Thomas v. Caldwell, Warden

873 S.E.2d 215, 313 Ga. 799

• Court: Supreme Court of Georgia
• Decided: May 17, 2022
• Docket: S21H0656, S22A1020
• Status: Published

Opinion

313 Ga. 799 FINAL COPY

S22A1020. THOMAS v. CALDWELL.

WARREN, Justice.

The application for a certificate of probable cause to appeal in

this case presents the question of whether the habeas court properly

dismissed Jerry Thomas’s petition for habeas corpus on the ground

that it was successive under OCGA § 9-14-51. For the reasons that

follow, we conclude that the habeas court erred in dismissing

Thomas’s petition.

Thomas was convicted in 2010 of one count of child

molestation, and the Court of Appeals affirmed his conviction. See

Thomas v. State, 324 Ga. App. 26 (748 SE2d 509) (2013). In 2017,

Thomas timely filed an initial petition for habeas corpus challenging

the conviction. The habeas court denied relief in May 2018. On July

1, 2019, this Court dismissed Thomas’s attempt to appeal from that

denial because both his notice of appeal and application for a certificate of probable cause to appeal were untimely. See OCGA

§ 9-14-52 (b) (stating that “an unsuccessful [habeas] petitioner [who]

desires to appeal . . . must file a written application for a certificate

of probable cause to appeal” with this Court “within 30 days from

the entry of the order denying him relief” and must “file within the

same period a notice of appeal with the clerk of the concerned

superior court”).

Meanwhile, on March 8, 2019, during the pendency of

Thomas’s application for a certificate of probable cause to appeal in

this Court, he filed a motion to correct void sentence in the trial

court. In May 2019, the trial court granted Thomas relief and

entered a new sentence.

In August 2020, Thomas filed a second habeas petition

challenging, among other things, the sentence imposed in the 2019

re-sentencing on several grounds. On December 22, 2020, the

habeas court dismissed Thomas’s second petition as successive,

ruling that the claims raised in that petition “could reasonably have

been raised” in his initial petition in 2017. See OCGA § 9-14-51

2 (stating that any ground for relief not raised by a petitioner in his

initial habeas petition is waived unless the “grounds for relief

asserted therein . . . could not reasonably have been raised” in the

initial petition).

Thomas now appeals the habeas court’s dismissal, arguing that

it was improper because his 2017 habeas petition was filed and

litigated before his 2019 re-sentencing and before he raised issues

related to that re-sentencing in his 2020 habeas petition. After

receiving Thomas’s timely application for a certificate of probable

cause to appeal, this Court directed the Warden to file a response,

and he did. In that response, the Warden acknowledged that “the

factual basis for [Thomas’s] current claims[ ] ar[ose] from the re-

sentencing in May 2019” and thus “did not exist when Thomas

litigated his first habeas case” in 2017 and 2018. The Warden thus

concedes that Thomas could not have raised claims in 2017 and 2018

concerning a re-sentencing that did not happen until 2019, and that

the habeas court therefore erred in dismissing Thomas’s 2020

petition on the ground that it was successive under OCGA § 9-14-

3 51. See Watkins v. Ballinger, 308 Ga. 387, 393 (840 SE2d 378) (2020)

(holding that the habeas court erred in dismissing a second habeas

petition as successive where there was no evidence in the record that

the petitioner’s claims regarding juror misconduct and concealment

of evidence could reasonably have been discovered before and raised

in his original habeas petition). Given the Warden’s concession,

there is no need for additional briefing or argument to resolve the

issue Thomas raises.

Accordingly, we grant Thomas’s application for a certificate of

probable cause to appeal, reverse the habeas court’s judgment, and

remand the case to the habeas court for proceedings consistent with

this opinion.

Application for certificate of probable cause to appeal granted, judgment reversed, and case remanded with direction. All the Justices concur, except Boggs, P. J., disqualified.

4 Decided May 17, 2022.

Habeas corpus. Johnson Superior Court. Before Judge Green.

Jerry M. Thomas, pro se.

Christopher M. Carr, Attorney General, Patricia B. Attaway

Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant

Attorney General; Shepard Plunkett Hamilton & Boudreaux, Daniel

W. Hamilton, for appellee.