Capote v. Ray , 276 Ga. 1 ( 2002 )

Sears, Presiding Justice.

In 1984, appellant Inocente Capote pled guilty to trafficking in cocaine in Fulton County Superior Court, and received a sentence of ten years in prison, with six years to serve. In 1993, appellant was found guilty in United States District Court of a federal drug offense. Relying in part on the 1984 Fulton County conviction, the District Court gave appellant an enhanced sentence of life in prison. Appellant is currently incarcerated in a federal prison in South Carolina. Proceeding pro se, appellant filed an application for habeas corpus relief challenging his 1984 Fulton County conviction as having adverse collateral consequences on his current situation. Appellant filed his habeas corpus application in Fulton County, the site of his 1984 sentencing. He styled his application as being against Mickey Ray, the Warden of the federal prison in South Carolina where appellant is currently being held. Appellant’s application for habeas corpus relief was styled as being brought against only Warden Ray. However, appellant simultaneously filed a memorandum of law in support of his application, and the memorandum’s style showed the action as being brought against both the State of Georgia and Warden Ray. Despite this, the request for habeas relief was filed by the superior court as being brought against only Warden Ray, as styled in appellant’s application. On the motion of the United States Attorney, the habeas court dismissed the action because it lacked jurisdiction over Warden Ray.

This Court granted a certificate of probable cause in order: (1) to determine whether the habeas court’s dismissal was correct; (2) to delineate the filing procedure to be followed by a petitioner serving a federal sentence in a state other than Georgia who seeks to challenge the validity of a Georgia conviction; (3) to identify the proper defendant or defendants in such an action; and (4) to clarify the proper method of service in such an action.

1. It is this Court’s duty to raise and resolve questions pertaining to our jurisdiction whenever there is any doubt concerning whether such jurisdiction exists.¹ Relying upon Fullwood v. Sivley² and similar cases, the dissent urges that we have no jurisdiction in this case because, although appellant filed a notice of appeal, he failed to file an application for a certificate of probable cause to appeal. Our ruling in Hicks v. Scott,³ however, holds that before a habeas appeal will be treated as being subject to dismissal for procedural irregularities, it must be established that the petitioner was informed of the proper appellate procedure. Hicks holds that Fullwood-type cases are distinguishable from any case in which a habeas petitioner is not informed of the proper procedure for obtaining appellate review of an unfavorable ruling. The decision in Hicks is applicable regardless of the procedural defect in a habeas petitioner’s filings with this Court.

In the present appeal, it being undisputed that appellant was not informed of the proper appellate procedure, this appeal is not subject to dismissal under Fullwood, notwithstanding appellant’s failure to file an application for a certificate of probable cause with this Court.

2. Appellant correctly filed his application for habeas relief from his 1984 sentence in the Superior Court of Fulton County, the site of his 1984 conviction and sentencing.⁴ When an inmate is incarcerated in a federal prison in Georgia, venue for any habeas action brought by that inmate against the State is properly laid in the superior court for the county in which the inmate is being held by federal authorities.^{5 6}Appellant, however, is being held in a federal prison in South Carolina, not Georgia. When a habeas petitioner who is being held in a federal prison outside of Georgia seeks to attack a Georgia conviction and resulting sentence, venue is properly laid in the Georgia county in which the petitioner was sentenced.⁶ It follows that appellant properly filed his habeas petition in Fulton County.

3. Appellant incorrectly styled his application for habeas relief as being brought against Warden Ray of South Carolina. Because the Warden is beyond the jurisdiction of the Fulton County Superior Court, the habeas court dismissed appellant’s action. However, under the peculiar facts of this case, we believe that rather than dismissing the application, the habeas court would have better exercised its discretion by simply joining the State as a proper respondent.

When a habeas petitioner who seeks to challenge a Georgia conviction is not incarcerated by the Georgia Department of Corrections, his habeas corpus petition should be filed against the State of Georgia.⁷ It follows that the proper respondent for appellant’s petition was not Warden Ray, but rather the State of Georgia, and appellant should have named the State of Georgia as the respondent in his application for habeas corpus.

