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Supreme Court of Georgia.

Marlon ELLIS v. Edward PHILBIN, Warden.

No. S22H1172

Decided: May 16, 2023

Marlon Ellis, GDC# 962886, 3001 Gordon Highway, Grovetown, Georgia 30813, for Appellant. Patricia B. Attaway Burton, Deputy Attorney General, Paula Khristian Smith, Senior Assistant Attorney General, Christopher M. Carr, Attorney General, Department of Law, 40 Capitol Square, S.W., Atlanta, Georgia 30334, Daniel Whitener Hamilton, Plunkett, Hamilton, Manton & Graves, LLP, 429 Walker Street, Upper Level, Augusta, Georgia 30901, for Appellee.

Upon consideration of the application for certificate of probable cause to appeal the denial of habeas corpus, it is ordered that it be hereby denied.

Because I believe that the Court should grant the application for a certificate of probable cause, vacate the dismissal of Marlon Ellis's habeas petition, and remand for a hearing on the merits, I respectfully dissent from the denial of Ellis's application for a certificate of probable cause.

Following a jury trial in October 2012, Ellis was found guilty of aggravated sexual battery, child molestation, and sexual battery. It appears that Ellis timely moved for a new trial following his convictions, which motion was denied, and that Ellis then filed a timely notice of appeal. The Court of Appeals subsequently affirmed in a per curiam opinion in September 2016.

While his motion for new trial was pending, however, Ellis filed a pro se habeas petition in June 2013.1 The habeas court dismissed the petition based on res judicata and lack of exhaustion and did not consider the merits. Even though it appears that Ellis had a motion for new trial pending in his direct appeal, the habeas court found that “Ellis's claims are also procedurally defaulted because he failed to directly appeal his conviction.” It does not appear that Ellis attempted to appeal this dismissal.

In 2019, Ellis filed a second habeas petition, also pro se. At the hearing on the second habeas petition, the State and the habeas court recognized that there was a direct appeal that was decided after the first habeas petition was dismissed, but no one addressed the question of whether the first habeas petition was premature. After the habeas court dismissed the second habeas petition as successive, as urged by the State, and without considering the merits of the petition, this appeal followed.

It has been established that “a person cannot institute a petition for habeas corpus until the conviction is final.” Stubbs v. Hall, 308 Ga. 354, 359 (3) (b) n.7, 840 S.E.2d 407 (2020) (citation and punctuation omitted). Although there is no case directly on point, because a habeas court is required to dismiss a habeas petition that is premature, rather than rule on its merits, it follows that the petitioner in a habeas case that has been filed prematurely cannot reasonably raise a ground for relief in that petition within the meaning of OCGA § 9-14-51,2 such that the habeas court's dismissal of the second petition as successive was in error.

Despite this clear error, which is made even more egregious by the recognition by the State and the habeas court that the first habeas petition was dismissed even though the direct appeal had not been decided (an issue that the State and habeas court then ignored), the Court has now determined to deny Ellis's application for a certificate of probable cause without any court having reviewed the merits of Ellis's claims on habeas even though he has twice attempted to assert them.3 For these reasons, I would grant the application for a certificate of probable cause, vacate the dismissal of Ellis's habeas petition, and remand for the habeas court to conduct a review of Ellis's claims on the merits.4


1.   Unlike a direct appeal, an indigent criminal defendant is not entitled to appointed counsel in a habeas proceeding. See Gibson v. Turpin, 270 Ga. 855, 857, 513 S.E.2d 186 (1999).

2.   This statute provides:All grounds for relief claimed by a petitioner for a writ of habeas corpus shall be raised by a petitioner in his original or amended petition. Any grounds not so raised are waived unless the Constitution of the United States or of this state otherwise requires or unless any judge to whom the petition is assigned, on considering a subsequent petition, finds grounds for relief asserted therein which could not reasonably have been raised in the original or amended petition.OCGA § 9-14-51 (emphasis supplied).

3.   I recognize that Ellis does not specifically allege in his application that the habeas court erred in dismissing his second petition as successive. However, he has repeatedly sought a ruling on the merits of his claims in both the habeas court and this Court. For these reasons, I would construe his arguments as disagreeing with the habeas court's dismissal and seeking a ruling on the merits. See Lucas v. Walker, 287 Ga. 864, 865 (1), 700 S.E.2d 596 (2010) (observing that, although petitioner's application for certificate of probable cause did not allege that the habeas court erred in dismissing his petition as successive without a hearing, the petitioner had also submitted a motion to file a direct appeal in which he did assert that claim and in liberally construing the filings together, concluding that petitioner properly raised the issue).

4.   If the habeas court denies Ellis's petition, Ellis will then have an opportunity to file a notice of appeal in the habeas court and an application for a certificate of probable cause in this Court for us to determine whether he has presented an issue of arguable merit. See Supreme Court Rule 36 (“A certificate of probable cause to appeal a final judgment in a habeas corpus case involving a criminal conviction will be issued where there is arguable merit, provided there has been compliance with OCGA § 9-14-52 (b).”); Redmon v. Johnson, 302 Ga. 763, 765 (2), 809 S.E.2d 468 (2018) (“It is important to understand what ‘arguable merit’ means in this context: it means that the petitioner has a fair probability of ultimately prevailing in his case by obtaining habeas relief.”).

All the Justices concur, except McMillian and Colvin, JJ., who dissent. Boggs, C. J., disqualified.

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Docket No: No. S22H1172

Decided: May 16, 2023

Court: Supreme Court of Georgia.

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