GAY v. JACKSON, JUDGE ( 2023 )

NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court
Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the
opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any
prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and
official text of the opinion.
In the Supreme Court of Georgia
Decided: January 18, 2023
S22A1204. GAY v. JACKSON, Judge et al.
PINSON, Justice.
Donovan Gay received a speeding ticket and pleaded not guilty.
While his case was still pending, he filed a pretrial petition for
habeas corpus to challenge pretrial restrictions on his driving
privileges. The habeas court dismissed the petition, and we now
affirm the dismissal. As we recently held in Phillips v. Jackson, 314
Ga. 347 (877 SE2d 185) (2022), pretrial habeas relief under OCGA §
9-14-1 (a) is not available when, as here, the proceedings under
which the petitioner’s liberty is restrained are still pending and he
can seek relief under ordinary established procedures. Because Gay
could have asked (and as far as we can tell from the record, still may
ask) the state court to remove the restrictions in question and could
seek an interlocutory appeal if the court refused, pretrial habeas
relief is not available to him at this time.
1. According to the undisputed evidence in the petition and
record, Gay received a uniform traffic citation for driving 100 miles
per hour in a 60-mile-per-hour zone. When he was cited, he
displayed his driver’s license in lieu of being arrested, jailed, or
ordered to post bond, as OCGA § 17-6-11 (a) (1) allowed. The citation,
which Gay signed, stated that he was ordered to appear in court to
dispose of the charges and warned that his driver’s license would be
suspended if he failed to appear.
Gay appeared in court, pleaded not guilty, and invoked his
right to a jury trial, which meant that the case would be bound over
to state court. Before the case was bound over, the municipal court
ordered Gay to surrender his driver’s license and restricted most of
his driving privileges, finding that he posed a danger to other drivers
in light of his youth (he was 20 years old) and his excessive speeding.
The municipal court characterized this action as a bond
modification. In the court’s view, although Gay was not subject to a
bond in the usual sense, he was subject to a “quasi bond” because
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his license would have been suspended if he had not shown up in
court. The municipal court concluded that it had authority to modify
that “quasi bond.” 1 Gay’s case was then bound over to state court for
adjudication.
Gay filed a petition for habeas corpus, naming as respondents
the municipal court judge and the solicitor general of Atlanta. The
respondents filed a motion to dismiss; Gay did not respond. The
habeas court granted the motion and dismissed the petition on
several threshold grounds, including that the petition was never
properly served on the respondents, that the respondents were not
the proper parties, that the respondents were entitled to immunity,
and that a habeas petition was not the proper vehicle for Gay to
challenge the restriction on his driver’s license because other
remedies were available to him.
2. A person “restrained of his liberty,” but not “under sentence
1In Phillips, which issued after the municipal court here relied on this
“quasi bond” theory, we noted “serious concerns” about similar actions the
municipal court took in that case on the same theory. Phillips, 314 Ga. at 350.
Although we make no decision on the merits of the municipal court’s actions
here, we reiterate those concerns.
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of a state court of record,” “may seek a writ of habeas corpus to
inquire into the legality of the restraint” under OCGA § 9-14-1 (a).
We have said that this provision applies to a “pretrial habeas
petition[]” like the one Gay filed here. Phillips, 314 Ga. at 349. We
have also pointed out that this provision includes an “important
limitation”: habeas relief is not available under OCGA § 9-14-1 (a) if
“the proceedings under which the petitioner’s liberty is restrained
are still pending undisposed of, and the ordinary established
procedure is still available to him.” Id. (quoting Williams v. Reece,
288 Ga. 46, 47 (701 SE2d 188) (2010)) (cleaned up). In other words,
having “another adequate remedy” available in the form of pending
proceedings relieves the need to issue “this high extraordinary writ”
to challenge the legality of the restraint in question. Id. (citation and
punctuation omitted).
Gay’s petition must be dismissed for this reason. We recently
explained why in Phillips, which addressed the claims of a habeas
petitioner in the same posture as Gay. See Phillips, 314 Ga. at 347-
348. There, as here, the petitioner’s case was bound over to state
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court after the municipal court imposed restrictions on his driving
privileges, and the petitioner sought pretrial habeas relief under
OCGA § 9-14-1 (a). See id. at 349. We affirmed the habeas court’s
dismissal, reasoning that the petitioner could have asked the state
court to remove any conditions on the petitioner’s “bond” other than
his appearance in court, see id. (citing OCGA § 17-6-18), and if the
state court declined to do so, the petitioner could have sought an
interlocutory appeal, see id. (citing OCGA § 5-6-34 (a)-(b)). Because
these potential remedies were available to the petitioner when he
sought habeas relief, and it appeared that they remained available
to him at the time of our decision, we held that pretrial habeas relief
was not available. See id. at 350.
This case is on all fours with Phillips. Gay’s case was still
pending when he filed his habeas petition, so he had the same
remedies available for challenging the restrictions on his driving
privileges. 2 And as far as we can tell from the record before us, his
2 The record shows that Gay filed his habeas petition before his case was
officially bound over to state court. But either the municipal court or the state
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case remains pending in state court, and these remedies remain
available to Gay. So, as in Phillips, pretrial habeas relief is not
available to Gay at this time. See Phillips, 314 Ga. at 350; Williams,
288 Ga. at 47.
Judgment affirmed. All the Justices concur.
court had the authority to modify Gay’s “bond.” See OCGA § 17-6-18
(describing availability of bond modification); Georgia Municipal Court Rule
18.4 (“The municipal court has the authority to amend any bail previously
authorized by the municipal court under the provisions of OCGA § 17-6-18.”).
So there is no question that the “ordinary established procedure” for seeking
relief from his bond was available to Gay. See Phillips, 314 Ga. at 349.
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