As discussed above, though, when filing his application for relief, appellant simultaneously filed a memorandum of law that was captioned with a style showing his action as being brought against both the State of Georgia and Warden Ray. It is obvious, then, that appellant, who was proceeding pro se, intended to file his action against both the Warden and the State. In fact, appellant’s application for habeas relief was served on the Georgia Attorney General and his memorandum of law was served upon the Georgia Attorney General and the Fulton County District Attorney, thereby providing the State with notice.⁸ Under these circumstances, we believe that appellant’s failure to join the State of Georgia as a respondent to his petition was caused by a misnomer, “an error in naming a person or a place in a legal document.”⁹

“The name given to the petition by appellant is not binding on him.”¹⁰ Furthermore, under OCGA § 9-11-21, misjoinder or nonjoinder of parties due to the misnomer of a party properly served “is not ground for dismissal of an action.”¹¹ Where misjoinder or nonjoinder exists, “[p]arties may be dropped or added by order of the court on ... its own initiative at any stage of the action and on such terms as are just.”¹² Failure to name a proper party or parties is an amendable defect,¹³ and the trial court has discretion to act under § 9-11-21¹⁴ and make relief available to a plaintiff who has sued too few individuals or entities.¹⁵ “Ordinarily, it is error to dismiss a petition ... for failure to join an indispensable party.”¹⁶ Rather, the party “should be joined ... so the case can be considered on [the] merits.”¹⁷

Based upon these principles and under the facts of this particular matter, we believe the habeas court should not have dismissed appellant’s petition due to the lack of jurisdiction over Warden Ray. We believe the better exercise of the habeas court’s discretion would have been to correct appellant’s error in failing to join the State of Georgia as respondent to his application, as he did in his memorandum of law. The habeas court then could have released the Warden due to lack of jurisdiction over him, thereby leaving the State of Georgia as the sole, and proper, respondent to appellant’s action. Accordingly, we remand this matter to the habeas court for further proceedings.

4. Appellant correctly served his application for habeas corpus on Warden Ray, and on the Clerk of the Superior Court of Fulton County. Appellant incorrectly served his application on the Attorney General of Georgia rather than the Fulton County District Attorney.

OCGA § 9-14-45 provides that:

Service of a [habeas] petition . . . shall be made upon the person having custody of the petitioner. If the petitioner is being detained under the custody of the [Georgia] Department of Corrections, an additional copy of the petition shall be served on the Attorney General. If the petitioner is being detained under the custody of some authority other than the [Georgia] Department of Corrections, an additional copy of the petition shall be served upon the district attorney of the county in which the petition is filed. Service upon the Attorney General or the district attorney may be had by mailing a copy of the petition and a proper certificate of service.

Accordingly, because this Code section requires that inmates serve a copy of their habeas petitions upon the person having custody of them, appellant properly served his petition in this case on Warden Ray, notwithstanding the fact that Warden Ray was not a proper party to the action. However, because appellant is being held by federal authorities, he is being held “under the custody of some authority other than the [Georgia] Department of Corrections.”¹⁸ Therefore, under OCGA § 9-14-45, he should have served a copy of his petition . on the district attorney of the county in which the petition was filed, Fulton County. Petitioner mistakenly served his petition on the Georgia Attorney General, which is proper only with regard to petitions filed by inmates being held by the Georgia Department of Corrections.¹⁹

As appellant’s improper service had no bearing on the habeas court’s dismissal of this action, he may make proper service on the Fulton County District Attorney in conjunction with the remand of this case to the habeas court. As stated in OCGA § 9-14-45, such service may be made by regular mail.

5. The dissent urges that the habeas court lacks subject matter jurisdiction over this matter because Capote seeks to challenge an expired 1984 state court conviction that was used to enhance his current federal sentence.²⁰ Not only is the dissent’s argument beyond the scope of this Court’s inquiry in this granted petition, it also is based upon an erroneous reading of United States Supreme Court precedent and fails to consider relevant Eleventh Circuit precedent that states the exact opposite.

