Crosson v. Conway

Hunstein, Presiding Justice,

concurring in part and dissenting in part.

More than a decade ago, this Court adopted a rule that requires trial courts in habeas corpus cases to inform pro se prisoners of the procedure required to appeal the denial of their post-conviction habeas corpus petition. Hicks v. Scott, 273 Ga. 358 (541 SE2d 27) (2001). Under Hicks, a habeas application is not subject to dismissal for a procedural defect unless the pro se petitioner is informed of the proper appellate procedure. Capote v. Ray, 276 Ga. 1, 2 (577 SE2d 755) (2002). As a result of Hicks, habeas courts now routinely inform petitioners that they may seek appellate review by filing a written application for a certificate of probable cause to appeal with the Clerk of this Court within 30 days from the date of the trial court order. Because this court-made rule is fair and easy to administer, I dissent from Division 2.

Under our inherent rule-making power, this Court has adopted a mailbox rule that treats a pro se prisoner’s document as filed on the date it is delivered to prison officials. Ga. Supreme Court Rule 13 (3) (adopted Nov. 21, 2011); see also Massaline v. Williams, 274 Ga. 552, 552 (554 SE2d 720) (2001) (adopting a mailbox rule for pro se prisoners seeking appellate review of their habeas corpus petitions). The rationale for this rule is that unrepresented prisoners face unique obstacles in seeking to appeal; their inability to monitor or personally deliver their appellate filings prevents them from ensuring the timely delivery of necessary documents to the clerk’s office. See id. at 553 (citing Houston v. Lack, 487 U. S. 266, 270-271 (108 SC 2379, 101 LE2d 245) (1988)).

Decided June 18, 2012. Maureen C. Crosson, pro se. Daniel J. Porter, District Attorney, Teresa B. Klein, Assistant District Attorney, for appellee. J. David Miller, District Attorney, Samuel S. Olens, Attorney General, Mary Beth Westmoreland, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, GaryD. Bergman, amici curiae.

Like the mailbox rule, our rule in Hicks acknowledges that pro se prisoners suffer inherent disadvantages in representing themselves before this Court. They have no constitutional or statutory right to counsel in Georgia habeas corpus proceedings, and the State does not provide them state-funded habeas counsel. Gibson v. Turpin, 270 Ga. 855, 857 (513 SE2d 186) (1999). Moreover, they often lack adequate legal materials in prison and do not have access to the many free law-related websites now available on the Internet. See Benjamin R. Dryden, Note, Technological Leaps and Bounds: Pro Se Prisoner Litigation in the Internet Age, 10 U. Pa. J. Const. L. 819 (2008). This inequality persuades me that this Court should continue to allow pro se prisoners a narrow exception to the time limit for the filing of applications for probable cause in this Court. See Bowles v. Russell, 551 U. S. 205 (127 SC 2360, 168 LE2d 96) (2007) (Souter, J., dissenting) (Court has authority to recognize equitable exception to statute’s 14-day limit); see also Fullwood v. Sivley, 271 Ga. 248, 255 (517 SE2d 511) (1999) (Benham, C. J., dissenting) (pro se habeas corpus petitioner’s substantial compliance with 30-day requirement for filing notice of application and habeas application sufficient to initiate appeal from adverse judgment).

Even though the majority today overrules Hicks v. Scott, 1 encourage trial courts to continue their current practice of advising habeas petitioners on the proper procedure for filing an appeal. It is the better practice, easily implemented, and the fair thing to do.

I am authorized to state that Justice Benham and Justice Thompson join in this dissent.