was procedurally barred from raising the four grounds enumerated in the petition since the petitioner had raised those same four claims before the state habeas court, which found that the petitioner had not raised those claims at trial or on direct appeal as required by O.C.G.A. § 9-14-48, and the petitioner failed to establish sufficient cause to excuse the procedural default. Clark v. Williams, F. Supp. 2d (N.D. Ga. Sept. 28, 2007).    Habeas court correctly concluded that the petitioner's claim that the petitioner was tried while incompetent was barred by procedural default under O.C.G.A. § 9-14-48(d) because the claim was not pursued to a conclusion at trial and was not raised on direct appeal; for purposes of determining whether the procedural default doctrine will apply, there is no meaningful distinction between the failure to exercise a defendant's right to have his or her competence determined in the trial court and the failure to exercise a defendant's additional right to have a competency determination evaluated on appeal and substantive claims of incompetence to stand trial will continue to be subject to procedural default. Perkins v. Hall, 288 Ga. 810, 708 S.E.2d 335 (2011), overruled on other grounds by State v. Lane, 308 Ga. 10, 838 S.E.2d 808 (2020).    Habeas court erred in granting a petitioner relief on the ground that the trial court erred when the court refused to instruct the jury on the offense of voluntary manslaughter under O.C.G.A. § 16-5-2(a) when appellate counsel failed to present the question on direct appeal, and neither the petitioner's nor the state's evidence tended to show a sudden, violent, and irresistible passion resulting from serious provocation sufficient to excite such passion in a reasonable person. Humphrey v. Lewis, 291 Ga. 202, 728 S.E.2d 603 (2012), overruled on other grounds by State v. Lane, 2020 Ga. LEXIS 98 (Ga. 2020).    Habeas court erred in granting a petitioner relief on a Brady claim when the petitioner failed to raise the claim at trial or on direct appeal and failed to establish the requisite prejudice to overcome procedural default under O.C.G.A. § 9-14-48(d). There was no reasonable probability that the result of the trial would have been different had the allegedly suppressed evidence been disclosed to the defense. Humphrey v. Lewis, 291 Ga. 202, 728 S.E.2d 603 (2012), overruled on other grounds by State v. Lane, 2020 Ga. LEXIS 98 (Ga. 2020).   Counsel not expected to allege own ineffectiveness.    - When an inmate did not raise the issue of an undisclosed conflict of interest of trial counsel on direct appeal, there was no procedural default in a habeas proceeding; trial counsel had also served as counsel on direct appeal, and counsel were not expected to allege their own ineffectiveness on direct appeal. Gibson v. Head, 282 Ga. 156, 646 S.E.2d 257 (2007).   Failure to show pro se status.    - Although the habeas court erred in resting the court's judgment on procedural default, the denial of habeas relief was affirmed because the petitioner could not show from the record that the petitioner was not represented by counsel and that a pro se notice of appeal was legally valid and acted to deprive the trial court of jurisdiction to try the petitioner. Tolbert v. Toole, 296 Ga. 357, 767 S.E.2d 24 (2014).   Failure to disclose Brady information about confidential informant.    - Convicted capital murder defendant's habeas corpus petition was granted, the conviction was reversed, and the defendant was awarded a new trial because the defendant prevailed on a Brady claim that the state failed to disclose that the state had paid a confidential informant money for information that led to the defendant's conviction; the payment of money was exculpatory since it indicated that the informant could be impeached since the informant had a motive to lie. Schofield v. Palmer, 279 Ga. 848, 621 S.E.2d 726 (2005).    