In the Supreme Court of Georgia
Decided: June 18, 2018
S18A0594. ABRAMS v. LAUGHLIN et al.
HINES, Chief Justice.
This Court granted prisoner Cardell Jerome Abrams’s application for a
certificate of probable cause to appeal the denial of his petition for a writ of
habeas corpus, posing the question of whether the habeas court correctly
dismissed the petition for failure to file within the time allowed by OCGA § 9-
14-42 (c) (3).1 For the reasons that follow, we affirm the judgment of the habeas
court.
On October 17, 2005, Abrams was convicted of four counts of
kidnapping, as well as other crimes, pursuant to a guilty plea, and he did not
1 In his appellate brief, Abrams claims that the habeas court erred in hearing the motion to dismiss his petition as untimely without providing him with proper notice or adequate information about the nature of the hearing. That claim, however, is “outside the confines of this granted application for a certificate of probable cause to appeal,” Gonzalez v. Hart, 297 Ga. 670, 672, n. 2 (777 SE2d 456) (2015), as we did not identify it “as having arguable merit in our order granting [Abrams’s] application to appeal . . . , and further review of the record and briefs confirms that [the claim] lack[s] merit.” Hillman v. Johnson, 297 Ga. 609, 615, n. 5 (774 SE2d 615) (2015). See also Georgia Supreme Court Rule 36. seek direct review of any of his convictions. Acting pro se,2 Abrams filed his
habeas petition on May 10, 2016, alleging that his kidnapping convictions were
not supported by sufficient evidence of asportation under Garza v. State, 284
Ga. 696 (670 SE2d 73) (2008).3 On the State’s motion,4 the habeas court
dismissed the petition as untimely under OCGA § 9-14-42 (c) (1) and (3).
1. Subsection (c) of OCGA § 9-14-425 “provides for a period of
2 After our grant of a certificate of probable cause to appeal, J. Scott Key, Kayci Nicole Dennis, and the Habeas Clinic at Mercer University began representing Abrams. We express our appreciation to counsel for their pro bono service and to the law students who have assisted them. 3 Although the General Assembly abrogated Garza by enacting a new statutory definition of asportation in OCGA § 16-5-40 (b) (2), that statutory revision applies only to offenses committed on or after July 1, 2009. See Ga. L. 2009, p. 331; OCGA § 1-3-4 (a) (1); Wilkerson v. Hart, 294 Ga. 605, 607 (2) (755 SE2d 192) (2014); Brower v. State, 298 Ga. App. 699, 706 (2), n. 3 (680 SE2d 859) (2009). 4 The named respondent, Vance Laughlin, is the person having custody of Abrams, see OCGA § 9-14-45, but only by virtue of Laughlin’s employment with a private company that operates Abrams’s prison pursuant to a contract with the Georgia Department of Corrections. For this reason, the habeas court granted a motion to intervene that was filed by Homer Bryson, the Commissioner of the Department of Corrections. The Attorney General represents only the intervenor, who, for the sake of simplicity, is referred to herein as “the State.” 5 OCGA § 9-14-42 (c) provides:
Any action brought pursuant to this article shall be filed within one year in the case of a misdemeanor, except as otherwise provided in Code Section 40-13-33, or within four years in the case of a felony, other than one challenging a conviction for which a death sentence has been imposed or challenging a sentence of death, from:
(1) The judgment of conviction becoming final by the conclusion of direct
2 limitations to seek a writ of habeas corpus in state court for the denial of a
federal or state constitutional right. In the case of a felony other than one
involving a death sentence, any action must be filed within four years from” one
of four alternative dates. State v. Sosa, 291 Ga. 734, 735-736 (1) (733 SE2d
262) (2012). The time provided in paragraph (c) (1) begins to run upon “[t]he
judgment becoming final by the conclusion of direct review or the expiration of
the time for seeking such review.” Abrams’s kidnapping convictions became
final when the time for appeal expired on November 16, 2005. See OCGA § 5-
6-38 (a). Because he did not file his habeas petition within four years of that
review or the expiration of the time for seeking such review; provided, however, that any person whose conviction has become final as of July 1, 2004, regardless of the date of conviction, shall have until July 1, 2005, in the case of a misdemeanor or until July 1, 2008, in the case of a felony to bring an action pursuant to this Code section;
(2) The date on which an impediment to filing a petition which was created by state action in violation of the Constitution or laws of the United States or of this state is removed, if the petitioner was prevented from filing such state action;
(3) The date on which the right asserted was initially recognized by the Supreme Court of the United States or the Supreme Court of Georgia, if that right was newly recognized by said courts and made retroactively applicable to cases on collateral review; or
(4) The date on which the facts supporting the claims presented could have been discovered through the exercise of due diligence.
