Fullwood v. Sivley

517 S.E.2d 511, 271 Ga. 248, 99 Fulton County D. Rep. 2077, 1999 Ga. LEXIS 516

• Court: Supreme Court of Georgia
• Decided: June 1, 1999
• Docket: S99H0240
• Status: Published

Opinions

Carley, Justice.

On February 22, 1988, Fullwood entered a guilty plea in the Superior Court of Crisp County to a charge of possessing cocaine with intent to distribute. The trial court accepted the plea and imposed a ten-year first offender probated sentence. In February of 1998, Fullwood attempted to file a pro se habeas corpus petition in Crisp County, challenging his 1988 conviction. On February 17,1998, the habeas court, citing OCGA § 9-15-2, denied filing of the petition on the ground that venue was not proper in Crisp County. As with any other order of a lower court, the merits of the habeas court’s order denying filing of a petition cannot be reached by an appellate court unless and until it is established that the court has jurisdiction to do so. In this regard, the habeas court informed Fullwood, within the text of the order, that his right to appeal was governed by OCGA § 9-14-52. OCGA § 9-14-52 (a) provides that “as to final orders of the court which are adverse to the petitioner no appeal shall be allowed unless the Supreme Court of this state issues a certificate of probable cause. . . .” Under this unambiguous language, OCGA § 9-14-52 is applicable with respect to a final adverse order entered in a habeas proceeding, and does not require the entry of a final order addressing the merits of the petitioner’s claim. Clearly, an order denying filing of a habeas petition pursuant to OCGA § 9-15-2 is a final order which is adverse to the petitioner, because it has the effect of denying any of the relief sought. See OCGA § 9-14-52 (a). Accordingly, the habeas court correctly informed Fullwood of the proper procedure for obtaining appellate review of its order. Cf. Giles v. Ford, 258 Ga. 245 (368 SE2d 318) (1988) (classified as a “habeas” case).

Although Fullwood was informed as to the proper appellate procedure, he failed to comply with OCGA § 9-14-52 (b), because, within 30 days of the habeas court’s order, he did not file a written application seeking this Court’s issuance of a certificate of probable cause to appeal therefrom. Instead, within that time period, he filed only a notice of direct appeal to the Court of Appeals. On April 10,1998, the Court of Appeals correctly transferred the case to this Court, on the ground it is within our exclusive jurisdiction over habeas corpus cases. Because of Fullwood’s failure to comply with OCGA § 9-14-52 (b), however, the record did not contain a timely filed application for a certificate of probable cause. It was only on April 15, 1998, almost 30 days late, that Fullwood finally applied to this Court for a certificate of probable cause to appeal the habeas court’s order.

This Court is not at liberty “to ignore jurisdictional and procedural statutes and rules, and to change its role from disinterested decision-maker to appellate advocate reviewing a trial record for error.” Rowland v. State, 264 Ga. 872, 874 (1) (452 SE2d 756) (1995). Indeed, “ ‘(I)t is the duty of this [C]ourt to raise the question of its jurisdiction in all cases in which there may be any doubt as to the existence of such jurisdiction. (Cits.)’ [Cit.]” Rowland v. State, supra at 872 (1). This holding is firmly based upon the principle that there is no federal or state constitutional right to bring an appeal. “Instead, the right of appeal depends upon statute.” State v. Smith, 268 Ga. 75 (485 SE2d 491) (1997). Included among those jurisdictional and procedural statutes which cannot be ignored and must be applied is OCGA § 9-14-52 (b), providing, in relevant part, that if an unsuccessful petitioner for a writ of habeas corpus “desires to appeal, he must file a written application for a certificate of probable cause to appeal with the clerk of the Supreme Court within 30 days from the entry of the order denying him relief.” (Emphasis supplied.) There is no dispute that Stacy Fullwood, the unsuccessful petitioner for habeas in this case, failed to comply with this statutory mandate.