Defendant did not have to show that the defendant would have been acquitted if the defendant had been able to obtain the Brady information; defendant simply had to show, and did show, that the state's evidentiary suppression undermined confidence in the outcome of the trial. Schofield v. Palmer, 279 Ga. 848, 621 S.E.2d 726 (2005).   Actual prejudice not shown.    - Death row inmate's habeas corpus petition under O.C.G.A. § 9-14-42(a), alleging ineffective assistance of counsel in counsel's failure to secure funds for forensic experts, was unsuccessful because the real issue was one of the inmate's credibility in light of non-forensic evidence that the inmate had raped, harassed, and threatened to kill the inmate's spouse in the past; therefore, the inmate's lack of funds for forensic experts did not prejudice the defense as required by O.C.G.A. § 9-14-48(d). McMichen v. Hall, Ga. , 684 S.E.2d 641 (2009).   Procedural bars not found.    - Inmate did not overcome procedural default for alleged ineffective assistance of counsel in a competency trial because counsel's failure to object to the prosecutor's questions about the inmate's refusal to discuss the crimes during mental examinations and the request for counsel before one examination did not change the trial's result because the evidence of the inmate's competence was overwhelming. Waldrip v. Head, 279 Ga. 826, 620 S.E.2d 829 (2005).    Inmate did not overcome procedural default by claiming that various documents had been suppressed by the state prior to a murder trial because the inmate did not show any prejudice, as the various documents either singly or cumulatively, would not have caused a different result in the trial. Waldrip v. Head, 279 Ga. 826, 620 S.E.2d 829 (2005).    Defendant's habeas corpus petition based upon the failure to obtain Brady information was not procedurally barred since the defendant tried to obtain that information from the state but was not able to obtain the information until discovery in conjunction with the habeas corpus hearings. Schofield v. Palmer, 279 Ga. 848, 621 S.E.2d 726 (2005).   When an inmate claimed, in a habeas corpus petition, that the inmate received ineffective assistance of counsel in a competency trial because of the counsel's failure to object to the prosecutor's comments about the inmate's refusal to discuss the crimes with mental health examiners and the request to consult with counsel, the inmate did not show that, had counsel objected, the result of the trial finding the inmate competent would have changed because the evidence of competency was overwhelming. Waldrip v. Head, Ga. , S.E.2d (Oct. 11, 2005).   When an inmate claimed, in a habeas corpus petition, that the state had suppressed exculpatory material, the material specified was either inadmissible or, had the material been admitted, would not have changed the outcomes of the competency or criminal trials so the inmate did not overcome the bar of procedural default. Waldrip v. Head, Ga. , S.E.2d (Oct. 11, 2005).    Inmate's Brady claim within a petition for habeas corpus, based upon the state's failure to produce to the defense audiotapes containing exculpatory witness statements and the inmate's own statement to police during investigation of the crimes, was not procedurally defaulted because the inmate showed cause and prejudice to excuse the default. Walker v. Johnson, 282 Ga. 168, 646 S.E.2d 44 (2007).    Because an inmate showed the requisite cause and prejudice from trial counsel's failure to object to the erroneous charge or raise the issue on appeal, the inmate's habeas claim based on the erroneous charge was not procedurally barred by O.C.G.A. § 9-14-48(d). Hall v. Wheeling, 282 Ga. 86, 646 S.E.2d 236 (2007).    In a habeas applicant's direct appeal from the applicant's murder conviction, a due process challenge to the jury instruction on venue under O.C.G.A. § 17-2-2(c) was neither raised nor ruled upon; because only the sufficiency of the evidence with respect to venue was addressed, the due process challenge to the jury instructions was not procedurally defaulted under O.C.G.A. § 9-14-48(d). However, relief was properly denied. Shelton v. Lee, 299 Ga. 350, 788 S.E.2d 369 (2016), cert. denied, 137 S. Ct. 1066, 197 L. Ed. 2d 187 (U.S. 2017).   