Davis v. Thomas , 266 Ga. 835 ( 1996 )

Fletcher, Presiding Justice,

concurring specially.

I agree with the majority’s holding that under the peculiar facts of this case, the habeas court abused its discretion in denying appointed counsel’s motion for continuance.

This case, however, does not present an opportunity to reconsider this Court’s prior holding that Georgia law does not provide a right to appointment of counsel in a death penalty habeas proceeding.⁵ Despite the absence of an absolute right to counsel in such cases, I am persuaded that appointment of competent counsel for an indigent death row inmate’s first habeas challenge is an integral part of ensuring the fundamental fairness of the state’s death penalty procedures and that appointed competent counsel should rarely, if ever, be denied. The Georgia Constitution guarantees the right to seek habeas relief.⁶ Without competent counsel, this is an empty right for a death row inmate who lacks access to legal materials and effective investigation and often lacks the training to understand the complex jurisprudence of the death penalty. Additionally, without competent counsel, an indigent inmate will find the newly enacted time restraints on state habeas actions impossible to meet.⁷

In the two decades following Gregg v. Georgia,⁸ this state and many others have made active use of the availability of the death penalty. Yet, the state and federal courts continue to struggle with the complex issues arising in these cases in both the direct appeal and the habeas corpus context. Therefore, it is inconceivable that anyone continues to believe that competent counsel is not necessary “to assure a fair and meaningful habeas corpus hearing” in a death penalty case.

The stated legislative intent of Georgia’s Habeas Corpus Act was to expand the scope of state habeas corpus in order to strengthen “state courts as instruments for the vindication of constitutional rights.”⁹ Anything that tends to defeat this legislative intent is a step in the wrong direction. The federal courts have recognized the soundness of the statutory structure.¹⁰ It rightfully retains initial responsibility where it belongs by allowing state courts to fully develop the evidentiary facts. A full and fair state evidentiary hearing will speed subsequent federal habeas review by dispensing with the necessity of an additional evidentiary hearing. This aids the state’s goal of a more efficient process. I cannot agree with the dissent’s rigid and technical approach, as it will only impede that goal.

I am authorized to state that Justice Sears joins in this special concurrence.

5 See State v. Davis, 246 Ga. 200 (269 SE2d 461) (1980), cert. denied, 449 U. S. 1057 (101 SC 631, 66 LE2d 511) (1980); see also Murray v. Giarratano, 492 U. S. 1, 10 (109 SC 2765, 106 LE2d 1) (1989) (neither Eighth Amendment nor due process requires states to appoint counsel for indigent death row inmates seeking state post-conviction relief).

6 Ga. Const., Art. I, Sec. I, Par. XV.

7 See Uniform Superior Court Rule 44.

8 428 U. S. 153 (96 SC 2909, 49 LE2d 859) (1976).

9 OCGA § 9-14-40.

10 Peters v. Rutledge, 397 F2d 731, 737 (5th Cir. 1968).