In Patterson v. Earp, 257 Ga. 729, 730 (363 SE2d 248) (1988), this Court held that “OCGA § 9-14-52 (b) requires an application for certificate of probable cause to appeal habeas corpus denials.” (Emphasis supplied.) We farther concluded that compliance with that requirement is jurisdictional. “Since no application for a certificate of probable cause to appeal was made in this case, this appeal must therefore be dismissed.” (Emphasis supplied.) Patterson v. Earp, supra at 730. Thus, the requirement that the unsuccessful petitioner timely apply for a certificate of probable cause is more than a procedural nicety related to securing appellate review of adverse judgments. Cases are not dismissed for failure to comply with procedural niceties, but only for failing to comply with jurisdictional prerequisites. Although an application for a certificate of probable cause was filed in this case, it was late. There is no legal distinction between the failure to file any application and the failure to file a timely application. In either event, there is a lack of compliance with the jurisdictional requirement of OCGA § 9-14-52 (b). An appellant’s strict adherence to statutorily mandated time limits has always been considered an absolute requirement to confer jurisdiction upon an appellate court. Rowland v. State, supra at 872 (1) (30-day time limit of OCGA § 5-6-38 (a)). In habeas corpus cases, the General Assembly has determined that the unsuccessful petitioner must timely file both a notice of appeal and an application for a certificate of probable cause in order to invoke this Court’s jurisdiction. This 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. By filing his notice of appeal timely, Fullwood may have substantially complied with one of the elements for obtaining appellate review, but he failed utterly to satisfy the equally mandatory requirement that he also file a timely application for a certificate of probable cause. Patterson v. Earp, supra. Patterson was not decided in the precise context of a procedurally defective appeal by a pro se petitioner for state habeas corpus. However, Patterson does deal with the statutory requirement of applying for a certificate of probable cause, and we are cited to no authority for the anomalous proposition that OCGA § 9-14-52 (b) is properly construed as jurisdictional if the unsuccessful habeas corpus applicant is represented by counsel and as a mere procedural nicety if the applicant is acting pro se. The decision in Patterson clearly stands for the proposition that OCGA § 9-14-52 (b) imposes upon all unsuccessful habeas corpus applicants the jurisdictional requirement of filing a timely application for a certificate of probable cause. Moreover, in Smith v. Nichols, 270 Ga. 550, 552 (1) (512 SE2d 279) (1999), we unanimously held that OCGA § 9-14-52 “does not authorize a prisoner to appeal directly [from] the denial of a petition for habeas corpus relief.” If Fullwood can obtain a decision on the merits simply by filing a timely notice of appeal, then he is being afforded the right to bring a direct appeal which Smith clearly held to be unauthorized. Smith cannot be ignored and that case is controlling authority for the proposition that an application for a certificate of probable cause and a notice of appeal are both necessary to invoke this Court’s jurisdiction over an appeal from the denial of a petition for habeas corpus. The only jurisdictional question for resolution is, therefore, whether this Court has the authority to waive enforcement of OCGA § 9-14-52 (b) in that regard.

Habeas corpus is the “great writ,” but a petition seeking its issuance does not constitute a continuation of the petitioner’s original appeal of his criminal conviction nor does it initiate a second appeal therefrom. In the Matter of Stoner, 252 Ga. 397, 398 (314 SE2d 214) (1984). Habeas corpus is a civil, not a criminal, remedy. Green v. Caldwell, 229 Ga. 650, 651 (1) (193 SE2d 847) (1972). 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. Lonchar v. Thomas, 517 U. S. 314, 319 (II) (116 SC 1293,134 LE2d 440) (1996). Equity cannot supersede the positive enactments of the General Assembly. Lewis v. Bd. of Ed. of Lowndes County, 183 Ga. 687, 690 (1) (189 SE 233) (1936). Among the statutes governing the issuance of a writ of habeas corpus in this state is OCGA § 9-14-52 (b), the unambiguous legislative intent of which is “to require a judicial certification of probable cause as a prerequisite to appeal in a habeas case decided adversely to a petitioner and to establish the procedure for obtaining such certification and for pursuing such appeal.” (Emphasis supplied.) Reed v. Hopper, 235 Ga. 298, 299 (4) (219 SE2d 409) (1975). Such statutes have always been considered as establishing jurisdictional conditions which must be met by the party seeking to appeal, and which the appellate court must enforce. Patterson v. Earp, supra. “[T]he right of appeal is not absolute, but is one based upon the conditions imposed by the General Assembly for bringing cases to the appellate courts.” Fife v. Johnston, 225 Ga. 447 (169 SE2d 167) (1969). “The provisions of the law respecting the procedure to be followed in perfecting appeals to this court are jurisdictional, and unless this court has jurisdiction of a case, it is without power or authority to render a judgment upon review.” Spivey v. Nalley, 212 Ga. 810 (96 SE2d 260) (1957).