This Court granted this habeas corpus petition in order to determine:

What procedure should be followed by a petitioner who is serving a federal sentence in a state other than Georgia and who wants to challenge the validity of a Georgia conviction that was used to enhance his federal sentence, with particular emphasis on who are the proper defendants and how should they be served?

The issue of whether Capote may challenge the expired state court conviction used to enhance his federal sentence is outside the limited scope of the discretionary grant of review in this matter. Therefore, the dissent is unauthorized to address it.²¹

Furthermore, the dissent is wrong when it urges that the United States Supreme Court’s decision in Maleng v. Cook²² supports its position that because the state conviction used to enhance Capote’s federal sentence has expired, the habeas court lacks subject matter jurisdiction over Capote’s petition. In Maleng, the United States Supreme Court held that the habeas petitioner must be “in custody” (either actually imprisoned or on parole) in order to challenge a sentence on habeas corpus grounds. In construing the definition of “in custody” under Maleng, the Eleventh Circuit has noted that the Supreme Court’s opinion “did not directly rule on the question of whether a petitioner could challenge the enhancement of his current sentence by an allegedly invalid prior sentence.”²³ Therefore, the Eleventh Circuit, as well as other federal courts, has ruled that Maleng does not affect the validity of binding precedent that allows attack on a prior expired conviction used to enhance a current sentence.²⁴

Additionally, the Eleventh Circuit has ruled that the dissent’s argument (that the habeas court may not address the validity of expired convictions used to enhance current sentences) is based upon “a distinction without a difference.”²⁵ Even in cases where the sentence used for enhancement has expired, “the reality is that [the petitioner] is . . . ‘in custody’ as a result of a prior and alleged illegal conviction.”²⁶ Therefore, federal precedent is clear that “a habeas petitioner may challenge a fully expired prior conviction if he is currently incarcerated as a result of a current sentence that was enhanced by his prior conviction.”²⁷ Insofar as the dissent seems eager to follow federal precedent in these matters,²⁸ it should rethink its position in light of the Eleventh Circuit cases discussed above.²⁹

In the end, however, while this Court has sometimes referenced federal case law in resolving whether a habeas petitioner’s liberty can be restrained by a prior, expired conviction used to enhance a current sentence, Georgia’s Civil Code “provides the exclusive procedure” for providing habeas corpus relief to those “whose liberty is being restrained by virtue of a sentence imposed against them by a state court of record.”³⁰ In interpreting this provision, we have clearly held that one’s liberty may be restrained by a prior, expired conviction used to enhance a current sentence, and that in such a situation, habeas corpus relief may be sought pursuant to OCGA § 9-14-41.³¹ We see no need to depart from this precedent now.

6. In summation, a habeas petitioner such as appellant who is being held by federal authorities in a prison outside of Georgia and seeks to attack a Georgia conviction should file his application for habeas relief in the Georgia county in which he was sentenced. The application for relief should be brought (i.e., styled as) against the State of Georgia and should be served on both the person having custody of the petitioner and on the district attorney for the county in which the petition is filed. Such service may be made by regular United States mail.

Judgment reversed and case remanded.

All the Justices concur, except Hunstein, J., who concurs in Divisions 1, 2, 4, 5, and in the judgment, and Carley, Thompson and Hines, JJ, who dissent.

1 Redfearn v. Huntcliffe Homes Assn., 271 Ga. 745, 746 (524 SE2d 464) (1999).

2 271 Ga. 248 (517 SE2d 511) (1999).

3 273 Ga. 358 (541 SE2d 27) (2001).

4 Contrary to the State’s argument, the fact that appellant’s 1984 sentence has expired does not, standing alone, render his petition attacking the 1984 conviction moot. Parris v. State, 232 Ga. 687, 689-690 (208 SE2d 493) (1974); Carafas v. LaVallee, 391 U. S. 234, 237 (88 SC 1556, 20 LE2d 554) (1968).