3 date, it was untimely under OCGA § 9-14-42 (c) (1) and subject to dismissal
unless it was timely under another paragraph. Abrams has never claimed that
paragraph (c) (2) is applicable. Indeed, there has been no showing of any
“impediment” created by unconstitutional state action as required by that
paragraph.
2. Under paragraph (c) (3) of OCGA § 9-14-42, the statute of limitation
is tolled until “[t]he date on which the right asserted was initially recognized by
the Supreme Court of the United States or the Supreme Court of Georgia, if that
right was newly recognized by said courts and made retroactively applicable to
cases on collateral review.” This paragraph potentially applies to Abrams’s
habeas petition because the right that he asserts was initially recognized by
Garza, was subsequently identified as a substantive right that should be applied
retroactively, see Hammond v. State, 289 Ga. 142, 143-144 (1) (710 SE2d 124)
(2011), and was thereafter applied retroactively to cases on collateral review, see
Wilkerson v. Hart, 294 Ga. 605, 607 (2) (755 SE2d 192) (2014); Chatman v.
Brown, 291 Ga. 785, n. 1 (733 SE2d 712) (2012). This raises the question of
when the time provided pursuant to paragraph (c) (3) begins to run. Is it the
date when the asserted right was initially recognized, when that right was made
4 retroactively applicable to cases on direct review, or when the right was made
retroactively applicable specifically to cases on collateral review?
The answer to this question depends on a proper interpretation of OCGA
§ 9-14-42 (c) (3).
Pursuant to the rules of statutory construction, we presume that the General Assembly meant what it said and said what it meant. To that end, we must afford the statutory text its plain and ordinary meaning, we must view the statutory text in the context in which it appears, and we must read the statutory text in its most natural and reasonable way, as an ordinary speaker of the English language would. Applying these principles, if the statutory text is clear and unambiguous, we attribute to the statute its plain meaning, and our search for statutory meaning is at an end.
Williams v. State, 299 Ga. 632, 633 (791 SE2d 55) (2016) (citations and
quotation marks omitted). Furthermore, in construing a Georgia statute that
closely tracks federal statutory law, we may look to federal court decisions and
commentary interpreting the federal statute as persuasive authority. See Bowden
v. The Medical Center, 297 Ga. 285, 291 (2) (a), n. 5 (773 SE2d 692) (2015);
ABCO Builders v. Progressive Plumbing, 282 Ga. 308, 309 (647 SE2d 574)
(2007).
Examination of OCGA § 9-14-42 (c) shows that, except for providing a
time period of four years rather than one year, it conforms very closely to both
5 the one-year statute of limitation applicable to a federal habeas application by
a person in custody pursuant to a state court judgment, 28 USC § 2244 (d) (1),
and the one-year statute of limitation that applies to a motion to vacate, set aside,
or correct a federal sentence, 28 USC § 2255 (f) (formerly codified as 28 USC
§ 2255, ¶ 6). See Whiteside v. United States, 775 F3d 180, 183, n. 2 (4th Cir.
2014) (“The statute of limitations provisions . . . under 28 USC § 2244 (d) (1)
(A)-(D) and 28 USC § 2255 (f) (1)-(4) are in all material respects identical.”).
The limitation period under each of those federal statutes runs from the latest of
four dates that are virtually the same as the four specified in OCGA § 9-14-42
(c). In particular, the period of limitation under 28 USC § 2255 (f) (3) runs from
“the date on which the right asserted was initially recognized by the Supreme
Court, if that right has been newly recognized by the Supreme Court and made
retroactively applicable to cases on collateral review.” The Supreme Court of
the United States has determined that this text “unequivocally identifies one, and
only one, date from which the 1-year limitation period is measured . . . . What
Congress has said . . . is clear: An applicant has one year from the date on which
the right he asserts was initially recognized by this Court.” Dodd v. United
States, 545 U. S. 353, 357 (125 SCt 2478, 162 LE2d 343) (2005). And one of
6 our sister states has recently relied on Dodd to interpret a nearly identical
provision in the very same way. State v. Goynes, 876 NW2d 912, 919-920
(Neb. 2016).