Compliance with the jurisdictional time limits are strictly enforced even in criminal cases. Rowland v. State, supra. Since compliance with jurisdictional time limits is as imperative in habeas cases as in the context of an appeal from the underlying criminal conviction itself, we have declined to accord habeas cases special treatment with respect to time requirements in appellate procedural statutes. Patterson v. Earp, supra. Indeed, this Court has held that, if the notice of appeal required by OCGA § 9-14-52 (b) is untimely, then the merits of the appeal cannot be reached. Donnelly v. Stynchcombe, 246 Ga. 118 (269 SE2d 10) (1980). See also Curry v. Hopper, 234 Ga. 642 (217 SE2d 155) (1975). In other jurisdictions as well, the necessary steps to obtain a review of habeas corpus proceedings must ordinarily “be taken within the prescribed time.” 39A CJS, Habeas Corpus, § 244 (b), p. 276.

The Constitutions of Georgia and the United States guarantee that the privilege of applying for the writ of habeas corpus shall not be suspended except in the specified extraordinary circumstances. However, this guarantee obviously has no applicability here, since the constitutional enforcement of applicable appellate procedures against an unsuccessful petitioner does not constitute a “suspension” of the writ. It is for that reason that, in the federal system, the Supreme Court of the United States has specifically held that compliance with the statutes and rules providing applicable time limits for seeking appellate review of a final habeas order is “mandatory and jurisdictional,” in the absence of which no appeal can be considered on the merits. Browder v. Director, Dept. of Corrections of III., 434 U. S. 257, 271-272 (II) (B) (98 SC 556, 54 LE2d 521) (1978). See also Coleman v. Thompson, 501 U. S. 722, 751 (IV) (111 SC 2546, 115 LE2d 640) (1991). Certainly, nothing in either the Georgia Constitution or the Constitution of the United States guarantees the right of a petitioner to appeal from an adverse order in a habeas corpus proceeding, notwithstanding his failure to comply the jurisdictional requirements for invoking appellate jurisdiction. The right to appeal has a statutory, not a constitutional, origin. State v. Smith, supra. Under the Sixth Amendment to the United States Constitution and Article I, Section I, Paragraph XI of the Georgia Constitution, a criminal defendant has the right to a trial by jury. However, enforcement of OCGA § 9-14-52 no more constitutes a suspension of the writ of habeas corpus than the enforcement of comparable jurisdictional statutes against a criminal appellant constitutes a violation of his constitutional right to trial by jury. See Rowland v. State, supra. Likewise, the fact that Fullwood represents himself is immaterial. Habeas corpus is a civil remedy, and the constitutional right to counsel extends only through the direct appeal of a criminal conviction. Gibson v. Turpin, 270 Ga. 855 (1) (513 SE2d 186) (1999); Paino v. State, 263 Ga. 331 (435 SE2d 24) (1993). Thus, Fullwood’s status is no different from any other appellant who is entitled to retain legal representation, but who has no constitutional right to counsel. We do not ignore jurisdictional statutes in cases wherein the appellant has chosen, for whatever reason, to proceed pro se. Because nothing in OCGA § 9-14-52 excuses compliance by a pro se petitioner with all of the requirements for invoking this Court’s jurisdiction over an appeal from an adverse order, this Court is not free to rely upon the fact that Fullwood acts as his own legal representative as the basis for holding that those requirements are merely directory rather than jurisdictional.

