The Supreme Court has overruled its precedent that created a procedure through which convicted defendants claiming that they were unconstitutionally deprived of an appeal as of right could seek from trial courts untimely appeals of their convictions, concluding that the procedure has no valid legal foundation.
Instead, the Court concluded, a petition for habeas corpus is the appropriate and exclusive procedure for seeking an out-of-time appeal of this type. The 83-page majority opinion, written by Justice Sarah Hawkins Warren, states that “there was and is no legal authority for motions for out-of-time appeal in trial courts” and that the procedure established through previous decisions “is not a legally cognizable vehicle for a
convicted defendant to seek relief from alleged constitutional violations.”
Today’s decision vacates a Polk County trial court’s denial of a motion for an out-of time appeal filed by Cadedra Lynn Cook, who was convicted in 2013 of murder and other crimes in connection with the killing of Elizabeth Hutcheson. Cook had entered a negotiated plea of guilty and was sentenced to life in prison with the possibility of parole for felony murder and a concurrent 20-year term in prison for armed robbery. Six years later, Cook filed a motion for an out-of-time appeal, contending that the ineffective assistance of her plea counsel deprived her of
her right to an appeal. After a hearing, the trial court denied Cook’s motion on the merits, and she appealed that denial to the Supreme Court.
The Supreme Court now has sent Cook’s case back to the trial court, directing it to dismiss Cook’s motion. “Our holding applies to this case and to all cases that are currently on direct review or otherwise not yet final,” Justice Warren wrote.
As outlined in the majority opinion, the legal history of out-of-time appeals in Georgia began with the Georgia General Assembly’s enactment of the Habeas Corpus Act of 1967 (Georgia Code § 9-14-40 et seq.), which allows a convicted defendant to seek relief through a petition for habeas corpus for “a substantial denial of his rights under the Constitution of the United States or of this state.” In the years that followed, the Supreme Court began to hold that convicted defendants who were unconstitutionally deprived of their right to appeal as a result of 5 a denial of counsel or as a result of trial counsel’s constitutionally ineffective assistance could obtain an out-of-time appeal as relief in Georgia habeas corpus proceedings.
In 1974, the Court held in Neal v. State that a defendant could not seek an out-of-time appeal from his conviction by motion in the trial court, explaining that he must file a petition for a writ of habeas corpus as permitted by the Habeas Corpus Act.
Then in 1975, “without mention of Neal or the Habeas Corpus Act, this Court began to review appeals of trial court orders denying motions for out-of-time appeals on the merits and appeals following orders by trial courts granting out-of-time appeals,” Justice Warren wrote.
Two decades later, in Rowland v. State, the Court “for the first time held—without citing any applicable legal authority and without acknowledging or overruling the contrary holding in Neal—that a convicted defendant could seek an out-of-time appeal either in the trial court or in habeas corpus,” Justice Warren wrote.
In the years following the Rowland decision, trial courts have continued to rule on motions for out-of-time appeals, and the appellate courts have continued to decide the appeals that follow those rulings. In doing so, Justice Warren wrote, the Court “did not examine how the trial court out-oftime appeal procedure had been created and evolved; the inconsistencies that had developed between that procedure and other areas of established Georgia law; or how the procedure had become an unwitting breeding ground for legal errors made by both appellate and trial courts,” until the Court decided Collier v. State in 2019. In Collier, as well as in the 2021 decision in Schoicket v. State, the Court determined that its precedent endorsing the trial court out-of-time appeal procedure as an alternative to habeas corpus had no legal foundation, but the Court did not take action to reconsider the procedure.
The Court asked the parties in this case and amicus curiae (friends of the Court) who are major stakeholders in the criminal justice system to file briefs addressing whether the precedent should be maintained or overruled.
After engaging in an “exhaustive stare decisis analysis,” the majority opinion today holds that principles of stare decisis do not preclude the Court from overruling the precedent that created the trial court out-of-time appeal procedure, particularly because the reasoning behind
the precedent is “wholly unsound.” The majority also concluded that the precedent does not implicate traditional reliance interests and that it creates “a fundamental and insurmountable workability problem, because it will perpetually require this Court to fill in the details of the
procedure we created.”
“And each time we do,” Justice Warren added, “we are required to step out of our proper judicial role and assume the role of law-makers—which is the work of the General Assembly.” In a concurring opinion, written by Justice Shawn Ellen LaGrua and joined by Justice Carla Wong McMillian, Justice LaGrua agreed with the majority opinion that habeas corpus is the exclusive remedy for a criminal defendant who alleges that she was deprived of her right to appeal because of her counsel’s ineffective assistance.
“If the General Assembly takes issue with the exclusiveness of the procedure it has created, it is incumbent upon the legislature to fashion a new procedure,” she wrote.
Presiding Justice Michael P. Boggs wrote a separate, specially concurring opinion stating that he concurs fully in the majority’s judgment.
6 “I do not necessarily agree with all that is said in Divisions 3 (c) and 3 (d), however, so I concur specially in those parts of the opinion,” he wrote.
In a 30-page dissenting opinion, written by Justice Nels S.D. Peterson and joined by Justices Charlie Bethel and John J. Ellington, Justice Peterson agreed that the procedure in question was “misguided” and has contributed to a “tangled mess” of post-conviction relief.
However, reversing the decades of precedent that created the procedure could cause many other
unintended, negative consequences.
“The majority today overrules decades of nonconstitutional precedent recognizing a trial court power that is entrenched within our system, it does so without a clear sense of the likely consequences, and it does so while overreading some of our precedents in a way that would
prohibit the General Assembly from fixing at least some adverse consequences,” wrote Justice Peterson, who also wrote the majority opinion in Shoicket and a special concurrence in Collier. “If stare decisis means anything, it should preserve longstanding and oft-applied
nonconstitutional precedent at least until we know the effect of overruling. I respectfully dissent from the majority’s refusal to wait for that day.”
In response, the majority opinion stated that, “The dissent has no real answer” to the workability problem it identified. “It also undervalues the unsoundness of our precedent and overstates the ways in which the procedure we created may work better than the habeas procedure that is legally proper.”