5 OCGA § 9-14-43; Hicks, 273 Ga. at 359.

6 Callahan v. State, 235 Ga. 359, 360 (219 SE2d 717) (1975); Craig v. State, 234 Ga. 398, 399 (216 SE2d 296) (1975).

7 Callahan, 235 Ga. at 360 (where a Georgia sentence was being attacked in a habeas petition filed in the Georgia county of sentencing, and the petitioner was an inmate in a Tennessee prison, “the State of Georgia is the proper respondent.”); Smith v. State, 234 Ga. 390, 392 (216 SE2d 111) (1975) (a habeas petition seeking to challenge a Georgia conviction brought by someone not imprisoned by Georgia authorities “may be filed against the state”).

8 As explained in Division 4, infra, the Fulton County District Attorney was the proper party for service.

9 Webster’s New World (College) Dictionary (2nd ed.), p. 909.

10 Smith, 234 Ga. at 392.

11 OCGA § 9-11-21. See Young v. Rider, 208 Ga. App. 147, 148 (430 SE2d 117) (1993).

12 Id.

13 Hanson v. Wilson, 257 Ga. 5, 7 (354 SE2d 126) (1987).

14 Cawthorn v. Waco Fire &c. Ins. Co., 259 Ga. 632, 633 (386 SE2d 32) (1989).

15 See Lamas Co. v. Baldwin, 120 Ga. App. 149, 150 (169 SE2d 638) (1969).

16 Dismuke v. Stynchcombe, 237 Ga. 420, 421 (228 SE2d 817) (1976).

17 Id.

18 OCGA § 9-14-45.

19 Id.

20 As noted by the dissent, this issue was not addressed below by either the petitioner or the habeas court.

21 See Franz v. Franz, 268 Ga. 465, 466 (490 SE2d 377) (1997); Grim v. Grim, 268 Ga. 2, 3 (486 SE2d 27) (1997); Brown v. Hall County, 262 Ga. 172, 173 (416 SE2d 90) (1992).

22 490 U. S. 488, 490-491 (109 SC 1923, 104 LE2d 540) (1989).

23 Battle v. Thomas, 923 F2d 165 (11th Cir. 1991).

24 Id.; Fox v. Kelso, 911 F2d 563 (11th Cir. 1990); accord Crank v. Duckworth, 905 F2d 1090, 1091 (7th Cir 1990); Feldman v. Perrill, 902 F2d 1445, 1449 (9th Cir 1990); Gamble v. Parsons, 898 F2d 117, 118 (10th Cir. 1990).

25 White v. Butterworth, 70 F3d 573 (11th Cir. 1995).

26 White, 70 F3d at 574, quoting Harper v. Evans, 941 F2d 1538, 1539 (11th Cir. 1991).

27 Harper, 941 F2d at 1539.

28 See dissenting op. at p. 9.

29 The dissent’s discussion of Lackawanna County District Attorney v. Coss, 532 U. S. 394 (121 SC 1567, 149 LE2d 608) (2001) is not on point, as that opinion concerns federal habeas corpus relief under 28 USC § 2254 for state court sentences enhanced by prior state convictions.

30 OCGA § 9-14-41.

31 Hardison v. Martin, 254 Ga. 719, 721 (334 SE2d 161) (1985). The dissent’s argument that “no Georgia case has ever found significant restraints on a habeas petitioner’s liberty,” dissenting op. at p. 11, under the circumstances of this case is misguided. In Hardison, a “significant restraint” was found where a petitioner’s driver’s license was revoked due to an earlier, expired conviction. 254 Ga. at 721. Surely, then, Capote’s imprisonment is a significant restraint of his liberty. The fact that such restraint, though imposed partly due to a state court conviction, is occurring outside of Georgia is, to quote the Eleventh Circuit, “a distinction without a difference.” White, 70 F3d 573.