The distinction between the “legislative and judicial function is that the former sets up rights or inhibitions, usually general in character; while the latter interprets, applies, and enforces existing law as related to subsequent acts of persons amenable thereto.” South View Cemetery Assn. v. Hailey, 199 Ga. 478, 480 (3) (34 SE2d 863) (1945). “ £[T]he universal rule of our system — indeed of the English system of government, and of other systems which approximate to free government — . . .is [that] the courts declare what the law is, the legislature declares what the law shall be.’ ” (Emphasis in original.) McCutcheon v. Smith, 199 Ga. 685, 691 (2) (35 SE2d 144) (1945). Thus, under the separation of powers doctrine, every court has the constitutional obligation to interpret, apply and enforce the existing laws, including those which govern the exercise of its jurisdiction. Moreover, under Article VI, Section VI, Paragraph VI of the Georgia Constitution, this Court exercises paramount authority over the judicial branch of government and, thus, it has an especially important responsibility to set the proper example for this state’s judiciary by complying with all applicable statutes which establish the procedures for invoking its jurisdiction. The “Privilege of the Writ of Habeas Corpus” may not be suspended, but the unsuccessful habeas petitioner should have no greater constitutional right to have his appeal decided on the merits than the appellant in any other case which is appealable to this Court. Certainly, there is no reason to conclude that the General Assembly has less respect for habeas corpus than do the members of this Court. The General Assembly, as well as this Court, has a role to play in this state’s government, including the enactment of statutes providing for the privilege of its citizens to seek habeas corpus relief. In its legislative capacity, the General Assembly is authorized to enact laws placing conditions on the right to appeal the denial of issuance of a writ of habeas corpus and such laws must be enforced uniformly by the judiciary.

Under subsection (a) of OCGA § 9-14-52, “no appeal shall be allowed” by an unsuccessful habeas applicant unless this Court has issued a certificate of probable cause, and subsection (b) of that statute clearly states that the unsuccessful habeas petitioner “must file a written” application for that certificate within the specified 30-day period. Even after being informed of his right to appeal the denial of habeas relief, Fullwood did not perfect an appeal in a timely manner. See Henderson v. State, 265 Ga. 317, 318 (2) (454 SE2d 458) (1995) (30-day time limit of OCGA § 5-6-38 (a)). Although a timely application incorrectly filed in the Court of Appeals would have been properly transferred to this Court, Fullwood failed to file the requisite application for a certificate of probable cause in either appellate court within the time provided by law. The subsequent untimely filing of Fullwood’s application in this Court did not satisfy the statutory requirements based on the concept of substantial compliance, because an appellate court, having no jurisdiction from the outset, cannot perfect an appellant’s belated attempt to invest it with jurisdiction. Interstate Fire Ins. Co. v. Chattam, 222 Ga. 436 (150 SE2d 618) (1966). This Court has always refused to sanction a practice which requires that it ignore jurisdictional statutes and abandon its role as disinterested decision-maker. Rowland v. State, supra at 874 (1). Certainly, we must take into account the history of the writ of habeas corpus, the realities of habeas corpus litigation, and the possible constitutional implications of strict enforcement of OCGA § 9-14-52 (b). In doing so, however, we likewise are compelled to give proper consideration to the controlling principles of separation of powers and stare decisis. This Court has a constitutional obligation to enforce OCGA § 9-14-52 (b) according to its terms, and for it to do so is not “ ‘artificially to elevate procedural rulings over substantive adjudications in post-conviction review. . . .’” Wilkes, State Postconviction Remedies and Relief, p. 112 (1996). There is nothing artificial in judicial deference to the constitutional authority of the General Assembly to enact legislation. The constitutional principle of separation of powers is intended to protect the citizens of this state from the tyranny of the judiciary, insuring that the authority to enact the laws will be exercised only by those representatives duly elected to serve as legislators. The General Assembly “being the sovereign power in the State, while acting within the pale of its constitutional competency, it is the province of the Courts to interpret its mandates, and their duty to obey them, however absurd and unreasonable they may appear.” Flint River Steamboat Co. v. Foster, 5 Ga. 194 (2) (1848). Moreover, under any other interpretation of OCGA § 9-14-52 (b), Fullwood would be entitled to a decision on the merits, even though only a few weeks ago we unanimously reached the contrary conclusion in Smith v. Nichols, supra. Accordingly, the constitutional doctrine of separation of powers and the principle of stare decisis, as previously recognized and consistently applied by this Court, compel the conclusion that, this “appeal not being authorized, we have no choice but to dismiss it.” Fife v. Johnston, supra at 447.

Appeal dismissed.

All the Justices concur, except Benham, C. J., Fletcher, P. J, and Sears, J., who dissent.