Under the only natural reading of the text, 28 USC § 2255 (f) (3), like
OCGA § 9-14-42 (c) (3), identifies in its first clause “one date and one date only
as the date from which the . . . limitation period runs: ‘the date on which the
right asserted was initially recognized by the Supreme Court.’” Dodd, 545 U. S.
at 358 (emphasis in original).6 “In Dodd, the Court made clear that the second
clause – ‘“if that right has been newly recognized by the Supreme Court and
made retroactively applicable to cases on collateral review” – imposes a
condition on the applicability of this subsection.’” Goynes, 876 NW2d at 920
(citation omitted). As the United States Supreme Court recognized, “the
definition of ‘if’ is ‘in the event that’ or ‘on condition that.’” Dodd, 545 U. S.
at 358 (citing Webster’s Third New International Dictionary 1124 (1993)). The
second clause therefore limits the application of 28 USC § 2255 (f) (3) “to cases
6 Even the dissenting Justices in Dodd agreed that this was “the most natural reading of the statutory text.” Id. at 361. The dissenters read the statute differently to avoid what they called the “perverse result” it created due to the limitation period being only one year. Id. Georgia’s four-year limitation period eliminates any such temptation to read OCGA § 9-14-42 (c) (3) unnaturally.
7 in which applicants are seeking to assert rights ‘newly recognized by the
Supreme Court and made retroactively applicable to cases on collateral
review.’” Id.
Dodd continues: “As long as the conditions in the second clause are satisfied so that (§ 2255 (f) (3)) applies in the first place, that (second) clause has no impact whatsoever on the date from which the . . . limitation period . . . begins to run.” In Dodd, the Court recognized it was a legislative decision that § 2255 (f) (3) established “‘stringent procedural requirements for retroactive application of new rules’” on collateral review and that the Court did “‘not have license to question the decision on policy grounds.’”
Goynes, 876 NW2d at 920 (citations omitted).
The same reasoning applies to our reading of the limitation period set by
our General Assembly in OCGA § 9-14-42 (c) (3). See Goynes, 876 NW2d at
920. See also Fullwood v. Sivley, 271 Ga. 248, 249, 251 (517 SE2d 511) (1999)
(“This Court is not at liberty ‘to ignore jurisdictional and procedural statutes and
rules, and to change its role from disinterested decision-maker’ . . . . Habeas
corpus is a civil, not a criminal, remedy. Moreover, the fact that habeas corpus
has been called an ‘equitable’ remedy does not authorize a court to ignore the
body of statutes, rules, and precedents governing its issuance. Equity cannot
supersede the positive enactments of the General Assembly.” (citations
8 omitted)). Consequently, if this Court decides a case recognizing a new right,
a convicted felon not sentenced to death seeking to assert that right will have
four years from this Court’s decision within which to file his habeas petition,
and “[h]e may take advantage of the date in the first clause of [OCGA § 9-14-42
(c) (3)] only if the conditions in the second clause are met.” Dodd, 545 U. S. at
359. In this case, therefore, because the right asserted by Abrams was “newly
recognized” in Garza, Abrams had four years from the date of the Garza
decision, November 3, 2008, to file his habeas petition even though the Garza
right was subsequently “made retroactively applicable to cases on collateral
review.” As Abrams’s petition had to be filed no later than November 3, 2012
and it was not filed until May 10, 2016, it was not timely under paragraph (c) (3)
of OCGA § 9-14-42.
3. Paragraph (c) (4) of OCGA § 9-14-42 provides that the statute of
limitation is tolled until “[t]he date on which the facts supporting the claims
presented could have been discovered through the exercise of due diligence.”
Abrams argued below that, as a pro se litigant, he did not know about Garza, but
filed his habeas petition as soon as he heard about the change in the law of
9 kidnapping in that case.7 In the briefs filed in this Court on Abrams’s behalf, his
new appellate attorneys have expressly relied on paragraph (c) (4), contending
that Abrams filed his habeas petition within four years of his discovery of the
violation of his legal rights based upon the exercise of due diligence. Assuming
that Abrams sufficiently raised that contention, it is without merit because the
time provided in paragraph (c) (4) plainly begins to run on the date when “the
facts supporting the claims presented” (emphasis supplied), not “the law,” could
have been discovered by due diligence.
Like paragraph (c) (3), paragraph (c) (4) has nearly identical federal
counterparts. The period of limitation under 28 USC § 2255 (f) (4) begins to
run on “the date on which the facts supporting the claim or claims presented
could have been discovered through the exercise of due diligence.” And the
time under 28 USC § 2244 (d) (1) (D) runs from “the date on which the factual
7 In his habeas petition, Abrams alleged that he had been unaware of the illegality or unconstitutionality of his convictions under the kidnapping statute. In his brief in support of his habeas petition and in his written response to the State’s motion to dismiss, Abrams indicated that it was his first opportunity to challenge the validity of his kidnapping convictions under Garza. At the hearing on the motion to dismiss, Abrams argued that he did not have knowledge of the law and its change in 2008, and that when he heard about that change, he promptly sought to vacate his kidnapping convictions. In his application to this Court for a certificate of probable cause, Abrams reiterated his argument that he had never had an opportunity to challenge his kidnapping convictions based on the claim newly recognized in Garza.