Habeas relief erroneously granted.    - Inmate was not entitled to habeas corpus relief pursuant to O.C.G.A. § 9-14-48 as application of the modified Barker factors indicated that although the delay prior to trial was excessive, there was no showing that the inmate suffered prejudice, nor that the delay was attributable to the appellate counsel's ineffectiveness; the Georgia Supreme Court agreed that speedy appeal claims arise under the Fifth Amendment and that many of the interests protected under the Sixth Amendment were not implicated when a defendant has already been convicted of an offense. Chatman v. Mancill, 280 Ga. 253, 626 S.E.2d 102 (2006).    Because: (1) the habeas court misconstrued O.C.G.A. § 9-14-48(e); (2) a record was not required to affirmatively show that an inmate's 1965 guilty pleas were knowingly and voluntarily entered; and (3) the state was unduly prejudiced by the 38-year delay in filing for habeas relief, the inmate's petition for a writ of habeas corpus was erroneously granted. Wiley v. Miles, 282 Ga. 573, 652 S.E.2d 562 (2007).    Habeas court erred by granting a defendant's petition for habeas relief with regard to the defendant's convictions for malice murder and other crimes as no prejudice was shown to overcome the procedural default that existed since the defendant failed to show an alleged Brady violation involved exculpatory evidence; trial counsel's testimony clearly demonstrated that the decision not to call the defendant's alibi witnesses was a fully considered and well reasoned decision under the circumstances as concerns over the witness' credibility existed; and the habeas court's finding that the record was silent on the issue of whether the defendant knowingly and voluntarily waived the defendant's right to testify at trial was clear error since the trial transcript revealed otherwise. Upton v. Parks, 284 Ga. 254, 664 S.E.2d 196 (2008).    Habeas court erred by granting the defendant relief and vacating the defendant's death sentence for murder as the defendant failed to show that the defense was prejudiced by trial counsel rendering insufficient evidence that the defendant was mentally ill. Further, the defendant failed to show that the defense was prejudiced by trial counsel's failure to object to alleged inappropriate comments made by the prosecutor. Hall v. Brannan, 284 Ga. 716, 670 S.E.2d 87 (2008).    Cited in Brawner v. Smith, 225 Ga. 296, 167 S.E.2d 753 (1969); House v. Stynchcombe, 239 Ga. 222, 236 S.E.2d 353 (1977); Reeves v. Allen, 242 Ga. 696, 251 S.E.2d 286 (1978); Maddox v. Seay, 243 Ga. 793, 256 S.E.2d 904 (1979); Pulliam v. Balkcom, 245 Ga. 99, 263 S.E.2d 123 (1980); Mulligan v. Zant, 531 F. Supp. 458 (M.D. Ga. 1982); Birt v. Montgomery, 709 F.2d 690 (11th Cir. 1983); Moore v. Kemp, 254 Ga. 279, 328 S.E.2d 725 (1985); Baxter v. Kemp, 260 Ga. 184, 391 S.E.2d 754 (1990); Goodwin v. Cruz-Padillo, 265 Ga. 614, 458 S.E.2d 623 (1995); Roulain v. Martin, 266 Ga. 353, 466 S.E.2d 837 (1996); Turpin v. Christenson, 269 Ga. 226, 497 S.E.2d 216 (1998); Parker v. Turpin, 60 F. Supp. 2d 1332 (N.D. Ga. 1999); Byrd v. Owen, 272 Ga. 807, 536 S.E.2d 736 (2000); Head v. Carr, 273 Ga. 613, 544 S.E.2d 409 (2001); Head v. Ferrell, 274 Ga. 399, 554 S.E.2d 155 (2001); Stanford v. Stewart, 274 Ga. 468, 554 S.E.2d 480 (2001); Crawford v. Head, 311 F.3d 1288 (11th Cir. 2002); Ford v. Schofield, 488 F. Supp. 2d 1258 (N.D. Ga. 2007); Walker v. Hale, 283 Ga. 131, 657 S.E.2d 227 (2008); Mason v. Home Depot U.S.A., Inc., 283 Ga. 271, 658 S.E.2d 603 (2008); Sherman v. City of Atlanta, 317 Ga. 345, 730 S.E.2d 113 (2013); Conley v. Pate, 305 Ga. 333, 825 S.E.2d 135 (2019); Cartwright v. Caldwell, 305 Ga. 371, 825 S.E.2d 168 (2019); Watkins v. Ballinger, 308 Ga. 387, 840 S.E.2d 378 (2020).   RESEARCH REFERENCES   Am. Jur. 2d.   - 39 Am. Jur. 2d, Habeas Corpus and Postconviction Remedies, §§ 107, 117, 161.   C.J.S.   - 39A C.J.S., Habeas Corpus, §§ 322 et seq., 333 et seq.