10 predicate of the claim or claims presented could have been discovered through
the exercise of due diligence.” These two federal provisions are “almost
identical” and have been interpreted by the United States Supreme Court “in
concert with one another.” Shannon v. Newland, 410 F3d 1083, 1088 (9th Cir.
2005). The federal circuits that have considered the issue have uniformly
concluded that an intervening change in law does not amount to a new
supporting fact or factual predicate that is sufficient to reset the limitation period
under 28 USC § 2244 (d) (1) (D) or § 2255 (f) (4). Whiteside, 775 F3d at 183.
See also Brian R. Means, Postconviction Remedies § 25:16 (June 2017 Update);
Brian R. Means, Federal Habeas Manual § 9A:36 (May 2017 Update). “A
decision establishing an abstract proposition of law arguably helpful to the
petitioner’s claim does not constitute the factual predicate for that claim.
Decisions that change the legal significance of certain facts without modifying
them do not qualify under (f) (4).” Whiteside, 775 F3d at 184 (citation and
quotation marks omitted). See also id. at 183 (distinguishing Johnson v. United
States, 544 U. S. 295 (125 SCt 1571, 161 LE2d 542) (2005), because it involved
the vacatur of a prior state conviction that had been used for enhanced
sentencing, which meant that the vacatur was a new fact for purposes of 28 USC
11 § 2255 (f) (4), not a relevant legal ruling “‘exclusively within the domain of the
courts and . . . incapable of being proved or disproved’” (citation omitted));
Shannon, 410 F3d at 1089 (observing that the language of both the majority and
the dissent in Johnson “suggests that a state-court decision establishing an
abstract proposition of law arguably helpful to the petitioner’s claim does not
constitute the ‘factual predicate’ for that claim”).
To construe OCGA § 9-14-42 (c) (4) differently would not only belie the
plain meaning of that paragraph, it would effectively nullify paragraph (c) (3).
If changes in law are cognizable under [(c)] (4), then [(c)] (3) becomes superfluous because any claim brought under [(c)] (3) could also be brought under [(c)] (4). To suggest . . . that any decision by any court on any issue could constitute a factual predicate would swallow up the specifically delineated limitations in [(c)] (3). These considerations indicate that subsequent interpretations of the law can be the basis of delay in filing a . . . [habeas petition] only in accordance with [OCGA § 9-14-42 (c)] (3) – not [(c)] (4). In other words, [a contrary interpretation] would render the statute of limitations virtually without limits. [Again, Abrams] does not even attempt to argue that his claim satisfies the requirements specified in [(c)] (3).
Whiteside, 775 F3d at 184 (construing 28 USC § 2255 (f) (4) in light of § 2255
(f) (3)) (citations and quotation marks omitted). See also Shannon, 410 F3d at
1088 (“If a change in (or clarification of) state law, by a state court, in a case in
12 which [the petitioner] was not a party, could qualify as a ‘factual predicate,’ then
the term ‘factual’ would be meaningless.”).
In his argument regarding OCGA § 9-14-42 (c) (4), Abrams relies wholly
on his discovery of Garza, a case to which he was not a party. Garza
“established new factors for assessing the asportation element of Georgia’s pre-
2009 kidnapping statute” and “constituted a substantive change in the law with
respect to the elements of kidnapping.” Gonzalez v. Hart, 297 Ga. 670, 672 &
n. 3 (777 SE2d 456) (2015). It “announced a new substantive rule of criminal
law.” Williams v. State, 291 Ga. 501, 502 (1) (b), n. 2 (732 SE2d 47) (2012).
Thus, Garza “represented a change of law, not fact. . . . Instead of altering the
factual landscape, [it] announced a generally applicable legal rule.” Whiteside,
775 F3d at 183-184. See also Shannon, 410 F3d at 1088 (explaining that the
prior decision relied on by a habeas petitioner “clarified the law, not the facts”).
As a result, Garza does not constitute a “fact” that can reset the statute of
limitation under paragraph (c) (4) of OCGA § 9-14-42. Because Abrams’s
habeas petition was not timely pursuant to any of the alternative paragraphs of
the statute of limitation in OCGA § 9-14-42 (c), the habeas court correctly
dismissed the petition as untimely.
Judgment affirmed. All the Justices concur.